Orange County, Florida v. Rick Singh, etc. , 268 So. 3d 668 ( 2019 )

Supreme Court of Florida
____________
No. SC18-79
____________
ORANGE COUNTY, FLORIDA,
Petitioner,
vs.
RICK SINGH, etc., et al.,
Respondents.
April 18, 2019
PER CURIAM.
Respondents’ Joint Motion to Recall Mandate is hereby granted. The
opinion of this Court dated January 4, 2019, is hereby withdrawn, and this opinion
is substituted in its place. See § 43.44, Fla. Stat. (2018) (“An appellate court may,
as the circumstances and justice of the case may require, reconsider, revise, reform,
or modify its own opinions and orders for the purpose of making the same accord
with law and justice.”); Fla. R. Jud. Admin. 2.205(b)(5). In light of the substituted
opinion, we hereby deny Respondents’ Joint Motion for Clarification.
We have for review the Fifth District Court of Appeal’s decision in Orange
County v. Singh, 230 So. 3d 639 (Fla. 5th DCA 2017), which affirmed a trial court
judgment invalidating an Orange County ordinance.1 Because home-rule counties
may not enact ordinances on subjects preempted to the State and inconsistent with
general law,2 we approve the decision of the Fifth District.
I. Background
The underlying background was 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
1. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
2. Article VIII, section 1(g) of the Florida Constitution provides that “[t]he
governing body of a county operating under a charter may enact county ordinances
not inconsistent with general law.”
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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 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
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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 affirmed the trial court’s judgment. Id. at 640.
The Fifth District held that section 97.0115, Florida Statutes, 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.
II. The Florida Election Code
Article VI, section 1 of the Florida Constitution provides that “[r]egistration
and elections shall, and political party functions may, be regulated by law[.]” See
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Grapeland Heights Civic Ass’n v. City of Miami, 267 So. 2d 321, 324 (Fla. 1972)
(“[I]t necessarily follows that ‘law’ in our constitution means an enactment by the
State Legislature . . .—not by a City Commission or any other political body.”).
The Legislature regulates elections through the Florida Election Code, which
encompasses chapters 97-106, Florida Statutes (2018). 3 Importantly, the Florida
Election Code contains express language of preemption as section 97.0115 states
that “[a]ll matters set forth in chapters 97-105 are preempted to the state, except as
otherwise specifically authorized by state or federal law.” The Florida Election
Code further explains that the Secretary of State, as “the chief election officer of
the state,” is to “[o]btain and maintain uniformity in the interpretation and
implementation of the election laws.” § 97.012(1), Fla. Stat. (2018).
The Florida Election Code generally contemplates partisan elections. 4 In
other words, candidates nominated by political parties in the primary election are
to appear on the general election ballot for most offices. See § 101.151(2)(c), Fla.
Stat. (2018) (“Each nominee of a political party chosen in a primary shall appear
on the general election ballot in the same numbered group or district as on the
3. Section 97.011, Florida Statutes (2018), provides “[c]hapters 97-106
inclusive shall be known and may be cited as ‘The Florida Election Code.’ ”
4. In construing the Florida Election Code, it is necessary to read all
provisions in pari materia. Palm Beach Cty. Canvassing Bd. v. Harris, 772 So. 2d
1273, 1290 n.22 (Fla. 2000).
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primary election ballot.”). In fact, section 97.021(29) (emphasis added), defines a
“[p]rimary election” as “an election held preceding the general election for the
purpose of nominating a party nominee to be voted for in the general election to fill
a national, state, county, or district office.”
Specifically, section 100.051 provides that “[t]he 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 otherwise obtained a position on the general election
ballot in compliance with the requirements of this code.” In addition to the
candidates nominated by political parties, no-party affiliation candidates, minor
political party candidates, and spaces for write-in candidates may be listed on the
general election ballot and may compete for the same offices as the major political
party candidates in compliance with the Florida Election Code. § 99.0955, Fla.
Stat. (2018); § 99.096, Fla. Stat. (2018); § 99.061(4)(b), Fla. Stat. (2018).
Regarding qualifying for nomination or election to county offices in
particular, section 99.061(2) (emphasis added) provides that “each person seeking
to qualify for nomination or election to a county office . . . shall file his or her
qualification papers with, and pay the qualifying fee, which shall consist of the
filing fee and election assessment, and party assessment, if any has been levied, to,
the supervisor of elections of the county, or shall qualify by the petition process
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pursuant to s. 99.095.” The same subsection also states that “the supervisor of
elections shall remit to the secretary of the state executive committee of the
political party to which the candidate belongs the amount of the filing fee, two-
thirds of which shall be used to promote the candidacy of candidates for county
offices and the candidacy of members of the Legislature.” Id. (emphasis added).
Regarding timing, section 100.031, Florida Statutes (2018), provides that
“[a] general election shall be held in each county on the first Tuesday after the first
Monday in November of each even-numbered year.” Section 100.061, Florida
Statutes (2018), states that “a primary election for nomination of candidates of
political parties shall be held on the Tuesday 10 weeks prior to the general
election.” Further, section 100.041(1), Florida Statutes (2018) (emphasis added),
lists the following offices, including several county constitutional offices, that are
to be chosen at the general election after a primary election:
State senators shall be elected for terms of 4 years, those from odd-
numbered districts in each year the number of which is a multiple of 4
and those from even-numbered districts in each even-numbered year
the number of which is not a multiple of 4. Members of the House of
Representatives shall be elected for terms of 2 years in each even-
numbered year. 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. The Governor and the
administrative officers of the executive branch of the state shall be
elected for terms of 4 years in each even-numbered year the number
of which is not a multiple of 4. The terms of state offices other than
the terms of members of the Legislature shall begin on the first
Tuesday after the first Monday in January after said election. The
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term of office of each member of the Legislature shall begin upon
election.
See also § 98.015(1), Fla. Stat. (2018) (“A supervisor of elections shall be elected
in each county at the general election in each year the number of which is a
multiple of four for a 4-year term commencing on the first Tuesday after the first
Monday in January succeeding his or her election.”).
However, while the Florida Election Code contemplates elections for most
offices to include candidates nominated by political parties, it also specifies that
elections for certain offices must be nonpartisan. Pursuant to section 97.021(22),
Florida Statutes (2018), “ ‘Nonpartisan office’ means an office for which a
candidate is prohibited from campaigning or qualifying for election or retention in
office based on party affiliation.” Then, chapter 105, entitled “Nonpartisan
Elections,” provides that judicial officers and school board members are
nonpartisan offices. Candidates for judicial offices (or those seeking retention) are
“prohibited from campaigning or qualifying for such [offices] based on party
affiliation.” § 105.011(2), Fla. Stat. (2018). Furthermore, section 105.09(1),
Florida Statutes (2018), states that “[n]o political party or partisan political
organization shall endorse, support, or assist any candidate in a campaign for
election to judicial office.” Section 105.035(1), Florida Statutes (2018), also
explains that “[a] person seeking to qualify for election to the office of circuit
judge or county court judge or the office of school board member may qualify for
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election to such office by means of the petitioning process prescribed in this
section.” And section 105.041(3)-(4), Florida Statutes (2018), states that “[n]o
reference to political party affiliation shall appear on any ballot with respect to any
nonpartisan office or candidate,” while “[s]pace shall be made available on the
general election ballot” for write-in candidates for circuit and county court judge as
well as school board members.
Regarding timing of the nonpartisan elections, section 105.051(1)(b), Florida
Statutes (2018), provides that elections for judicial officers and school board
members are to be conducted during the primary election with the possibility of a
run-off during the general election:
If two or more candidates, neither of whom is a write-in candidate,
qualify for such an office, the names of those candidates shall be
placed on the ballot at the primary election. If any candidate for such
office receives a majority of the votes cast for such office in the
primary election, the name of the candidate who receives such
majority shall not appear on any other ballot unless a write-in
candidate has qualified for such office. An unopposed candidate shall
be deemed to have voted for himself or herself at the general election.
If no candidate for such office receives a majority of the votes cast for
such office in the primary election, the names of the two candidates
receiving the highest number of votes for such office shall be placed
on the general election ballot. If more than two candidates receive an
equal and highest number of votes, the name of each candidate
receiving an equal and highest number of votes shall be placed on the
general election ballot. In any contest in which there is a tie for
second place and the candidate placing first did not receive a majority
of the votes cast for such office, the name of the candidate placing
first and the name of each candidate tying for second shall be placed
on the general election ballot.
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Additionally, the nonpartisan chapter of the Florida Election Code, chapter 105,
specifies that the retention elections of appellate judges are to take place during the
general election. § 105.051(2), Fla. Stat. (2018).
Notably, chapter 105 does not include any county constitutional officers as
nonpartisan. The specific references to the county constitutional officers in the
Florida Election Code are in its more general provisions in which candidates
nominated by political parties may appear on the general ballot. Moreover,
although the Florida Election Code expressly allows for municipal elections to
vary from its requirements pursuant to an ordinance or charter so long as the
variance does not conflict with “any provision in the Florida Election Code that
expressly applies to municipalities,” § 100.3605(1), Florida Statutes (2018), there
is no similar allowance for county elections.
III. The Orange County Ordinance is Expressly Preempted and in Conflict
Orange County contends that the ordinance at issue in this case is not
expressly preempted by or in conflict with the Florida Election Code. We
disagree.
In Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309, 314 (Fla.
2008), this Court explained the following standards regarding whether a county
ordinance is preempted by or in conflict with a statute:
Pursuant to our Constitution, chartered counties have broad
powers of self-government. See art. VIII, § 1(g), Fla. Const. Indeed,
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under article VIII, section 1(g) of the Florida Constitution, chartered
counties have the broad authority to “enact county ordinances not
inconsistent with general law.” See also David G. Tucker, A Primer
on Counties and Municipalities, Part I, Fla. B.J., Mar. 2007, at 49.
However, there are two ways that a county ordinance can be
inconsistent with state law and therefore unconstitutional. First, a
county cannot legislate in a field if the subject area has been
preempted to the State. See City of Hollywood v. Mulligan, 934 So.
2d 1238, 1243 (Fla. 2006). “Preemption essentially takes a topic or a
field in which local government might otherwise establish appropriate
local laws and reserves that topic for regulation exclusively by the
legislature.” Id. (quoting Phantom of Clearwater[, Inc. v. Pinellas
County], 894 So. 2d [1011], 1018 [(Fla. 2d DCA 2005]). 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. See Tallahassee Mem’l Reg’l Med. Ctr.,
Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st DCA
1996). Local “ordinances are inferior to laws of the state and must not
conflict with any controlling provision of a statute.” Thomas v. State,
614 So. 2d 468, 470 (Fla. 1993); Hillsborough County v. Fla. Rest.
Ass’n, 603 So. 2d 587, 591 (Fla. 2d DCA 1992) (“If [a county] has
enacted such an inconsistent ordinance, the ordinance must be
declared null and void.”); see also Rinzler v. Carson, 262 So. 2d 661,
668 (Fla. 1972) (“A municipality cannot forbid what the legislature
has expressly licensed, authorized or required, nor may it authorize
what the legislature has expressly forbidden.”).
There is conflict between a local ordinance and a state statute
when the local ordinance cannot coexist with the state statute. See
City of Hollywood, 934 So. 2d at 1246; see also State ex rel. Dade
County v. Brautigam, 224 So. 2d 688, 692 (Fla. 1969) (explaining that
“inconsistent” as used in article VIII, section 6(f) of the Florida
Constitution “means contradictory in the sense of legislative
provisions which cannot coexist”). Stated otherwise, “[t]he test for
conflict is whether ‘in order to comply with one provision, a violation
of the other is required.’ ” Browning v. Sarasota Alliance for Fair
Elections, Inc., 968 So. 2d 637, 649 (Fla. 2d DCA 2007) (quoting
Phantom of Clearwater, 894 So. 2d at 1020), review granted, No.
SC07-2074 (Fla. Nov. 29, 2007).
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In this case, the Florida Election Code expressly preempts the Orange
County ordinance requiring nonpartisan elections for its county constitutional
officers. Section 97.0115 provides that “[a]ll matters set forth in chapters 97-105
are preempted to the state, except as otherwise specifically authorized by state or
federal law.” As explained above, the Florida Election Code contemplates partisan
elections for most offices, and it does not specifically authorize otherwise for
county constitutional officers. Furthermore, article VIII, section 1(d) of the Florida
Constitution does not expressly label the election of county constitutional officers
as “partisan” or “nonpartisan.” Therefore, this constitutional provision is not an
exception to the preemption language contained in section 97.0115.
The Florida Election Code contains detailed provisions specific to county
constitutional officers and county elections, provisions that are within the portions
of the code providing for partisan elections. Section 100.041 states that “[i]n 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.” See also § 100.031,
Fla. Stat. (“A general election shall be held in each county . . . to choose a
successor to each elective . . . county . . . officer . . . .”); § 98.015 (1), Fla. Stat. (“A
supervisor of elections shall be elected in each county at the general
election . . .”). Further, section 100.051 expressly provides that candidates listed
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on the general election ballot are “candidates who have been nominated by a
political party and the candidates who have otherwise obtained a position on the
general election ballot in compliance with the requirements of this code.”
(Emphasis added.)
In contrast, the Orange County ordinance provides as follows:
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 offices candidates’
names shall be placed on the ballot without reference to party
affiliation.
Singh, 230 So. 3d at 640-41 (quoting amended charter).
The portion of the ordinance that requires elections for county constitutional
officers to be held during the primary election conflicts with section 100.041,
which requires county constitutional officers to appear on the general election
ballot. It also conflicts with section 98.015, Florida Statutes, which separately
addresses the election of the supervisor of elections. See § 98.015, Fla. Stat. (“A
supervisor of elections shall be elected in each county at the general election . . .”).
Even if the portion of the Orange County ordinance that requires such an
election to be held during the primary election is severed, a glaring and
unconstitutional conflict remains. The Orange County ordinance prohibits a
candidate for county constitutional office from being referenced on the ballot by
party or seeking nomination by a party during the primary election. However, the
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Florida Election Code expressly provides for nomination of candidates for county
office by their respective political parties during the primary election. See
§ 99.061(2), Fla. Stat. (candidates for county offices may qualify for nomination or
election by filing the qualifying papers and paying “the filing fee and election
assessment, and party assessment”); § 97.021(29), Fla. Stat. (defining “[p]rimary
election” as “an election held preceding the general election for the purpose of
nominating a party nominee to be voted for in the general election to fill a national,
state, county, or district office”); § 100.051, Fla. Stat. (explaining that candidates
listed on the general election ballot include those “candidates who have been
nominated by a political party”); see also § 100.031, Fla. Stat. (“A general election
shall be held in each county . . . to choose a successor to each elective . . .
county . . . officer . . . .”); § 100.041(1), Fla. Stat. (“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.”); § 98.015(1), Fla. Stat. (“A
supervisor of elections shall be elected in each county at the general election . . .
.”). Therefore, by banning a candidate for county constitutional office from
running by party or seeking nomination by party, the ordinance directly conflicts
with the Florida Election Code. And this Court has explained that a local
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government “cannot forbid what the legislature has expressly licensed, authorized
or required.” Rinzler, 262 So. 2d at 668.
Accordingly, because the Orange County ordinance prohibits candidates
from running based on their party affiliation or seeking the nomination of their
party during the primary election, which is expressly provided for in the Florida
Election Code, the ordinance directly conflicts with the Florida Election Code. It
also conflicts with the Florida Election Code’s requirement that the candidates for
county constitutional officers appear on the general election ballot.
IV. Conclusion
As explained above, the Florida Election Code expressly preempts the
Orange County ordinance, an ordinance that is in direct conflict with the Florida
Election Code regarding whether candidates nominated by major political parties
in the primary election may appear on the general election ballot for county
constitutional officers. Therefore, we approve the decision of the Fifth District,
which held that the Florida Election Code preempts the Orange County ordinance
requiring nonpartisan elections for county constitutional officers. 5
It is so ordered.
5. As we approve the Fifth District’s decision concluding the ordinance is
expressly preempted, we also approve the Fifth District’s decision affirming the
remaining issues presented by Respondents regarding standing, the single-subject
rule, and the ballot title and summary.
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CANADY, C.J., and POLSTON, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ.,
concur.
LABARGA, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
LABARGA, J., dissenting.
In Orange County v. Singh, 44 Fla. L. Weekly S102 (Fla. Jan. 4, 2019), this
Court held that the Florida Election Code does not expressly preempt the home
rule authority of Orange County to determine that its constitutional officers be
elected in a general election without partisan affiliation.6 I concurred in that
decision, and I continue to agree with the analysis and conclusion reached by the
earlier majority. Accordingly, I dissent from the current majority’s holding that
the nonpartisan-election portion of the Orange County ordinance is preempted by
the Florida Election Code and to the decision of the majority to recall the mandate
issued in this case.
Application for Review of the Decision of the District Court of Appeal –
Constitutional Construction/Direct Conflict of Decisions
Fifth District - Case Nos. 5D16-2509 and 5D16-2511
(Orange County)
6. We further determined a portion of the ordinance that was inconsistent
with the Florida Election Code law was severable, such that the remainder could
stand. Singh, 44 Fla. L. Weekly at S104.
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Gregory T. Stewart, Carly J. Schrader, and Evan J. Rosenthal of Nabors, Giblin &
Nickerson, P.A., Tallahassee, Florida; and Jeffrey J. Newton, County Attorney,
and William C. Turner, Jr., Assistant County Attorney, Orange County, Orlando,
Florida,
for Petitioner
John H. Pelzer of Greenspoon Marder LLP, Fort Lauderdale, Florida; Michael
Marder of Greenspoon Marder LLP, Orlando, Florida; Eric D. Dunlap, Assistant
General Counsel, Orange County Sheriff’s Office, Orlando, Florida; Scott
Randolph, pro se, Orlando, Florida; and Gigi Rollini of Stearns Weaver Miller
Weissler Alhadeff & Sitterson, P.A., Tallahassee, Florida,
for Respondents Rick Singh, Orange County Property Appraiser, John W.
Mina, Sheriff of Orange County, and Scott Randolph, Tax Collector of
Orange County
Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, Florida,
for Respondent Bill Cowles, Orange County Supervisor of Elections
Laura Youmans, Legislative Counsel, Florida Association of Counties,
Tallahassee, Florida,
for Amicus Curiae Florida Association of Counties, Inc.
David H. Margolis, Orlando, Florida,
for Amicus Curiae Orange County Clerk of the Circuit Court
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