Details of County Commissioner Term Limit/Salary Cap Lawsuit
by Kemp Brinson
The Complaint filed by Polk businessman Sam Killebrew has been released by the Clerk of Court.
The Document
The Basics
There is only one plaintiff, Sam Killbrew, who is filing suit in his individual capacity as a voter. He seeks to have the term limit and salary cap provisions for county commissioners in the county charter declared to be in violation of the Florida Constitution.
There are three defendants: Lori Edwards, the Polk County Supervisor of Elections, Richard M. Weiss, the Polk County Clerk of Court, and the County itself. Ms. Edwards is a necessary Defendant because her office is responsible for enforcing the various laws and rules for candidate eligibility. Mr. Weiss is a necessary defendant because his office is allegedly responsible for payment of commissioner salaries. The County is a necessary defendant because its charter is at issue.
The nature of the challenge appears to be exactly as explained in my prior post on the topic.
Analysis
On the merits, as I have said, I think the term limit provision of the charter amendment is likely to be struck down, while the challenge to the pay provision is on far more uncertain grounds. There are some interesting issues that could arise before a court even gets to resolving the case on the merits.
This lawsuit raises some interesting political questions. First of all, I am interested to see who steps up to the plate to defend these provisions. The county attorney has already expressed an opinion that both provisions are unconstitutional. Theoretically, however, his office would be responsible for defending this challenge. This puts the county attorney and the commissioners in a bit of an awkward situation. If they actively defend this case, they will be accused of doing it just for show. If they do not actively defend this case, they will be accused of ignoring the direct imperative of the charter that they serve under. In an abstract way, this situation may be akin to the State of California’s decision not to defend Prop 8.
On the legal side, I think there may be legitimate preliminary questions of standing and ripeness. The concept of standing requires that a party actually harmed by something be the party to file suit about it. The concept of ripeness requires that the controversy be real and in present need of resolution. A potential conflict that has not yet cropped up is not “ripe.”
Mr. Killebrew’s alleged harm is purely hypothetical. Mr. Killebrew has not alleged any actual impending harm (e.g., he could have alleged that that he intends to run for county commissioner). He only alleges that someone that he might hypothetically want to vote for one day might be unable to run because of term limits, or hypothetically discouraged from running because of the salary issue. That’s a bit of a stretch.
The commissioners have all but acknowledged that this suit is their effort to kill these two charter provisions without having to take the political hits associated with raising the issue directly themselves. The law however, may offer some basis to deflect an indirect challenge, if anyone steps up to try to defend these provisions.
We’ll see.
I have tried to research this, but couldn’t find the information, so I might not be correct. I thought the actual wording of the “term limits” provision did not prevent anybody from running again, it just prohibited their name from appearing on the ballot. Which could be a valid concern and benefit for voters, since incumbents can gather too much name recognition when they’ve been there for so many years.
You are correct about the rote text of the provision (below), but I don’t know whether that makes any difference. Would have to give it some thought.
“No person may appear on the ballot for re-election to the office of Commissioner to the Polk County Board of County Commissioners if, by the end of the current term of office, the person will have served (or, but for resignation, would have served) as a Commissioner for eight (8) consecutive years.”
The term limit wording does not prohibit the running again after a term gap.
So essentially they are not prohibited from running again, or being elected, via a write-in vote. Nowhere in the Florida Constitution does it state that it must be as easy as possible for somebody to be reelected. And it has been seen that write-in candidates can be elected.
What was the wording of the term-limit provision that was struck down by the Florida Supreme Court?
I’m not prepared to agree with you without looking into it further. The opinion in Cook may quote the provision, you can read it via a link from my last post.