         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                           NOT FINAL UNTIL TIME EXPIRES TO
                                           FILE MOTION FOR REHEARING AND
                                           DISPOSITION THEREOF IF FILED


ORANGE COUNTY, FLORIDA,

             Appellant/Cross-Appellee,

 v.                                             Case Nos. 5D16-2509
                                                          5D16-2511
RICK SINGH, INDIVIDUALLY, SCOTT
RANDOLPH, INDIVIDUALLY, JERRY
DEMINGS, SHERIFF OF ORANGE
COUNTY, RICK SINGH, ORANGE
COUNTY PROPERTY APPRAISER,
SCOTT RANDOLPH, ORANGE COUNTY
TAX COLLECTOR,

             Appellees/Cross-Appellants,

BILL COWLES, ORANGE COUNTY
SUPERVISOR OF ELECTIONS AND
ORANGE COUNTY CANVASSING
BOARD,

             Appellees.

________________________________/

Opinion filed December 8, 2017

Appeal from the Circuit Court
for Orange County,
Keith F. White, Judge.

Jeffrey J. Newton, County Attorney, and
William C. Turner, Assistant County
Attorney, Orange County Attorney's
Office, Orlando, for Appellant/Cross-
Appellee, Orange County, Florida.
John H. Pelzer, of Greenspoon Marder,
P.A., Fort Lauderdale, and Michael
Marder, of Greenspoon Marder, P.A.,
Orlando, for Appellee/Cross-Appellant Rick
Singh, Individually, and as Orange County
Property Appraiser.

Gigi Rollini and Mark Herron, of Messer
Caparello, P.A., Tallahassee, for
Appellee/Cross-Appellant, Scott Randolph,
Orange County Tax Collector, and Scott
Randolph, Orlando, pro se.

Eric D. Dunlap, Assistant General Counsel,
Orange County Sheriff’s Office, Legal
Services Section, Orlando, for
Appellee/Cross-Appellant, Jerry Demings,
Sheriff of Orange County.

Nicholas A. Shannin, of Shannin Law Firm,
P.A., Orlando, for Appellee Bill Cowles,
Orange County Supervisor of Elections.

No Appearance for Appellee Orange
County Canvassing Board.

David H. Margolis, Orlando, Amicus
Curiae, for the Orange County Clerk of
Circuit Court.

Jason Vail, of Jolly, Peterson &
Truckenbrod P.A., Tallahassee, Amicus
Curiae, for the Florida Sheriffs Association.


PER CURIAM.

       Orange County appeals a final judgment striking a portion of a county charter

amendment that provided for the nonpartisan election of certain county constitutional

officers. We affirm. The trial court properly determined that the amendment provision

was contrary to state law.




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                       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 injunctive relief against Orange County, challenging the

underlying county ordinance as well as the ballot title and summary. 1 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




       1 The trial court properly determined that these constitutional officers could only
sue in their individual capacity—not in their official capacity. State ex rel. Watson v.
Kirkman, 27 So. 2d 610, 612 (Fla. 1946) (“As a general rule a public official whose rights
are not adversely and injuriously affected by the operation of an Act, or the particular
feature complained of, may not raise the question of its constitutionality. The mere
interest of a public official as such is not sufficient to entitle him to question the validity of
a statute, but to entitle the official to the right to raise such a question he must show that
his rights of person or property are adversely affected by the operation of the statute.”).


                                                4
                       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 injunctive relief against Orange County, challenging the

underlying county ordinance as well as the ballot title and summary. 1 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




       1 The trial court properly determined that these constitutional officers could only
sue in their individual capacity—not in their official capacity. State ex rel. Watson v.
Kirkman, 27 So. 2d 610, 612 (Fla. 1946) (“As a general rule a public official whose rights
are not adversely and injuriously affected by the operation of an Act, or the particular
feature complained of, may not raise the question of its constitutionality. The mere
interest of a public official as such is not sufficient to entitle him to question the validity of
a statute, but to entitle the official to the right to raise such a question he must show that
his rights of person or property are adversely affected by the operation of the statute.”).


                                                4
from regulating nonpartisan elections for county constitutional officers because that

subject matter was preempted to the Legislature. This appeal followed.

       Article VIII, section 1(g) of the Florida Constitution grants broad home rule power

to charter counties, but prohibits those counties from enacting ordinances that are

inconsistent with general law:

              CHARTER GOVERNMENT.                  Counties operating under
              county charters shall have all powers of local self-government
              not inconsistent with general law, or with special law approved
              by vote of the electors. The governing body of the county
              operating under a charter may enact county ordinances not
              inconsistent with general law. . . .

There are two ways in which a county will be found to have enacted an ordinance that

was inconsistent with general law. First, a county cannot legislate in a field if the subject

area has been preempted to the Legislature. Phantom of Brevard, Inc. v. Brevard Cty.,

3 So. 3d 309, 314 (Fla. 2008).        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. Id.

       We agree with Appellees’ assertion that Orange County cannot regulate the

method and timing of its elections for county constitutional officers because that subject

area has been preempted to the State. Article VI, section 1 of the Florida Constitution

requires elections to be “regulated by law”—meaning a statute enacted by the Legislature.

Grapeland Heights Civic Ass’n v. City of Miami, 267 So. 2d 321, 324 (Fla. 1972). The

Legislature regulates elections generally in the Florida Election Code, which

encompasses chapters 97 to 105 of the Florida Statutes. In 2010, the Legislature enacted

section 97.0115, which expressly provided that all matters set forth in the Florida Election

Code were preempted to the Legislature:



                                             5
              Preemption.—All matters set forth in chapters 97-105 are
              preempted to the state, except as otherwise specifically
              authorized by state or federal law. The conduct of municipal
              elections shall be governed by s. 100.3605.

§ 97.0115, Fla. Stat. (2010); see also Jackson v. Leon Cty. Elections Canvassing Bd.,

204 So. 3d 571, 575 (Fla. 1st DCA 2016) (“The Legislature has expressly preempted to

the state matters involving state and local elections, with a limited exception for municipal

elections.”). Chapter 105, Florida Statutes (2014), set forth provisions and procedures

specific to nonpartisan elections. Significantly, 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.

       We reject the County’s argument that article VIII, section 1(d) of the Florida

Constitution expressly authorizes charter counties to provide for nonpartisan elections of

county constitutional officers. That section provides that county officers are to be elected,

unless the county charter specifies that they “be chosen in another manner”:

              COUNTY OFFICERS. There shall be elected by the electors
              of each county, for terms of four years, a sheriff, a tax
              collector, a property appraiser, a supervisor of elections, and
              a clerk of the circuit court; except, when provided by county
              charter or special law approved by vote of the electors of the
              county, any county officer may be chosen in another manner
              therein specified, or any county office may be abolished when
              all the duties of the office prescribed by general law are
              transferred to another office. . . .

Art. VIII, §1(d), Fla. Const. That provision simply authorizes a charter county to select its

county constitutional officers in some other manner than by election. It does not grant a

charter county the power to regulate elections for those officers. See In re Advisory

Opinion to the Governor, 313 So. 2d 717, 721 (Fla. 1975) (interpreting article VIII, section

1(d) to mean that the sheriff, tax collector, tax assessor, supervisor of elections, and clerk



                                              6
of the circuit court are to be elected by the electors of each county but containing the

proviso “that alternatively another manner than election for the selection of these officers

may be provided for by county charter or special law”); Op. Att’y Gen. Fla. 86-82 (1986)

(“Thus, s. 1(d) of Art. VIII merely authorizes a charter providing for the selection of county

officers in another manner than elections; it does not authorize the charter to regulate the

manner and election of these officers.”).

       In conclusion, we hold that the trial court correctly struck down that portion of

Orange County’s charter amendment that provided for the nonpartisan election of its

county constitutional officers. We affirm, without discussion, the remaining issues raised

on appeal and cross-appeal.

       AFFIRMED.


PALMER, TORPY and EVANDER, JJ., concur.




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