City commission approves HB1 lawsuit over the objections of the City Attorney

BY JENNIFER CABRERA

At their August 5 regular meeting, the Gainesville City Commission voted to move forward with a lawsuit to challenge HB1. The City has retained pro bono outside counsel to pursue the lawsuit–the Public Rights Project is a project of the Tides Center and Community Justice Project, Inc., to file a lawsuit on behalf of the City of Gainesville that facially challenges Section 1 of CS/HB 1 (2021). 

In her remarks to the commission, City Attorney Nicolle Shalley said she was very concerned about “circumvention of the City’s charter by not allowing my office to function and fulfill its role as the legal adviser to, and the attorney for, the City.” She said that on May 20, the commission directed her office to retain specific outside legal counsel who solicited the commission during public meetings and also solicited some individual commissioners prior to that meeting. She said she had never encountered a situation in which “lawyers in a public meeting were convincing my client that they were ready to move forward with litigation even if the City Attorney’s office was not.” 

“We do not retain advocacy groups who have their own agendas, and we do not allow the City’s legal matters to be politicized.” – City Attorney Nicolle Shalley

Shalley said she was unprepared for that and that her guidance to them should have been to direct her office to locate qualified outside counsel to represent the City: “The commission cannot simply select other attorneys to represent the City and be the City Attorney. The charter vests that in our office.” She said that when her office selects outside counsel, they look for multiple qualified firms; “We do not retain advocacy groups who have their own agendas, and we do not allow the City’s legal matters to be politicized.”

Commissioner Gail Johnson responded, “I appreciate your comments, Ms. Shalley. The fact does remain that you gave us that guidance at that meeting, and because of that guidance we are here today… I think it’s important for everyone to know that this did not come from an advocacy group. This came from me.” She said that Governor DeSantis announced on September 21, 2020, that HB1, the Combating Public Disorder Act, was his top legislative priority. “I want you to understand that I’ve been working on this for almost an entire year.” 

Shalley interrupted and said that her office had issued letters of retention to three specific attorneys and had invited them to this meeting to answer questions from the commission, but she had received a list of additional speakers the day before the meeting “of people that I don’t know, that aren’t retained outside counsel. I then advised them that it’s not appropriate for those folks to be a participant in a litigation discussion with the city commission… If the outside counsel makes a presentation and all of these other speakers present, then I will feel compelled to also present our office’s evaluation of the matter and the reason for our recommendation, which I had really hoped not to do in a public meeting.”

Mayor Lauren Poe said he supported letting the retained outside counsel present, and then, if there were questions that they couldn’t answer, they could turn “to somebody else who has some specific expertise,” but anyone else would need to comment as a member of the public. 

Johnson said the purpose of HB1 was to “fast-track the efforts to stop elected officials and community leaders to work with our communities to reimagine what public safety looks like… it could trigger a state take-over of the budget. And it was specifically enacted to intimidate and obstruct cities like Gainesville… The filing of this litigation and lawsuit is a moral imperative, the right thing to do, and I’m going to urge my colleagues to vote in favor of authorizing litigation.”

Berbeth Foster, one of the attorneys retained by the City, gave a short presentation, stating that “HB1 is a clear and present danger to the community. It hampers municipalities from prioritizing the limited resources that you have… HB1 says [other funding needs] don’t matter because the police budget can’t be touched… But most importantly, as Commissioner Gail cited, this is about silencing communities… So it is vital that Gainesville and other cities within the coalition for this litigation really push back against executive overreach and preemption… Your vote tonight will tell your constituents that you hear them, that you see them, and that you want to continue the important dialogue that started last year in reimagining public safety and allocation of limited resources for better social services to residents.”

Although Foster spoke about a coalition of cities, her colleague Jonathan Miller said that there is currently no coalition; the City of Miramar will vote on August 19 on whether to join the lawsuit, and “We’re confident that we’ll have a coalition of cities to file suit.” He said that the lawyers believe the City can prevail in the lawsuit. 

“I love suing Ron DeSantis. I would love to see this commission pass resolutions in support of the organizations suing the State of Florida over portions of this law because I believe they absolutely damage our community and our entire state.” – Commissioner Harvey Ward

Commissioner Harvey Ward said that, in his opinion, HB1 is unconstitutional. “I have been not at all shy at suing the governor’s office. We still have at least one active suit that I’m a personal party to against the governor and the governor’s office. It was Rick Scott back then. Now it’s Ron DeSantis. I love suing Ron DeSantis. I would love to see this commission pass resolutions in support of the organizations suing the State of Florida over portions of this law because I believe they absolutely damage our community and our entire state. They damage American government. They damage the American people. I am unconvinced, however, and become more unconvinced consistently, that the piece of this that applies to municipalities is something that we can win and that we ought to sue over. We heard that it commandeers local budgets. I don’t think that’s true… Keep in mind, more than 400 municipalities in Florida, and we’re the only one moving forward.”

“HB1 is awful. I would love to sue Ron DeSantis all day long. I would love for a lot of things to happen to Ron DeSantis, and they probably won’t happen. But… I don’t want to enter into this lawsuit because I worry about the precedent and the consequences of losses.” – Commissioner Reina Saco

Commissioner Reina Saco said, “It is my professional opinion as an attorney that we should not move forward with this litigation as of now. I have issues with the draft complaint. I have issues with how this is being presented to us, to my colleagues, and to the public. Because HB1 is awful. I would love to sue Ron DeSantis all day long. I would love for a lot of things to happen to Ron DeSantis, and they probably won’t happen. But… I don’t want to enter into this lawsuit because I worry about the precedent and the consequences of losses… HB1 is awful. The part that the City of Gainesville is litigating against has nothing to do with people’s constitutional rights. Has nothing to do with the ability to gather, to protest, to speak.” She said the “chilling effect” that people say HB1 will have on City budgets “has not been visible here” as the commission has discussed the budget for the upcoming fiscal year.

Commissioner Adrian Hayes-Santos said, “HB1 is a horrible, disgusting, and dangerous law. That being said, I don’t believe we are in a good position to move forward at this time, especially with the advice of our City Attorney.” Hayes-Santos asked Shalley whether she thought they should move ahead with the retained outside counsel if they decided to proceed.

Shalley said her feedback to the outside attorneys was that if they move forward, “the complaint… should at a minimum be pared down to simply a clear, clean statement of the facts. It should not contain combative political statements and irrelevant opinions, and it should state very clearly why what the legislature, in their opinion, did was unlawful and the relief sought.”

Mayor Lauren Poe said he felt strongly that they should move forward with the litigation: “I remain convinced that there are elements of HB1 as they apply to local government budgeting and the challenging of those budgets that are far outside any other process that exists within local government. Those two elements, I believe, must be constitutionally challenged. Because otherwise I believe that they create an incredibly powerful role for a singular minority or an individual who is not elected to oversee and serve the government that is responsible for passing a budget every year. And I have not heard anything to dissuade me from that yet… I wish we would have said a lot less tonight, I wish all of us would have said a lot less tonight, but we are where we are.”

Johnson made a motion to adopt the resolution to authorize litigation to challenge HB1. Ten members of the public commented, with 9 for the motion and one against. Some of those who supported the motion, however, wanted HB1 challenged because of the provisions about riots, and this lawsuit would address the budget provisions, not those about riots. Two attorneys also called in to say that they would be working on the lawsuit and pledged that it would remain pro bono.

The motion passed, 4-3, with Saco, Hayes-Santos, and Ward in dissent.