The Second DCA and Preemption – Home Rule over Legislative Intent

Sec. of State Kurt Browning, et. al. v. Muntz, et. al., 32 Fla. L. Weekly D2573a (Fla. 2d DCA October 31, 2007).

The Second DCA determined that amendments to the Sarasota County Charter that included provisions for the auditing and counting of ballots, were preempted by the Florida Election Code. Right enough. What’s distressing is how long it took the Court to get there, and the arguments raised by the dissent.

The Florida Constitution directs the Legislature regulate elections, and this has been held mandatory. The purpose of the Florida Election Code (Chapters 97 through 106, Florida Statutes) is to “obtain and maintain uniformity in the interpretation and implementation of the election laws.”

I don’t know how much more the Legislature ought to have to say in order to preempt an area from local regulation. If the Legislature intends uniform laws, then local regulation on the same subject is clearly inconsistent with that intent. But the Second District several years ago, in Phantom of Clearwater v. Pinellas County, allowed local regulation in an area where the Legislature had dictated uniform laws, finding that such an intent was insufficient to create express preemption. In this case, the Court required pages of analysis to determine that the Election Code was such a “pervasive” regulation that the Court would apply doctrines of “implied preemption” to hold the charter amendment inconsistent with state law. Moreover, the dissent complains that under Phantom, the Court should have upheld the charter amendment.

The dissent may be right, and it indicates the dismal state of preemption law in Florida, that gives more credence to home rule than to reasonable interpretation of legislative intent to preempt it. The Legislature should not have to use “magic words” to preempt local regulation. The Legsilature is the supreme law and the courts should pay more heed to legislative intent than murky concepts of home rule. The courts should go back to the old doctrines that local governments may not proscribe what the state expressly permits and that when the Legislature provides a process for taking action, that process must be followed and respected.
Either that, or the Legislature should adopt broad language preempting wholesale areas of regulation to itself and limiting the scope of local home rule. Touche’.

NOTE - This case has been accepted for review by the Florida Supreme Court. Briefs are due on December 26? and oral argument will be held in May. Wish I'd had time to request permission to file an amicus brief.