Sarasota law firm takes term limits case on pro bono basis

The citizens finally have some legal muscle to make sure they are not steamrolled by the county commission majority trying to circumvent Sarasota's voter-approved 8-year term limits.

The Sarasota-based law firm of Andrea Flynn Mogensen, P.A., has decided to take on the Sarasota County term limits case on a pro bono basis. One of their first actions is to send an open letter to County Attorney Stephen DeMarsh, with copies to all the commissioners.

Heretofore, this blog has assumed that the county must wait for an expected Supreme Court decision to render Sarasota County term limits enforceable. However, in this letter, the lawyer argues that the 4th DCA case that affirmed the constitutionality of county term limits applies to Sarasota right now even though Sarasota is in a different appellate district. Here's the letter:

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Mr. DeMarsh,

Last week you stated to the County Commission that the decision of the Twelfth Judicial Circuit decision in Moore finding the term limit provision in the County Charter unconstitutional is binding in the Twelfth Judicial Circuit. I also believe that you read from the proposed ballot language which echoed that opinion. There was a lengthy discussion between you and Commissioner Robinson relating to the impact of the recent appellate decision in Snipes v. Telli, 67 So. 3d 415 (Fla. 4th DCA 2011), upholding term limits provision in a county charter as constitutional. Commissioner Robinson stated that the term limits provision in our Charter is not constitutional. You actually stated that the Moore decision “is the law.” For the reasons set forth below, I respectfully disagree.

As I understand it, the Snipes decision is binding on any judge in the Twelfth 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.

See, e.g., Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) (“This Court has stated that the decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court. Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”) (internal citation and quotation marks omitted); Brannon v. State, 850 So.2d 452, 458 (Fla. 2003) (“If there is no controlling decision by this Court or the district court having jurisdiction over the trial court on a point of law, a decision by another district court is binding.”). See also 12A Fla. Jur 2d Courts and Judges § 177 (“In the absence of interdistrict conflicts, district court decisions bind all Florida trial courts. A circuit court wheresoever situated in Florida is equally bound by a decision of a district court of appeal regardless of its appellate district. Thus, in the absence of a contrary opinion of its own district court of appeal, a circuit court is bound to follow an opinion of another district court of appeal.”).

Thus, as of today, the Snipes decision is binding on every Circuit Court Judge in the Twelfth Judicial Circuit. Any contention otherwise is grossly misleading. More important, any ballot language indicating a reliance on the Twelfth Circuit Court decision in Moore is misleading. 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.

Law Office of Andrea Flynn Mogensen, P.A.
200 S. Washington Blvd., Suite 7
Sarasota, FL 34236

Sarasota Commissioner Barbetta: "Voters out there want term limits"

The Sarasota County Commission voted 4-1 on Tuesday, Oct. 25, to advance an anti-term limits amendment with a required public hearing on Nov. 15.

Commissioner Joe Barbetta was the sole dissenter, putting his sense of fair play above his personal interest in keeping his position forever.

Barbetta told the Englewood Sun that the charter amendment and a new 12-year grandfather period "just does not pass the test with me when 74 percent of the voters out there want term limits."

The "preferential route" is to wait for and abide by the Supreme Court ruling, he said. "Our problem would be resolved one way or the other."

He's right. If the Supreme Court rules that county commission term limits are constitutional, as expected, Sarasota's existing voter-approved 8-year term limits would be enforceable. If the Supreme Court rules otherwise, term limits will continue to go unenforced in Sarasota County. The people have already made their decision, approving the current unenforced 8-year limits by 68 percent of the vote.

Barbetta went further to say that commissioners should have defended the law aggressively in 2005. Back then, the commission -- which did not yet include Barbetta -- voted unanimously to accept without appeal a lower court ruling that term limits were unconstitutional. Subsequently, the 4th District Court of Appeals unanimously overturned the unconstitutionality claim in a Broward County case in an unambiguous decision.

Siesta Key resident Michael Figgins told the Sun that Barbetta "realizes what’s going on ... this county is in bad shape right now."

Herald-Tribune guest columnist asks county commission to abide by decision by Sarasota voters, Florida Supreme Court

The Sarasota Herald-Tribune today ran a guest columnist piece I wrote about the effort by the county commission to sabotage Sarasota's voter-approved 8-year term limits.

Here's how it begins:

"Contrary to any high-minded rhetoric clouding the issue, there is only one reason for a new referendum on Sarasota County term limits: to delay enforcement of voter-approved term limits."

And how it ends:

"The commission should drop the referendum idea, wait for the Supreme Court and resign themselves to its decision. That is the right thing to do."

For everything in between, read the full column here.

State Sen. Joe Negron files resolution for Congressional term limits!

Great news! Florida Sen. Joe Negron has sponsored a Senate companion for Rep. Matt Caldwell's resolution, or memorial as they are called in the legislature, calling for term limits on the U.S. Congress.

With a term limits amendment bill with cosponsors in both Houses of Congress for the first time since the mid-1990s, it is time for us to put the pressure on Congress anyway we can to cosponsor and vote for these bills. One way is to have our state legislatures officially call for Congressional term limits.

Sen. Joe Negron and Rep. Matt Caldwell are taking the lead for the 79 percent of Floridians who support the idea.

Sen. Negron's bill -- SM 672 -- is a mirror of Rep. Caldwell's HM 83 that, if passed, would officially call for Congressional term limits. Moreover, it resolves that “copies of this memorial be dispatched to the President of the United States, to the President of the United States Senate, to the Speaker of the United States House of Representatives, and to each member of the Florida delegation to the United States Congress."

Rep. Caldwell successfully shepherded this bill through the House last session, but it died without a Senate companion. This session Caldwell added a co-sponsor in the House, Rep. Matt Gaetz of Fort Walton Beach.

A lot of the legwork on these bills is being done by grass roots political consultant John Hallman and the activist group Campaign for Liberty, who have chosen the memorials as priority legislation for the session

But they need our help:

1) Send a thank you to the two Matts (Caldwell and Gaetz) in the House and Sen. Negron in the Senate. Let them know we appreciate it and that these bills are worth their continued efforts.

2) Contact your state rep and ask him or her to cosponsor and vote for this bill. To find your representative, go here and select the FIND YOUR REPRESENTATIVE pull-down menu on the top left.

3) Contact Rep. Clay Ford here and ask for a vote on Caldwell's HM 83 by the Federal Affairs Subcommittee.

4) Contact your state senator and ask him or her to cosponsor and support Sen. Negron's bill. To find your senator, go here.

5) Write a letter to editor in support of the memorials.

6) Support U.S. Term Limits and Campaign for Liberty with financial assistance for the effort.

We can do this. After all, the Caldwell bill is NOT an Article 5 call for a Constitutional Convention, but simply a resolution. And, unlike Congress members – who have a self-interest in opposing Congressional term limits – state legislators have a self-interested reason is passing them: Congressional term limits would open up seats they can run for. They know as well as anyone that incumbents in Congress statistically can’t lose except via death or indictment.

To follow the bill using the House’s BillTracker, go here. Senate, here.

If we are successful in Florida, other states will follow our lead. Believe me, the Congress will feel the pressure if state after state (and poll after poll) call for term limits. Let's do it!

Sarasota politicians lost in "limbo" of their own creation

As four of the five Sarasota County commissioners press forward with their effort to secure a new 12-year reprieve from voter-approved term limits, they are looking for plausible fig leaves to cover their self-interested battle against their constituents.

It isn't easy.

Right now, 8-year term limits are in the charter and will become enforceable if -- as expected -- the state Supreme Court in the coming months rules such limits constitutional. But we don't know for sure which way the Supreme Court will rule. Commissioners are citing the need for a new referendum, and quick, to save them from what they call "limbo."

One justification for a new referendum is the alleged need to change Sarasota's limits from eight to 12 years to be in line with Broward County's voter-approved term limits law which was unanimously ruled constitutional by the Fourth District Court of Appeals in August. However, the 4th DCA decision does not even discuss the number of terms permitted. The point of law is whether charter, or "home rule," counties have the constitutional right to choose term limits for their commissions in the same manner in which they choose between other arrangements, such as single-member vs. at-large districts. It has nothing, absolutely nothing, to do with number of terms.

In fact, of the 10 charter counties with term limits, nine of them have 8-year limits. If any county needs to get in line, it's Broward! But then again, home rule is not about being in line with other counties; it is about customization. It is about, well, home rule.

Another justification is that it is not entirely clear -- uh oh, more limbo! -- what will happen to the one commissioner the term limits law applies to in 2012, Jon Thaxton. Thaxton has chosen (repeat: chosen) to run again in spite of the fact that it is likely that he will not be able to take office after the Supreme Court rules. This is an antisocial decision by Thaxton, as not only does it violate the popular voter-approved term limits laws, but it also makes other potential candidates reluctant to join the race. Limbo!

Of course, this confusion is only confusion that Thaxton is choosing to create. Making it worse, there are whispers that Thaxton or other commissioners might sue the voters if not permitted to hold office, even if the Supreme Court does rule term limits constitutional. County Attorney Stephen DeMarsh has explicitly mentioned this possibility.

A spokesperson for Supervisor of Elections Kathy Dent told the Englewood Sun that in her nearly 11 years as supervisor of elections, she has never been sued by anyone she declared ineligible to run for public office. But Thaxton may choose to be the first.

As a commissioner in 2005, Thaxton chose not to appeal the local judge's decision that county term limits where unconstitutional. But in 2011, he may choose to try to evade a Supreme Court decision that county commission term limits are constitutional.

Such choices expose what the majority of commissioners are really after. They are not worried about "limbo." In fact, they are more than willing to create it in order to keep their cozy positions in defiance of the voters.

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MARK YOUR CALENDAR: On Nov. 15, the commission will hold a required hearing on their plan to ditch voter-approved 8-year term limits. Be there!

Citizen Bolam defends Sarasota term limits

Consider please the contrast between the Sarasota County Commission and Kathy Bolam of Venice on the issue of voter-approved 8-year term limits.

The commissioners are using public resources on public time in order to circumvent the clearly expressed will of the public for their own personal benefit.

Bolam is volunteering her own time, distributing flyers, holding meetings, writing letters and will receive nothing in return. Why? Because it is the right thing to do.

The commission doesn't stand a chance.

Just last weekend, Bolam distributed pro-term limits flyers at the North Port flea market and Venice Expo. She held a meeting at her home Saturday evening and had a letter to the editor appear in the Sunday Herald-Tribune.

If you see Kathy, please thank her for her efforts on behalf of the community. While you're at it, ask her how you can help.

Sarasota County Commission launches counterattack against voter-approved 8-year term limits

In an earlier post, I marveled at the arrogance of the Sarasota county commission in its treatment of Sarasota’s voter-approved 8-year term limits law. But this week, the commission brought political hubris to a shocking new level.

To recap, Sarasota voters in 1998 approved 8-year term limits for their county commissioners. As these were about to go into effect, a commissioner or commissioners – via a disinterested citizen, of course – filed suit and got a local judge to knock down the law as “unconstitutional.” Then, in a clear case of putting their personal self interest above the clearly expressed will of the voters at the ballot box, the commission voted unanimously in 2005 not to defend the voter-approved law and to appeal the decision. Term limits remained in the charter, but were not enforced.

Currently, the highest Florida court that has looked at the issue says that county commission term limits are constitutional and, indeed, they are enforced everywhere else except Sarasota County.

As it is widely expected the Florida Supreme Court will uphold the Constitutionality of county commission term limits before the 2012 elections, the county commission is already planning its next counterattack. Rather than letting the voter-approved 8-year term limits go into effect, they are floating the idea of a new referendum to abolish the 8-year term limits and replace them with new 12-year term limits with a new (that is, another) grandfather period of 12 years!

Naturally, the commissioners are not citing their self-interest in floating this proposal, but instead claim they are trying to avoid “confusion” and potential litigation.

But the fact is that 8-year term limits have been passed in accordance with the law. When the Supreme Court affirms that fact, the term limits should be enforced. There is no confusion except that which the commission creates. And there is no fear of litigation if the commissioners or one of their cronies don’t sue the voters, again. So, don't.

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WHAT DO YOU THINK?

In 1998, 68 percent of Sarasota voters imposed 8-year term limits. In 2009, polling from Quinnipiac University shows that 73 percent of Southwest Florida respondents opposed weakening state legislative term limits from 8 to 12 years.

To weigh in today on whether you support the current voter-approved 8-year term limit or a new 12-year limit with a new 12-year grandfathering period, please see the poll at the top corner of this page, http://flatermlimits.blogspot.com/.

Englewood Sun tells it like it is: "Fishy"

While the Englewood Sun is no friend of Sarasota term limits, their editorial board chair Brian Gleason on Oct. 19 told the whole truth -- minus all the spin and prevarications we are hearing from the county commission -- about the commissions' proposal to replace Sarasota's existing voter-approved 8-year term limits with new 12-year limits and a new 12-year grandfathering period.

You can read the whole thing here, but here's the highlights:

"Going forward, the incumbents will have to justify an action that is
obviously self-serving.

"Is this the Jon Thaxton Preservation Act? Of course it is.

"Does this co-opt a previous referendum that passed with a 68-percent
majority? Of course it does.

"Is it right to hold a referendum during the January Republican Party
primary? Of course not. Turnout among the 87,000 registered Democrats will
be minimal, to say the least. Republicans have every reason to favor a
measure that would keep the five commissioners — all Republicans — in
office.

"Slam dunk. Win-win. Fishy, perhaps, but one sleek mackerel...If you are going to impose term 'limits,' it’s best to make them as meaningless as possible."

Wow. In a one-party county where incumbents haven't lost an election since the mid-'90s and commissioners often don't even draw opposition, the good ol' boys are apparently comfortable openly scoffing at the will of voters and the rights of the opposition party. It may be an affront to democracy and fair play, but you have to give the paper credit for its chutzpah.

Ballot language for Sarasota's anti-term limits referendum

Time is running out for the desperate Sarasota County Commissioners trying to undermine their county's voter-approved 8-year term limits law. At the request of commissioners, county attorney Stephen DeMarsh has offered sample ballot language and warns a public hearing is required on this issue on Nov. 8 or Nov. 15 in order to place the question on the Jan. 31 ballot.

Ed Scott tells the story in a Englewood Sun article here. Scott reports that in an Oct. 18 memo to commissioners DeMarsh advised that the language has to confirm with a 1982 Supreme Court decision that the public be “advised of the true meaning and ramifications of the amendment in clear and unambiguous language” and the ballot summary must “give the voter fair notice of the decision to be made and explain the effect of the amendment."

DeMarsh's sample language for the most part passes the test. Here it is:

TITLE: Extend Commissioner term limits to three terms
commencing upon referendum approval if term limits constitutional

TEXT: Shall Section 2.1A of the Sarasota County Charter be
amended to allow County Commissioners to serve three, rather than two, consecutive terms, and to provide that term limits shall be applicable only to terms commencing after January 31, 2012, rather than to terms commencing after September 1, 1998 (effective date of current term limit provision)? These term limits would be enforceable if a court’s ruling results in Sarasota County’s Commissioner term limits being found constitutional.

Note that the text makes it clear, if one reads it, that this ballot measure weakens the existing term limits and adds a 12-year delay on implementation.

The title alludes to this too, but is not 100% clear and many voters only read the title. So defenders of the current law need to inform voters that this measure does not simply impose 12-year term limits (something voters may support as they don't know Sarasota already has 8-year term limits in the charter) but instead is an self-interested attack on term limits. We should refer to it as the "anti-term limits amendment" from here on out.

If citizens are successful in educating their neighbors on this point, the people will win and the politicians will lose.

Dr. Rich: Sarasota should take positive action on behalf of voters

In this blog I have been calling for the Sarasota County Commission to give up its desperate 6-year crusade against enforcing Sarasota County's voter-approved 8-year term limits law, accept the imminent state Supreme Court affirmation of county term limits laws, and then act in accordance with the law. In other words, the county commission should resign itself to the law and the clearly expressed will of the people.

But the local businessman, blogger and radio host known as Dr. Rich suggests that is not enough. In his view, the county commission is elected to serve the people and therefore should be taking positive action to implement the people's will.

He points out that the highest court to look at the issue of county commission term limits -- the 4th District Court of appeals -- has unanimously decided such term limits are constitutional and enforceable. Hence, Dr. Rich says in a new blog post, "What the County Commission should have done is direct County Attorney DeMarsh to support the ruling of the 4th DCA and request the Florida Supreme Court to issue a quick judgement in favor of the people of Sarasota County."

He's right, of course.

Unfortunately, the commission is going the opposite direction: floating a new referendum to replace the voter-approved 8-year term limits with 12-year term limits and -- the real reason for the change -- a new 12-year grandfather period for current commissioners.

The commission is taking action all right, but it is not to serve the voters, but only themselves.

KEEP 8-YEAR TERM LIMITS bumper sticker available!

The people spoke, approving 8-year term limits for the Sarasota County commission with 68 percent of the vote.

Local politicians blocked their implementation for years, but it looks like the Florida Supreme Court is coming to voters' rescue in a few months. In response, the commission is cobbling together a new scheme to abolish the voter-approved 8-year term limits and replace them with new 12-year limits with -- can you believe it? -- a new 12-year grandfather period for current commissioners.

So, it is time for the people to speak again. One way to do it is with this tasteful, high-quality vinyl bumper sticker: KEEP 8-YEAR TERM LIMITS. This sticker is easily removable without any damage to your vehicle. And, they're free.

To get one, go here and include your contact info including mailing address and you'll find one in your mailbox promptly. Thanks.

Commissioner Jon Thaxton bucks Sarasota voters on term limits -- again!

Is it something in the water?

Arrogance of professional politicians is, of course, hardly uncommon, but Sarasota County brings it to a new level when it comes to the way county politicians have dealt with their county’s voter-approved term limits law.

In 1998, 68 percent of Sarasota voters approved a citizen initiative to limit the terms of county commissioners to eight years in office. As has occurred elsewhere, politicians brought the charter amendment to court and found a friendly local judge to shoot it down as unconstitutional. One would expect that the county would feel obligated to defend 68 percent of their voters by appealing the decision. But Commisisoner Jon Thaxton and the rest of the commission – the very body the term limits amendment applied to – voted not to appeal, citing the cost.

The cost! In a decade with surging property value and surging budgets, the big spending commissioners of Sarasota County suddenly became fiscal conservatives when faced with the prospect of having their terms limited by pesky citizens. The estimated cost of the appeal was $15,000.

Today, the charter amendment stands, but there is a footnote in the charter noting that the term limits language is not enforceable due to the court decision.

Meanwhile, in Broward County a similar story unfolded but with a far different ending. When local politicians tried to overturn the Broward County term limits law, the county went to bat for the 80 percent of voters that approved their term limits law. And guess what? The 4th District Court of Appeals in August confirmed unanimously that, yep, county term limits are indeed constitutional.

Politicians are appealing to the Supreme Court, where the term limits law is expected to be affirmed. When it is, Sarasota term limits will go into effect, finally.

So the Sarasota County commission has been busted by the 4th District Court of Appeals for their self-serving upending of all the hard work and the clear will of their citizens. But Commissioner Jon Thaxton is not done yet. He has announced he plans to run for his fourth term in spite of the voter-approved term limits amendment.

Thaxton is a poster child for term limits. There are several good reasons for term limits, but the primary one is that it mandates regular, competitive elections. As is typical, Thaxton has not faced a challenger since he first ran in 2000.

That's right, Jon Thaxton’s name has not appeared on a general election ballot for over a decade! Remember that the next time some politician pulls out the hoary old cliche "we already have term limits, they are called elections."

It is no wonder Thaxton voted against defending the people’s term limits law. He knows what all county commissioners know, that because of the advantages incumbents have, sitting commissioners rarely face serious challengers -- if they face any challengers at all. The county commissioner gig is a cozy one and he is all but guaranteed of keeping it, as long as there are no term limits.

His announcement means that other potential challengers are not entering the race or, if they are, they will not be able to raise the money they need for a competitive race. On his way out, Thaxton is throwing one more wrench into Sarasota democracy.

Isn’t it this kind of behavior that led 68 percent of Sarasota voters to approve term limits in the first place?

Term limits emerge as issue in Florida U.S. Senate race

As noted below, polls show Floridians love term limits. And why not? We have term limits on our governor, state legislators, county commissioners in nine counties and countless mayors and city councils. Term limits work and Floridians know it.

Adam Hasner, as a term limited former House majority leader, knows it too. Hasner has signed the U.S. Term Limits pledge that, if elected, he -- like Sen. Marco Rubio -- will cosponsor and support Sen. Jim DeMint's term limits amendment bill to limit terms to three in the U.S. House and two in the U.S. Senate. He reiterated his pledge in his new campaign brochure, at left, going further to say that he would only serve two terms in the Senate. The U.S. Term Limits pledge is not a self limit, but only a pledge to support 3/2 term limits legislation.

While all the Senate candidates have made pleasant noises about term limits when asked, only Hasner has signed his name so far.

But rival George LeMieux is challenging Hasner's ownership of the issue. In his attack site, PhonyConservative.com, LeMieux points out that as a Florida House member Hasner voted for an amendment to weaken Florida's voter-approved term limits on the state legislature from eight to 12 years. (Hasner also voted to remove the amendment from the ballot following a public outcry in support of the 8-year term limit law.)

Brian Seitchik, campaign manager for LeMieux, puts it this way: "The fact is, Adam Hasner voted to severely weaken Florida’s voter approved term limits law in order to give career legislators like himself more time in Tallahassee. He even defended that position, saying longer terms would bring better government. Now he wants voters to believe he’s a term limits champion?"

Ouch.

I'm looking forward to the next round. May the best man win. But dare I suggest that other candidates sign the pledge to support the term limits amendment as Hasner did before they attack him for being weak on term limits.