To sue or not to sue? Miami voters ponder the ballot question | Miami Herald

Miami voters have what may seem like an unusual decision to make this November when they hit the polls: Should they give themselves the right to sue their city?

Following a series of precedent-setting lawsuits prompted by controversial real-estate deals, Miami commissioners have placed on the presidential ballot a question that if approved by a simple majority would explicitly give citizens the ability to challenge violations of the city charter.

In court, that ability is called standing. And without it, proponents of the proposal say Miami residents will be left with fewer tools to hold their government accountable.

“What this really does, is it allows the residents of this city to have a check on their government,” said Justin Wales, a First Amendment attorney who helped push the question onto the ballot. “This allows the city to regain the trust of its residents and will force them to go through the proper procedures.”

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Wales, who has filed legal briefs in lawsuits over SkyRise Miami, Flagstone Island Gardens and the Miami Worldcenter, is among the local attorneys who say that until last year, Florida law implicitly granted residents the ability to sue their municipality when they believed their charter had been broken. The charter, akin to a state or federal constitution, sets the rules for how a municipality should operate and govern itself.

But in 2015, following a wave of unsuccessful lawsuits against the city, a Third District Court of Appeal ruling on several cases made it clear that in order to challenge charter violations, citizens must still prove they have suffered a “special injury,” or some kind of unique damage that cannot be claimed by the general public.

The ruling — cemented when the Florida Supreme Court declined to hear an appeal — was a major victory for Miami city attorney Victoria Méndez and an equally significant defeat for litigants who had accused the city’s administration of ramming through bad leases and redevelopment deals by withholding public records and information, even from elected officials. But undeterred, some of the losing plaintiffs and attorneys used their roles on a city committee tasked with recommending changes to Miami’s charter to put the issue before city commissioners, and ultimately the voters.

Wales, for instance, sat on the committee, along with developer Martin Margulies, who sued to challenge subsidies awarded to the Miami Worldcenter developers. Stephen Kneapler, a confidant of Mayor Tomás Regalado who sued to stop the redevelopment of Grove Key marina, also sat on the committee.

Stephen Herbits, a founding member of the Coalition Against Causeway Chaos, a 501(c)4 nonprofit campaigning for the charter amendment, says that approving the referendum is crucial to ensuring that the city acts ethically and legally. Herbits, who along with his neighbors has sued over the Flagstone Island Gardens project, is among those who believe Miami’s city attorney often provides bad advice or withholds pertinent legal information from city commissioners in order to influence the outcome of important votes.

“The citizens must re-establish this right,” said Herbits, who is pursuing an ethics complaint against one of Miami’s attorneys. “Once that passes, there’s very little likelihood they’ll be breaking the law in the future.”

Detractors, however, say the change would open the floodgates to litigation by plaintiffs who would seek to use lawsuits as a way to challenge projects and decisions simply because they are disliked. When Miami commissioners voted 3 to 2 to place the item on the ballot, Mendez told commissioners they were “basically tying my hands and sending me to court.”

Commissioner Keon Hardemon, who voted against the proposal, called it “irresponsible.” Last year, when the Third District Court of Appeal denied activist Grace Solares’ appeal of the dismissal of her SkyRise lawsuit, the panel noted that a municipal charter did not rise to the level of the Florida Constitution.

J.C. Planas, an attorney who has defended the city on cases involving SkyRise and Grove Key, called the ballot question “unwise” and disputed claims that case law previously granted residents standing on issues involving alleged charter violations. He said granting all citizens standing would invite “unscrupulous litigators to sue the city even when no one has been hurt or damaged.”

“I cannot understand how the city could have placed this on the ballot,” Planas said. “This will invite litigation and cause major problems for the city.”

But Miami-Dade County has a similar provision already baked into its charter, which hasn’t resulted in complaints about frivolous litigation. And in order to address concerns that they could create a cottage industry for anti-government lawsuits, commissioners worked into the ballot question language clarifying that victorious lawsuits will pay the plaintiffs’ court costs but not attorneys’ fees.

The proposal is also supported both by the city commission and Mayor Regalado, and so far there doesn’t seem to be any organized opposition. Commissioner Francis Suarez, who chaired the city’s charter review committee, says changing the law will help ensure that the courts sort out truth from fiction when critics of the city take legal action.

“The integrity of our government doesn’t really have a price,” he said. “Our residents need to feel they can enforce the law even against their own government and not be defeated by some sort of a procedural gimmick.”