CPVR Petition/ Examining the last paragraph

Marsha:

 I am not a lawyer, but have testified in a lot of court cases on contract interpretation and the quote you provided sounds like it will do exactly what you think it will do- require super majority for anything on this year's ballot and beyond that is subject to the amendment in question.

Kurt Musser

Marsha and Kurt,

Indeed, you are both correct. The intent of CPVR was to do just that, confuse the electorate, and if need be, tie the election up in court for years.

The amendment was authored by people with legal expertise beyond that of  CPVR's  founder, Roy Lyons. These "experts" , including their close allies on the CRC, BCC, lobbyists, and developers have much to lose when citizens come November retain single member districts, and will stop at nothing to prevail , keeping the CTLAC amendments for better, smaller government from coming to pass.

Obstructionist, indeed. 

Marsha, thank you so much for bringing this to the blogs..and thank you Kurt and Pioneer for confirming Marsha's interpretation.  This certainly needs to get out to the citizens. 

I believe I would take a page out of the Hometown Democracy handbook and get an attorney's opinion prior to this amendment being placed on the ballot. Depending on the opinion, I think I would challenge it in court even before it could be placed on the ballot or voted on. I've never heard of immediate enactment of any amendment.

Maybe if they have another debate Mr. Lyon's can provide any case law that allows immediate enactment of an amendment to effect this election of 2008. If he has crafted his amendment with the help of an attorney then he should be able to provide any information concerning his amendment. However, if he can't provide you with any case law or an attorney's opinion then maybe it's not accurate. It may even be consider an ambiguous and misleading proposal.

It can be enacted upon approval but to my knowledge it cannot take effect with this election. I'm certain Mr. Lyon's should be able to back his petition wording.

I think that you guys may have hit on something.  I hope that the CPVR doesn't think that the 66% amendment would be effective for the Nov. 2008 ballot.  As Angela says "immediate enactment of an amendment" would be considered ambiguous and misleading.  

HOWEVER, as I consider all the petitions floating out there these days, I'm not sure that the CTLAC would want to continue down this road of argument.  If the 66% is misleading, then it sure seems like the amendment to abolish at-large seats would be misleading and ineffective for the same reason.  To recap, that amendment tries to abolish seats that also appear on the ballot.  Try that one on in the voting booth.  Abolish in one section and vote for the candidates in another?  I'm confused.  In fact, to make matters worse, the CTLAC amendment does NOT even state in that ballot summary that the amendment is effectively immediately.  Misleading, indeed.

I'm going back into my cave now. 

You are right it doesn't say in the summary because it is covered under Fl State Statutes how the process works to remove those positions. It's in the same place of the Fl State Statutes that allows additional positions. Of course we know State laws and the Constitution would override the Charter, right.

According to the Charter which cannot supercede the State Laws or Constitution the effective date of an amendment is addressed in much the same way and it says the following.

"If approved by a majority of those electors voting on the amendment at the general election the amendment shall become effective on the date specified in the amendment, or, if not so specified, on January 1 of the succeeding year"

The CTLACs petition to reduce the number of Commissioners also takes effect immediately.

There is no debate there, you're allowed to create your own effective date within the petition.

Here is where I have a problem with the CPVRs petition.  The Charter also says that "Each such proposed Amendment shall embrace but one subject and matter directly connected therewith"

CPVRs petition in the last paragraph says "shall be effective as to any question on the November 2008 general election ballot and thereafter"

To me this is more then one subject, it says "any" and there are amendments already on the ballot that have nothing to do with how many Commissioners there are.  To me this violates the "one subject per petition" rules of the Charter.

Let me also point out that the Charter states in clear and unambigous terms that once the Supervisor of Elections certifies a petition and hands it over to the BCC they have a duty to put it on the ballot.  It says  "Each Charter Amendment proposed by petition shall be placed on the ballot by resolution of the BCC for the general election occuring in excess of 90 days from the Certification by the Supervisor of Elections that the requisite number of signatures have been verified"

The CTLAC went ahead and launched another campaign drive because due to time constraints it was the best course of action to take.........however..........the way the Charter reads it doesn't matter if a mistake is made in the body of a petition once it has been Certified by the SOE.  It doesn't say "unless".........it says "SHALL" It does not say anything about the wording of the petition or the rules, it addresses only that the required number of signatures have been verified

Whats important about this tidbit of information, is that if something should appear to be found wrong, or can be proven to be wrong with the CPVRs petition after it's been certified by the SOE then the BCC will have to behave in the same manner. You can't have one set of rules for one thing and another set of rules for something else.

In my opinion the BCC has violated the Charter in throwing out the first petition, the Charter does not address the construction of the petition, it addresses only the verification of signatures.

http://24.23.126.8/Petition for choice in Nov. 7 Commissioners or 5. I say the money is better spent somewhere else in this economy that isn't going to suddenly turn around.

This amendment shall be effective immediately upon approval by the electors of Clay County, and shall be effective as to any question on the November 2008 general election ballot and thereafter.

Here is how my sometimes misguided brain reads this. CPVR knows that there is not now an amendment on the ballot to abolish those two new seats (or any other elected position). However, if CTLAC succeeds in getting one on the November 2008 ballot and providing this 2/3 amendment passes then the CTLAC amendment would have to meet the 2/3 criteria.

If CTLAC is not successful this year but can get one on the ballot at a later time and again providing the 2/3 amendment passes then that one too would be covered by the CPVR 2/3 amendment.

It looks to me that unlike what CPVR is accusing CTLAC of doing (closing the door behind them) CPVR is trying to slam the door in the voters faces.

This 2/3 amendment looks like it may be even worse than the extra 2 seats, Hopefully the voters will agree and not pass this one.

Mike Heemer http://24.23.126.8/ Petition for choice (5 or 7) in Nov.

Mr. Lyon's group cannot retro any amendment to effect the current election process to my knowledge. As I said above "immediate enactment of an amendment".

His petition states shall be effective as to any question on the November 2008 general election ballot.  That should be considered ambiguous and misleading.  

State Laws and the Constitution and the Charter. Our Charter states:

The provisions of this Home Rule Charter are not intended, and shall not be construed, to conflict with the constitution of the State of Florida, a general law, or special law approved by vote of the electorate.

Your last paragraph, this is what is being researched starting at the local level clear up to the US Constitution.  Do you have something specific in the State Constitution, or in the Statutes?  If you've already got it, please do share.  What I read in the Charter it says that it can be effective immediately, is there something somewhere else that says otherwise? 

If it can be effective immediately and it passes then there should be no legal leg to stand on to say we're already stuck with the 2 at large positions for four years even if the Petition that removes them gets on the ballot and passes. 

The other thing that needs to be researched is by definition of law clear up to the federal level can a person who receives no votes, or is not on the ballot truly be "an elected official"   Victory by default is not elected.

http://24.23.126.8/Petition for choice in Nov. 7 Commissioners or 5.

Marsha when the SOE certifies a petition it is not checked for legalities in wording. It is checked (suppose to be) for the ballot format. As we know from the CTLAC prior petition that's not always done either.

The judiciary determines the 'legality' or constitutionality of duly enacted legislation or amendments under the United States or Florida Constitution. Remember the revocation of signatures. Although is was passed it was thrown out in the courts.

Ask Roy to produce any opinions or case laws that allow "immediate enactment of an amendment". That's his amendment asked him to produce the laws that allow what he is presenting to the voters to be clear, concise, and not misleading.

I would say challenge it before it gets on the ballot, end of problem. The elections are certified and they cannot uncertify the election to cater to Mr. Lyon's petition. It can be enacted upon approval but will not be enforced until the next election cycle.

Right now I have to leave so you guys have a great day. Call Mr. Lyons and ask him to produce his documents to back his petition wording.

Angela,

I mentioned earlier that I thought that the CPVR's petition couldn't be effective immediately and, according to Marsha, it may have other problems as well.

I am also concerned with the CTLAC petition.  While I have my personal preference on the 7-2 debate, it is more important to me that our Charter isn't compromised.  I think that all amendments must be clear and free of doubt so that the process isn't called into question.  As I said, I don't know how you abolish seats that are up for election.  You said that Fl. statutes controls this circumstance.  Marsha asked you for a copy of the statute.  I didn't see any reference in your response.

I think our county has been through a bunch the last couple of years and doesn't deserve a legal nightmare with petitions going back and forth.  Again, I am not blaming the CTLAC because the CPVR is also part of the problem.  I just think it would be helpful to have the issues out in the open and let the people understand. 

So Angela, if you are aware of a statute that explains how to abolish at-large seats that are on the ballot, then PLEASE provide them.  It could go a long way to making the case for your cause.

FSS 124.011 Alternate procedure for the election of county commissioners to provide for single-member representation.

This is consistent with the Constitution that allows for a 5 or 7 member Commission.

Fl Constitution states in 1(e) Article Vlll

(e)  COMMISSIONERS.  Except when otherwise provided by county charter, the governing body of each county shall be a board of county commissioners composed of five or seven members serving staggered terms of four years. After each decennial census the board of county commissioners shall divide the county into districts of contiguous territory as nearly equal in population as practicable. One commissioner residing in each district shall be elected as provided by law.

I think Marsha is correct that the CVPR's petition has some problems. It is with the wording of the ballot. To my knowledge there is no "immediate enactment of an amendment" provision. I've never seen one. The other issue that she describes the "any" question on the ballot shall be effective as to any question on the November 2008 general election ballot. This is broad in scope and should be considered ambiguous and misleading too.

Of course both would have to make it to the ballot by the required number of certified signatures.

Elections, generally, are invalid where held under such restrictions as to prevent the voter from casting his individual and intelligent vote upon the object or objects sought to be obtained.

However, because these issue involves particularly difficult or momentous questions of law, the parties may wish to consider submitting this question to the courts for definitive judicial resolution.

Although the Charter allows you to create you own effective date. It would not allow you to undo what has just been certified. Meaning it could become effective on the date of approval but it could not be enforced until the next election cycle.

Take the 60% to pass an amendment which is consistent with the Constitution of the State of Florida. It had to wait until the next election cycle to apply. They could not certify that election result and then require anything after that in the same election be required to meet the 60% threshold.

I would say the best and worst case senario is the CTLAC's amendment passes and the CPVR's amendment passes. What happens? The commission would be reduced back to 5 single member districts and any removal of an elected position would require 2/3 vote (66%) in future elections.

However it could be placed before the court in a declaratory judgment of legal right and interpretation of the law. Unless someone can come up with any case laws or opinions of an "immediate enactment of an amendment" in an election.

Marsha in the FSS in 101.161(1) it states:

Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word "yes" and also by the word "no," and shall be styled in such a manner that a "yes" vote will indicate approval of the proposal and a "no" vote will indicate rejection.

I do not know of any Florida Statutes or reported case laws defining "other public measure" 

"Constitutional amendments" affect the rights of all people of the state. Analogous thereto are all authorized changes in county, town, and city governments. They are public measures of the same kind.

I do not think the County Attorney would advise the Commissioners to put something(other public measure) on the ballot for the voters unless it was clear, unambiguous and lawful.

That being the ballot language we have discussed "immediate enactment of an amendment" and the other wording "any" question on the November 2008 general election ballot.

It appears you are right again:

       There are no Florida Statutes or reported case laws defining “other public measure.” It is a rule of statutory construction where the enumeration of specific things is followed by a more general word or phrase, the general phrase is construed to refer to a thing of the same kind or species as included within the preceding limiting and more confining terms. Smith v. Nussman, 156 So. 2d 680 (F1a. 3 DCA 1962). This principle, known as ejusdem generis, is a familiar aid to statutory construction. Smith, Supra.

Ejusdem Generis (eh-youse-dem generous) v adj. Latin for "of the same kind," used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation.

       The purpose of placing the substance of an amendment or other measure on the ballot is to give the electorate adequate notice of the contents of the proposed issue. Only the substance and not the entire text of a proposed constitutional amendment or other public measure should be placed on the ballot. AGO 076-189, September 7, 1976. Thus, the legislature has required the explanatory statement or summary not exceed seventy five (75) words in length; further, that the ballot title shall consist of a caption, not exceeding fifteen (15) words in length, by which the measure is commonly referred to or known.

http://election.dos.state.fl.us/opinions/new/1982/de8203.pdf

Angela,

Thanks for your response. 

I reviewed the statute and how it governs changing the composition of the commission.  I would like to point out, though, that this statute does not allow the at-large positions on the ballot to be removed immediately.  The legislature obviously shared my concern about removing positions which are up for election. 

124.011(11)  No county commissioner elected prior to or at the election which approves any revision as permitted in this section shall be affected in his or her term of office.

Clearly, Florida Statutes do not permit the CTLAC to have their amendment be effective immediately.  This is consistent with your theory about the CPVR's amendment not being effective either.

This couldn't highlight my concern about the Charter better.  People are being asked to sign the CTLAC and CPVR petitions and they have no idea about who is taking office, whether anyone actually gets to take office, or for how long.  This is not fair to the voters of Clay County.  I think both sides have gone too far.  I think the public is the victim in this political shooting match.

Angela,

Thank you for providing the information, you are undoubtedly more adept at finding these things then I am but I'm learning fast.

However the courts might decide on the effective date of application for amendments one thing is certain. In order for the CPVR petition to be able to take effect immediately rendering the CTLACs petition to reduce the number of Commissioners subject to that super majority of votes should it pass, then at the same time should the amendment sponsored by the CTLAC to reduce the number of Commissioners pass with a Super Majority then it should also be effective immediately meaning there will not be anyway the County Attorney can defend putting them in there for 4 years and then phasing it out.  You also cannot use the law regarding "once elected" if the people don't vote on the Chairmans race because they pull it off the ballot due to no competition.......then there has been no "election"

It's one or the other, you can't have it both ways.

http://24.23.126.8/ Petition for choice in Nov. 7 Commissioners or 5.

Stan24 when reading the statute it is best to include the full intent of the legislature. Not to just read what you want to read.

As you have posted it states:124.011(11)  No county commissioner elected prior to or at the election which approves any revision as permitted in this section shall be affected in his or her term of office.

The very important part here that you failed to include goes on to say: The resolution adopted by the board of county commissioners under paragraph (3)(a) or subsection (7) which presents the proposed revision to the electorate for approval shall specify an orderly method and procedure for implementing the revision contemplated in the resolution.

Subsection (7) If it is determined that the petitions have the required signatures, the supervisor of elections shall certify the petitions to the board of county commissioners, which shall adopt a resolution requesting that an election date be set to conform to the earliest primary, general, or otherwise-called special election that occurs not less than 30 days after certification of the petitions.

It appears to me the County Commissioners will decide how the orderly method and procedure for the abolishment of those positions will take place. This shall be specified in the resolution that we get to vote on in the elections.

I would not say the CTLAC is in a shooting match or presenting any information they feel is misleading to the electors.

I don't think I could say the same for CPVR. But that would be a personal opinion. 

Angela,

124.011(11) allows the BCC to adopt a resolution specifying an "orderly method" to implement the revision.  However, the Legislature did not intend for the BCC to adopt a resolution which would be in direct conflict with 124.011(11).  We should be able to agree that the resolution should at least comply with the mandates of the statute. I guess we can agree to disagree, I just don't think this statute provides the remedy you do.

I've seen many ways this has been handled. Some provide for a buy out of the positions. So I guess we will have to see how the Commissioners decide to craft the resolution.

I would just say if I was Mr. Bradley and this was the second time the CTLAC had collected the required number of certified signatures for a total of over 10,000 signatures. Then if the electors voted to abolish those positions. I personally would be looking for some way out of that position that I aquired by default.

Power does funny things with people though. So I guess we shall see his true level of commitment to the will of the people and the process.

Ordinances are creatures of local government-counties and cities. Local governments have broad statutory authority to enact measures “interesting the public.” See s. 125.01(1)(t) and s. 166.021(3), Florida Statutes, giving county and municipal government plenary power to enact public measures. This is the great thing about being a Charter County.

Angela,

State statute provides that the Chairman and at-large commission seats will not be affected by this election.  This is not something that the BCC can change by resolution.  This is also not a situation where the candidates for Chairman and at-large could choose not to serve and demonstrate your so-called "true level of commitment to the will of the people."  Those two seats belong to the people of Clay County who voted to add the seats in 2006; the seats don't belong to the candidates themselves.  Candidates don't have the power to just walk away from the seats and make them disappear.  In fact, if either candidate for these seats were to step down once elected, the Governor would be compelled to go through the appointment process to fill them.

Stan24,

There are many ways to get people out of those seats. We have recall's, ethics laws, non-interference laws, and voting them out of office with the amendment being proposed by the CTLAC.

If the legislature just thought they would continue until the end of the term. Which would mean the one at large position after 2 years would be abolished and the Chair at 4 years then they would have left the provisions of 124.011(11)  No county commissioner elected prior to or at the election which approves any revision as permitted in this section shall be affected in his or her term of office.

Why would they go on to say the Commissioner shall specify an orderly method and procedure for implementing the revision contemplated in the resolution.

If they stayed until their term had ended and the position abolished at the end of their term then why the need for the additional directive. It says shall specify that is an imperative command.

With the one position being only a 2 year position then we would have 6 Commissioners left on the board. Then how do you determine who's vote don't count because we have no provision for a tie vote to be broken.

Folks, we can pull up all the case or statutory law, even constitutional law, debate these various implementation issues and express our own opinions of what could or should happen after Election Day.  But the reality of this situation is that, in the absence of a judge overruling it, there is but one solidarity opinion that matters.

If any or all of the five potential Charter Amendments are approved by the voters, County Attorney Mark Scruby will be asked his professional opinion as to how the election results should be implemented in accordance with the law.  His opinion on the proper legal procedure for any given election result is what will happen.

Not waiting until after the votes are counted and then scurrying through the law books, Scruby has already done some research on the issue of implementing CTLAC's 5/2 amendment.  Unless either the law or his mind changes between now and November, this is what will happen if that amendment passes.

Rob Bradley will be seated as chairman, and whoever wins the other at-large election will also be seated, swelling the County Commission's number to seven.  When the second at-large seat's initial term ends in two years, the position will cease to exist and the BCC will continue on with six members.  As the chairman's term ends in four years, it too will disappear, reducing the number of Commissioners to its current five.

If the CTLAC 5/2 Amendment proposal receives voter approval and is implemented exactly as the County Attorney believes it should be, those who support abolishing the two at-large seats will get what they desire, with the exception of immediate gratification.

I support a five-member County Commission comprised of members who are elected by the people of their own districts because I think it will result in the best and most-responsive government structure for Clay County.  If the very worst thing that happens is the amendment and I don't get exactly what I want for four years, it's still very much worth the effort.  I will continue urging support of the amendment and give it my vote on Election Day.

Michael S. Mann

michaelsmann@comcast.net

I support a five-member County Commission comprised of members who are elected by the people of their own districts because I think it will result in the best and most-responsive government structure for Clay County, as well.

I think I would also challenge the opinion that 6 Commissioners could effectively do the county's business after the phasing out of the one at large position. Due to potential for tie votes.

The Florida Election Code should be consulted to see if a governing body, by resolution, could change the dates and provide for the orderly transition of those positions.

I would be asking questions should the situation present itself for the voters and the requirement be apart of the resolution for the voters. Court's decision interpret existing Florida statutes as reqired to harmonize the various provisions of the Fl Election Code and to give effect to the overall purpose and intent of Florida's election laws.

The statute clearly gives a directive for an orderly transition of those positions: shall specify an orderly method and procedure for implementing the revision.

If I was the CTLAC I would asked for an opinion other than Mr Scruby because as has been reported in Folio. Scruby and Bradley both requested a copy of the prior CTLAC petition back in Nov. and no one said anything about the title with too many words.I thought Mr. Scruby was the attorney for the county after all our taxdollars pay his salary. Bradley was a sitting Commissioner at that time.

However after working to collect signatures of over 10,000 voters (equivalent to the population of 2 of our municipalities). I would want to make sure of the procedure and provisions allowed by law that provides for an orderly method are followed.

Until then I will continue urging support of the amendment and give it my vote on Election Day too.

Stan24 as you stated above the resolution cannot conflict with the FSS 124.011 (11) and I agree with that statement. However the FSS does not stop with the term not being affected. It goes on to state that the BCC shall specify an orderly method of transition. I believe it does supply the remedy that the CTLAC seeks to provided the voters of the County.

First Bradley does not have an inherit right to sit in that seat. The county’s business being ran efficiently and effectively is the goal that is to be achieved. Thus the reason for the complete wording in 124.011(11)

The Constitution states in article VIII 1.(e) the governing body of each county shall be a board of county commissioners composed of five or seven members serving staggered terms of four years

How does Scruby plan to argue that a 6 member commission is constitutional?

With that in mind the only feasible transition is Bradley be termed out with the other at large seat in 2 years.

In SECTION 6. Schedule to Article VIII.-- under (c) OFFICERS TO CONTINUE IN OFFICE. Every person holding office when this article becomes effective shall continue in office for the remainder of the term if that office is not abolished. If the office is abolished the incumbent shall be paid adequate compensation, to be fixed by law, for the loss of emoluments for the remainder of the term.

I would say the CTLAC has not compromised the Charter by their petition but has taken every measure to ensure they follow the laws as evidenced by FSS 124.011. I will go on to say the FSS 124.011 (11) provides the remedy by the continued language that requires the Commissioners to provide for a method of transition. I will further state to abolish positions and the incumbent is compensated for the loss of emoluments for the remainder of the term would not violate the constitution either.

The petition provided by the CPVR is another issues that has more issues than it will need in signatures if it ever hopes to see the ballot.