Legal action pending on term limits

Sarasota attorney Andrea Flynn Mogensen is considering legal action against Sarasota County on behalf of several parties upset with the County Commission’s plans for a charter amendment that would change term limits for the commissioners, she said Wednesday.

The commission’s 4-1 vote last week to pursue a public hearing on the charter amendment, and a special election Jan. 31, “really seems to be about trying to get another reset button,” Mogensen said. “My clients’ interest universally is with the will of the voters,” she said, adding that the August ruling by Florida’s Fourth District Court of Appeal on a Broward County case said County Commission term limits are constitutional.
The county charter was amended in 1998 to limit the commissioners to two terms; subsequent court action rendered that moot. If the Florida Supreme Court upholds the Fourth District Court decision in the Broward County case, county officials have said, the decision could force Sarasota County to adhere to the two-term limit.

Mogensen said the Sarasota County Commission “seems to be taking the position that term limits are unconstitutional and working to make them constitutional” all at the same time. That showed her, she said, that county officials recognize they have a problem.

She also felt the County Commission should not be pursuing a special election for the charter amendment. A general election would be preferable, she said, because voter participation traditionally is higher in general elections.

Asked how soon she might take action against the county, Mogensen said discussions were continuing with her potential clients about the appropriate means of addressing their concerns. With a public hearing set for Nov. 15 on the charter amendment, she anticipated a move, she said, “in the next few days, hopefully early next week.”

With Commissioner Joe Barbetta casting the only negative vote, the County Commission Oct. 25 voted to set that Nov. 15 public hearing on the proposed charter amendment. The public hearing will be part of the regular commission meeting that day, Curt Preisser, a county spokesman, said.

The ballot initiative arose during the commission’s Oct. 12 meeting. At that time, the board asked County Attorney Stephen DeMarsh to draft language for a county charter amendment calling for a maximum of three terms before a commissioner would have to step down from the board.

The proposed amendment includes the provision that no county commissioner’s previous term or a term in progress as of Jan. 31 would be considered a term of service for the purposes of the amendment.

DeMarsh had pointed out during the Oct. 12 meeting that if the Supreme Court ruling came down after a County Commission filing period closed, a candidate’s name might be forced off the ballot.

Commissioner Jon Thaxton, who is serving his third term, is seeking re-election in 2012. Additionally, Commission Chairwoman Nora Patterson is serving her fourth term.

“It isn’t political,” Mogensen said of the pending action.

Michael Barfield, a paralegal who works with Mogensen, sent DeMarsh an email Oct. 30, copying the commissioners, saying, “As I understand it, the Snipes (Fourth District Court of Appeal) decision is binding on any judge in the 12th Judicial Circuit at the present time. It is a well-established principle of Florida law that a decision of an appellate court is binding on a trial court in the absence of a contrary decision by the appellate court in the trial court’s district … Any contention otherwise is grossly misleading.”

Barfield added, “In the event you disagree with this assessment, please inform me immediately as I am perfectly comfortable seeking an expedited judicial resolution to resolve any differences of opinion.”

The following day, Barfield sent another email to DeMarsh, saying that although DeMarsh would not respond to Barfield’s assessment of the law in that Oct. 30 email, “I would like to discuss the next step of seeking a judicial decision as to whether the Snipes case is binding. If, as commissioners have indicated, the desire is to have a constitutional term limits provision then it makes more sense to seek an expedited judicial determination of whether the existing charter provision is constitutional in light of the Snipes decision.  This would avoid a costly referendum and provide an opportunity for the county to seek clarification of the constitutionality of the existing charter provision.”

DeMarsh responded the same day: “The (County Commission) has not authorized the Office of the County Attorney to file a lawsuit. Absent that direction, the Office of the County Attorney will not file any action seeking an expedited judicial determination of the issues that you have presented. We have indicated to the board that we will continue to monitor the docket in the Supreme Court … and we will report to the board as to any developments in either court.”

Cathy Antunes, a representative of Citizens for Responsible Government, said this week she questioned why the County Commission was determined to have the voters consider a charter amendment in January.

“Whether you want term limits or not, the most important thing is that the will of the voters be respected,” she said.

Mogensen represented CRG in the 2010 lawsuit against Sarasota County regarding the negotiations that led to the Baltimore Orioles coming to Sarasota for spring training. After losing its case in the 12th Judicial Circuit, the group appealed to the Florida Supreme Court, which also ruled in favor of the county.

Mogensen declined Wednesday to identify any of the individuals or groups with which she is working on the term limits matter.

“We’re in a discussion process,” she said. “We haven’t necessary been retained.”

Ballot language proposed for charter amendment
The ballot language for a proposed Sarasota County charter amendment on new term limits was approved 4-1 by the Sarasota County Commission Oct. 25.

Voters would have the option of voting “yes” or “no” on the question, “Shall Section 2.1A of the Sarasota County Charter be amended to allow commissioners to serve three consecutive terms, rather than two consecutive terms, currently ruled unconstitutional by the 12th Judicial Circuit Court and to provide that term limits shall be applicable only to future terms rather than to current or prior terms? These terms limits would be enforceable if a court’s ruling results in Sarasota County Commissioner term limits being found constitutional.”