            FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-2291
                  _____________________________

JOSEPH ANDREWS, CONNIE
BENHAM, DR. JUAN P. GRAY,
LYNNE PRICE, and REV. LEVY
WILCOX,

    Appellants,

    v.

THE CITY OF JACKSONVILLE, a
consolidated political
subdivision of the State of
Florida, and MIKE HOGAN, as
Duval County Supervisor of
Elections,

    Appellees.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Donald R. Moran, Jr., Judge.

                          June 18, 2018


OSTERHAUS, J.

     Appellants challenge the action of the Jacksonville City
Council in putting a one-half-cent sales surtax referendum before
voters in the August 2016 election. Before voters passed the
underfunded pension liability surtax, a group of citizens
challenged the ballot’s title and summary, among other things, in
court. They made various arguments against the measure, all of
which the trial court rejected. Now on appeal, Appellants ask us to
declare the election null and void “for one, several, or all” of seven
different reasons. We decline to do so and affirm.

                                  I.

     On May 17, 2016, the Jacksonville City Council adopted an
ordinance setting a referendum on whether to adopt a sales surtax
to address the City of Jacksonville’s problem of underfunded
pension liability. The Council took this action in response to a state
law enacted in March 2016, which authorized counties to pass
ordinances allowing for the levy of a one-half-cent pension liability
sales surtax. See ch. 2016-146, § 2, Laws of Fla. 1 The Governor
approved the law on March 25, 2016, and it took effect on July 1,
2016. See §§ 212.055(9), 112.64(6), Fla. Stat. (2016). The
Jacksonville City Council set the referendum for August 30, 2016.
In late July, five weeks before the election, Appellants filed a
challenge to the ordinance. The case wasn’t decided before the
election. And in the election, voters approved the surtax. After the
election, the parties filed cross motions for summary judgment and
the trial court held a hearing. Ultimately, the trial court decided
the case by granting summary judgment in favor of the City.

                                 II.

    The circuit court’s order granting summary judgment involves
a pure question of law that we review de novo. Hill v. Suwannee
River Water Mgmt. Dist., 217 So. 3d 1100, 1102 (Fla. 1st DCA
2017).

                                 A.

     Appellants make seven arguments for reversing the trial
court’s judgment. The strongest of these arguments is that the
ballot title and summary misled voters to the point of requiring the
election to be voided. Florida law requires that whenever a public
measure is submitted to a vote of the people, a ballot summary

    1The governments of the City of Jacksonville and Duval
County merged into one consolidated government in 1968.

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must be printed in clear and unambiguous language on the ballot,
which “shall be an explanatory statement, not exceeding 75 words
in length, of the chief purpose of the measure.” § 101.161(1), Fla.
Stat. In construing § 101.161, the “[Florida Supreme Court] has
explained ‘that the ballot [must] be fair and advise the voter
sufficiently to enable him intelligently to cast his ballot.’” Roberts
v. Doyle, 43 So. 3d 654, 659 (Fla. 2010) (quoting Askew v. Firestone,
421 So. 2d 151, 155 (Fla. 1982)). When challenged, courts will
review ballot titles and summaries by asking two questions: “first,
whether the ballot title and summary ‘fairly inform the voter of the
chief purpose of the amendment,’ and second, ‘whether the
language of the title and summary, as written, misleads the
public.’” Roberts, 43 So. 3d at 659 (quoting Fla. Dep't of State v.
Slough, 992 So. 2d 142, 147 (Fla. 2008)). Ballot summaries need
not explain every ramification of a proposal, but must make sure
that the chief purpose is clear and unhidden. Fla. Hometown
Democracy, Inc. v. Cobb, 953 So. 2d 666, 673 (Fla. 1st DCA 2007).
Courts will invalidate a ballot title and summary if the record
shows that they are “clearly and conclusively defective.” Askew,
421 So. 2d at 154-55; City of Riviera Beach v. Riviera Beach
Citizens Task Force, 87 So. 3d 18, 22 (Fla. 4th DCA 2012). But they
will be upheld if they state the chief purpose and are not
“affirmatively misleading.” Fla. Educ. Ass’n v. Fla. Dep’t of State,
48 So. 3d 694, 704 (Fla. 2010); see also City of Riviera Beach, 87 So.
3d at 16 (instructing that “[a] ballot title and summary cannot
either ‘fly under false colors’ or ‘hide the ball’ as to the
amendment’s true effect”). Fair notice to voters is evaluated
presuming that “the voter [will] acquaint himself with the details
of a proposed ordinance on a referendum . . . If he does not, it is not
the function of the ballot question to provide him with that needed
education.” Miami Heat Ltd. P’ship v. Leahy, 682 So. 2d 198, 203
(Fla. 3d DCA 1996) (quoting Metro. Dade Cty. v. Shiver, 365 So. 2d
210, 213 (Fla. 3d DCA 1978)).




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    Appellants’ challenge focuses ostensibly on the summary,
which they claim to be misleading on its face. 2 The ballot title and
summary language read as follows:

        PENSION LIABILITY 1/2-CENT SALES TAX PLAN
                     AUGUST 30, 2016

         Permanently closing up to three of the City’s
    underfunded defined benefit retirement plans, increasing
    the employee contribution for those plans to a minimum
    of 10%, and ending the Better Jacksonville 1/2-cent sales
    tax are all required to adopt a 1/2-cent sales tax solely
    dedicated to reducing the City’s unfunded pension
    liability. Shall such pension liability sales tax, which
    ends upon elimination of the unfunded pension liability
    or in 30 years maximum, be adopted?

                  _______ YES        _______ NO

     The trial court found that the summary clearly articulated the
chief purpose to “reduce or eliminate the City’s unfunded pension
liability through the use of a dedicated 1/2-cent sales tax to be
adopted for not more than 30 years once the Better Jacksonville
1/2-cent sales tax ends.”

     We see no problem with this conclusion. Read at face value,
the summary first declares what Florida law will require of the
City if it wants to levy a surtax to address unfunded pension
liabilities. Then, it asks whether the voters want to go forward
with adopting such a surtax. More specifically, the summary
presents to voters the primary question of whether “to adopt a 1/2-
cent sales tax solely dedicated to reducing the City’s unfunded
pension liability.” In doing so, it identifies three statutory
preconditions the City must meet to move forward with such a
surtax. It says that to adopt a surtax dedicated solely to reducing
unfunded pension liabilities, the City must (1) permanently close
up to three underfunded defined benefit retirement plans, see
§ 212.055(9)(a)1.; (2) increase the employee contribution for those

    2The parties agreed below that there were no disputed facts
and neither party relied on witnesses to make their case.

                                 4
closed plans, see § 212.055(9)(a)2.; and (3) end the existing Better
Jacksonville half-cent sales tax, see § 212.055(9)(a)4-5. Each of
these preconditions comports with requirements set forth in
§ 212.055(9), which is the statute authorizing all such sales
surtaxes. See § 212.055, Fla. Stat. (requiring “any authorization
for imposition of a discretionary sales surtax shall be published in
the Florida Statutes as a subsection of this section”). By providing
these preconditions, the summary comports with the “unifying
principle” recognized in ballot title and summary cases of allowing
voters “to comprehend the sweep” of a measure. Fla. Educ. Ass’n,
48 So. 3d at 701 (quoting Smathers v. Smith, 338 So. 2d 825, 829
(Fla. 1976)).

     The second sentence of the summary follows with a question.
It asks voters to decide whether “such pension liability sales tax”
should be adopted. The “such” refers voters back to the description
of the tax included in the first sentence: “a 1/2-cent sales tax solely
dedicated to reducing the City’s unfunded pension liability.” The
second sentence also provides timing information related to the
surtax proposal. It informs voters that the tax would end “upon the
elimination of the unfunded pension liability or in 30 years
maximum.” This timing-related fact is partly drawn from
§ 212.055(9)(f), which provides for the termination of pension
liability sales surtaxes when a county reaches or exceeds an
actuarial funding level at 100% for the plans or systems funded by
the surtax, “or December 31, 2060, whichever occurs first.”
According to the arguments here and below, the new surtax
couldn’t be levied by the City until the currently levied Better
Jacksonville sales tax expires, which is expected in 2030. 3
Accordingly, the new surtax could only be levied beginning on
January 1, 2031, and extend only until the statutorily prescribed
termination date on December 31, 2060. The facts thus validate
the term provided in the summary of a “30 year maximum”; or, in
the very least, convince us that the summary is not affirmatively
misleading regarding its chief purpose or the timing of the surtax.
See City of Riviera Beach, 87 So. 3d at 22.



    3 Regarding the new surtax’s timing, we accept both parties’
assurances that there are no material facts at issue.

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     None of Appellants’ various arguments demonstrate that the
ballot title and summary are clearly and conclusively defective, or
affirmatively misleading. First, Appellants claim that the
summary failed to state the chief purpose of the measure. But we
are satisfied that the ballot summary did so by asking voters:
“Shall such [a 1/2-cent sales tax solely dedicated to reducing the
City’s unfunded pension liability] . . . be adopted?” Along with the
chief purpose, the measure also alerted voters to the sweep of the
statutory preconditions the City must meet before levying the
surtax. The ballot summary didn’t have to contain every detail or
ramification of the proposed surtax to provide its chief purpose.
Fla. Educ. Ass’n, 48 So. 3d at 700. Indeed, it couldn’t have. Florida
law limits the length of ballot summaries to just 75 words.
§ 101.161(1), Fla. Stat.; see also Leahy, 682 So. 2d at 203
(recognizing that the omission of some details or ramifications of
an ordinance is not the legal test).

     Appellants’ second objection is that the ballot summary
misled voters by stating that existing underfunded retirement
plans would “permanently clos[e].” Their concern is that the
“permanently closing” language might have misguided voters into
thinking that existing underfunded pension plans would be
completely eliminated and closed altogether to current and new
participants alike. In reality, adopting the surtax only required
existing underfunded plans to be closed to new hires and not to
existing plan participants. And the very next clause of the
summary supplies some clarity on this point. It informs voters that
if the surtax is adopted, then “those plans” will continue operating
with an increased employee contribution requirement—up to a
minimum 10% contribution. So the summary uses “[p]ermanently
closing” in a way analogous with a situation where an investment
vehicle becomes closed to new investors—the investment keeps
operating for existing investors, but bars entry to new investors.
Cf., Pfeiffer v. Integrated Fund Servs., Inc., 371 F.Supp.2d 502, 503
(S.D.N.Y. 2005) (describing a mutual fund that was “closed to new
investors” in 2003). We are satisfied here that the summary
doesn’t hide the ball and isn’t clearly and conclusively defective.

    Appellants’ third objection to the ballot summary is that the
voters couldn’t know the meaning of the 10% contribution increase:
“By not defining what it is that is being contributed or how much

                                 6
is currently contributed, the voter could not determine if this
potential ‘increase’ would have been meaningful.” But, here again,
we are satisfied that the 10% language did not mislead voters, or
obscure the chief purpose of the measure. Irrespective of whether
some underfunded plan-participants already contribute 10%, as
Appellants argue, it is not affirmatively misleading to inform
voters, in accordance with one of the statutory preconditions, that
minimum contributions will generally increase under the measure
to a fixed 10%-or-more minimum contribution for employees in
these plans. See § 212.055(9)(a)2., Fla. Stat. (requiring plan
members “to make an employee retirement contribution of at least
10 percent . . . beginning with the first pay period after the plan or
system is closed”).

     Appellants raise other objections to the ballot title and
summary, including that ending the Better Jacksonville tax wasn’t
the measure’s chief purpose; that plan administrators weren’t
required to apply surtax funds toward unfunded pensions; that
“City” is ambiguous; and that the summary fails to identify how
surtax proceeds will be used. With these other arguments, we
agree with the trial court’s decision to uphold the ballot title and
summary. We reject these additional arguments without
discussion either on their merits, or because they weren’t
preserved below.

                                 B.

     One of Appellants’ other main arguments against the surtax
referendum involves the timing of the Jacksonville City Council’s
ordinance that put the referendum on the ballot. In May 2016,
after the Legislature and Governor passed the law authorizing
counties to adopt the surtax, see ch. 2016-146, § 2, Laws of Fla.,
the Council passed an ordinance setting the August 30th
referendum. Appellants argue that the Council’s action in May,
which preceded the July effective date of the statute authorizing
counties to levy the surtax, was beyond the Council’s legal
authority and rendered the referendum void ab initio. But we see
no law or case supporting Appellants’ argument. The new law itself
didn’t prescribe the date that counties could pass an ordinance
setting a referendum on the surtax. Nor did the ordinance itself
attempt to levy a premature surtax; it only authorized an August

                                  7
vote on whether Duval County voters wished to adopt the surtax.
Several preconditions still had to be met (and presumably still
must be met even now) before the surtax can go into effect. The
ordinance recognized the requirement to meet these preconditions,
providing for future “separate legislative action” before actually
levying the surtax. Ordinance 2016-300-E, § 8. It also specified
that the pension liability surtax wouldn’t begin until the ending of
the Better Jacksonville 1/2-cent sales tax, which isn’t until 2030.
Id. at § 2. We therefore disagree with Appellants’ arguments that
the ordinance was unlawful and that the referendum was void
from the outset.

     Finally, we affirm the order below without additional
discussion after having reviewed and rejected Appellants’ various
other arguments in support of nullifying the referendum results.

                                III.

    For these reasons, the trial court’s order granting summary
judgment for Appellees is AFFIRMED.

B.L. THOMAS, C.J., and M.K. THOMAS, J., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


John S. Winkler, Jacksonville, for Appellants.

Jason R. Gabriel, General Counsel, Jason R. Teal, Deputy General
Counsel, and Craig D. Feiser, Assistant General Counsel,
Jacksonville; Lauren V. Purdy and Simone Marstiller of Gunster,
Yoakley & Stewart, P.A., Jacksonville, for Appellees.




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