Orange Cnty. v. Singh

• Decision Date: 08 December 2017
• Docket Number: 5D16–2511,Case Nos. 5D16–2509
• Citation: 230 So.3d 639 (Mem)
• Parties: ORANGE COUNTY, Florida, Appellant/Cross–Appellee, v. Rick SINGH, Individually, Scott Randolph, Individually, Jerry Demings, Sheriff of Orange County, Rick Singh, Orange County Property Appraiser, Scott Randolph, Orange County Tax Collector, Appellees/Cross–Appellants, Bill Cowles, Orange County Supervisor of Elections and Orange County Canvassing Board, Appellees.
• Court: Florida District Court of Appeals

230 So.3d 639 (Mem)

ORANGE COUNTY, Florida, Appellant/Cross–Appellee,

v. Rick SINGH, Individually, Scott Randolph, Individually, Jerry Demings, Sheriff of Orange County, Rick Singh, Orange County Property Appraiser, Scott Randolph, Orange County Tax Collector, Appellees/Cross–Appellants,Bill Cowles, Orange County Supervisor of Elections and Orange County Canvassing Board, Appellees.

Case Nos. 5D16–2509

5D16–2511

District Court of Appeal of Florida, Fifth District.

Opinion filed December 8, 2017

Jeffrey J. Newton, County Attorney, and William C. Turner, Assistant County Attorney, Orange County Attorney's Office, Orlando, for Appellant/Cross–Appellee, Orange County, Florida.

John H. Pelzer, of Greenspoon Marder, P.A., Fort Lauderdale, and

Michael Marder, of Greenspoon Marder, P.A., Orlando, for Appellee/Cross–Appellant Rick Singh, Individually, and as Orange County Property Appraiser.

Gigi Rollini and Mark Herron, of Messer Caparello, P.A., Tallahassee, for Appellee/Cross–Appellant, Scott Randolph, Orange County Tax Collector, and Scott Randolph, Orlando, pro se.

Eric D. Dunlap, Assistant General Counsel, Orange County Sheriff's Office, Legal Services Section, Orlando, for Appellee/Cross–Appellant, Jerry Demings, Sheriff of Orange County.

Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Appellee Bill Cowles, Orange County Supervisor of Elections.

No Appearance for Appellee Orange County Canvassing Board.

David H. Margolis, Orlando, Amicus Curiae, for the Orange County Clerk of Circuit Court.

Jason Vail, of Jolly, Peterson & Truckenbrod P.A., Tallahassee, Amicus Curiae, for the Florida Sheriffs Association.

PER CURIAM.

Orange County appeals a final judgment striking a portion of a county charter amendment that provided for the nonpartisan election of certain county constitutional officers. We affirm. The trial court properly determined that the amendment provision was contrary to state law.

On August 19, 2014, the Orange County Board of Commissioners enacted an ordinance proposing an amendment to the Orange County Charter to provide for term limits and nonpartisan elections for six county constitutional officers—clerk of the circuit court, comptroller, property appraiser, sheriff, supervisor of elections, and tax collector. The ordinance provided for the following ballot question to be presented for further approval:

CHARTER AMENDMENT PROVIDING FOR TERM LIMITS AND NON–PARTISAN ELECTIONS FOR COUNTY CONSTITUTIONAL OFFICERS

For the purpose of establishing term limits and nonpartisan elections for the Orange County Clerk of the Circuit Court, Comptroller, Property Appraiser, Sheriff, Supervisor of Elections and Tax Collector, this amendment provides for county constitutional officers to be elected on a non-partisan basis and subject to term limits of four consecutive full 4–year terms.

_____ Yes

_____ No

The ballot question appeared on the November 4, 2014 ballot and was approved by the majority of Orange County voters. As a result, the relevant portions of section 703 of the Orange County Charter were amended (as underlined) to read:

B. Except as may be specifically set forth in the Charter, the county officers referenced under Article VIII, Section 1(d) of the Florida Constitution and Chapter 72–461, Laws of Florida, shall not be governed by the Charter but instead governed by the Constitution and laws of the State of Florida. The establishment of nonpartisan elections and term limits for county constitutional officers shall in no way affect or impugn their status as independent constitutional officers, and shall in no way imply any authority by the board whatsoever over such independent constitutional officers.

C. Elections for all county constitutional offices shall be non-partisan. No county constitutional office candidate shall be required to pay any par ty assessment or be required to state the party of which the candidate is a member. All county constitutional office candidates' names shall be placed on the ballot without reference to political party affiliation.

In the event that more than two (2) candidates have qualified for any single county constitutional office, an election shall be held at the time of the first primary election and, providing no candidate receives a majority of the votes cast, the two (2) candidates receiving the most votes shall be placed on the ballot for the general election.

D. Any county constitutional officer who has held the same county constitutional office for the preceding four (4) full consecutive terms is prohibited from appearing on the ballot for reelection to that office; provided, however, that the terms of office beginning before January 1, 2015 shall not be counted.

Prior to the November 4, 2014 election, three Orange County constitutional officers—the sheriff, property appraiser, and tax collector (collectively "Appellees")—filed a suit for declaratory and injunctive relief against Orange County, challenging the underlying county ordinance as well as the ballot title and summary.¹ After the election, in ruling on competing summary judgment motions, the trial court upheld the portion of the charter amendment providing for term limits, but struck down that portion providing for nonpartisan elections. The trial court concluded that Orange County was prohibited from regulating nonpartisan elections for county constitutional officers because that subject matter was preempted to the Legislature. This appeal followed.

Article VIII, section 1(g) of the Florida Constitution grants broad home rule power to charter counties, but prohibits those counties from enacting ordinances that are inconsistent with general law:

CHARTER GOVERNMENT. Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of the county operating under a charter may enact county ordinances not inconsistent with general law....

There are two ways in which a county will be found to have enacted an ordinance that was inconsistent with general law. First, a county cannot legislate in a field if the subject area has been preempted to the Legislature. Phantom of Brevard, Inc. v. Brevard Cty., 3 So.3d 309, 314 (Fla. 2008). Second, in a field where both the state and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute. Id.

We agree with Appellees' assertion that Orange County cannot regulate the method and timing of its elections for county constitutional officers because that subject area has been...