TAMPA -- Critical defect or minor matter?
That's the key question for the 2nd District Court of Appeal in the legal argument over whether to create the position of Hillsborough County mayor.
At this point, a referendum on the county mayor's job has been removed from the November ballot.
The reason: a Hillsborough circuit judge ruled in August that the proposed charter amendment to create the position also says the new mayor would be elected in 2008. That can't happen, and so is a fatal flaw, the judge concluded.
The group in favor of the county mayor job appealed, and today attorneys for both sides made their cases in a Tampa courtroom.
Barry Richard, who represents supporters of the proposal, said the mention of electing the new mayor in 2008 does not affect the central question at issue in the referendum. That question, he said, is whether Hillsborough voters want to change their form of government.
In this case, the ballot question "clearly tells the voter" that the decision concerns whether to go from having an appointed county administrator to a nonpartisan, elected mayor, Richard told a three-judge panel. Voters won't be confused by the mention in the charter amendment of a mayor's race in 2008.
"They know it can't begin before it gets adopted," said Richard, a Tallahassee attorney for Elected County Mayor Political Committee Inc., which circulated petitions in 2006 to put the question on the ballot that year.
But Hillsborough Supervisor of Elections Buddy Johnson's office said the group fell short of the number of petition signatures it needed to schedule the referendum in 2006. Johnson later said valid petitions would stand and newly signed petitions could be added to the total until backers reached the number they needed. He also said in 2006 that the county mayor question could be placed on the ballot in 2008.
During today's hearing, presiding Judge Darryl C. Casanueva noted that the Florida Supreme Court has warned parties in the past to "be careful about what you put in" ballot initiatives, especially when it comes to dates.
"The date might be important if it affects a critical component of the amendment," Richard said, but in this case it doesn't. The petition, he said, ought to be read that the new county mayor would be elected at "the next general election at which it can be placed on the ballot."
And Richard said the state Supreme Court also has warned judges to be "extremely cautious" about removing things from the ballot and taking away voters' chance to decide important issues.
But attorney Jennifer Blohm contended that the charter amendment language saying the county mayor would be elected in 2008 makes a big difference.
"The people who were signing this thought it was going to be on the November 2006 ballot," said Blohm, a Tallahassee attorney who represents local activist James E. Shirk, who sued in July to block the referendum.
One problem, she said, is that the charter amendment would eliminate the county administrator's job to create a county mayor, but no county mayor would be elected for two years.
As proposed, the charter amendment "gives an exact date when the transfer (of authority) was supposed to happen and it can't happen," she said.
Richard argued, however, that state law gives the County Commission the ability to appoint an administrative officer anytime it needs one, so no lapse of authority would take place.
An attorney for Johnson's office did not take a position in the dispute, but did ask the judges to make a decision no later than Sept. 10, because the office has to print hundreds of different ballot styles and begin mailing them overseas.
-- Richard Danielson, Times Staff Writer