Sterling v. Brevard County
| Decision Date | 17 November 2000 |
| Docket Number | No. 5D00-578.,5D00-578. |
| Citation | 776 So.2d 281 |
| Parties | General Gene STERLING, et al., Appellants, v. BREVARD COUNTY, Florida, etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Michael D. Jones of Leffler & Associates, P.A., Winter Springs, for Appellants.
Kyle P. King, Assistant Brevard County Attorney, Viera, for Appellees.
Kyle P. King, Assistant Brevard County Attorney, and Scott L. Knox, County Attorney, Viera, for Appellees (on rehearing).
In 1995, the citizens of Brevard County established a charter-form of government. Every five years, a Charter Review Commission (CRC) is required to study county government and prepare proposed charter amendments, if needed, to improve the governance of the county. The proposed amendments are sent to the County Commission which then has only two options. The amendment can be adopted by the County Commission or it can be placed on the ballot for a vote of the people.
The CRC consists of 15 members appointed by the County Commission. The initial bylaws of the CRC, adopted in 1995, required a two-thirds vote of the CRC on all questions or motions. Rule 16 required a two-thirds vote of those present and voting to amend the bylaws. Rule 9 provided that after any proposed amendment to the Charter had been tentatively adopted, it must be reconsidered at the same or a subsequent meeting where ten members (a super majority) must approve the amendment before it is submitted to the County Commission.
While discussing the super majority issue on June 19, 1998, the attorney for the Commission erroneously opined that a simple majority could amend the bylaws. Based on this misdirected legal advice, the CRC, by a simple majority vote, modified Rule 16 to provide that a simple majority could amend the CRC's bylaws. Rule 9 was thereafter amended to provide that a simple majority was all that was required to forward a proposal to the county for either adoption or a vote by the people.
At the next meeting of the CRC on July 24, 1998, the chair of the CRC announced that a two-thirds vote would still be required to submit amendments to the County Commission. This caused considerable debate and confusion. As a result, only four proposals were submitted to the County Commission.
A special meeting of the CRC was then held on August 12, 1998, for the specific purpose of considering seven amendments which had not been approved. At that same meeting with two-thirds present and voting, Rule 9 was correctly amended pursuant to a correct interpretation of Rule 16. That vote resulted in six of the seven proposals under consideration properly being sent to the County Commission.
When the six amendments arrived at the County Commission on August 18, 1998, the Commission questioned the legality of the August 12, 1998 meeting and refused to either enact them or place them on the ballot.1
On September 2, 1998, the CRC, partially at the request of some of the members of the County Commission, filed a "Complaint for Emergency, Declaratory, Injunctive, Mandamus and Other Relief." Among the relief requested, the County sought emergency declaratory relief under Chapter 86 concerning the legality of the action taken at the meeting on June 19th and a declaration that the six amendments adopted at the August 12th meeting be included on the ballot.2 Judge Jackson held an emergency hearing on September 9, 1998 on the relief requested in the complaint. At the hearing the Clerk of the Court and the Supervisor of Elections were allowed to intervene for the obvious reason that both would be involved in the ballot process. The record of the various meetings of the CRC and the County Commission were received into evidence. The records establish that at the June 19th meeting, the CRC attempted to amend its bylaws and the vote was seven to four, a majority vote but not two thirds. The CRC then voted to change Rule 9 so that a majority vote would be all that was needed to pass the amendments as to the County Commission. At the next meeting on July 24, 1998, the attorney for the CRC flipflopped his advice.
A review of the transcript of the hearing before Judge Jackson on September 9th shows the focus of the hearing was on the validity of the votes taken at the June 24th meeting of the CRC and the concern for time required to get the ballots printed in time for the general election. Mr. Stadler, on behalf of the Clerk's office, made the following statement to the Court: It was apparent from other comments that all sides were concerned that should Judge Jackson enter a mandatory injunction, it would be difficult, if not impossible, to get the six amendments on the ballot for the November 3rd election.
Judge Jackson correctly ruled that the CRC did not properly amend its bylaws or Rule 9 at the meeting on June 19th. However, Judge Jackson in his written order never addressed the legality of the action taken at the August 12th meeting.3 Had he chosen to do so, he would have found that the CRC had properly amended the bylaws and sent the proposed amendments to the Commission after an appropriate vote on August 12th.
Still in doubt about the meeting on August 12th, and with all issues still pending except the validity of the June 19, 1999 meeting, the CRC filed an amended complaint in which it sought a declaration that the County Commission should have accepted the proposals adopted on August 12th, and either adopted the six charter amendments or placed them on the ballot. By then, it was too late to get the six on the ballot for the general election. Thus, the amended complaint asked for an order commanding the County Commission to call a special election if necessary.
The County Commission moved for a summary judgment, and finally, after a series of recusals and transfers to other judges, Judge Vincent Torpy granted the County's motion. In his order of January 24, 2000, reference is made to the June 19, 1998 meeting which Judge Jackson had previously indicated was improper. Nowhere in Judge Torpy's order is the meeting on August 12, 1998 ever mentioned. The judge's decision apparently was based on an erroneous belief that the case was then moot. The lower court makes no reference to law or fact in its determination that the matter was moot, but presumably the trial judge believed the matter moot because the general election had already been held.
We reverse and hold that the entry of a summary judgment in favor of the County Commission was error. The facts are not disputed and as a matter of law, the CRC should have prevailed. A summary judgment should have been entered in favor of the CRC and the relief requested should have been given. We hold the meeting on August 12, 1998 was proper and the passage of the general election did not make the issue moot.
The lower court should have given consideration to the undisputed facts and determined that the six amendments adopted at the August 12th, 1998 meeting were proper. In WFTV, Inc. v. Robbins, 625 So.2d 941 (Fla. 4th DCA 1993), the fourth district noted that mootness occurs when the issues presented are no longer alive or when the parties lack a legally cognizable interest in the outcome. The issue of the validity of the August 12th, 1998 meeting was not mooted by the subsequent County Commission meeting on August 18, 1998 which adopted four of the original proposed amendments. Indeed, the issue was at the forefront and kept alive by the request that judicial intervention be sought. The fact that the Commission refused to place six amendments on the ballot because of its concern over the validity of the August 12th meeting, in and of itself, creates a controversy leaving the issue live for review.
The fact that the general election was held which did not include the six amendments in question does not moot the issue or controversy. If such were the case, the inherent delays in the judicial process would prevent any valid issue from ever being heard after an election had been held. This would be an absurd result in our system of democracy.
If the decision of the trial court is allowed to stand, the entire concept of charter government and the power reserved to the people would be in jeopardy. All that would be required to thwart the will of the people would be to delay the vote of the County Commission until after the general election. W...
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