Orange Cnty. v. Singh

• Decision Date: 04 January 2019
• Docket Number: No. SC18-79,SC18-79
• Parties: ORANGE COUNTY, FLORIDA, Petitioner, v. RICK SINGH, etc., et al., Respondents.
• Court: Florida Supreme Court

ORANGE COUNTY, FLORIDA, Petitioner, v. RICK SINGH, etc., et al., Respondents.

No. SC18-79

Supreme Court of Florida

January 4, 2019

QUINCE, J.

We have for review Orange County v. Singh, 230 So. 3d 639 (Fla. 5th DCA 2017), a decision of the Fifth District Court of Appeal that expressly construes a provision of the Florida Constitution. Additionally, Orange County asserts that the decision below conflicts with Telli v. Broward County, 94 So. 3d 504 (Fla. 2012). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash the decision below and uphold the validity of the ordinance with the exception of the language we discuss below, which we conclude to be in direct conflict with section 100.041, Florida Statutes (2018).

FACTS

The underlying facts were discussed in the Fifth District's opinion as follows:

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 countyconstitutional 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 party 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. 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.

Singh, 230 So. 3d at 640-41 (footnote omitted).

On appeal, the Fifth District Court of Appeal reasoned that while counties have broad home rule powers under article VIII, section 1(g) of the Florida Constitution, "Orange County cannot regulate the method and timing of its election for county constitutional officers because that subject area has been preempted to the State." Singh, 230 So. 3d at 641. The district court affirmed the trial court's striking of the conflicting portion of the ordinance. Id. at 642. Orange County now appeals.

DISCUSSION

"A regularly enacted ordinance will be presumed to be valid until the contrary is shown, and a party who seeks to overthrow such an ordinance has the burden of establishing its invalidity." State ex rel. Office Realty Co. v. Ehinger, 46 So. 2d 601, 602 (Fla. 1950) (citation omitted). An appellate court will "indulge every reasonable presumption in favor of an ordinance's constitutionality." City of Pompano Beach v. Capalbo, 455 So. 2d 468, 469 (Fla. 4th DCA 1984).

Lowe v. Broward County, 766 So. 2d 1199, 1203-04 (Fla. 4th DCA 2000). A charter county such as Orange County obtains its sovereign powers through article VIII, section 1(g) of the Florida Constitution. See, e.g., Lowe, 766 So. 2d at 1204. We have "broadly interpreted the self-governing powers granted charter counties" under that article. Id. (quoting State v. Broward Cty., 468 So. 2d 965, 969 (Fla. 1985)).

Below, the Fifth District held that section 97.0115, Florida Statutes (2010), expressly preempts the Orange County ordinance requiring nonpartisan elections for county constitutional officers. Id. at 641-42. The Fifth District reasoned that the Legislature regulates elections generally through the Florida Election Code and "enacted section 97.0115 which expressly provides that all matters set forth in the Florida Election Code were preempted" to the Legislature. Id. at 642. The Fifth District further reasoned that chapter 105, Florida Statutes, "set forth provisions and procedures specific to nonpartisan elections," and "chapter 105 did not authorize counties to hold nonpartisan elections for the county constitutional officers that are the subject of the charter amendment at issue." Id. Because we find that the Florida Election Code does not expressly preempt Orange County's home rule authority to determine that constitutional officers be elected in a general election without partisan affiliation and find severable the conflicting portion of the ordinance requiring the election of these officers to occur at the primary election, we quash the decision below.

Article VIII, section 1(g) of the Florida Constitution provides that charter counties "shall have all powers of local self-government not inconsistent with general law." Art. VIII, § l(g), Fla. Const. Further, a charter county "may enact county ordinances not inconsistent with general law." Id. There are two ways a county ordinance can be inconsistent with state law and, therefore,unconstitutional. Phantom of Brevard, Inc. v. Brevard Cty., 3 So. 3d 309, 314 (Fla. 2008). "First, a county cannot legislate in a field if the subject area has been preempted to the State." Id. Second, "a county cannot enact an ordinance that directly conflicts with a state statute." Id.

Florida law recognizes these two types of preemption: express and implied. Express preemption requires a specific legislative statement; it cannot be implied or inferred. Id. Preemption is implied "when 'the legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong public policy reasons exist for finding such an area to be preempted by the Legislature.' " Phantom of Clearwater, Inc. v. Pinellas Cty., 894 So. 2d 1011, 1019 (Fla. 2d DCA 2005) (quoting Tallahassee Mem'l Reg'l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st DCA 1996)).

Section 97.0115 was enacted in 2010 in response to our decision in Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880 (Fla. 2010), which held that the Florida Election Code does not impliedly or expressly preempt the field of election law. Through the enactment of section 97.0115, the Legislature expressly stated that "all matters" set forth in the Florida Election Code are preempted to the state. See § 97.0115, Fla. Stat. (2018). Whether the county constitutional officers must stand for election in partisan or nonpartisan elections is not a matter set forth in the Florida Election Code and is, therefore, not preempted.

Article VIII, section 1(d), provides for the election of county constitutional officers, requiring that the officers appear on the general election ballot, but does not specifically label such election as "partisan" or "nonpartisan." See § 100.031, Fla. Stat. (2018) ("A general election shall be held in each county . . . to choose a successor to each elective . . . county officer . . . ."); § 100.041(1), Fla. Stat. (2018) ("In each county, a clerk of the circuit court, sheriff, superintendent of schools, property appraiser, and tax collector shall be chosen by the qualified electors at the general election in each year the number of which is a multiple of 4."). Accordingly, the Florida Election Code mandates that county constitutional officers be elected at a general election. However, the language in this section does not require the election to be partisan.

Section 100.051, Fla. Stat. (2018), provides:

The supervisor of elections of each county shall print on ballots to be used in the county at the next general election the names of candidates who have been nominated by a political party and the candidates who have

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