302 So.3d 1001 (Fla.App. 1 Dist. 2020), 1D19-1089, County of Volusia v. DeSantis

Docket Nº1D19-1089
Citation302 So.3d 1001
Opinion JudgeKelsey, J.
Party NameCOUNTY OF VOLUSIA, Philip T. Fleuchaus, and T. Wayne Bailey, Appellants/Cross-Appellees, v. Ron DESANTIS, Governor of the State of Florida; Laurel M. Lee, Secretary of State of the State of Florida; Florida Tax Collectors Association; and Florida Association of Court Clerks, Inc., Appellees/Cross-Appellants.
AttorneyWilliam Kevin Bledsoe, Deputy County Attorney, DeLand, for Appellants/Cross-Appellees. Ashley Moody, Attorney General, Amit Agarwal, Solicitor General, Edward M. Wenger, Chief Deputy Solicitor General, and Blaine H. Winship, Special Counsel, Tallahassee, for Appellee/Cross-Appellant Ron DeSantis,...
Judge PanelRay, C.J., concurs; Makar, J., concurs in part and dissents in part with opinion. Makar, J., concurring in part, dissenting in part.
Case DateAugust 17, 2020

Page 1001

302 So.3d 1001 (Fla.App. 1 Dist. 2020)

COUNTY OF VOLUSIA, Philip T. Fleuchaus, and T. Wayne Bailey, Appellants/Cross-Appellees,

v.

Ron DESANTIS, Governor of the State of Florida; Laurel M. Lee, Secretary of State of the State of Florida; Florida Tax Collectors Association; and Florida Association of Court Clerks, Inc., Appellees/Cross-Appellants.

No. 1D19-1089

Florida Court of Appeals, First District

August 17, 2020

Page 1002

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

On appeal from the Circuit Court for Leon County. John C. Cooper, Judge.

William Kevin Bledsoe, Deputy County Attorney, DeLand, for Appellants/Cross-Appellees.

Ashley Moody, Attorney General, Amit Agarwal, Solicitor General, Edward M. Wenger, Chief Deputy Solicitor General, and Blaine H. Winship, Special Counsel, Tallahassee, for Appellee/Cross-Appellant Ron DeSantis, Governor of Florida; Bradley R. McVay, Interim General Counsel, and Ashley E. Davis, Deputy General Counsel, Tallahassee, for Appellee/Cross-Appellant Laurel M. Lee, Secretary of State; Timothy R. Qualls of Young Qualls, P.A., Tallahassee, for Appellee/Cross-Appellant Florida Tax Collectors Association; Barry Richard of Greenberg Traurig, P.A., Tallahassee, for Appellee/Cross-Appellant Florida Association of Court Clerks, Inc.

Kelsey, J.

Florida home-rule counties used to be able to adopt charter provisions governing the selection and functions of their county constitutional officers: sheriffs, tax collectors, property appraisers, supervisors of elections, and clerks of circuit court. That changed in the November 2018 general election, when Florida voters approved a constitutional amendment, part of a revision the 2017-18 Constitution Revision

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Commission proposed, eliminating that previously authorized home-rule power. Volusia County had opted for the local approach in 1970, adopting charter provisions establishing a county council and county departments whose heads performed the duties of these offices. The county council appointed the head of the department that replaced the tax collector, and county voters elected the heads of the other departments.

After the 2018 election, the County sued for declaratory and injunctive relief, seeking a declaration that the 2018 amendment did not affect the County's pre-existing methods of selection, performance, and management of the duties of the County's constitutional officers. The County named Florida's Governor and Secretary of State as defendants. The County asserted that these officers were proper defendants because each has the legal duty to sign the commissions of county constitutional officers. Both the Governor and Secretary of State asserted they were not proper defendants. The Florida Association of Court Clerks, Inc., and The Florida Tax Collectors, Inc., were granted leave to intervene as defendants.

In the final summary judgment on appeal, the trial court ruled that the County must comply with the 2018 amendment, and that both the Governor and Secretary of State were proper parties to the lawsuit. The County appeals the merits ruling, and the Governor and Secretary of State cross-appeal as to their party status. Our standard of review is de novo as to both sets of issues. See Lewis v. Leon Cty., 73 So.3d 151, 153 (Fla. 2011) (applying de novo review of constitutional interpretation issues); cf. Reynolds v. Nationstar Loan Servs., LLC, 190 So.3d 219, 221 (Fla. 4th DCA 2016) (applying de novo standard to determine proper party status). We affirm the trial court's ruling on the merits, reverse the determination that the Governor was a proper defendant, and affirm that the Secretary of State was a proper defendant in light of the substantive provisions of the amendment.

The Amendment.

The 2018 amendment to article VIII of the Florida Constitution provided as follows (indicating deleted text as stricken through and added text as underlined):

SECTION 1. Counties.—

....

(d) COUNTY OFFICERS. There shall be elected by the electors of each county, for terms of four years, a sheriff, a tax collector, a property appraiser, a supervisor of elections, and a clerk of the circuit court; except, when provided by county charter or special law approved by vote of the electors of the county, any county officer may be chosen in another manner therein specified, or any county office may be abolished when all the duties of the office prescribed by general law are transferred to another office. Unless When not otherwise provided by county charter or special law approved by vote of the electors or pursuant to Article V, section 16, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds. Notwithstanding subsection 6(e) of this article, a county charter may not abolish the office of a sheriff, a tax collector, a property appraiser, a supervisor of elections, or a clerk of the circuit court; transfer the duties of those officers to another officer or office: change the length of the four-year term of office; or establish any manner of selection other than by election by the electors of the county.

....

SECTION 6. Schedule to Article VIII.

....

Page 1004

(g) SELECTION AND DUTIES OF COUNTY OFFICERS.

(1) Except as provided in this subsection, the amendment to Section 1 of this article, relating to the selection and duties of county officers, shall take effect January 5, 2021, but shall govern with respect to the qualifying for and the holding of the primary and general elections for county constitutional officers in 2020.

(2) For Miami-Dade County and Broward County, the amendment to Section 1 of this article, relating to the selection and duties of county officers, shall take effect January 7, 2025, but shall govern with respect to the qualifying for and the holding of the primary and general elections for county constitutional officers in 2024.

The ballot summary for this amendment described its legal effect as follows: "Ensures election of sheriffs, property appraisers, supervisors of elections, tax collectors, and clerks of court in all counties; removes county charters' ability to abolish, change term, transfer duties, or eliminate election of these offices." See Cty. of Volusia v. Detzner, 253 So.3d 507, 509 (Fla. 2018). The schedule for the amendment provided that it "shall take effect January 5, 2021, but shall govern with respect to the qualifying for and the holding of the primary and general elections for county constitutional officers in 2020." See id. at 510; see also Art. VIII, § 6(g)(1), Fla. Const. The Florida Supreme Court approved the amendment for ballot placement, finding that the ballot summary accurately described the chief purpose and legal effect of the amendment. Detzner, 253 So.3d at 511. The supreme court declined to consider how the amendment would affect Volusia's county structure, leaving that decision to a post-election action such as this. Id. at 513.

"Retroactivity."

The County argues here, as it did below, that it is not subject to the new amendment because retroactive application would be impermissible. Put another way, the County argues that its 1970 charter amendments were "grandfathered in," and remain in effect despite passage of the amendment. We reject the County's argument and affirm the circuit court's ruling on this issue.

This amendment is not "retroactive" in the sense of reaching back in time to invalidate what went before or to attach new legal consequences to actions already completed. See Metro. Dade Cty. v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla. 1999) (defining retroactive operation as occurring when amendment "attaches new legal consequences to events completed before its enactment") (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)); see also Tejada v. In re Forfeiture of The Following Described Prop.: $406,626.11 In U.S. Currency, 820 So.2d 385, 389 (Fla. 3d DCA 2002) (recognizing statute does not operate retrospectively just because it applies to conduct that occurred before enactment of the statute or changes expectations arising from previous law).

This amendment effected a prospective change, giving the County a deadline of January 5, 2021 to comply, expressly beginning "with respect to the qualifying for and the holding of the primary and general elections for county constitutional officers in 2020."[*] The amendment required the County only to alter its future structure for county constitutional offices, which makes the amendment prospective and not

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retroactive. The amendment attaches no new legal consequences to the County's 1970 charter amendments or its past actions or operations consistent with those provisions. The amendment requires that the County's old charter provisions "will simply have to give way." See In re Advisory Opinion to Atty. Gen., Limitation of Non-Econ. Damages in Civil Actions, 520 So.2d 284, 287 (Fla. 1988) ("The committee correctly observes that statutes and jury instructions which are inconsistent with the constitution, if it is amended, will simply have to give way.").

In a related argument, the County contends that this amendment violates the pre-existing constitutional provision prohibiting amendment of a county charter except by vote of the county's electorate. See Art. VIII, § 1(c), Fla. Const. ("Pursuant to general or special law, a county government may be established by charter which shall be adopted, amended or repealed only upon vote of the electors of the county in a special election called for that purpose."). This amendment, however, expressly amended article...

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