Legal Commentary

Is This Right?

By Professor University of Miami School of Law

I am not by any stretch of the imagination a local government lawyer, so someone who actually knows about this stuff please chime in…

Eye on Miami spotted this little piece of Democracy in action. Here’s the quoted text of Miami-Dade’s new ordinance:

“Ordinance relating to county boards, amending Section 2-11.88 to provide that any person who has a pending lawsuit against the county shall not be eligible to serve on a county board unless this requirement is waived by two-thirds vote of the members of the board of county commissioners, providing severability, inclusion in the code and an effective date.”

Is that Constitutional? I wouldn’t mind if it weren’t, but on what theory?

It appears that local Boards are usually appointed by the County Commission itself:

Sec. 2-11.38.1. Process of appointment.
(a) Vacancies occurring on any board shall be advertised in publications of general circulation. Twice a year advertisements shall appear setting forth a list of all County boards; any special qualifications necessary for membership on the board; and the County telephone number to call for additional information.

(b) Prior to its making appointments to County boards, the Board of County Commissioners shall be furnished a list setting forth the qualifications and demographic background of all new candidates for membership, along with a list of the qualifications and demographic backgrounds of the present members of the board to which an appointment is being made.

(Ord. No. 80-136, § 5, 12-16-80)

…so it’s possible that under a ‘greater power includes the lesser’ argument, since the Commission makes the appointment anyway, it can tie its own hands in this manner.

There’s presumably no US Constitutional right to equal consideration for Board membership, so I am dubious about an equal protection argument. And while there’s a certain sort of First Amendment feel to the issue, I don’t think lawsuits are protected speech — they’re protected as part of due process. Here, arguably, no one is being denied their right to sue the County, they’re just being forced to pay a political price. Is that a due process violation? Absent any research, I’m not sure.

Certainly from a standing point of view, the strongest case would be a sitting Board member who got thrown off a Board for bringing a lawsuit.

And what about the Florida Constitution? Again, I’m no expert, but I’m not sure I see an obvious hook here either…

This strikes me as a very pig-headed public policy, one designed to make life hard for local activists. But is it unconstitutional?

Full post as published by Discourse.net on February 16, 2008 (boomark / email).