Tuesday, February 1, 2011

Supreme Court Dissenters Say Home Rule Means, Well, Home Rule

While the Florida Supreme Court’s Cook decision regarding constitutional officers does not apply to county commission term limits, the dissent in that controversial 4-3 decision does offer insights that do. The Florida Constitution permits home-rule charters to be adopted by counties and clearly states that “The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law.” Broward County, like Palm Beach, are home-rule charter counties. As there is no inconsistency of county term limits (on officers or commissioners) with state law, the dissenters say it is within the counties’ right to enact them:


I cannot agree with the majority that the Florida Constitution prohibits charter counties from enacting term limits for county officers. To the contrary, the constitution explicitly grants broad authority to charter counties over charter officers, and, consistent with that grant, imposes no restrictions on a county's authority to regulate those officers.

The threshold question before this Court is whether charter counties have the authority to enact citizen-initiative term limit amendments to their county charters. A separate issue is whether the Florida Constitution expressly prohibits term limits for county officers. The majority opinion glosses over the issue of charter county government authority and, in my view, jumps straight to a flawed analysis of constitutional preemption that directly conflicts with the broad powers granted to charter counties by the Florida Constitution.


First, article VIII, section 1(g) grants broad home-rule authority to charter counties:

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 a county operating under a charter may enact county ordinances not inconsistent with general law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances.

Article VIII, section 1(d) also expressly provides for county officers:

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. When not otherwise provided by county charter or special law approved by vote of the electors, 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.

The autonomy of local governments is at the heart of these 96*96two sections of the Florida Constitution, and the two sections vest broad authority in charter counties regarding charter governments and county officers. This broad language was obviously intended to allow charter counties wide latitude in enacting regulations governing the selection and duties of county officers. For example, article VIII, section 1(d), specifies that county officers may be elected or chosen in some other manner, and that any county office may even be abolished. By these provisions, it is apparent that the framers intended for charter counties to be self-governing in both providing for county officers and in providing for the manner in which county officials will be selected. Additionally, article VIII, section (1)(g), specifies that charter counties exercise their powers in a way that is "not inconsistent with general law." The term limit provisions in the charters in these cases are not inconsistent with any provision of general law relating to elected county officers. Given this grant of broad authority and consistency with general law, I can find no legal justification for concluding that charter counties should not be allowed to ask their citizens to vote on eligibility requirements of local elected officials, including term limits, since they could abolish the offices completely or decide to select the officers in any manner of their choosing.


I also disagree with the majority's position that article VI, section 4(b), which lists the state elected offices that have mandatory term limits, somehow operates to exclude charter counties from exercising their authority over county officers by imposing term limits. First, article VI, section 4(b) enumerates elected offices of statewide importance, a provision which has no bearing on local county officers. Second, there is no wording in article VI, section 4(b) (or anywhere else in the Florida Constitution or the Florida Statutes) that indicates that the named officers in article VI, section 4(b) are subject to term limits to the exclusion of all other government officers, state or local, in the State of Florida. If anything, article VI, section 4(b) provides a model and framework upon which charter counties may institute similar term limits for county officers, pursuant to the constitutional provision: "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." Art. VIII, § 1(g), Fla. Const. (emphasis added).

The majority also makes the distinction that article VI, section 4(b) is unique because it names the only constitutional "disqualifications" applicable to county offices in the Florida Constitution. I feel that the majority artificially puts an inordinate amount of emphasis on the word "disqualification." While term limits are eligibility requirements that may "disqualify" some incumbents, the same limits actually act to "qualify" others to hold office. Further, while we referred to term limits as a "disqualification" in Advisory Opinion to the Attorney General—Limited Political Terms in Certain Elective Offices, 592 So.2d 225, 227-28 (Fla.1991), the reference to term limits as a "disqualification" cannot logically be stretched to mean that the absence of a reference to county offices in article VI, section 4(b) precludes term limits from being enacted at the county level.

Accordingly, I would affirm the First District's decision in Cook and the Second District's decision in Eight is Enough.


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