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Sarasota Wednesday, Nov. 23, 2011 6 years ago

Commission takes no action after judge's ruling

by: Rachel Brown Hackney Managing Editor

Three speakers Tuesday asked the Sarasota County Commission to abide by a judge’s ruling Nov. 21 that struck down the language of a proposed term limits charter amendment. Yet, none of the commissioners responded.

Following the public comments, Chairwoman Nora Patterson told the audience in the Think Tank at the County Administration Building that the commission and its guests, the members of the City Commission, would move on to the next item on their agenda, effectively letting the charter amendment matter die.

Senior Judge Jack Schoonover Nov. 21, declared “very deficient” the language the County Commission approved last week for the proposed county charter amendment. The judge agreed with Sarasota attorney Andrea Mogensen, who argued on behalf of 16 citizens who filed a lawsuit against the county, Sarasota County Supervisor of Elections Supervisor Kathy Dent and Frank and Dorothy Moore. The Moores had challenged the county in a 2004 lawsuit over term limits.

“I would not approve that under any circumstances,” Schoonover said of the ballot’s wording.

In his decision in a 12th Circuit Court emergency hearing on the citizens lawsuit, Schoonover also ruled that the 2005 decision in Moore v. Sarasota County “should not be ignored,” leaving intact, for the time being, the unconstitutionality of Sarasota County Commission term limits.

Because the county already has indicated it also will argue the constitutionality of term limits, Mogensen said, it should just be a matter of time before a hearing can be set up on that part of the lawsuit.

At the outset of the Nov. 21 hearing, attorneys clarified for the judge that the Florida Supreme Court has not decided yet whether to hear a Fourth Circuit Court of Appeal case, Snipes v. Telli, in which it ruled that term limits are constitutional for county commissioners in Broward County. The Fourth Circuit decision came down in August.

Patterson said Tuesday morning that she doubted the term-limit matter would come up at the joint session that afternoon between the city and county commissions. “It’s going to be up to the individual commissioners,” she said.

Following the emergency hearing Monday, County Attorney Stephen DeMarsh said the County Commission could address the ballot language Tuesday, because the board would be meeting with the City Commission.

Dent said Monday afternoon that she would have to have any new ballot language by the end of office hours Tuesday, if the measure still were to go on the Jan. 31 ballot.

Ron Labasky, the attorney representing Dent in the lawsuit, told Schoonover that Nov. 22 was the absolute deadline for a decision on the ballot language. The ballots are printed in the state of Washington, Labasky said, and they have to be shipped to Sarasota County.

“It’s not standard stock. You can’t go to Kinko’s and (print them),” he said.

After the hearing, Dent said that she is bound by law to test the ballots on the voting equipment and to ship them by Dec. 16 to military personnel overseas.

“The county was on notice we needed that amount of time,” she said, to get the ballots prepared.

Mogensen then had said any new ballot language “would be critical to deciding” what further action her clients might take. Coming up with language appropriate for the charter amendment, she said, “is going to be extraordinarily difficult.”

Mogensen had cited legal precedents in arguing that ballot language has to be clear to voters. The language the County Commission approved last week included the sentence, “These term limits would be enforceable if a court’s ruling results in Sarasota County Commissioner term limits being found constitutional.” Mogensen told the judge that voters would be confused, because they would not know when or if the term limits would be found constitutional in a future court case.

In arguing against the proposed ballot language, Mogensen cited a 2010 Florida Supreme Court opinion regarding the necessity that voters understand clearly any ballot language upon which they are asked to vote. Moreover, Mogensen said, a 1982 Florida Supreme Court case “indicates the ballot must give the voter clear notice of the decision he must make.”

Because the proposed Jan. 31 ballot language links the action to a court decision on the constitutionality of term limits, Mogensen said, voters would have no way of knowing the result of their action.

“If the voters cannot tell what the actual, practical sweeping effect (of their action is),” she said, “then (the ballot language) should be stricken.”

She added, “There are too many contingencies to allow for the voters to be informed” about the scope of their action.

Deputy Sarasota County Attorney Rick Elbrecht told Schoonover that the County Commission had felt the language about the constitutional issue was necessary.

“We just put in a provision … that it is dependent on a future decision.” Otherwise, he said, “Voters may think (the amendment) is gong to take effect immediately.”

Schoonover also questioned Mogensen about the fact that citizens were being asked to vote on the charter amendment on the same day as Florida’s Republican Presidential Primary. “That is one of the areas of concern,” she replied.

Elbrecht told Schoonover that the County Commission had chosen the Jan. 31 date because the cost of a special election with just the charter amendment on the ballot would be about $500,000, compared to $120,000 for combining that vote with the primary.

“So what?” the judge responded.

Earlier, Schoonover had expressed skepticism that registered Democrats in the county would turn out in significant numbers to vote on the charter amendment.

At the conclusion of the 50-minute hearing, Schoonover told the attorneys, “I appreciate the good faith and professionalism of everyone involved.”

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