Circuit Judge Chris France this morning issued an order denying a motion to nullify the Palm Coast City Council’s referendum that, if approved, would remove limits on the city’s borrowing and leasing authority.
The decision is a victory for the City Council, sharply divided though it is about it and pyrrhic though the victory may end up being, if the referendum fails and sours voters on a subsequent attempt to pass one with less controversy and more clarity.
“Judge France’s Order is pragmatic and supported by binding law,” City Council member Theresa Pontieri said this morning. “The Charter Amendment language explicitly states a vote in favor would remove a specific provision of the City Charter, and there is an onus on voters to inform themselves of items they may not have full knowledge of prior to voting. While the language may not be perfect, perfection is not the legal standard. The Judge got this right.”
Almost 67 percent of Flagler County’s registered voters have already cast a ballot. Alan Lowe, the former candidate for mayor who filed the lawsuit to stop the city’s referendum, had sought to invalidate the tally on the ballot question, or to not have it counted, as would have been possible had the judge ruled in his favor.
France did not address the merits of the ballot question, only whether the phrasing of the question was proper under the law, which requires referendum language to be clear and unambiguous, and whether it fairly informs voters, without misleading them. He found it valid on all counts.
“The title accurately directs an interested voter to that part of the city governance function (contracting authority) that is at issue,” France wrote. “The summary clearly directs an interested voter directly to the actual chapter of the charter at issue— provision (3)(e). ”
That’s the provision of the current charter the council wants to remove. The provision requires the city to hold a referendum whenever it seeks to enter into leases of more than three years or borrow more than $15 million. The restriction does not apply to proprietary funds, or self-supporting funds, such as the utility or the stormwater fund, which may (and do) borrow without limits.
“Likewise,” the judge’s order continued, “the summary states the main purpose of the Ordinance as clearly— that being the removal of provision (3)(e). Following the simple language used utilizing common meanings from the term ‘update’ in the title to the phrase ‘amend by removing’ to the inclusion of provision (3)(e), the ballot description is clear and unambiguous as to the purpose and effect of the Ordinance.”
Had the lawsuit been successful, the judge would have had to find the ballot language and its title to be “clearly and conclusively defective.” France wrote that it was purely a question of law.
“As for language that is alleged to be misleading, that language is in fact accurate,” France wrote. Lawyers for Lowe had argued that the language “hid the ball,” or dissimulated the true purpose of the proposed change by not explicitly stating that borrowing limits would be removed, and by clouding the proposal in extraneous language.
The judge agreed that “Some of the wording is arguably surplusage” (a word almost exclusively used by lawyers or judges), “but is in no way misleading to the voter. The consideration left to an informed voter is inescapable: ‘Do I want to empower the city commission further to contract without that existing limitations?’”
France agreed with GrayRobinson attorney Rachael Crews, who represented the city, and one of her central points when she made her case in a hearing last Friday: that the ballot language isn’t the sum total of what a voter is expected to read before voting, but the summary of what a voter is expected to have studied and understood before entering the voting booth. “Voters are empowered by the ballot description to become informed voters, which is an inherent responsibility of a voter in this situation as referenced in caselaw cited by the parties,” France wrote. “The summary directs an interested voter towards the proper section without distraction.”
France then did something unexpected in his order: he revealed that during the hearing, he’d done an “unsophisticated Google search” for the Palm Coast Charter, found a pdf of the charter (the pdf FlaglerLive uploaded years ago, as it turns out, and not an updated version of the charter, though those updates have been minor and do not affect the relevant portion of the charter in question), and found the section in play: 3(e), which states: “Limitations to Council’s Contracting Authority– Unless authorized by the electors of the City at a duly held referendum election, the Council shall not enter into lease purchase contracts or any other unfunded multiyear contracts, the repayment of which: extends in excess of 36 months; or exceeds $15,000,000.00.”
“Thus,” France wrote, “the reference within the description to this provision is accurate and most relevant, as is the effect of the removal of those limitations as announced is the summary.”
“While I believe that placing this issue on the ballot was the right move,” Mayor David Alfin said in a statement, “I deeply respect the concerns and dedication of all our residents. Our community’s active involvement in local government demonstrates a powerful commitment to ensuring Palm Coast remains a place where all voices are heard and respected.”
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