CopyPublished | Florida 4th District Court of Appeal
...section
1 of the Florida Constitution. 1 The City argued Hudspeth was obsolete
because we specifically acknowledged the lack of legislation concerning
the propriety of local government expenditures related to campaign
literature. The City pointed to section 106.113, Florida Statutes (2009),
enacted after Hudspeth, as controlling.
1
At oral argument, the City admitted the plaintiff has standing....
...democratic process.
540 So. 2d at 154. In doing so, we tacitly suggested standing exists to challenge
a government’s expenditure of funds for advocacy of a particular position on a
referendum.
3
Section
106.113 prohibits local governments from expending public
funds on political advertisements that concern an issue subject to a vote
of the electors....
...Valeo,
424 U.S. 1 (1976), to apply. Pursuant to the “magic words”
standard, the City argued the campaign literature was not a “political
advertisement” because none of the literature contained the “magic
words.”
The trial court found that section
106.113 controlled and that the
“magic words” test applied. “Since none of the Buckley ‘magic words’ were
used in the City’s communications,” the trial court found the City did not
expressly advocate for Ballot Question No. 2. Therefore, the trial court
found that the City had not violated section
106.113 or Article 1, section
1 of the Florida Constitution....
...To withstand dismissal on standing grounds,
however, the challenge must be to legislative appropriations.
Council for Secular Humanism, Inc. v. McNeil,
44 So. 3d 112, 121 (Fla. 1st
DCA 2010).
The plaintiff first argues the trial court used the wrong legal test in
applying section
106.113 to the ballot initiative campaign purchased by
the City....
...hed by Citizens
United v. Fed. Election Comm’n,
558 U.S. 310, 324-25 (2010). We agree
with the plaintiff that the “functional equivalent” test should have been
applied, but even under that test, the result is the same. The City did not
violate section
106.113 or Article I, section 1 of the Florida Constitution.
In Citizens United, the Supreme Court announced the “functional-
equivalent test.” A “court should find that [a communication] is the
functional equivalent of express advocacy only if [it] is susceptible of no
reasonable interpretation other than as an appeal to vote for or against a
specific candidate.” Citizens United,
558 U.S. at 324-25.
Section
106.113(2), Florida Statutes, provides in part:
A local government or a person acting on behalf of local
government may not expend or authorize the expenditure of .
....
...te address and
a hotline number where citizens could learn more.
In short, the City did not expressly advocate a position. The literature
paid for by the City was “not the functional equivalent of express
advocacy.” The City neither violated section 106.113, nor Article 1, section
1 of the Florida Constitution....
...in DE Op. 12-05 is not
controlling because the issue here challenges the actions of local government
officials, not the agencies themselves. Because the Division of Elections is not a
party, the plaintiff suggests the Division’s interpretation of section 106.113 is
irrelevant....
