Florida Record

Friday, February 21, 2020

Three-judge panel says city's public awareness campaign not 'political advertisement'

State Court

By Kyla Asbury | Jan 23, 2020

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WEST PALM BEACH — An appeals court ruled that a city did not violate the state Constitution when it created a public awareness campaign regarding several ballot questions

Sidney F. Dinerstein appealed a final judgment that was in favor of Susan Bucher, supervisor of elections in Palm Beach County; the City of Palm Beach Gardens; Patricia Snider, the city clerk of Palm Beach Gardens; and Voters in Control regarding the passage of several ordinances in May 2018.

Dinerstein argued in the appeal that the lower court made an error when it applied the "magic words" test in its finding that the city "did not expressly advocate in favor of a ballot initiative and in finding the ballot initiative's title and summary valid."

The three-judge panel disagreed with Dinerstein and affirmed the lower court's decision.

Judge Melanie May authored the panel's opinion. Judges Martha Warner and Robert M. Gross concurred in the opinion.

The ordinances were for ballot initiatives, including one seeking to increase term limits for city council members from two consecutive terms to three consecutive terms; one that consisted of some amendments regarding removal and modification provisions to the city charter; and one that was seeking to remove a requirement that the city manager had to be a resident of the city within a year of being appointed to the position, the opinion states.

After seeing an article published in Palm Beach Post on Aug. 17, 2018, that reported that the city paid Cornerstone Solutions Florida to plan, manage and execute a voter's education campaign in the amount of $43,200, and had plans to spend about $65,000 on the August 2018 campaign, Dinerstein filed an emergency petition for declaratory and injunctive relief, alleging a misuse of public funds.

The city contended that none of the "magic words" that define something as a political advertisement pursuant to precedent in Buckey v. Valeo were used, to which the trial court agreed.

The trial court ruled that the city did not violate the Florida Constitution with its ballot questions and Dinerstein appealed.

The panel found that the city only expended resources for a public awareness campaign for the ballot initiative.

"The City provided literature which explained that a Charter Review Committee recommended three ballot initiatives," May wrote. "The literature indicated that it contained 'What You Should Know' about the initiatives. The City created a website where citizens could learn more information and disseminated a voter’s guide. Robocalls were made in which the Mayor provided a website address and a hotline number where citizens could learn more."

May wrote that the city did not advocate a specific position in its public awareness campaign, which meant it was not a political advertisement.

Florida Fourth District Court of Appeal Case number: 4D19-755

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