Tuesday, November 15, 2011

Lawyers find boobytraps in Sarasota referendum language

I was quoted a couple weeks ago in the Englewood Sun noting with approval the wording of Sarasota County's anti-term limits referendum language and the paper re-published my remarks on the eve of the Nov. 15 commission meeting to put the question on the Jan. 31 ballot. Unfortunately, my comments do not reflect my current thinking on the matter.

I was pleased -- and still am -- that the referendum question makes it clear the commission is weakening the current voter-approved term limit from eight to 12 years. In other cities and counties trying to evade term limits, the politicians deliberately hide the fact that the 8-year term limits currently exist and try to paint their anti-term limits amendment proposal as a pro-term limits proposal. Politicians have to try to trick voters in this way because voters everywhere love term limits.

But it turns out I, not a lawyer, was missing two egregious tricks hidden in the ballot language of the Sarasota referendum. Now that lawyer Andrea Flynn Mogensen and her sharp paralegal Michael Barfield have exposed this, I feel foolish to have been so misled.

Here's the draft language: "Shall Section 2.1A of the Sarasota County Charter be amended to allow County Commissioners to serve three consecutive terms, rather than two consecutive terms, currently ruled unconstitutional by the twelfth judicial circuit court, and to provide that term limits shall be applicable only to future terms rather than to current or prior terms? These term limits would be enforceable only if a court's ruling results in Sarasota County's Commissioner term limits being found constitutional."

Here's the boobytraps the lawyers found in the commission majority's ballot language:

1) The ballot language makes explicit reference to a superceded decision by the local 12th Circuit court that claimed county term limits to be unconstitutional. And yet, the Fourth District Court of Appeals in August decided -- unanimously and unambiguously -- that county term limits are indeed legal. This is the highest court to ever look at the issue and there are no contrary decisions at that level in effect. Ergo, as the lawyers point out, county term limits are constitutional statewide and the reference to the lower circuit court decision simply adds confusion to a simple issue. This is an effort to poison the well.

2) But the really nasty trick, perhaps an unprecedented one, is that the commission majority snuck in a clause that says that the new, weakened term limits do not go into effect unless an outside triggering event occurs that neither voters nor the county has any control over. So this amendment would successfully replace the existing voter-approved 8-year term limits, but would not itself become enforceable until some court in the future specifically deems Sarasota term limits legal.

This might never happen, as it is certainly unnecessary. Courts have already said county term limits statewide are constitutional; there is no reason why any court would single out Sarasota's term limits as constitutional. If the Florida Supreme Court affirms the current law as decided by the 4th DCA as expected, this would only affirm current law and is highly unlikely to mention Sarasota. Why would it?

This referendum idea is a fraud on Sarasota County voters. Commissioners should do the right thing and drop this self-serving referendum, today.

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