Filing # 149615262 E-Filed 05/16/2022 09:22:41 AM

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION

KEN BURKE, Pinellas County Clerk of

the Circuit Court and Comptroller,

Plaintiff,

vs. Case No.:

PINELLAS COUNTY, a political subdivision

of the State of Florida,

Defendant.
/

COMPLAINT

COMES NOW the Plaintiff, Ken Burke, as Pinellas County Clerk of the Circuit Court and

Comptroller, by and through his undersigned counsel, and sues the Defendant, Pinellas County, a

political subdivision of the State of Florida, and states as follows:

JURSIDICTION, PARTIES AND VENUE

1. This is an action seeking a declaratory judgment and injunctive relief pursuant to

Florida Statutes Chapter 86, the Florida Declaratory Judgment Act.

2. The Court has jurisdiction in this matter by virtue of Florida Statutes § 86.011.

3. The Plaintiff is the Pinellas County Clerk of the Circuit Court and Comptroller

(hereinafter “Clerk’), duly elected pursuant to Art VIII, § 1(d) of the Florida Constitution.

4. The Defendant, Pinellas County (hereinafter “County”) is a political subdivision of

the State of Florida, as provided for in Art VIII, § 1(a) of the Florida Constitution.

5. Venue is appropriate in Pinellas County, Florida because the Parties are both

located there, and the challenged action is occurring in Pinellas County, Florida.
 The Clerk’s Duty

6. The office of the Clerk of the Circuit Court derives its powers and authority from

Art. V, § 16 of the Florida Constitution, as set forth in more detail in Florida Statutes Chapter 28.

7. Pursuant to Art. V, § 16 of the Florida Constitution, the Clerk shall serve “as ex

officio clerk of the board of county commissioners, auditor, recorder, and custodian of all county

funds.”

8. Pursuant to Art VIII, § 1(b) of the Florida Constitution, the “care, custody and

method of disbursing county funds shall be provided by general law.”

9. Pursuant Florida Statutes § 28.12, the Clerk shall be the County’s accountant, and

Florida Statutes § 136.06(1) requires that checks or warrants drawn on county accounts shall be

“attested by the clerk.”

10. The clerk, as auditor, is required by law to refuse to sign and deliver a county

warrant for an unlawful expenditure, even though approved by the board of county commissioners.

Mayes Printing Company v. Flowers, 154 So. 2d 859 (Fla. 1st DCA 1963); W and F Ltd. v. Dunkle,

444 So.2d 554, 557-58 (Fla. 4th DCA 1984).

11. The clerk has the authority and responsibility to perform the auditing functions both

as an arm of the board in auditing the records of constitutional officers and as a watchdog of the

board in the case of pre-auditing accounts of the board in determining legality of expenditure. The

phrase “legality of expenditure” includes that the funds “are spent for a public purpose.” Alachua

County v. Powers, 351 So.2d 32, 37 (Fla. 1977).

12. Pursuant to Florida Statutes § 129.09, the Clerk, as the County’s auditor, shall not

“sign any warrant for the payment of any claim or bill or indebtedness against any county funds in

excess of the expenditure allowed by law…or to pay any illegal charge against the county…not

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authorized by law”, and if such prohibition is violated the Clerk “shall be personally liable for such

amount, and if he or she shall sign such warrant willfully and knowingly he or she shall be guilty

of a misdemeanor of the second degree…”

13. “The public has every right to be concerned with the legitimacy of each and every

payment” of county funds, and “taxpayers look to the clerk's audits to shield them from”

expenditures which are unlawful or fail to provide a public purpose. W and F Ltd. v. Dunkle, 444

So.2d 554, 558 (Fla. 4th DCA 1984).

14. A clerk of courts has the “duty to ensure that all payments of county funds comply

with applicable legal requirements.” Brock v. Board of County Com'rs of Collier County, 21 So.3d

844, 847 (Fla. 2d DCA 2009), rev. dismissed, Board of County Com'rs of Collier County v. Brock,

48 So.3d 810 (Fla. 2010).

15. Pinellas County Charter § 2.06 and § 4.03 respectively provide that the County

“shall not have the power, under any circumstances…in any manner to change the status, duties,

or responsibilities of the county officers specified in section 1(d), art. VIII of the state constitution”,

and that the Charter “shall in no manner change the status, duties, or responsibilities of” the Clerk.

https://library.municode.com/fl/pinellas_county/codes/code_of_ordinances?nodeId=PTICH.

The County’s Expenditure of Funds on Litigation

16. On December 7th 2021, the Pinellas County Board of County Commissioners

redistricted at-large and single member districts.

17. In the 2022 legislative session, the Florida Legislature adopted Senate Bill 524,

which was subsequently signed by the Governor to become Chapter Law 2022-73, Laws of

Florida.

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 18. Among the changes to the State’s election laws was § 29 of the Bill which amended

Florida Statutes § 124.011(2) by adding the following underlined language:

(a) All commissioners shall be elected for 4-year terms which shall be staggered so that,
alternately, one more or one less than half of the commissioners elected from residence
areas and, if applicable, one of the commissioners elected at large from the entire county
are elected every 2 years, except that any commissioner may be elected to an initial term
of less than 4 years if necessary to achieve or maintain such system of staggered terms.
Notwithstanding any law to the contrary, at the general election immediately following
redistricting directed by s. 1(e), Art. VIII of the State Constitution, each commissioner
elected only by electors who reside in the district must be elected and terms thereafter shall
be staggered as provided in s. 100.041.

(b) The term of a commissioner elected under paragraph (a) commences on the second
Tuesday after such election.

(c) This subsection does not apply to:

1. Miami-Dade County.

2. Any noncharter county.

3. Any county the charter of which limits the number of terms a commissioner may
serve.

4. Any county in which voters have never approved a charter amendment limiting
the number of terms a commissioner may serve regardless of subsequent judicial
nullification.

19. Under the new law, single-member districts must run for re-election immediately

following redistricting, resulting in two Pinellas County Commissioners being required to run for

re-election after only serving two years of an original 4-year term.

20. On April 26th 2022, four of the seven members of the Pinellas County Commission

voted to direct the Pinellas County Attorney to file suit in the name of the County to challenge the

constitutionality of the new statutory provisions.

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 21. Complying with that direction, the Pinellas County Attorney filed suit against the

Florida Secretary of State and the Florida Attorney General on April 29th 2022 in Leon County

Circuit Court. The litigation was assigned case number 2022-CA-000713.

22. The Complaint (attached hereto as Exhibit “A”), is an action for declaratory

judgment wherein Pinellas County challenges the constitutionality of the newly-added provisions

to Florida Statutes § 124.011(2).

23. The basis of the challenge is that the new language constitutes an “illegal bill of

local application” and that it directly conflicts with Art. VIII, § 1(e), providing for 4-year terms

for county commissioners. Exhibit “A”, ¶ 5.

24. Section 4.02 of the County’s Charter provides that the “office of county attorney

shall be responsible for the representation of county government, the board of county

commissioners, the county administrator, constitutional officers and all other departments,

divisions, regulatory boards and advisory boards of county government in all legal matters relating

to their official responsibilities. The office of county attorney shall prosecute and defend all civil

actions for and on behalf of county government...” Emphasis added.

https://library.municode.com/fl/pinellas_county/codes/code_of_ordinances?nodeId=PTICH.

25. It is a well-established common law rule that a public agency or public officer in

her or his official capacity “must presume legislation affecting their duties to be valid” and

therefore “have no standing” to affirmatively challenge the constitutionality of a statute. Dept. of

Educ. V. Lewis, 416 So.2d 455, 458 (Fla. 1982) (collecting cases).

26. While ¶ 82 of the Complaint alleges that “[t]here is a bona fide, actual, and present

need for a declaration of whether the Challenged Provision violates” the Florida Constitution, the

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Complaint does not allege how the County (as opposed to those specific sitting Commissioners)

have a present need for a declaration.

27. The Clerk takes no position on the constitutional questions raised in the Leon

County Complaint.

28. However, knowing the law of Florida is that a governmental entity may not lawfully

challenge the constitutionality of a statute, but must instead presume legislation affecting its duties

to be valid, the Pinellas County Clerk of the Circuit Court and Comptroller questions whether the

filing of the Complaint was for a lawful public purpose for which County funds should be spent.

29. The Clerk will be presented with expenditures, including the filing fee, service

charges, and salary expenses for those County lawyers working on the Leon County litigation and

is likely to be presented with additional such expenses for any related appellate proceedings.

30. By law, the Clerk has a duty to independently determine whether these expenditures

of County funds are lawful.

31. The Clerk believes it is most advantageous to obtain a declaration from the court

regarding this question while the Leon County litigation is in its early stages so that if such

expenditures be declared as not lawful, those persons who may individually have standing to

challenge the new statutory language would have the ability to do so in a timely manner.

32. There is a bona fide dispute between the Parties and the Clerk has a justiciable

question as to the existence or nonexistence of his duties and rights.

33. The Clerk is in doubt as to his duties and rights, and there is a bona fide, actual,

present need for a declaration establishing Clerk’s duties and rights under the laws governing his

conduct, including the making of findings to support the declaration of such duties and rights.

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 34. The Clerk’s request for a declaration of his rights and responsibilities under the law

deals with a present, ascertained or ascertainable state of facts as set forth herein, and a present

controversy as to that state of facts, which is the County’s potentially expending County funds for

an unlawful offensive challenge to a presumptively valid statute.

35. The Clerk’s legal rights and duties are dependent upon the facts and the law

applicable to those facts, and the County has an actual, present, adverse and antagonistic interest,

either in fact or law, in the subject matter of this action.

36. This antagonistic and adverse interest is fully before the Court by proper process.

WHEREFORE, the Clerk requests a declaration:

• Declaring whether Pinellas County’s filing of the Leon County suit, which suit challenges
the constitutionality of § 29 of Chapter Law 2022-73, Laws of Florida, is a lawful
expenditure of the County’s funds;

• Declaring whether the Pinellas County Clerk of the Circuit Court and Comptroller should
sign warrants and pay charges incurred by the County, and presented to the Clerk for
approve of the expenditure, related to the County’s Leon County litigation;

• If the expenditures are not lawful, enjoining the County from making further such
expenditures; and

• Making such additional legal and factual findings as may be necessary to support such
findings and conclusions, and providing such other relief as may be just and proper.

Respectfully submitted,

/s/ Robert Michael Eschenfelder

ROBERT MICHAEL ESCHENFELDER
Florida Bar No.: 0008435
Trask Daigneault, L.L.P.
1001 S. Ft. Harrison Avenue, Ste. 201
Clearwater, FL 33756
Phone: 727.733.0494
Primary: rob@cityattorneys.legal
Secondary: jennifer@cityattorneys.legal