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No Limits
By Sean Roth
Real Estate Editor
It seemed a pretty clear principle, "Two-terms and you're out." Sixty-eight percent of voters approved it. But Sarasota County, much like other Florida counties and municipalities, found out the issue is not that clear-cut - in spite of voter sentiment. Sarasota Circuit Court Judge Deno Economou ruled almost two weeks ago that Sarasota County's charter amendment limiting county commissioners to two terms violated the Florida Constitution.
How could that be possible?
For David Persson, Longboat Key's town attorney, a partner in the Sarasota law firm of Hankin, Persson, Davis McClenathen and Darnell and the county's special counsel in the term-limits suit, Economou's decision hinged on a 2002 Florida Supreme Court decision. That one involved two similar term-limit challenges - Henry Cook v. city of Jacksonville and Karleen DeBlaker v. Eight is Enough in Pinellas.
In 1992, Duval County voters approved several amendments to the consolidated-city charter putting a two-term limit on the members of the Civil Service Board and school board and the clerk of court, property appraiser, sheriff, supervisor of elections and tax collector. Six years later, the three-term clerk of court (1988, 1992 and 1996), Cook, sued the city challenging the clerk-of-court term limit.
Cook told Gulf Coast Business Review he filed his lawsuit because he was worried that eight years was not long enough for a clerk to understand the complicated and steadily changing nature of the office. "It was my belief that the clerk of court is strictly an arm of the judiciary," Cook says. "A circuit (can) involve three or four counties. Our job hinges greatly on our duty to the court itself, not strictly to the local jurisdiction."
His motives weren't completely altruistic; he also hoped to run for the clerk position again.
Cook won at the circuit court level but lost when the city appealed.
At relatively the same time, a similar fight arose in Pinellas County. In Jan. 26, 1999, Karleen DeBlaker, then Pinellas clerk of circuit court; the sheriff; property appraiser; tax collector; and supervisor of elections sued the political committee Eight Is Enough In Pinellas, which had initiated the term-limit amendment in the county. The two-term limit amendment, approved in 1996, targeted county commissioners, the property appraiser, sheriff, supervisor of elections, clerk of circuit court and tax collector.
Both the trial court and the 2nd District Court of Appeal found for Eight Is Enough and against the Pinellas public officials.
In 2002, the Florida Supreme Court consolidated the two cases and reexamined the issue. In a 4-3 vote, the judges found the term limits unconstitutional.
Chief Justice Charles T. Wells wrote in the opinion of the court: "We hold that a term limit provision is a disqualification from election to office and that article VI, section 4(a), Florida Constitution, provides the exclusive roster of those disqualifications, which may be permissibly imposed."
In other words, the Supreme Court said term limits are a "disqualification" from election to office. It further said the state constitution delineates exactly what disqualifications may be imposed on offices authorized by the state constitution. But the court noted that none of the disqualifications included elected county offices. "Thus," the court's majority said, "it necessarily follows that the constitutionally authorized offices not included in Constitution's disqualification provision may not have a term limit disqualification imposed."
In the suit before Judge Economou, Sarasota attorney Steven Hutton, who represented J. Frank and Dorothy Moore (they wanted the charter amendment struck down), cited the "Cook v. city of Jacksonville" as the basis for rejecting Sarasota's charter amendment.
Persson, however, went one step further. Arguing on behalf of the county to keep the charter amendment, Persson said the Cook decision was not applicable to the Sarasota case. "The problem is the Supreme Court specifically talks about the constitutional officers being governed by the disqualifications in Article VIII, section 1(d)," Persson says. "County commissioners are regulated in a completely different section."
That is important Persson says because the section in the constitution regulating county commissioners specifically includes a different provision allowing charter changes to the requirements for commissioner.
The regulation governing county commissioners (Article III, section 1(e)) starts: "Except when otherwise provided by county charter (emphasis added), the governing body of each county shall be a board of county commissioners comprised of five or seven members serving staggered terms of four years."
Says Hutton: "Dave is right that Cook does not factually include commissioners, but the reasoning of the Supreme Court sets forth that qualifications and disqualifications are to be found in the constitution. Judge Economou wasn't trying to thwart the will of the people like some people say he was. Judges don't have that luxury. In this case, he was just enforcing a Supreme Court case that was dead on point on this issue."
The issue now goes back to the Sarasota County Commission on whether to appeal Economou's ruling. This is awkward. Several of the county commissioners are opposed to term limits, but they must decide whether to challenge Economou's ruling on the basis of the will of the people - i.e. voters overwhelmingly favor term limits.
Persson expects to soon have a recommendation on the possibility of appealing the order. In most cases, an appeal would go next to the 2nd District Court of Appeal.
"Something else that is interesting," Persson says. "This was a close (Supreme Court) decision, and the composition of the court has changed since then. One of the justices who voted yes (Major B. Harding) and another who voted no (Leander J. Shaw Jr.) have retired."
Asked if the decision stands, what that means for term limits, Persson responds, "You could vote (locally) on this until the cows come home, and it would still be unconstitutional. According to Cook, the only way you could have term limits would be to pass a (statewide) constitutional amendment."
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