Gainesville votes to challenge HB 1 in court

The Gainesville City Commission voted 4-3 late Thursday to approve filing a lawsuit challenging a portion of the state’s Combatting Public Disorder Act.

The law, also known as HB 1, contains a number of provisions related to criminal penalties for violence and property destruction at protests. However, the complaint the commission authorized focuses on another section of the law: the ability of the governor and his cabinet to alter local enforcement budgets.

Under the act, if a Florida municipality like Gainesville reduces its funding for law enforcement for any reason, a state attorney or a member of the municipal governing board can challenge the budget decision by appealing it to the administration commission.

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The administration commission, which is made up of the governor and the members of his or her cabinet, can then review budget items related to law enforcement and require changes, which the local government cannot appeal.

Commissioner Gail Johnson, who brought HB 1 to the attention of the city and who has advocated for the commission to take action, called the lawsuit a “moral imperative.”

“Our governor is wading into the most fundamental of local powers,” Johnson said. “It’s directly threatening our ability to structure our budgets in the way that best meets the needs of our community.”

Johnson, Mayor Lauren Poe and Commissioners David Arreola and Desmon Duncan-Walker voted to authorize the lawsuit, which will be filed by outside lawyers the city has retained.

“On this commission we have a track record of challenging executive overreach when it threatens the interests of the residents who elected us and rely on us to serve them,” Johnson said. “We should continue to demonstrate that leadership.”

Gainesville City Commissioner Reina Saco

Commissioner Reina Saco, who is a lawyer, and Commissioners Harvey Ward and Adrian Hayes-Santos voted against filing the lawsuit.

Saco repeatedly called HB 1 “awful” but said she had problems with the outside counsel’s work on the draft complaint. She also said she was afraid that if the city filed the lawsuit and lost, it would only make the law more dangerous and difficult to challenge.

“I am not going to vote for something that isn’t there yet,” Saco said. “[HB 1] was awful. It was poorly written, and it was written with the most malicious intent, but I am not going to start a fight we don’t have to fight.”

City Attorney Nicolle Shalley also expressed some concerns about the draft complaint to the commission.

“I do want to make clear that we gave a lot of feedback to the attorneys,” Shalley said. “What we suggest is that when you are representing a local government, a legislative body who is respectfully trying to challenge a legislative decision of another legislative body, that the complaint at minimum … should be pared down to a clear, plain statement of the facts. It should not contain combative political statements and irrelevant opinions.”

The draft complaint sent to the Gainesville City Commission for approval challenges the constitutionality of the law on five different grounds:

Separation of powers: The Florida Constitution says that no branch of the government can exercise the powers of another branch, nor can a branch of government assign its own powers to another branch. The draft complaint argues that through HB 1 the Legislature has given two of its powers—limiting the spending of public funds and limiting the power of municipal governments—to the executive branch.

Nondelegation doctrine: When one branch of government delegates some of its authority to another branch, it has to provide the other branch with a set of standards and guidelines. The draft complaint argues that HB 1 sets out no criteria or guidelines for reviewing or changing local law enforcement budgets so that essentially the governor and the cabinet have no guidance and can make arbitrary decisions about local budgets.

Single subject rule: The Florida Constitution requires that laws stick to a single subject and have a title that expresses the subject of the legislation. The draft complaint argues that HB 1 had two distinct subjects: the review of municipal budgeting decisions and criminal penalties for individuals involved in protest-related activities.

Unfunded mandate: The Legislature is generally barred from passing legislation that requires municipalities to spend funds without providing or authorizing a revenue stream. Because HB 1 allows the administrative commission to alter and increase local law enforcement budgets without providing additional revenue streams to the municipalities, the draft complaint argues it is an unfunded mandate.

Home rule: Florida allows municipalities to adopt a home rule charter and enact ordinances, codes and plans without prior state approval. Included with that is a municipality’s ability to propose and pass budgets. The draft complaint argues HB 1 interferes with the ability of local governments to determine how to prioritize and spend local revenues.

The lawsuit is being filed on behalf of the city by the Public Rights Project, a nonprofit focused on empowering state, local, and tribal governments to fight for civil rights, and the Community Justice Project, a Florida Bar-funded nonprofit fim that supports grassroots organizations for racial justice and human rights.

The Public Rights Project and Community Justice Project have agreed to represent the city without charge and will pay the legal fees related to the lawsuit.

The city attorney’s office had recommended the commission not approve the lawsuit, but instead wait and see how the provisions of HB 1 are applied and how they affect other municipalities before filing a lawsuit.

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