News Reedy Creek Improvement District and the Central Florida Tourism Oversight District

[GoofGoof]

As long as we are referencing state statutes, the legislature can write new statutes to alter those existing statutes using the infamous “notwithstanding”.

Legislatures change laws all the time. This is why we should focus the Florida Constitution to find ways it might be violated.

Therefore, when you quote:

(1) The governing body of the district shall be a Board of Commissioners which shall consist of seven members, each of whom shall be residents of the district and appointed by the Governor.​

This prevents the governor from appointing his own board without the consent of the legislature. However, if the governor has that consent, then the governor and legislature are only bound by the state constitution (and federal law).

Remember, even through F.S. 189.072(2)(a) states:

In order for the Legislature to dissolve an active independent special district created and operating pursuant to a special act, the special act dissolving the active independent special district must be approved by a majority of the resident electors of the district or, for districts in which a majority of governing body members are elected by landowners, a majority of the landowners voting in the same manner by which the independent special district’s governing body is elected.​

The legislature navigated around this by simply including the following in the bill to terminate RCID:

Notwithstanding s. 189.072(2),​

We have to keep in mind that the Florida Supreme Court is composed of a majority of conservative justices, who are more likely to be textualists. Therefore, focusing on the actual text of the Florida Constitution (without reading something into it that’s not explicit) might give us a better idea of how they might rule on future cases.

I’m not saying this is the only way this will play out. I’m only suggesting that it’s more likely to play out this way.

I think you and I have reached the same conclusion (Disney's rights were violated) - it’s just a matter of how we get there.

Again, I do not think the “notwithstanding” wording is an automatic blank check to do what they want. As stated earlier just because the constitution doesn’t explicitly prevent an action doesn‘t make it automatically legal. Take this out of the context of a political debate and public feud. If the Governor decided to dissolve a special district that covers a community hospital and then created a new special district where he appointed whoever he wanted to run it, people from outside the district, and then publicly said he was going to raise the taxes on the taxpayers in that district and they would have no say how the hospital was a actually run and how the funds are spent, would the courts just allow that? If a landowner sued they could point to the fact that there are thousands of special districts and none are structured this way. There’s a great deal of precedent already there. If the only argument the Governor would have is a sentence that says “notwithstanding“ that’s a very difficult legal argument to win.

This is much bigger than this petty fight with Disney. The Governor was publicly angry that he didn’t have total control over local governments during the Covid pandemic. This is a basic power play disguised as a culture war crusade. If the courts allow the Governor and legislature to do whatever they want and supersede the power of local elected officials that‘s the first step towards taking total control.

 

[lentesta]

Again, I do not think the “notwithstanding” wording is an automatic blank check to do what they want. As stated earlier just because the constitution doesn’t explicitly prevent an action doesn‘t make it automatically legal.

My assumption here is that the governor and legislature will attempt to use "notwithstanding" as a blank check to do whatever they want. They'll put the onus on Disney to make the case that it violates the FL or US constitutions (FLC and USC). It costs Disney time and money, and requires an extensive PR campaign.

Put more bluntly: it's clear that "legal" is a secondary, maybe tertiary concern here. It's not stopping anyone from passing legislation. That's why the focus is on the FLC and USC - what's the backstop when two branches of government are colluding?

Not for nothing, but the governor also knows the direction that the FLSC and SCOTUS lean. I'm not exaggerating when I say that every lawyer I've spoken to - without exception - identified the same 3 SCOTUS justices as likely to find some argument that allows them to side with DeSantis, if it comes to that.

Of course, there are 3 justices who'd view DeSantis with skepticism too.

I think the thing that's needed to stop the courts is that the action take is so obviously unconstitutional that 2 more judges aren't willing to go along. In this case, I think Roberts is one of the swing votes, if that helps.

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[GoofGoof]

My assumption here is that the governor and legislature will attempt to use "notwithstanding" as a blank check to do whatever they want. They'll put the onus on Disney to make the case that it violates the FL or US constitutions (FLC and USC). It costs Disney time and money, and requires an extensive PR campaign.

Put more bluntly: it's clear that "legal" is a secondary, maybe tertiary concern here. It's not stopping anyone from passing legislation. That's why the focus is on the FLC and USC - what's the backstop when two branches of government are colluding?

Not for nothing, but the governor also knows the direction that the FLSC and SCOTUS lean. I'm not exaggerating when I say that every lawyer I've spoken to - without exception - identified the same 3 SCOTUS justices as likely to find some argument that allows them to side with DeSantis, if it comes to that.

Of course, there are 3 justices who'd view DeSantis with skepticism too.

I think the thing that's needed to stop the courts is that the action take is so obviously unconstitutional that 2 more judges aren't willing to go along. In this case, I think Roberts is one of the swing votes, if that helps.

:

I don’t know the specific backgrounds of the individual members of the FL Supreme Court, I know it’s skewed heavily conservative, but that doesn’t automatically mean they side with DeSantis. Many conservative judges would have a very difficult time overturning years of precedent in favor of obvious government overreach. There are literally thousands of special districts in FL and none are setup with both taxing authority and a board that is made up of members from outside the district exclusively selected by the governor. That kind of obvious government overreach sets a dangerous precedent that any judge would need to think long and hard on.

 

[Chip Chipperson]

I don’t know the specific backgrounds of the individual members of the FL Supreme Court, I know it’s skewed heavily conservative, but that doesn’t automatically mean they side with DeSantis. Many conservative judges would have a very difficult time overturning years of precedent in favor of obvious government overreach. There are literally thousands of special districts in FL and none are setup with both taxing authority and a board that is made up of members from outside the district exclusively selected by the governor. That kind of obvious government overreach sets a dangerous precedent that any judge would need to think long and hard on.

And it would create an obvious First Amendment case that could bypass the FL courts altogether. "You spoke out against our legislation so now we're taking away your right to vote for your District’s board - and we plan to use our newly-acquired control of that board to raise your taxes."

 

[mikejs78]

We have to keep in mind that the Florida Supreme Court is composed of a majority of conservative justices, who are more likely to be textualists. Therefore, focusing on the actual text of the Florida Constitution (without reading something into it that’s not explicit) might give us a better idea of how they might rule on future cases.

Again, I do not think the “notwithstanding” wording is an automatic blank check to do what they want.

My assumption here is that the governor and legislature will attempt to use "notwithstanding" as a blank check to do whatever they want. They'll put the onus on Disney to make the case that it violates the FL or US constitutions (FLC and USC). It costs Disney time and money, and requires an extensive PR campaign.

Textualists, though, also don't like ambiguity, and tend to frown on blanket "notwithstanding" clauses - they would much prefer, for example, a specific callout to amend the text of the section in question, and will often defer to the more specific statute than the general notwithstanding clause. There's also the complication under FL law as to how laws need to be written, how each law is supposed to only deal with a specific thing, that complicate how a law can be constructed. Case in point, it's highly likely that the Dissolution law as written today wouldn't even hold up as applying to Reedy Creek under rules of statutory construction.

That said, I think @lentesta is right that they'll try to do this anyways, as the goal isn't necessarily to actually remove the district, but rather cause pain for Disney and score a political win with their base.

 

[GoofGoof]

And it would create an obvious First Amendment case that could bypass the FL courts altogether. "You spoke out against our legislation so now we're taking away your right to vote for your District’s board - and we plan to use our newly-acquired control of that board to raise your taxes."

Yes for sure. I was just putting the Federal issue aside and also the contract issue with the bondholders involving the promise from the state which violates the contract. I was speaking purely from a taxpayer and local government structure standpoint. What the Governor is proposing to do certainly was never intended when the state constitution was written.

 

[lazyboy97o]

I don’t know the specific backgrounds of the individual members of the FL Supreme Court, I know it’s skewed heavily conservative, but that doesn’t automatically mean they side with DeSantis. Many conservative judges would have a very difficult time overturning years of precedent in favor of obvious government overreach. There are literally thousands of special districts in FL and none are setup with both taxing authority and a board that is made up of members from outside the district exclusively selected by the governor. That kind of obvious government overreach sets a dangerous precedent that any judge would need to think long and hard on.

It makes an even bigger issue if they try to maintain the flimsy pretense special district reform. That means this change to give the governor control would have to apply to other special districts.

 

[GrumpyFan]

I'm late to the conversation, and maybe it's been said already, but the biggest issue I see with dissolving Reedy Creek is figuring out how to redistribute the services (fire, utilities, roads, water ways) to the neighboring governments and then ensuring they maintain the same high level that Disney has developed. Yes, Disney has an advantage in how RCID is organized and run, but this advantage also serves the governments and citizens of Orange and Osceola equally as well. Because of RCID, Disney's pays taxes to themselves which goes directly to these services to maintain the property, which relieves the local governments responsibility to provide services.

What people don't realize is that the RCID tax rate is higher than the surrounding counties and affords Disney they ability to maintain their own property as they see fit, and not have to rely on or over-burden the county's infrastructure. This self-contained district also relieves the local citizens from the burden of having to pay for improvements to Disney property.

 

[lentesta]

I'm late to the conversation, and maybe it's been said already, but the biggest issue I see with dissolving Reedy Creek is figuring out how to redistribute the services (fire, utilities, roads, water ways) to the neighboring governments and then ensuring they maintain the same high level that Disney has developed. Yes, Disney has an advantage in how RCID is organized and run, but this advantage also serves the governments and citizens of Orange and Osceola equally as well. Because of RCID, Disney's pays taxes to themselves which goes directly to these services to maintain the property, which relieves the local governments responsibility to provide services.

What people don't realize is that the RCID tax rate is higher than the surrounding counties and affords Disney they ability to maintain their own property as they see fit, and not have to rely on or over-burden the county's infrastructure. This self-contained district also relieves the local citizens from the burden of having to pay for improvements to Disney property.

Welcome!

I think the FL legislature realizes this too. The consensus here (if I'm reading this correctly) is that the legislature will attempt to keep the RCID in place and add board members (somehow) appointed by the governor (somehow).

Keeping the RCID in place resolves all the tax, bond, and contract issues that arise from dissolution.

The latest round of posts here is discussing:

1. Whether the Florida or US constitutions (FLC/USC) prohibit this style of takeover from happening
2. Whether allowing it to happen would generate conflicts within the FL or USC such that the courts would be unable to resolve without kicking back to the legislature for another re-do.

I think we all agree that Disney has a 1st Amendment case to fall back on, if it comes to that, and that Disney doesn't want that to be their main strategy. I think Disney would prefer not to play that card until all other options have been explored.

 

[mikejs78]

Welcome!

I think the FL legislature realizes this too. The consensus here (if I'm reading this correctly) is that the legislature will attempt to keep the RCID in place and add board members (somehow) appointed by the governor (somehow).

Keeping the RCID in place resolves all the tax, bond, and contract issues that arise from dissolution.

The latest round of posts here is discussing:

1. Whether the Florida or US constitutions (FLC/USC) prohibit this style of takeover from happening
2. Whether allowing it to happen would generate conflicts within the FL or USC such that the courts would be unable to resolve without kicking back to the legislature for another re-do.

I think we all agree that Disney has a 1st Amendment case to fall back on, if it comes to that, and that Disney doesn't want that to be their main strategy. I think Disney would prefer not to play that card until all other options have been explored.

I still think we could see a face-saving compromise where the governor appoints the board from among the residents of Reedy Creek - and largely keeps the board intact, but allows them to claim victory in that "the state now has oversight".

 

[flynnibus]

I still think we could see a face-saving compromise where the governor appoints the board from among the residents of Reedy Creek - and largely keeps the board intact, but allows them to claim victory in that "the state now has oversight".

meh... This would not hold up to even the most simple twitter headline win.

Even a child would point out that Disney controls who the residents are.. so it's a simple charade. The Gov would never claim victory for something known to be the company holding the line over him. Nah... he can't claim victory picking company men.

 

[GoofGoof]

meh... This would not hold up to even the most simple twitter headline win.

Even a child would point out that Disney controls who the residents are.. so it's a simple charade. The Gov would never claim victory for something known to be the company holding the line over him. Nah... he can't claim victory picking company men.

I don’t know if he will have a choice. It seems unlikely that it will be deemed legal for the Governor to appoint a board and not have the board selected from landowners in the district. There are currently no examples of special districts in FL that have taxing authority where the board is Government appointed without a clause that says the board members must be from the district. I think that is his goal but it seems like a big hurdle to overcome.

 

[GrumpyFan]

The latest round of posts here is discussing:

1. Whether the Florida or US constitutions (FLC/USC) prohibit this style of takeover from happening
2. Whether allowing it to happen would generate conflicts within the FL or USC such that the courts would be unable to resolve without kicking back to the legislature for another re-do.

Are either of these even viable without further legislation?

I would be curious to know if there's anything in the recently passed legislation that Disney could challenge in Florida's state supreme court? On the surface, this new law seems to violate the original act.

I think we all agree that Disney has a 1st Amendment case to fall back on, if it comes to that, and that Disney doesn't want that to be their main strategy. I think Disney would prefer not to play that card until all other options have been explored.

If it comes to that, it would be a big case, and would likely take a few years to work its way through the courts.

 

[GrumpyFan]

Some interesting comments to add to all of this.

Reedy Creek âsets the stageâ for the Disney experience

As the former City Manager of Kissimmee, Florida, and a member of the Reedy Creek Pollution Control Board, I was surprised by Governor DeSantis and the Florida legislature when they enacted a law in April to dissolve the Reedy Creek Improvement District (RCID). Was this action by the State good publ

www.linkedin.com

 

[lazyboy97o]

I think we all agree that Disney has a 1st Amendment case to fall back on, if it comes to that, and that Disney doesn't want that to be their main strategy. I think Disney would prefer not to play that card until all other options have been explored.

I believe @UNCgolf mentioned that courts don’t like repeated attempts at having something dealt with. State and federal jurisdictions allow for some separation of cases, but I wouldn’t be surprised to see a big package case that lays out all of the issues.

Are either of these even viable without further legislation?

I would be curious to know if there's anything in the recently passed legislation that Disney could challenge in Florida's state supreme court? On the surface, this new law seems to violate the original act.

It is not possible with the current law and almost immediately after signing it the governor and his office started claiming to have a plan that would involve additional legislation.

A number of issues with the current law that would be decided at the state level have been discussed. Everything from whether or not it actually applies to Reedy Creek Improvement District to it being a violation of the bond pledge and contracts.

 

[lazyboy97o]

Up to this point, Disney hasn't said a word. (All we've seen so far is a statement from RCID concerning its bond obligations.) I suspect there will be thousands of hours of legal work invested before Disney comes out with a public statement.

If they want to, Disney's next statement could eviscerate the state's actions. It certainly would make for an interesting read!

Still, a more amicable solution probably is in Disney's (and Florida's) best interests. Presumably, Disney's lobbyists (and others) are working back channels. There's a real possibility this never makes it to court.

The legislature either has to pass new laws that undo what they have done, or the courts get involved. I don’t understand this broad desire on this and other issues to make concessions to those that abuse power and provide them a means of saving face. Nothing good comes from that sort of appeasement accept encouraging more abuse. More than anything I hope Disney does not seek a “compromise” with a flagrant violation of the rule of law.

Neither Disney nor the District have to respond immediately. Staying silent now serves to keep the situation quiet. It robs the governor and his supports of fuel to show how they are still fighting Disney. They can wait until November to file. In the meantime we could also see more serious steps taken by others. We could see other agencies negatively report on Florida’s credit and/or see a serious bond holder challenge to the dissolution.

 

[ParentsOf4]

I don’t understand this broad desire on this and other issues to make concessions to those that abuse power and provide them a means of saving face. Nothing good comes from that sort of appeasement accept encouraging more abuse. More than anything I hope Disney does not seek a “compromise” with a flagrant violation of the rule of law.

I understand your anger but what does Disney gain by launching an all-out assault on a sitting governor who likely will easily win re-election later this year?

Whether you like it or not (and regardless of whether it’s legal and eventually will be overturned by the courts) DeSantis’ actions are popular with many Florida voters. A lot of Floridians approve of what DeSantis has done.

As Michael Jordan famously said, “Republicans buy sneakers too.” Disney understands public relations better than anyone. Winning in court is important, but winning in the court of public opinion is important too.

We are in this current mess because people reacted with their emotions, rather than with their heads.

An eye for an eye just leaves the whole world blind.

Rather than seek retribution for being wronged, it might very well be in Disney’s best interests to de-escalate and resolve this in an agreeable manner.

Corporate attorneys often advise to settle on reasonable grounds if at all possible. Disney’s attorneys might be advising Chapek that very thing.

 

[GoofGoof]

Even tho they rely on half-truths and distortion... they still try to avoid things like stepping in poo. It doesn't take much of a gotcha to expose you as a fool to parade the idea that 'its your people' when it's clearly not. I don't think this one is on the table. Appointing only from Disney's hand picks doesn't market well enough in the media. He'll avoid that one.

If he avoids hand picking the board then that is already a lie considering he has publicly stated that his intent is to take control away from Disney and have the Government pick the board. I agree that a board hand picked by the Governor is not a likely outcome. There are many examples of special districts in FL where the government picks the board (not elected), the vast majority of those district do not have taxing authority. Of the special districts in FL that have taxing authority and the government picks the board all have clauses that state the appointed board members must be members of the district. No taxation without representation.

So the Governor’s stated goals are:

1. Take control away from Disney. He said he didn’t think control should go to the local level either that the state would appoint the board of a new district created
2. Make Disney pay their fair share in taxes. He said they will not see a tax break from this as some are suggesting and that they would be paying more in taxes going forward
3. There will not be a tax increase for local or state taxpayers. He said the cost of the services and the debt payments will not go to the local counties or the state. He will make Disney pay back the debt

Based on that list if he wants to achieve #1 (the goal that matters since that is the punishment) then he will have almost no path to achieve #2 and/or #3. If his focus remains on #2 and #3 and not hurting citizens and other businesses in FL then he’s going to have to give up #1. The only way to spin that as a win is to replace RCID with a new district that operates nearly exactly the same. It would be easy to claim #2 and #3 are accomplished then. If the Governor gets to “appoint the board” but it has to be from landowners in the district then we all know that Disney still retains most of the control but he can try to spin that as “less control” since he has the right to reject board candidates he deems unfit. It’s basically a shift from Disney has total control to Disney has almost total control. There are landowners in RCID that are not Disney and not Disney appointees. In the current setup Disney has the overwhelming majority of votes since voting rights are based on acres owned. I believe most of not all of the additional landowners are businesses but it’s not just Disney who pays taxes to RCID. It’s also possible the Governor expands the district and the appoints from the new area.

 

[mikejs78]

Even tho they rely on half-truths and distortion... they still try to avoid things like stepping in poo. It doesn't take much of a gotcha to expose you as a fool to parade the idea that 'its your people' when it's clearly not. I don't think this one is on the table. Appointing only from Disney's hand picks doesn't market well enough in the media. He'll avoid that one.

Not if he doesn't have any other credible path forward....

I believe @UNCgolf mentioned that courts don’t like repeated attempts at having something dealt with. State and federal jurisdictions allow for some separation of cases, but I wouldn’t be surprised to see a big package case that lays out all of the issues.

That's true - but Disney could focus all its efforts on the state court issues first, and should that fail, go after the first amendment issue in federal court.

Section legislature either has to pass new laws that undo what they have done, or the courts get involved.

Eh, maybe not. It can be argued that if they do nothing from here on out, Reedy Creek continues to exist because:
* This law conflicts with the Reedy Creek Act, and section 2 of the Reedy Creek Act says that any future laws that conflict with the Reedy Creek Act don't apply to Reedy Creek, unless Section 2 of the act is explicitly repealed or amended.
* even if the above weren't true, it could be argued that Reedy Creek had been recertified since 1968 based on other legislation that referenced Reedy Creek published after 1968.

 

[GoofGoof]

I understand your anger but what does Disney gain by launching an all-out assault on a sitting governor who likely will easily win re-election later this year?

Whether you like it or not (and regardless of whether it’s legal and eventually will be overturned by the courts) DeSantis’ actions are popular with many Florida voters. A lot of Floridians approve of what DeSantis has done.

As Michael Jordan famously said, “Republicans buy sneakers too.” Disney understands public relations better than anyone. Winning in court is important, but winning in the court of public opinion is important too.

We are in this current mess because people reacted with their emotions, rather than with their heads.

An eye for an eye just leaves the whole world blind.

Rather than seek retribution for being wronged, it might very well be in Disney’s best interests to de-escalate and resolve this in an agreeable manner.

Corporate attorneys often advise to settle on reasonable grounds if at all possible. Disney’s attorneys might be advising Chapek that very thing.

I mostly agree with this. Disney has little to gain from a public dispute, especially the goat rodeo which would result if this turned into a 1st amendment case going all the way to the Supreme Court. Imagine the spectacle that would be. Disney just wants a solution that puts them in the same or possibly a little better position financially. Despite the desires from some on both sides for this to be a drawn out battle Disney and FL need each other and both benefit greatly from each other. Disney doesn’t need to say boo at this point because nothing the Governor has suggested is likely to succeed or even legal. What has actually happened is state passed a bill which if left untouched results in the local taxpayers eating the cost of the debt and continuing services of RCID and Disney gets a major tax break.