The Gainesville City Commission voted 4-3 Thursday to authorize a lawsuit challenging HB 1, the controversial “anti-riot” law.
With the vote, it became the first city in Florida to do so.
Commissioner Gail Johnson said she’s been working on developing this challenge since Gov. Ron DeSantis announced HB 1 as his first priority back in September of last year. She was joined in her vote to sue by Commissioners David Arreola, Desmon Duncan-Walker and Mayor Lauren Poe.
Commissioners Reina Saco, Harvey Ward and Adrian Hayes-Santos gave the dissenting votes, following the advice of City Attorney Nicolle Shalley. They shared a concern that the lawsuit is not presently winnable, and losing could set a harmful legal precedent.
The draft complaint of the suit argues that the law limits the city’s flexibility to adjust its own budget around law enforcement and other municipal services related to public safety.
Saco, who worked as an Equal Justice Works Fellow for Florida Legal Services for more than two years until her election to the commission, said she worried if they lost, the state would set clearer definitions and parameters on the law, making it more “dangerous.” She also contended HB 1 had not inhibited or even been brought up during the commission’s police budget discussions.
“I’m … not going to put our city under a scope for retaliation on a case that will likely lose and then come back to hit us hard,” Saco said.
Cassandra Tucci, a Gainesville resident who called in support of the lawsuit, contested that Gainesville “is already under our governor’s scope for many reasons that we all know about. We are a progressive city.”
“Other cities will sign onto this as soon as we do,” Tucci said. “There is power in numbers, and someone has to lead.”
While Ward said while he believes HB 1 is unconstitutional on many grounds, he wasn’t convinced that HB 1 actually commandeers local budgets — the core complaint of the lawsuit.
“It’s great activism and good politics to roll down that road. I just don’t believe it’s accurate,” he said, adding that a member of their own commission or the state attorney would need to challenge a reduction in the law enforcement budget first in order to trigger the state’s review process.
Ward didn’t want to move forward without a solidified coalition of cities and the support of the city attorney’s office.
“I like suing Ron DeSantis. I want to sue Ron DeSantis,” he said. “But I want it to be on something we’re gonna win.”
Sarah Swan, a Florida State University law professor with an expertise in local government law, called to voice support of the lawsuit as legally sound and a way for cities to fight against attacks on their home rule powers.
“Someone has to go first,” Swan said, “and Gainesville is very well positioned to do that.”
According to the legal director of Public Rights Project, Jonathan Miller, the city of Miramar will be voting on authorizing litigation against HB 1 on Aug. 18, with supporting recommendations from both Miramar’s mayor and city attorney.
City Attorney Nicolle Shalley said the commission had circumvented the city’s charter by not allowing her office to fulfill its role as legal advisor to the city. She said her office was directed to retain specific outside legal counsel who had solicited commission members both at a public meeting and individually.
“I had not been confronted with that situation before,” Shalley said, “where 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.”
Shalley said she should’ve guided the city to direct the office to find qualified outside counsel, but the commission can’t select other attorneys on its own because the charter invests that power in the city attorney’s office.
“We do not retain advocacy groups who have their own agendas,” Shalley said, “and we do not allow the city’s legal matters to be politicized.”
Johnson insisted the move to sue did not originate from an advocacy group, but from her.
Though Shalley recommended waiting for a more concrete violation to sue, Miller said challenging HB 1 on its face is most advantageous because it can invalidate the entire municipal budgeting section of the law, can be done in coalition with other cities and can more immediately stop the impact.
“This is not going to be easy,” Poe said, “but I absolutely remain convinced that these questions are impactful and significant enough that they must be tested and challenged and hopefully ruled unconstitutional.”
Public comment — at least from those still present nearing midnight — was overwhelmingly in support of the lawsuit.
Johnson also presented a letter of support signed by nearly three dozen community leaders, including Gainesville Vineyard Pastor Mike Rayburn.
“HB 1 is an unjust law,” Rayburn said, “and each of us has a moral obligation to oppose an unjust law. Oppose it with every opportunity you have.”
Shalley said she gave feedback to the outside attorneys that the complaint should “be pared down to simply a clear plain statement of the facts. It should not contain combative political statements and irrelevant opinions.”
It remains to be seen which Florida cities, if any, will join Gainesville’s legal challenge of HB 1.