COUNTY OF VOLUSIA, PHILIP T. FLEUCHAUS, AND T. WAYNE BAILEY

v.

RON DESANTIS, GOVERNOR OF THE STATE OF FLORIDA; LAUREL M. LEE, SECRETARY OF STATE OF THE STATE OF FLORIDA; FLORIDA TAX COLLECTORS ASSOCIATION; AND FLORIDA ASSOCIATION OF COURT CLERKS, INC.

KELSEY, J.

Florida home-rule counties used to be able to adopt charter provisions governing the selection and functions of their county constitutional officers: sheriffs, tax collectors, property appraisers, supervisors of elections, and clerks of circuit court. That changed in the November 2018 general election, when Florida voters approved a constitutional amendment, part of a revision the 2017– 18 Constitution Revision Commission proposed, eliminating that previously authorized home-rule power. Volusia County had opted for the local approach in 1970, adopting charter provisions establishing a county council and county departments whose heads performed the duties of these offices. The county council appointed the head of the department that replaced the tax collector, and county voters elected the heads of the other departments. After the 2018 election, the County sued for declaratory and injunctive relief, seeking a declaration that the 2018 amendment did not affect the County’s pre-existing methods of selection, performance, and management of the duties of the County’s constitutional officers. The County named Florida’s Governor and Secretary of State as defendants. The County asserted that these officers were proper defendants because each has the legal duty to sign the commissions of county constitutional officers. Both the Governor and Secretary of State asserted they were not proper defendants. The Florida Association of Court Clerks, Inc., and The Florida Tax Collectors, Inc., were granted leave to intervene as defendants. In the final summary judgment on appeal, the trial court ruled that the County must comply with the 2018 amendment, and that both the Governor and Secretary of State were proper parties to the lawsuit. The County appeals the merits ruling, and the Governor and Secretary of State cross-appeal as to their party status. Our standard of review is de novo as to both sets of issues. See Lewis v. Leon Cty., 73 So. 3d 151, 153 (Fla. 2011) (applying de novo review of constitutional interpretation issues); cf. Reynolds v. Nationstar Loan Servs., LLC, 190 So. 3d 219, 221 (Fla. 4th DCA 2016) (applying de novo standard to determine proper party status).

We affirm the trial court’s ruling on the merits, reverse the determination that the Governor was a proper defendant, and affirm that the Secretary of State was a proper defendant in light of the substantive provisions of the amendment.

The Amendment. The 2018 amendment to article VIII of the Florida Constitution provided as follows (indicating deleted text as stricken through and added text as underlined): SECTION 1. Counties.- . . . . (d) COUNTY OFFICERS. There shall be elected by the electors of each county, for terms of four years, a sheriff, a tax collector, a property appraiser, a supervisor of elections, and a clerk of the circuit court; except, when provided by county charter or special law approved by vote of the electors of the county, any county officer may be chosen in another manner therein specified, or any county office may be abolished when all the duties of the office prescribed by general law are transferred to another office. Unless When not otherwise provided by county charter or special law approved by vote of the electors or pursuant to Article V, section 16, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds. Notwithstanding subsection 6(e) of this article, a county charter may not abolish the office of a sheriff, a tax collector, a property appraiser, a supervisor of elections, or a clerk of the circuit court; transfer the duties of those officers to another officer or office: change the length of the four-year term of office; or establish any manner of selection other than by election by the electors of the county. . . . . SECTION 6. Schedule to Article VIII.- . . . . (g) SELECTION AND DUTIES OF COUNTY OFFICERS.-

(1) Except as provided in this subsection, the amendment to Section 1 of this article, relating to the selection and duties of county officers, shall take effect January 5, 2021, but shall govern with respect to the qualifying for and the holding of the primary and general elections for county constitutional officers in 2020. (2) For Miami-Dade County and Broward County, the amendment to Section 1 of this article, relating to the selection and duties of county officers, shall take effect January 7, 2025, but shall govern with respect to the qualifying for and the holding of the primary and general elections for county constitutional officers in 2024. The ballot summary for this amendment described its legal effect as follows: “Ensures election of sheriffs, property appraisers, supervisors of elections, tax collectors, and clerks of court in all counties; removes county charters’ ability to abolish, change term, transfer duties, or eliminate election of these offices.” See Cty. of Volusia v. Detzner, 253 So. 3d 507, 509 (Fla. 2018).

The schedule for the amendment provided that it “shall take effect January 5, 2021, but shall govern with respect to the qualifying for and the holding of the primary and general elections for county constitutional officers in 2020.” See id. at 510; see also Art. VIII, § 6(g)(1), Fla. Const. The Florida Supreme Court approved the amendment for ballot placement, finding that the ballot summary accurately described the chief purpose and legal effect of the amendment. Detzner, 253 So. 3d at 511. The supreme court declined to consider how the amendment would affect Volusia’s county structure, leaving that decision to a post-election action such as this. Id. at 513. “Retroactivity.” The County argues here, as it did below, that it is not subject to the new amendment because retroactive application would be impermissible. Put another way, the County argues that its 1970 charter amendments were “grandfathered in,” and remain in effect despite passage of the amendment.

We reject the County’s argument and affirm the circuit court’s ruling on this issue.

This amendment is not “retroactive” in the sense of reaching back in time to invalidate what went before or to attach new legal consequences to actions already completed. See Metro. Dade Cty. v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999) (defining retroactive operation as occurring when amendment “attaches new legal consequences to events completed before its enactment”) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994)); see also Tejada v. In re Forfeiture of The Following Described Prop.: $406,626.11 In U.S. Currency, 820 So. 2d 385, 389 (Fla. 3d DCA 2002) (recognizing statute does not operate retrospectively just because it applies to conduct that occurred before enactment of the statute or changes expectations arising from previous law).

This amendment effected a prospective change, giving the County a deadline of January 5, 2021 to comply, expressly beginning “with respect to the qualifying for and the holding of the primary and general elections for county constitutional officers in 2020.”* The amendment required the County only to alter its future structure for county constitutional offices, which makes the amendment prospective and not retroactive. The amendment attaches no new legal consequences to the County’s 1970 charter amendments or its past actions or operations consistent with those provisions. The amendment requires that the County’s old charter provisions “will simply have to give way.” See In re Advisory Opinion to Atty. Gen., Limitation of Non-Econ. Damages in Civil Actions, 520 So. 2d 284, 287 (Fla. 1988) (“The committee correctly observes that statutes and jury instructions which are inconsistent with the constitution, if it is amended, will simply have to give way.”).

In a related argument, the County contends that this amendment violates the pre-existing constitutional provision prohibiting amendment of a county charter except by vote of the county’s electorate. See Art. VIII, § 1(c), Fla. Const. (“Pursuant to general or special law, a county government may be established by charter which shall be adopted, amended or repealed only upon

* We understand that the County has taken all necessary steps to comply with the new amendment for the upcoming November 2020 election.

vote of the electors of the county in a special election called for that purpose.”).

This amendment, however, expressly amended article VIII, section 1 of the constitution. The new amendment prevails over the old language. The Florida Supreme Court recognized as much in approving the amendment’s ballot language as “clearly explain[ing] that charters will be prohibited from taking certain actions” if the amendment passed, and that voters “will draw the logical conclusion that they will not be permitted to amend their charter in a manner inconsistent with the amendment.” Detzner, 253 So. 3d at 512. In the event of a conflict between a county charter and the Florida Constitution, the charter must yield. See Limitation of Non-Econ. Damages, 520 So. 2d at 287. Proper Defendant – Secretary of State. Both the Governor and the Secretary of State cross-appeal the circuit court’s determination that each was a proper party to the County’s lawsuit. A state official is a proper party in a declaratory-judgment action if the official is charged with enforcing the legal provision at issue in the litigation. See Scott v. Francati, 214 So. 3d 742, 745–46 (Fla. 1st DCA 2017).

If so, the analysis ends, and the official is a proper party. See id. If not, then this Court must consider “(1) whether the action involves a broad constitutional duty of the state implicating specific responsibilities of the state official; and (2) whether the state official has an actual, cognizable interest in the challenged action.” Id. at 746.

We conclude that the Secretary of State was a proper defendant, but not because of the duty to sign the commissions of elected county constitutional officers, as the County argued. Rather, the Secretary of State was a proper defendant because of the legal effect of this amendment and the Secretary’s statutory obligation to enforce it. The Secretary of State is obligated to ensure uniformity in election laws statewide and to ensure that the County’s supervisor of elections, along with all other county supervisors of elections, includes all county constitutional officers on the ballot beginning in the November 2020, election. See § 97.012(1), Fla. Stat. (2018) (“The Secretary of State is the chief election officer of the state, and it is his or her responsibility to: (1) Obtain and maintain uniformity in the interpretation and implementation of the election laws.”).

The key operative effect of the amendment is to require all counties to elect their county constitutional officers, which implicates the Secretary’s statutory obligation to ensure uniformity under section 97.012(1).

The Secretary also has the obligation and the power to “[b]ring and maintain such actions at law or in equity by mandamus or injunction to enforce the performance of any duties of a county supervisor of elections.” § 97.012(14), Fla. Stat. The very impetus of the litigation below was the County’s attempt not to comply with the new amendment. The County’s litigation position thus triggered the Secretary’s obligation to enforce the obligation of the County’s supervisor of elections to comply with the amendment. Further, the Secretary is charged with ensuring that local supervisors of elections properly qualify candidates and place them on the ballot, and then the Secretary must certify the results of those elections. See § 99.121, Fla. Stat. (requiring Department of State to certify nominations for local offices, and requiring the local supervisors of elections to print ballots accordingly); §§ 100.051, 101.2512, Fla. Stat. (requiring local supervisors of elections to print candidate names on ballots in compliance with the Election Code).

The Secretary of State is the officer with statutory authority to enforce the election-related obligations of the County’s supervisor of elections, including obligations to implement the 2018 amendment at issue. These statutory provisions make the Secretary of State the official charged with enforcing the legal provision at issue in the litigation. The Secretary is thus a proper party defendant to the County’s lawsuit, and we need go no further to affirm the trial court’s ruling on this issue. See Francati, 214 So. 3d at 745–46. Although it is possible that the Secretary of State is not the exclusive proper defendant, we need not identify all potentially proper defendants. Because we conclude that the Secretary of State was a proper defendant, we need not find any other proper party to support the trial court’s exercise of subject-matter jurisdiction—a problem our dissenting colleague must solve upon concluding that the Secretary was not a proper defendant. The dissent argues that the intervenors were admitted to the litigation as equal participants and not in subordination to the named parties, and thus provided the requisite adversity to create subject-matter jurisdiction. While such a non-subordinate status is possible under Florida Rule of Civil Procedure 1.230, the rule specifies that intervention “shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.” We read the plain language of this rule as focusing on an express ruling by the trial court, and not leaving the issue to an analysis of the intervenors’ level of participation as the dissent argues. The rule on its face contemplates that the trial court will include language in the order granting intervention that expressly orders that intervention is not subordinate. Here, however, neither order included any such language, but rather generically granted each motion. The Court Clerks’ Motion to Intervene cited rule 1.230 and did not address an intervenor’s subordinate status vis–a–vis the originally named parties under that rule.

The trial court granted the Court Clerks’ motion to intervene with an order stating, “[Movant], having moved to intervene as a defendant, and there being no objection from the parties of record, it is: ORDERED that the motion to intervene is GRANTED.” The Tax Collectors argued in support of their Motion to Intervene that they should not be subordinate to the parties.

The trial court granted the Tax Collectors’ motion with an order stating, “This cause having come before this Court on [Movant’s] Motion to Intervene and the Court having heard the argument of counsel, and it appearing that good cause exists for the granting of such motion it is hereby ordered and adjudged that the [Movant’s] Motion is GRANTED.” Neither order granting intervention expressly addressed the intervenors’ status in the litigation. We have noted that the default limited role of an intervenor under rule 1.230 is expanded where the trial court’s order clearly so indicates. See Smith v. Atl. Boat Builder Co., 356 So. 2d 359, 362 (Fla. 1st DCA 1978) (“Although the court’s order did not specifically provide that the intervention of the Bank would not be in subordination to the main proceeding, the recitations in the order and its conclusion clearly indicate the court’s purpose.”).

No such clear indication was present here. We do not find it sufficient that the order merely grants a motion that argues against subordination, as did the Tax Collectors’ motion; and we certainly do not find it sufficient as to a motion that is silent on the question as was the Court Clerks’ motion. Each intervenor, aware of the language of the rule, could have ensured that this specific issue was addressed and expressly ruled upon, but did not do so. Improper Defendant – Governor. Although we affirm the circuit court’s ruling that the Secretary was a proper defendant, we reach the opposite result as to the Governor’s party status. The County argued that the Governor was a proper defendant because Florida’s Governor is the state’s chief executive and has the legal responsibility to sign the commissions of each county’s constitutional officers. We have previously rejected the reasoning of the first argument, finding the Governor’s position as chief executive officer too broad to support defendant status merely because a state law is at issue. See Francati, 214 So. 3d at 747 (“It is absurd to conclude that the Governor’s general executive power under the Florida Constitution is sufficient to make him a proper defendant whenever a party seeks a declaration regarding the constitutionality of a state law.”).

We likewise reject the second argument, because the Governor’s duty to sign commissions falls far short of any duty to enforce the constitutional amendment governing the County’s powers and obligations. The Governor has no direct cognizable interest in the litigation. See id. We therefore reverse the circuit court’s determination that the Governor was a proper defendant. AFFIRMED in part and REVERSED in part. RAY, C.J., concurs; MAKAR, J., concurs in part and dissents in part with opinion.