The Save Our Library WP PAC has filed two motions with Orange County Circuit Court requesting a rehearing of the library bond validation suit and asking Judge Margaret Schreiber to amend her Final Judgment, issued December 7, 2016.
PAC Wants to Present New Evidence
The request for rehearing is to present evidence, not presented at the hearing on October 20, 2016, that contradicts the City’s position that the new library-event center complex can only be built in Martin Luther King, Jr., (MLK) Park.
Memory Jog for City Manager
The evidence in question is video of City Manager Randy Knight speaking April 21, 2016 at a public meeting about the library. In the video, Knight states that the library could be built in a location other than MLK Park. At the October court hearing, Knight testified that he could not recall whether or not he had made that statement at the April meeting.
PAC Asks Judge to Strike 3 Paragraphs
The motion to amend the Final Judgment asks the Judge to eliminate paragraphs #26, #34 and #35 of the Final Judgement. Click Here to read Final Judgment.
Paragraph #26 refers to the PAC’s petition as a “reconsideration of the Bond Ordinance,” and states that the petition is now barred because it failed to meet a 30-day deadline for filing.
‘Reasonable Voter’ Paragraph Questioned
Paragraph #34 holds that a reasonable voter, upon reading the bond ordinance, would have understood that the new complex was to be built on the site of the existing Civic Center, and Paragraph #35 states that the MLK site was a matter of public record because of the motion passed at the October 26, 2016 commission meeting.
No Decision Reached in Separate Case
The PAC’s requests are based on a separate action filed in the Ninth Circuit Appellate Division in which they claim their petition is a Citizens’ Initiative and does not seek reconsideration of the bond ordinance. They hold that, because the intended location of the new complex did not appear anywhere on the ballot, the voters did not knowingly vote to locate the complex in MLK Park. They voted only to approve the library bonds.
No One Contested the Bond Validation
“In the bond validation case,” said PAC President Michael Poole, “the judge was asked only to validate the bonds. No one contested that. I do not know how [Judge Schreiber] could also decide on the library location when the location language appeared nowhere on the March 15 ballot. And the decision as to whether our petition constituted a reconsideration of the bond ordinance or not has nothing to do with validating the bonds.”
PAC: Court Lacks Jurisdiction
The PAC’s Motion to Alter or Amend Final Judgment states that paragraphs #26, #34 and #35 refer to, “. . .a collateral issue to the bond validation proceedings and [we] respectfully believe the Court does not have jurisdiction over this issue. The Court is aware that a Writ of Certiorari has been filed with the Ninth Judicial Circuit . . . . This case is pending and specifically addresses [these issues].”
The pending case is before a three-judge panel in the Ninth Circuit Appellate Division. Poole says they do not know when the panel will issue their ruling.
Judge Validates $30 Million Bond for Library in MLK Park
Other Litigation Still Pending
On Wednesday, the City’s plan to build a new library, event center and associated parking structure moved one step closer to Martin Luther King, Jr., Park. Judge Margaret Schreiber’s ruling validating a $30 million bond issue included MLK Park as the new building’s location.
Path to the Park May Have Some Bumps
At least one obstacle remains in the path to the park, however. A related but separate legal action is still pending. The issue involves a petition that seeks to prevent a library from being built in MLK Park, signed by more than 2,000 residents. The Save Our Library WP PAC submitted the petition to the City in July 2016. The PAC contends the petition is a “citizens’ initiative” under Sec. 5.01 of the City Charter. A citizens’ initiative has no deadline. The City asserts the petition is a “referendum” under Sec. 5.02 of the City Charter, and is therefore legally insufficient because it missed the filing deadline for a referendum.
Referendum or Citizens’ Initiative?
The PAC has asked the court to decide the petition question. Their case is moving ahead in the Orange County Circuit Court. It has been assigned to a panel of three circuit court judges — Jennifer Harris, Thomas W. Turner and John Kest.
At this point, no one knows how or if the judges’ ruling in this case will affect the final chapter of the library story. The only certainty is that the case is now before the judges, and the judges will issue a ruling some time in late 2016 or early 2017.
“Quasi-Judicial Tyranny”
In its filing, the PAC rejected the city’s argument that the action requested in their petition would result in the repeal of the bond ordinance. That position, they said, “thwarts the citizens’ democratic ability to legislate by initiative . . . [The Commission’s] decision is a classic example of an act of quasi-judicial tyranny” and violates the citizens’ right to due process.
After-the-Fact Logrolling
The PAC also asserted the new library and the new location are two separate issues, since the site was not mentioned on the March 15 ballot, which passed by a narrow margin. The PAC cited the legal “single-purpose rule,” which states that any proposition going to voters must address a single purpose. “This rule guards against logrolling, a practice of rolling separate issues into a single proposition . . .to obtain approval of what might be a controversial or unpopular vote.”
Any Reasonable Voter
Judge Schreiber disagreed. “Given the overwhelming information about the location of the Project on the site of the existing civic center in MLK Park,” Schreiber states in her Final Judgment, “a reasonable voter in the City could only have understood the Bond Referendum to mean that the new library and events center and related facilities would be built on the site of the current civic center.”
PAC Awaits Decision on Petition
Michael Poole, president of the Save Our Library WP PAC, said of Judge Schreiber’s decision, “The judge’s ruling surprised us, but we are still focused on making sure the citizens have the ability to vote for the location. We are moving forward with our suit.”
No Scheduled Demo for Rachel Murrah Civic Center
Anticipating construction of the new facility, there had been talk at the Commission level of demolishing the existing Rachel Murrah Civic Center in January 2017. Winter Park Director of Communications Clarissa Howard said, however, that the City is in a wait-and-see posture. She confirmed that, at present, there is no schedule for the demolition of the Murrah Civic Center.
The Library/Event Center/Parking Structure issue is still making its way through the tangled maze of the Florida judicial system. On October 20, the hearing regarding validation of up to $30 million in general obligation bonds for the purpose of building the library-event center came before Judge Margaret Schreiber of the Ninth Judicial Circuit.
Despite the array of arguments and the number of lawyers present to make them, at the end of the day, it comes down to one question. What language will the Judge put in her final order?
Bonds Will Be Validated
Since no one opposed validating the bonds, the Judge asked the city’s bond attorney, whose area of expertise this is, to come back to her by November 15 with drafts of two final orders for her signature. Both orders will validate the bonds.
Validation Order May? Or May Not? Include Location
One order will include the language of the location in Martin Luther King, Jr. (MLK) Park. The other will validate the bonds, but will include no language about the location. After she receives the two draft orders November 15, the Judge will decide which order to sign. Either way, the bonds will be validated.
Separate Suit on Petitions Also Pending
Meanwhile, a separate suit, this one filed in the Appellate Division of the Ninth Circuit, seeks to determine whether the petitions submitted to the City by the Save Our Library WP PAC constitute a Referendum or a Citizens’ Initiative.
Are the Petitions a Referendum?
If the appellate judge finds that the petitions are a Referendum, under Sec. 5.02 of the City Charter, then the petitions are not valid and the effort to block the location of the library in MLK Park fails.
Or a Citzens Initiative?
If the judge finds the petitions are a Citizens’ Initiative, under Sec. 5.01 of the City Charter, the petitioners will bring before the Commission an ordinance stating that no library may be built in MLK Park. The Commission must vote on that ordinance. If they pass it, it becomes law that no library may be built in MLK Park.
Final Decision May Be Up to the Voters
If the Commission does not pass the ordinance, then the ordinance will go on a ballot and it will be up to the registered voters in Winter Park to decide whether the ordinance passes or fails. In both cases, only a simple majority is required.
At this point, it is unclear how the outcome of one lawsuit will affect the outcome of the other.
State & City Attorneys’ Joint Filing on Library Bond Validation Suit
State Attorney Can Argue Motions at October 20 Hearing
City Attorney Kurt Ardaman reported to the Commission yesterday that Assistant State Attorney Richard Wallsh had withdrawn his motions to strike language regarding the site of the new library in the City’s bond validation suit.
Mayor Leary immediately followed with remarks directed to “media who eagerly reported about the State Attorney [filing] those motions . . . [we are] eagerly anticipating covering dismissal of those motions as well.”
City Seeks to Include Site Language in Bond Validation Complaint
The State Attorney’s motions, filed September 21, challenged the City’s request for validation of up to $30 million in bonds “for the purpose of building a municipal facility in Martin Luther King, Jr. Park” on grounds that the ballot referendum made no reference to the location. “The inclusion of the site is not a proper subject for determination by this court,” reads the State Attorney’s Motion to Strike.
State Attorney Objects to Language, Wants Separate Hearing
As part of his filing, State Attorney Wallsh requested his motions be heard at a separate hearing prior to the October 20 bond validation hearing.
City & State Attorneys Agree to Consolidate Hearings
In a subsequent meeting September 30 between State Attorney Wallsh and City Attorney Ardaman, the two attorneys agreed, in a “Joint Stipulation Regarding the State of Florida’s Motion to Vacate Order to Show Cause and Motion to Strike,” that Wallsh would withdraw his motions and his request for a separate hearing, with the stipulation that he can still make the motions at the October 20 hearing.See Document.
Motions Cannot Be ‘Dismissed’
Motions in court cannot be dismissed. They are either granted or denied, actions only a judge can take. The State Attorney’s motions and his request for a separate hearing have been withdrawn – for now. The substantive arguments of the motions can still be heard at the October 20 hearing.
In other words, nothing has changed except the schedule.
On September 9, the Save Our Library WP Political Action Committee filed suit requesting the court to overturn the City Commission’s approval of the City Clerk’s Certificate of Insufficiency of Petition.
PAC Sues the City to Accept Petition
Save Our Library PAC members circulated a petition proposing an ordinance to prohibit a library from being built in Martin Luther King, Jr. (MLK) Park. They gathered the required number of signatures, had the signatures certified by the Orange County Supervisor of Elections, and presented the petition to the City. The Winter Park City Clerk declined to accept the petition on grounds that it was “insufficient.”
Referendum Ordinance or Petition Ordinance?
The Clerk’s finding of “insufficiency” was based on the claim that the petition represented a referendum ordinance rather than a petition ordinance. Basically, a referendum ordinance calls for the repeal of an ordinance the City has already passed – in this case, the $30 Million bond referendum. An initiative ordinance seeks to adopt a new ordinance – in this case, that no library may be built in MLK Park.
WPPL Trustees Speak Out
An “Open Letter to the Winter Park Community“ from the Board of Trustees of the Winter Park Public Library states, in part, “Efforts to halt the construction of the library in Martin Luther King, Jr., Park ARE actions against the new library.” The Trustees’ letter continues, “They [the efforts] are also significant in that they are an attempt to overturn the results of an election by eliminating the only viable site for the library-events center project. . . .”
The Library will launch an e-newsletter to keep citizens informed on the library progress. Readers may subscribe by going to the wppl.org website.
City Sues State & WP Taxpayers for Bond Validation
Meanwhile, the City has sued the State and all Winter Park property owners, requesting the court validate the issuance of bonds for the purpose of building a library, events center and related parking structure. Although both the ballot language and the public notices that preceded the election were silent as to the location of this structure, the City has proceeded assuming the location was generally understood, and has included language specifying the MLK location in its Amended Complaint for Validation.
Legal Question? or Political Question?
Today, Assistant State Attorney Richard Wallsh filed a Motion to Strike Portions of Amended Complaint and a Motion to Vacate Order to Show Cause, asking the Court to strike references to the MLK Park location in the City’s Amended Complaint that seeks validation of the bonds. (Case No. 2016-CA-6063-0, Circuit Court of the Ninth Judicial Circuit of Florida, in and for Orange County, Florida)
In Paragraph 7 of his Motion to Strike Portions of Amended Complaint, Wallsh writes: “The selection of MLK Park as the construction site was never a portion of said ordinance or referendum. The inclusion of the site is not a proper subject for determination by this court. . . . That is a political issue for the city to resolve.”
Wallsh continues, “Plaintiff city is overreaching in its attempt to obtain judicial imprimatur for a hotly contested political decision regarding the location of the project for which bonds have been sought to finance.”
Hearing Set for October 20
Wallsh has requested the court either set a hearing for his motion prior to October 20 or move the October 20 date forward.
In a Certificate of Insufficiency dated July 28, 2016, City Clerk Cynthia Bonham denied the validity of the citizens petition that seeks to prevent a new library from being built in Martin Luther King, Jr. (MLK) Park. On August 8, the committee appealed that decision to the Commission, which upheld the finding of the City Clerk.
Petition ‘Insufficient’ for Three Reasons
Each of the three reasons for insufficiency contains the following language.
“Despite being labeled a citizen initiative, the Petition requires the reconsideration of City Ordinance No. 3020-15 enacted on November 23, 2015, and the City Commission’s affirmative votes to locate the library and events center in Martin Luther King, Jr. Park occurring at the City Commission meeting occurring on or about October 26, 2015.” [Emphasis Added]
For the full text, go to pages 69-70 of the August 8, 2016, Commission Agenda Packet. agdpkt-2016-08-08.pdf
Law + Motion = Confusion
Speaking on behalf of the petitioners, Attorney Virginia Cassady of the firm Shepard, Smith & Cassady P.A., described what she saw as the fallacy in the reasoning contained in the Certificate of Insufficiency. An ordinance carries the weight of law, while a vote by the Commission does not. “Essentially,” said Cassady, “it’s bootstrapping a vote by you [the Commission] to the ordinance that was adopted and passed in November, when in the ordinance itself there is absolutely no mention of MLK Park.”
Does Library Have to be in MLK Park?
Both the City Attorney and the City Manager have said on several occasions that the library/events center could be built somewhere other than MLK Park. Rather than trying to overturn the bond referendum, the petitioners seek an alternate location for the library.
AN ORDINANCE OF THE CITY OF WINTER PARK, FLORIDA, PROHIBITING THE CONSTRUCTION OF THE WINTER PARK LIBRARY AT MARTIN LUTHER KING, JR. PARK . . . .
For the full text, go to page123 of the Agenda Packet at the above link.
‘Initiative’ or ‘Referendum’?
The conflict between the petitioners’ committee and the City arises from the City’s position that the petition constitutes a Referendum, referred to in Section 5.02 of the City Charter, rather than an Initiative, as described in Section 5.01.
(See link above, page 129 of the Agenda Packet, for the Charter text.)
Basically, a Referendum requires the Commission to reconsider (i.e., overturn) an ordinance that has already been adopted.
An Initiative gives voters the right to submit their own proposed ordinance to the Commission. If the Commission fails to adopt the proposed ordinance, the ordinance must be taken to a full city election to be adopted or rejected.
City Attorney Offers No Written Guidance
Interestingly, the question of whether the petition is an initiative or a referendum is a legal determination. Yet, only the City Clerk has spoken. No legal opinion from Attorney Ardaman appears in the August 8 Agenda Packet.
City Attorney Has Some Advice for the City Clerk
In a memo dated May 8, 2016, the City Attorney writes to the City Clerk, “. . .if you conclude that the Petitioners Committee Affidavit and proposed ordinance constitute a Referendum as described under Section 5.02 of the Charter rather than an Initiative under Section 5.01 of the Charter, rather than waiting until after Mr. Poole and the Petitioner’s Committee expend substantial effort to obtain the signed petitions, the following response to Mr. Poole would be appropriate.”
While Attorney Ardaman encouraged the City Clerk to draw her own conclusions, he was kind enough to word the memo for her.
“Mr. Poole,” reads the memo. “The request for petition forms that you submitted to me as the Winter Park City Clerk on Friday, April 29, 2016, is not timely as the petition forms you have requested are based on a Petitioner’s Committee Affidavit and ordinance which appear to constitute a reconsideration or referendum to repeal Ordinance No. ____ and the City Commission’s decision to locate the library and events center in Martin Luther King Park, where the Ordinance was adopted November 23, 2015. Referendum petitions must be filed within 30 days after adoption of the ordinance to be reconsidered.”
Ardaman’s Charge to the Commission
Ardaman’s explanation of the task before the Commission was clear and simple – either uphold or overturn the City Clerk’s Certificate of Insufficiency.
As the Commissioners deliberated, there ensued considerable discussion, concluding with each Commissioner stating his or her position and the reasoning behind it.
Seidel: “This Vote Doesn’t Change the Process”
“I am assuming you are here with your attorney because you intend to take the next step,” said Commissioner Greg Seidel. “So, to me, what happens with this vote doesn’t really change what’s going to happen with the process.” Seidel voted to uphold the petitioners’ appeal.
Sprinkel Defers to City Attorney
“I’m going to support our City,” said Commissioner Sarah Sprinkel, “because I’m following the advice of our attorney.” Sprinkel voted to deny the petitioners’ appeal.
Cooper: “It is a Citizens Petition”
“I also do not believe it reverses the vote on the library,” said Commissioner Carolyn Cooper. “I believe the citizens of Winter Park voted to approve a referendum of up to $30 million to build a new library.” Cooper voted to uphold the petitioners’ appeal.
Weldon: “There Will Be No End to the Lawsuits”
“I have tried to put myself in a position of perspective as to what is the best long-term decision for the City of Winter Park,” said Commissioner Peter Weldon, who voted to deny the petitioners’ appeal.
Leary: “The Petitioners Were Informed Early On . . .”
Mayor Steve Leary stated, “The petitioners were informed early on that this petition was invalid.” Leary cast the deciding vote to deny the petitioners’ appeal.
Cooper Appeals to Commissioners to Let Citizens Choose
In her concluding remarks during the Commissioner’s Report, Commissioner Carolyn Cooper asked the others seated on the dais if it might be possible to allow the residents to vote on the location of the library – to put the issue to rest. “I honestly don’t think it would hurt anything,” said Cooper, “and I believe the people of this city honestly want a new library.”
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The Save Our Library WP PAC has filed two motions with Orange County Circuit Court requesting a rehearing of the library bond validation suit and asking Judge Margaret Schreiber to amend her Final Judgment, issued December 7, 2016.
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