A.G. Gancarski
Empower Jacksonville, a group seeking to allow referendums to change Jacksonville’s charter, received a major, perhaps fatal, setback Thursday from the city’s Office of General Counsel.
Empower Jacksonville, associated with the Liberty Counsel, wanted two ballot items voted on in August 2018.
The first: a referendum to change the city’s charter to allow citizens to challenge any law via referendum.
The second measure: a straw ballot on whether or not LGBT protections in the Human Rights Ordinance should be subject to a citizen referendum.
That play, audacious though it may have seemed, is now in grave peril.
Thursday, they got bad news from the Office of General Counsel: “This Office has reviewed the Supervisor’s Memorandum along with the provided materials and has determined that the proposed petition is legally defective and fatally misleading. It cannot be lawfully placed on the ballot.”
The objections of the OGC: “The initiative petition is not legally sufficient. The ballot Title and Summary do not comply with all requirements necessary to appear on the ballot. The General Counsel has the duty to prevent a legally defective petition from appearing on the ballot.”
The memo develops that case, asserting that the ballot item “unlawfully proposes to give the voters a referendum power not provided to them by law.”
The City Council, per the charter, has “legislative power and duties,” not a popular vote. Empower Jacksonville, via the referendum, seeks to negate the charter by giving it a super-legislative power.
“The voters become a super-legislative body with power to permanently withdraw substantive legislative power from the City Council. As noted below, the Mayor has no authority to veto ordinances adopted through the process created by the Proposed Amendment,” the memo asserts.
“The Title and Summary make no note of this extraordinary power. They do not note the creation of power untethered from any checks or balances. They do not in any way hint at, much less state, the chief purpose of the Proposed Amendment,” the memo continues.
Another issue: the “ballot summary fails to note that the Proposed Amendment substantially overstates the power to repeal ordinances by referendum vote.”
“The Summary fails to inform the voters that the Proposed Amendment will alter multiple functions of city government … The Summary fails to inform the voters that the Proposed Amendment substantially alters executive and legislative functions and powers of the City.”
The OGC memo concluded by saying the “Proposed Amendment effectively creates a new, supreme, fourth branch
of government — the citizenry — with authority to exercise the powers and perform the functions of the legislative and executive branches of the Consolidated Government.”
Moreover, the OGC opinion is binding for the Supervisor of Elections office, the memo adds, citing precedent and case-law.
And for the anti-HRO forces, it’s back to the drawing board.
One can expect the deep pockets of the Liberty Counsel to mount a challenge to this opinion, but one of the hallmarks of Jason Gabriel‘s tenure as General Counsel has been to assert the primacy of the office in matters including pension negotiations, and one can expect him to defend his office’s prerogatives here as much as needed.
Opponents of the HRO have fought Jacksonville in court, but have been rebuffed.
In December, the 4th Judicial Circuit granted Jacksonville’s motion to dismiss with prejudice a complaint for declaratory relief from the law.
