IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. v. Case No: 5D

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT RECEIVED, 3/6/2017 9:45 AM, Joanne P. Simmons, Fifth District Court of Appeal ORANGE COUNTY, FLORIDA, ET AL., Appellants / Cross-Appellees, v. Case No: 5D16-2509 RICK SINGH, INDIVIDUALLY, ET AL., Appellees / Cross-Appellants. BRIEF OF AMICUS CURIAE ORANGE COUNTY CLERK OF THE CIRCUIT COURT IN SUPPORT OF APPELLEES / CROSS-APPELLANTS David H. Margolis, Esquire Florida Bar No. 56293 425 N. Orange Ave., Suite 2110 Orlando, Florida 32801 407-836-6324 / i

TABLE OF CONTENTS TABLE OF CITATIONS... iv STATEMENT OF INTEREST... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 I. THE FLORIDA ELECTION CODE IS VIOLATED BY THE COUNTY S CONVERSION OF PARTISAN CONSTITUTIONAL OFFICES INTO NONPARTISAN CONSTITUTIONAL OFFICES.... 3 A. FLORIDA STATUTE 97.0115 PROHIBITS THE COUNTY FROM CONVERTING PARTISAN CONSTITUTIONAL OFFICES INTO NONPARTISAN OFFICES.... 3 II. THE CHARTER S ENABLING ORDINANCE VIOLATES THE SINGLE-SUBJECT RULE DESCRIBED IN FLORIDA STATUTE 125.67...10 A. THE SINGLE SUBJECT RULE APPLIES TO ALL COUNTY ORDINANCES, INCLUDING THE ENABLING ORDINANCE THAT ATTEMPTS TO MODIFY AN EXISTING COUNTY CHARTER...10 B. COUNTY ORDINANCE 2014-21 EMBRACES MULTIPLE SUBJECTS...14 C. THE ORDINANCE IS NOT ENTITLED TO DEFERENCE REGARDING ITS SINGLE-SUBJECT VIOLATION...17 CONCLUSION...17 ii

CERTIFICATE OF SERVICE...19 CERTIFICATE OF FONT SIZE COMPLIANCE...19 iii

TABLE OF CITATIONS Cases Advisory Opinion to Atty. Gen., 778 So.2d 888 (Fla. 2000)...10 America s Health Insurance Plans v. Hudgens, 742 F.3d 1319 (11th Cir. 2014)... 6 Art. VI, 5(a), Fla. Const....18 Charter Review Commission v. Scott, 647 So.2d 835 (Fla. 1994)...10 County of Volusia v. Quinn, 700 So. 2d 474 (Fla. 5th DCA 1997)... 6 DHSMV v. Dellacava, 100 So.3d 234 (Fla. 5th DCA 2012)... 7 Franklin v. State, 887 So.2d 1063 (Fla. 2004)... 14, 15, 17 Jackson v. Leon County Elections Canvassing Board, 204 So.3d 571 (Fla. 1st DCA 2016)...4, 17 Kiefer v. Fortune Federal Sav. and Loan Ass n., 453 So.2d 430 (Fla. 2d DCA 1984)... 8 MacKenzie v. Centex Homes, 42 Fla. L. Weekly D59 (Fla. 5th DCA, Dec. 22, 2016)...13 Morales v. TransWorld Airlines, Inc., 504 U.S. 374 (1992)... 6 Reese v. State, Dep t. of Transportation, 743 So.2d 1227 (Fla. 4th DCA 1999)... 7 Robertson v. State, 829 So.2d 901 (Fla. 2002)... 4 Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880 (Fla. 2010)...3, 5 iv

Telli v. Broward County, 94 So.3d 504 (Fla. 2012)... 8 Volusia Citizens Alliance v. Volusia Home Buildings Ass n., 887 So.2d 430 (Fla. 5th DCA 2004)...11 Statutes Fla. Stat. 101.161(1)... 3, 12, 13, 19 Fla. Stat. 125.67... passim Florida Statute 125.82... 4, 14, 15 Florida Statute 97.0115... passim Florida Constitution Art. III, 6, Fla. Const....14 Art. VI, 16, Fla. Const.... 5 Art. VIII, 1(d), Fla. Const....10 Art. XI, 3, Fla. Const....14 County Ordinance 2014-21... 16, 18 v

STATEMENT OF INTEREST The Orange County Clerk of the Circuit Court (the Clerk ) is an independent constitutional officer. Art. VI, 16, Fla. Const. The Clerk is responsible for an extensive array of statutory and quasi-judicial functions. For example, the Clerk serves as the keeper of judicial records and the preserver of records for appeal. Due to its unique role in the justice system, the Clerk is required to abide by legislative mandates, rules enacted by the Florida Supreme Court, local and district-wide administrative orders, and individual decisions by state and federal judges. Because the Clerk is already subject to a wide variety of judicial and legislative mandates, it is imperative that county ballot initiatives clearly and unambiguously inform voters as to the full extent or repercussions of their decisions. See Fla. Stat. 101.161(1). Furthermore, county ordinance initiatives must be presented in a single-subject format. See Fla. Stat. 125.67. These statutes help prevent counties from amending their charter in ways that prove highly disruptive. In addition, these statutes help prevent difficult conflicts of law, e.g. a charter amendment that contradicts a local administrative order. The Clerk agrees with the cross-appellants that the trial court failed to enforce these statutes. As a result, the Clerk agrees with the cross-appellants that this Court should reverse as to either or both of these points. 1

SUMMARY OF THE ARGUMENT The trial court correctly invalidated the portion of the charter amendment that converts partisan, constitutional officers, into nonpartisan officers. The Clerk, however, arrives at that conclusion by different means than the trial court. Florida Statute 97.0115 expressly preempts all matters relating to nonpartisan elections. Therefore, a county cannot implement a nonpartisan election, or convert a partisan election into a nonpartisan election, or vice versa. This statute, however, was enacted on July 1, 2010. Like most legislation, 97.0115 applies prospectively rather than retroactively. The Clerk acknowledges the validity of nonpartisan systems that were implemented prior to July 1, 2010. Since that date, however, only the legislature has been empowered to implement further changes. In addition, every county ordinance must comply with the single-subject rule. Fla. Stat. 125.67. There is no exemption for enabling ordinances or an ordinance that proposes a charter amendment. The trial court erred by reading an exemption into Florida Statute 125.82. Assuming the single-subject rule applies, Orange County violated the rule by including two or more subjects. Because the charter could not have been amended without the enabling ordinance, an invalid ordinance invalidates the charter amendment as well. 2

ARGUMENT I. THE FLORIDA ELECTION CODE IS VIOLATED BY THE COUNTY S CONVERSION OF PARTISAN CONSTITUTIONAL OFFICES INTO NONPARTISAN CONSTITUTIONAL OFFICES. A. FLORIDA STATUTE 97.0115 PROHIBITS THE COUNTY FROM CONVERTING PARTISAN CONSTITUTIONAL OFFICES INTO NONPARTISAN OFFICES. In an earlier era, the Florida Supreme Court held that the Florida Election Code does not preempt a county s authority to regulate elections. See Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880 (Fla. 2010). The court acknowledged, however, that the legislature can expressly preempt any topic of their choosing. Express preemption of a field by the Legislature must be accomplished by clear language stating that intent. Id. at 886. Fortunately, In cases where the Legislature expressly or specifically preempts an area, there is no problem with ascertaining what the Legislature intended. Id. In response to this ruling, the legislature immediately enacted Florida Statute 97.0115. The new statute took effect on July 1, 2010, having been adopted only four months after the decision in Browning. The plain language of 97.0115 states that All matters set forth in chapters 97-105 are preempted to the state, with the exception of municipal elections. Id. This statute requires no interpretation. The plain language ensures that only the legislature can make determinations regarding (non-municipal) elections and voting. Simply put, The Legislature has expressly 3

preempted to the state matters involving state and local elections, with a limited exception for municipal elections. Jackson v. Leon County Elections Canvassing Board, 204 So.3d 571 (Fla. 1 st DCA 2016). Notwithstanding this broad degree of preemption, the trial court held that Orange County is authorized to make the county constitutional offices nonpartisan elective offices. (R. at 2992). Fortunately, the trial court went on to rule that the county cannot regulate the nonpartisan elections for such offices because those matters are preempted to the Legislature. (R. at 3036). As a result, the trial invalidated that portion of the charter amendment which described the procedures and protocols by which the new, nonpartisan election would occur. With those procedures invalidated, however, the charter was left without any guidance as to the timing of the new election, the qualifying criteria for candidates, or the process if no candidate secures a majority vote. The trial court correctly recognized that the implementation procedures could not be severed from the nonpartisan conversion itself. (R. at 3036-38). Consequently, the trial court had no choice but to invalidate the entire section of the amendment that pertains to nonpartisan elections. The trial court correctly invalidated this portion of the charter amendment. However, the Clerk arrives at this conclusion by different means. 1 Because the 1 Naturally, this court can affirm on any grounds supported by the record, even if the reasoning diverges from the reasons given by the trial court. See Robertson v. State, 829 So.2d 901, 906 (Fla. 2002)(explaining the tipsy coachman doctrine ). 4

legislature has preempted all matters pertaining to nonpartisan elections, the entire concept of converting a partisan constitutional office into a nonpartisan office violates the Florida Election Code. In other words, Florida Statute 97.0115 prohibits a county from enacting any law or regulation pertaining to nonpartisan elections. Regardless of whether the county is implementing a nonpartisan system, converting a partisan system into a nonpartisan system, or providing the timing of the nonpartisan election, the county action is preempted. Therefore, it is unnecessary to parse the distinctions between the implementation of a nonpartisan system versus the rules that govern that implementation. Additionally, it is unnecessary to consider a question of severability. The county s attempt to convert partisan constitutional offices into nonpartisan offices is inherently illegal. Any other holding will frustrate the legislative intent. Remember that Florida Statute 97.0115 was enacted directly in response to the decision in Browning. This timing only reinforces the conclusion that the legislature sought to prohibit the type of electoral machinations pursued by Orange County today. Writing on behalf of the appellant, the Florida Association of Counties argues (as amicus) that nothing in the Florida Election Code reveals a Legislative intent to expressly limit the class of offices that may be deemed nonpartisan. (Amicus at 11-12). When enacting 97.0115, however, it was unnecessary for the legislature to specifically delineate each and every conceivable action that would now be 5

impermissible. By preempting these matters expressly, the statute inherently prohibits a county from engaging in any type of legislation that affects a nonpartisan election. Express preemption paints with a broad brush, and the courts interpret it broadly. See, e.g., Morales v. TransWorld Airlines, Inc., 504 U.S. 374, 383-84 (1992). See also America s Health Insurance Plans v. Hudgens, 742 F.3d 1319, 1329-32 (11 th Cir. 2014). The Association seeks to avoid this conclusion by arguing that Volusia County successfully implemented nonpartisan elections in County of Volusia v. Quinn, 700 So. 2d 474 (Fla. 5th DCA 1997). The Association also relies on an opinion from the Attorney General s office, rendered on January 13, 2000. But these authorities long predate the enactment of 97.0115 and thus, do not mention the statute at all. Preemption was simply not an issue at that time. The Association also alludes to the appellant s powers conferred by the Florida Constitution. Art. VIII, 1(d), Fla. Const. The Association argues that the constitutional empowerment of charter counties distinguishes the present case from a typical preemption analysis [because] there is no express constitutional grant of authority to weigh against the statutory preemption at issue. (Amicus at 12). This confusing assertion can be read in multiple ways. On one interpretation, the Association is arguing that a preemption analysis requires some form of balancing test or weighting. The Association does not cite any case-law in support 6

of this view. Indeed, there is no legal basis for requiring the legislature to weigh or balance their decision before expressly preempting a certain topic. On the other interpretation, the Association may be arguing that the Florida Election Code is unconstitutional as applied to a county s conversion of partisan constitutional offices into nonpartisan offices. But neither the appellant nor the Association have explicitly challenged the constitutionality of the Florida Election Code, and neither the appellant nor the Association have requested a declaration that 97.0115 is unconstitutional. This court has previously recognized that [A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief. DHSMV v. Dellacava, 100 So.3d 234, 236 (Fla. 5 th DCA 2012)(internal citation omitted). Furthermore, an argument relating to the constitutionality of the statute must be preserved by appropriate motion or objection in the lower tribunal unless the error qualifies as fundamental error. Reese v. State, Dep t. of Transportation, 743 So.2d 1227, 1229 (Fla. 4 th DCA 1999). In this case, the appellant never challenged the constitutionality of 97.0115 in the lower court. It is not even clear whether the appellant or the Association are seeking to raise a constitutional challenge now. Therefore, this case does not present an occasion for the court to weigh the statute against a constitutional provision. The Association expresses concern that the counties of Columbia, Lee, Leon, Orange, Miami-Dade, Palm Beach, Polk, and Wakulla have adopted charter 7

provisions providing for the election of one or more governmental officials on a nonpartisan basis. The circuit court s Order jeopardizes the enforceability of all such charter provisions. (Amicus at 2-3). But this concern is unwarranted. Most of these counties adopted their nonpartisan systems prior to the enactment of 97.0115. Polk County, for example, adopted its system in 2004; Columbia County enacted its system in 2006; and Palm Beach County adopted its system in 2002. Generally, a statute operates prospectively unless the legislative intent was clear that the Act be construed retrospectively. Kiefer v. Fortune Federal Sav. and Loan Ass n., 453 So.2d 430 (Fla. 2d DCA 1984). There is no indication that the legislature intended 97.0115 to apply retroactively. The statute applies only to changes occurring after July 1, 2010. The Association relies heavily on Telli v. Broward County, 94 So.3d 504 (Fla. 2012). However, the prospective nature of 97.0115 illustrates why Telli is inapplicable. In Telli, Broward County voters amended the county charter to impose term limits on their county commissioners. The amendments occurred in the year 2000, but were not challenged until February 2010, when Mr. Telli filed a complaint. 97.0115 did not exist when the Broward County charter was amended; nor did it exist at the time the lawsuit was filed. Because the statute applies only to future 8

government actions (after July 1, 2010), the Florida Supreme Court had no reason to evaluate a question of preemption. 2 The enactment date of 97.0115 destroys the appellant s argument as well. The appellant observes that Both the Supervisor of Elections for Orange County and Florida s Secretary of State have recognized the validity of nonpartisan elections for offices other than judges or school board members. (Initial Brief at 28). The appellant argues that these agencies have implicitly acknowledged a county s authority to implement nonpartisan elections, even in cases where a nonpartisan election is not required by statute. However, the Clerk is not suggesting that judges and school board members are the only nonpartisan offices in Florida. Other nonpartisan offices were created by counties prior to July 1, 2010. Up until that point, counties were free to convert partisan constitutional offices into nonpartisan constitutional offices. Moreover, 97.0115 does not affect any nonpartisan system existing prior to July 1, 2010. But a local government cannot convert a partisan constitutional office into a nonpartisan office (or vice versa) after that date. 2 In addition, Telli involved a county commission. It is unclear whether the Florida Supreme Court would have reached the same conclusion regarding independent, constitutional officers. If a county can impose term limits on such officers, then it stands to reason that a county can impose term limits on county court judges as well. 9

II. THE CHARTER S ENABLING ORDINANCE VIOLATES THE SINGLE-SUBJECT RULE DESCRIBED IN FLORIDA STATUTE 125.67. A. THE SINGLE SUBJECT RULE APPLIES TO ALL COUNTY ORDINANCES, INCLUDING THE ENABLING ORDINANCE THAT ATTEMPTS TO MODIFY AN EXISTING COUNTY CHARTER. The single subject rule is deeply ingrained in Florida jurisprudence. The rule applies to both county and municipal ordinances. See Fla. Stat. 125.67. See also 166.041(2). Moreover, the Florida Constitution imposes a single subject requirement on legislation and on most forms of constitutional amendment. See Art. III, 6, Fla. Const. See also Art. XI, 3, Fla. Const. The courts have repeatedly invalidated legislation in situations where the single subject rule is violated. See, e.g., Advisory Opinion to Atty. Gen., 778 So.2d 888 (Fla. 2000). Unfortunately, the law contains a loophole for county charters. In Charter Review Commission v. Scott, 647 So.2d 835 (Fla. 1994), the court found no statute or constitutional provision that requires a county charter to adhere to single subject requirements. As a result, the court allowed the county to logroll two completely different topics into a single ballot amendment. The Clerk understands that Scott is binding law. However, the current case presents a very different scenario. As stated by the trial court, This presents the Court with a question of first impression: whether a charter county must comply with the single subject rule in Florida Statute section 10

125.67 when the charter amendment is proposed via an ordinance, rather than by the charter review commission? (R. at 3017). The trial court correctly stated the issue, but incorrectly answered the question. Florida Statute 101.161(1) states that Whenever a constitutional amendment or other public measure is submitted to the vote of the people. The ballot summary of the amendment or other public measure and the ballot title to appear on the ballot shall be embodied in the enabling resolution or ordinance. This court has already held that the dictates of 101.161 apply to county charter amendments and that any violation of 101.161 will invalidate the amendment. See Volusia Citizens Alliance v. Volusia Home Buildings Ass n., 887 So.2d 430 (Fla. 5 th DCA 2004). 3 In other words, an enabling ordinance is a condition precedent that must occur before a county submits a charter amendment for voter approval. Moreover, Florida Statute 125.67 states that Every ordinance shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. (emphasis added) The statute does not 3 In that same case, this court held the charter amendment failed to provide the voters with an unambiguous description of the amendment. Id. at 430-31. Among other defects, the amendment failed to mention material elements of the amendment. The cross-appellants raised a similar argument in the case below. (R. at 685-692). The Clerk agrees with the cross-appellants, and urges this court to reverse the trial court on this point. If the court invalidates the amendment on these grounds, then the remaining issues in the appeal -- including the issues raised in this brief -- become moot. 11

mention any exceptions, exploitations, or loopholes. In fact, the statute specifically includes Ordinances to revise or amend. Id. In the instant case, Orange County proposed the charter amendment via Ordinance 2014-21. (R. at 1103, 3009, 3023). This decision was appropriate and required by the charter itself. However, Ordinance 2014-21 must still adhere to the single subject requirement of 125.67. The plain language of 125.67 applies to Every ordinance, including Ordinance 2014-21. Because Ordinance 2014-21 fails to comply with 125.67, the ordinance is invalid. Moreover, the charter amendment itself is invalid, because the amendment was proposed by an invalid ordinance. Without a proper ordinance, the charter amendment could never have been submitted to voters in the first place. This trial court performed a series of legal gymnastics to avoid this conclusion. (R. at 3017-3022). When distilled to its essence, the trial court reasoned as follows: Florida Statute section 125.82 permits the board of county commissioners to propose a charter to the county's electors via an ordinance. An ordinance proposing that a county become a charter county would necessarily include many subjects, such as the powers given to the county s legislative and executive branches. The Florida Legislature could not have intended to grant the County this right, but then have it rendered ineffective by applying the single subject rule to such an ordinance. (R. at 3021). Apparently, the trial court believed that an ordinance under 125.82 can be used to propose an amendment to an existing charter. The trial court compounded 12

this error by holding that the procedure in 125.82 allows a county to disregard the single subject statute. According to the trial court, the ordinance procedure described in 125.82 is hopelessly in conflict with the single subject requirement of 125.67. The trial court resolved this perceived conflict by discarding 125.67. The trial court reasoned that 125.67 is a general provision, which is outweighed by the more specific provisions in 125.82. (R. at 3022). Three things should be said in response. First, this court recently reaffirmed the doctrine of pari materia, which requires that statutes related to the same subject be construed together to harmonize the statutes and to give effect to the Legislature's intent. The Florida Supreme Court has specified that Florida courts have a duty to adopt constructions of statutes that harmonize provisions within the same act. MacKenzie v. Centex Homes, 42 Fla. L. Weekly D59 (Fla. 5 th DCA, Dec. 22, 2016)(internal citations omitted). Contrary to this longstanding principle, the trial court engaged in little effort to harmonize 125.67 with 125.82. Second, these statutes are easily harmonized. 125.82 describes a process for charter adoption, not the process for future amendments. Only two appellate cases have cited this statute, and both cases refer to charter adoption rather than postadoption amendments. 4 Because 125.82 applies only to charter adoption, rather 4 See County of Orange v. Webster, 546 So.2d 1033 (Fla. 1989); Maxwell v. Lee County, 714 So.2d 1043 (Fla. 2d DCA 1998). 13

than post-adoption amendments, the statute is entirely inapplicable in this case. Third, even if 125.82 described a process for post-adoption amendments, an ordinance under 125.82 must still comply with the single subject requirement. Nothing in 125.82 evinces a legislative intent to exempt a 125.82 ordinance from the requirements of 125.67. Although 125.82(1) describes itself as a supplemental and alternative way to the provisions of ss. 125.60-125.64, 125.67 falls outside the range of statutes provided. If the legislature had intended to exempt a 125.82 ordinance from the requirements of 125.67, it would have expanded the exemption parameters in 125.82 itself. If anything, 125.82 manifests a contrary intent. A proposed charter under 125.82(1) must be consistent with the provisions of this part, which includes the single subject requirement in 125.67. Therefore, the trial court erred in prematurely finding a conflict between these provisions. B. COUNTY ORDINANCE 2014-21 EMBRACES MULTIPLE SUBJECTS. If the court agrees that the single subject rule is applicable, the remaining question is whether the rule was violated in this case. The trial court utilized the standard set forth in Franklin v. State, 887 So.2d 1063 (Fla. 2004). The trial court described a Franklin analysis as follows: 14

The first inquiry in the analysis of whether a law violates the single subject rule is determining the law's single subject. The court first looks to the law's title. Because the rule states that the single subject shall be briefly expressed in the title, the court considers the law's short title. The Franklin court described the short title as the language immediately following the customary phrase `an act relating to' and preceding the indexing of the act's provisions. (R. at 3024). In this case, however, the short title is comically vague: an amendment to the Orange County Charter. (R. at 3025). The trial court correctly recognized that this title was too broad to qualify as a single subject. 5 See Franklin at 1076 (stating that the title of an act may be general, so long as it is not made a cover to legislation incongruous in itself. In other words, the short title of the legislation cannot be so broad as to purportedly cover unrelated topics, and thus provide no real guidance as to what the body of the act contains. ). When the short title is suspect for being overly broad, a court should look to the remainder of the act and the history of the legislative process to determine if the act actually contains a single subject. Id. at 1076-77. The trial court performed this inquiry, and found that when the commissioners first considered term limits and nonpartisan elections, severa1 considered them as two different ideas, even 5 Even the County seemed to acknowledge this problem, offering instead that the true subject was an amendment to the Orange County Charter dealing with the election of constitutional officers. (R. at 3026). However, Florida Statute 125.67 requires that the subject appear in the title. The validity of the ordinance depends on the title of the ordinance as enacted, not on the title the County wishes it had enacted. 15

putting them forth as two separate ordinances. (R. at 3026). This finding is strongly supported by the record. (R. at 100, 118, 195-99, 319, etc.). Strangely, the trial court then ignored its own finding. Instead, the trial court proceeded to summarize the long title of the ordinance. (R. at 3026). Ironically, the trial court s summary is separated into seven bullet points. If a judge requires seven bullet points to describe an ordinance, the ordinance clearly embraces more than one subject. Therefore, both the remainder of the act and the history of the legislative process lead inexorably to the conclusion that the ordinance encompasses more than one subject. This conclusion is also supported by common sense. Even if the court accepts the county s invitation to retitle the ordinance as an amendment dealing with the election of constitutional officers, this description could include some or all of the following subjects: term limits, partisanship, filing fees, truth in political advertising, campaign finance, voting methods, recounts, the timing of the election, or even the abolition of certain offices. Each of these issues deserves individual consideration. Together, these issues cannot be seriously described as a single subject. Even the legislature implicitly recognizes the distinctions between each of these subjects: each is presented in a separate, individual statute within the Florida Election Code. In fact, nonpartisan elections appear in an entirely separate chapter (Chapter 105) from the other provisions. 16

C. THE ORDINANCE IS NOT ENTITLED TO DEFERENCE REGARDING ITS SINGLE-SUBJECT VIOLATION. The trial court believed that Franklin requires substantial deference to the County. However, Franklin requires deference when determining the constitutionality of a legislative enactment. Id. at 1073-74, 1080. The crossappellants are not challenging the constitutionality of the enabling ordinance. Therefore, the presumption in favor of constitutionality is irrelevant. This case involves Orange County s stark and simple failure to comply with the plain language of 125.67. Far from showing legislative deference, the trial court inadvertently excused the County from complying with a statute. The trial court s ruling infringes on the separation of powers. Neither the trial court s ruling nor the cross-appellee s statutory violation is entitled to deference. CONCLUSION On behalf of the appellees / cross-appellants, the Clerk prays this court find that the charter amendment was either unclear or ambiguous, in violation of Florida Statute 101.161(1). If the court reverses the trial court on this point, it renders moot the other issues in this appeal. As an alternative, the Clerk prays this court hold that the single-subject rule applies to every ordinance in Florida, including an ordinance that seeks to modify a 17

county charter. In addition, the Clerk prays this court find that the single-subject rule was violated in this case, thereby reversing the trial court on these points. If the court declines to do so, then the Clerk would pray that this court affirm the trial court s determination that the county exceeded its authority under the Florida Election Code, regardless of whether the court adopts the reasoning of the trial court or the reasoning suggested in this brief. Finally, if the court rules in favor of the appellant / cross-appellee on all of these issues, then the Clerk would pray for a declaration that the election of nonpartisan constitutional officers will occur in the general election, rather than the primary. See Art. VI, 5(a), Fla. Const. Respectfully submitted, /s/ David Margolis Florida Bar number: 56293 425 N. Orange Avenue, Suite 2110 Orlando, Florida 32801 (407) 836-6324 David.Margolis@MyOrangeClerk.com COUNSEL FOR AMICUS CURIAE, ORANGE COUNTY CLERK OF THE CIRCUIT COURT 18

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Electronic Mail to the following parties, this 6th day of March, 2017: Jeffrey J. Newton and William C. Turner, Jr., counsel for appellant/cross-appellee Orange County, at Jeffrey.Newton@ocfl.net, Gail.Stanford@ocfl.net, WilliamChip.Turner@ocfl.net, and Judith.Catt@ocfl.net; Eric Dunlap, counsel for appellee/cross-appellant Jerry L. Demings, Sheriff of Orange County, Florida, at Eric.Dunlap@ocfl.net; Michael E. Marder and John H. Pelzer, counsel for appellee/cross-appellant Rick Singh, Property Appraiser of Orange County, Florida, at Michael.Marder@gmlaw.com, John.Pelzer@gmlaw.com, and Dotti.Cassidy@gmlaw.com; Nicholas A. Shannin, counsel for appellee/crossappellee Bill Cowles, Orange County Supervisor of Elections, at NShannin@ShanninLaw.com; Mark Heron and Gigi Rollini, counsel for appellee/cross-appellant Scott Randolph, Tax Collector of Orange County, Florida, at MHerron@lawfla.com and GRollini@lawfla.com; and Scott Randolph, individually and pro se, at randolphscott007@gmail.com. CERTIFICATE OF FONT SIZE COMPLIANCE I HEREBY CERTIFY that the foregoing brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). /s/ David Margolis DAVID MARGOLIS 19