IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CYNTHIA BURTON,
Appellant,
v. Case No. 5D23-1573 LT Case No. 2023-CA-8
CRAIG OATES, AS CHAIR OF THE RECALL COMMITTEE,
Appellee.
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Opinion filed June 12, 2023
Appeal from the Circuit Court for Putnam County, Kenneth J. Janesk, Judge.
Meagan L. Logan, of Douglas & Douglas, Lake City, for Appellant.
Marc J. Randazza and Richard J. Mockler, of Randazza Legal Group, PLLC, Tampa, for Appellee.
LAMBERT, C.J. On January 14, 2021, Appellant, Cynthia Burton, an elected city
commissioner for the city of Crescent City, attended a regularly scheduled
meeting of the city commission. The agenda for the meeting stated that the
“meeting will be conducted in a virtual environment due to the recent
escalating COVID-19 outbreaks” but provided a specific description of the
procedures to be followed for any member of the public who wished to attend
or speak at the meeting.
Approximately twenty-three months after this meeting, Appellee, Craig
Oates, filed a petition under section 100.361, Florida Statutes (2022), to
recall Burton as city commissioner. The petition designated Oates as the
chair of the recall committee and alleged that at the aforementioned January
14, 2021 commission meeting, Burton committed an act of malfeasance
under section 100.361(2)(d)1., Florida Statutes, when she, the other city
commissioners, the mayor, and the city manager met “in private, behind
locked doors at . . . City Hall, depriving members of the general public from
attending the meeting in person as required under Florida[’s Government-in-
the-Sunshine L]aw.” The petition stated that “[d]uring the meeting, a motion
for an ordinance to abolish the Crescent City Police Department was made.”
In response to the recall petition, Burton promptly filed suit in circuit
court. She sought a declaratory judgment that the grounds alleged in the
2 recall petition did not constitute “malfeasance” under section 100.361(2)(d),
Florida Statutes, and that the recall petition to remove her from office was
thus legally insufficient. Burton also sought a judicial determination that
Oates, as recall committee chair, did not follow the statutory procedures
outlined in section 100.361 when he filed the recall petition directly with the
Putnam County Supervisor of Elections instead of the Clerk for the City of
Crescent City, thus rendering the petition invalid. Based on these alleged
violations, Burton also asked the trial court to enjoin the recall proceedings.
Oates answered the complaint, admitting, among other things, that he
filed the recall petition with the director of services for the Supervisor of
Elections of Putnam County. The trial court advanced the case on its
calendar and promptly held an evidentiary hearing on Burton’s complaint. By
the time of the hearing, the election on whether to recall Burton had been set
for Tuesday, May 30, 2023.
The trial court denied Burton’s request for declaratory and injunctive
relief. In its written order, the court found that the recall petition was “legally
sufficient.” The court also found that while it was “clear” from the evidence
that a Ms. Karen Hayes “did and still does perform the duties of the ‘Crescent
City Clerk,’” it was nevertheless permissible under section 100.361 for Oates
3 to have filed the recall petition directly with the Putnam County Supervisor of
Elections, instead of Ms. Hayes.
Burton has timely appealed. Due to the abbreviated time frame before
the election, an emergency panel was assigned on May 26, 2023, that issued
an order allowing the May 30th election to go forward; it also stayed the result
of the election and prohibited Burton’s removal from office pending
disposition of this appeal. For the following reasons, we reverse the order
denying Burton relief.
ANALYSIS
Burton first argues that the trial court erred in denying her relief
because, procedurally, Oates failed to comply with the requirement of
section 100.361, Florida Statutes, by failing to file the recall petition with the
Clerk of Crescent City. We agree.
Section 100.361 is succinctly titled “Municipal recall” and sets forth the
procedure by which a city commissioner of a municipality may be recalled
from office by the electors of the municipality. The statute carefully
delineates: (1) the content requirements for the recall petition; (2) the
requisite number of signatures for the petition based upon the number of
registered electors in the municipality; (3) that there be a designated recall
committee, with a specific person named as the chair who acts on behalf of
4 the committee; (4) the limited, enumerated grounds for the removal of an
elected official and the requirement that the grounds for recall be set forth in
the petition; and (5) the process of obtaining electors’ signatures on the recall
petition. See § 100.361(2)(a)–(e), Fla. Stat. (2022).
Subsection 100.361(2)(f) addresses the process of filing the recall
petition forms. Specifically, the chair of the recall committee “shall file the
signed petition forms with the auditor or clerk of the municipality . . . , or his
or her equivalent.” § 100.361(2)(f). The trial court found in its order that
“[t]he testimony was clear that [an individual by the name of] Karen Hayes is
absolutely the Clerk of Crescent City, now in name, but since 2021 in job
duties.” Equally clear was that Oates did not file the recall petition with Ms.
Hayes. Instead, as previously mentioned, he filed it with the office of the
Putnam County Supervisor of Elections.
Burton argued below, as she does here, that Oates’s filing of the recall
petition with the Supervisor of Elections violated the plain language of the
statute. The trial court disagreed, explaining that filing the recall petition with
the County Supervisor of Elections was permissible under section
100.361(2)(f) because the statute was silent as to whether only one person
can serve as the municipality’s “auditor, clerk, or equivalent” and that
“common sense would say that there is no prohibition on multiple clerks.”
5 Thus, the issue before our court is one of statutory interpretation—
whether the trial court correctly interpreted section 100.361(2)(f) to permit a
County Supervisor of Elections to separately be the “equivalent” of the clerk
of a municipality in a recall election when there is an existing clerk of the
municipality. We review statutory interpretation de novo. Cohen v. Autumn
Vill., Inc., 339 So. 3d 429, 430 (Fla. 1st DCA 2022) (citing Ag. for Health Care
Admin. v. Best Care Assurance, LLC, 302 So. 3d 1012, 1015 (Fla. 1st DCA
2020)). The Florida Supreme Court has made very clear that, for purposes
of statutory interpretation, courts are to apply the “supremacy-of-text
principle”—namely, that “[t]he words of a governing text are of paramount
concern, and what they convey, in their context, is what the text means.”
Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020)
(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 56 (2012)).
Here, the plain text of section 100.361(2)(f) does not provide for
multiple persons to act as the auditor or clerk of the municipality. The text
provides that the recall petition is to be filed with the auditor or clerk of the
municipality and, if there is no clerk or auditor, with someone who is acting
as their “equivalent.” As found by the trial court, there was a clerk of the
municipality—Karen Hayes. Moreover, the Legislature set forth in section
6 100.361 very distinct and separate duties for the clerk of a municipality and
the County Supervisor of Elections in the recall election process. See §
100.361(2)(g), (3). Had the Legislature also intended the County Supervisor
of Elections to act as the “equivalent” of the clerk of the municipality during
a recall election, it could have easily, clearly done so. It did not.
We further reject Oates’s separate argument that the trial court’s order
should be affirmed because the recall committee substantially complied with
section 100.361 by filing the recall petition with the Supervisor of Elections.
First, section 100.361(2)(f) provides that the petition shall be filed with the
municipality’s auditor, clerk, or their equivalent. “Shall” is mandatory.
Sanders v. City of Orlando, 997 So. 2d 1089, 1095 (Fla. 2008) (citing Fla.
Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002)).
Second, section 100.361 contains no language that permits substantial
compliance with the statute. Nor does it provide that the failure to comply
with the filing requirements of the statute can be excused if there is an
alleged lack of prejudice to the elected official targeted for election recall.
Accord Demase v. State Farm Fla. Ins., 351 So. 3d 136, 139–41 (Fla. 5th
DCA 2022) (Sasso, J., concurring specially) (rejecting a substantial
compliance argument as there was nothing in the text of the statute that
permitted substantial compliance, “the statute employs the mandatory
7 language ‘shall,’” and the Florida Legislature did not include either a
substantial compliance or a prejudice exception).
Accordingly, we hold that Oates failed to comply with the procedural
requirement of section 100.361 when he filed the signed recall petition with
the Putnam County Supervisor of Elections, instead of with Karen Hayes, the
Clerk of Crescent City.
We next address Burton’s claim that the trial court erred when it
determined that the recall petition was “legally sufficient.” Section
100.361(2)(d) provides seven enumerated grounds for the recall of an
elected municipal officer from office. The recall petition filed in this case
alleged that Burton had committed an act of “malfeasance” under section
100.361(2)(d)1.
Malfeasance is the “performance of a completely illegal or wrongful
act” by an elected official. Moultrie v. Davis, 498 So. 2d 993, 995 (Fla. 4th
DCA 1986). As previously stated, the alleged malfeasance in this case was
that on January 14, 2021, Burton met with other Crescent City
commissioners, together with the mayor and city manager, in private, behind
locked doors at City Hall, thus depriving members of the general public from
attending the commission meeting in person, “as required by Florida law,”
8 and that, during this meeting, a motion was made for “an ordinance to abolish
the Crescent City Police Department.”
The “law” Oates asserted that Burton violated is Florida’s “Sunshine
Law,” codified at section 286.011, Florida Statutes (2020). Subsection (1) of
this statute provides, in pertinent part, that “[a]ll meetings of any . . .
commission of any . . . municipal corporation . . . at which official acts are to
be taken are declared to be public meetings open to the public at all times,
and no resolution, rule, or formal action shall be considered binding except
as taken or made at such meeting.” Accord Art. I, § 24(b), Fla. Const.
We begin our analysis with matters that are not in dispute. First,
commissioners of a municipality must comply with Florida’s Sunshine Law.
The failure to do so can constitute an act of malfeasance that is properly
presented in a recall petition. Thompson v. Napotnik, 923 So. 2d 537, 540
(Fla. 5th DCA 2006). Second, a public meeting was held at City Hall on
January 14, 2021, attended by Commissioner Burton at which business of
Crescent City was conducted. Third, the public was permitted to attend this
meeting “virtually,” but could not attend in person.
From these facts, the dispositive question is whether, under section
286.011(1), this January 14, 2021 meeting was “open to the public.” If so,
9 then Burton, by definition, did not commit an act of “malfeasance” by her
attendance.
In Herrin v. City of Deltona, 121 So. 3d 1094, 1097 (Fla. 5th DCA
2013), our court addressed the phrase “open to the public” contained in
Florida’s Sunshine Law. We concluded that the term reasonably meant that
city commissioner meetings must be properly noticed and made reasonably
accessible to the public. Id. We also held that the public had no right to
speak or be heard at such a meeting. Id.
What Oates is essentially asking here is that we interpret section
286.011(1)’s language to mean that a meeting is “open to the public” only if
the public can attend the meeting in person, despite the language “in person”
being conspicuously absent from the statute. We respectfully decline to do
so.
Simply stated, a court “may not ‘rewrite the statute or ignore the words
chosen by the Legislature so as to expand its terms.’” State v. Gabriel, 314
So. 3d 1243, 1248 (Fla. 2021) (quoting Knowles v. Beverly Enters.-Fla., Inc.,
898 So. 2d 1, 7 (Fla. 2004)). Had the Legislature intended that a meeting is
only “open to the public” under Florida’s Sunshine Law when the public is
permitted to attend in person, it could have easily stated so. That is the
Legislature’s prerogative, not ours.
10 Due to the global pandemic, Crescent City placed the public on notice
that its January 14, 2021 commission meeting would be conducted in a
“virtual environment.” The notice specifically advised the public that anyone
wishing to participate and speak at the meeting could do so; and, in bold
letters, directions were given to the public on how to do so. Oates does not
argue here that the public was precluded from participating in the January
14 meeting through the virtual platform described, nor does he contend that
the public was not properly noticed concerning the date or time of the
meeting.
Lastly, we find the cases cited by Oates in his brief for the proposition
that Burton committed malfeasance to be distinguishable. In Parris v. State,
48 Fla. L. Weekly D733 (Fla. 4th DCA Apr. 12, 2023), despite the earlier
cancellation of a properly noticed city council meeting, three city council
members held the meeting and addressed matters related to the city. In
Rhea v. Alachua County School Board, 636 So. 2d 1383, 1384 (Fla. 1st DCA
1994), the Alachua County School Board held a public meeting more than
100 miles away from its headquarters. In contrast, the citizens of Crescent
City were given sufficient notice of the January 14, 2021 meeting, together
with a specific procedure that allowed them, as members of the public, to
attend and be heard at the meeting.
11 Accordingly, we hold that the recall petition alleging that Burton
committed an act of malfeasance under section 100.361(2)(d) was legally
insufficient. We therefore reverse the trial court’s order and the results of the
subject petition and election to recall Burton as city commissioner for
Crescent City.
REVERSED and REMANDED for entry of judgment in favor of Burton.
MAKAR, J., concurs, with opinion. PRATT, J., concurs, in part, and concurs in result, with opinion.
12 Case No. 5D23-1573 LT Case No. 2023-CA-8
MAKAR, J., concurring.
Sandwiched between Crescent Lake on its east and Lake Stella on its
west, Crescent City, Florida (pop. 1,654), is the birthplace of A. Philip
Randolph, who became a prominent civil rights leader in the 1950s and
1960s, and the hometown of Raymond Ehrlich, a future Florida supreme
court justice, whose family moved there in 1926. Idyllic lake sunrises and
sunsets, along with boating, watersports, and fishing (it is dubbed the “Bass
Capitol of the World”), make Crescent City a desirable venue for a laid-back
and relaxing lifestyle. Indeed, it describes itself as a “humble community” that
is “the oasis of Old Florida” with a “serenity and peacefulness . . . that is like
no other.”
Despite its tranquil and picturesque veneer, the City has been beset
by political acrimony in the form of attempted recalls of municipal officials in
recent years.1 In communities both large and small, the divisiveness of
politics that arises during election cycles can spin off into off-cycle squabbles
that deteriorate into efforts to recall elected officials. Florida has a history of
1 See Order on Plaintiff’s Complaint for Declaratory and Injunctive Relief, West v. Tatum, No. 2021-CA-87 (Fla. 7th Cir. Ct. May 5, 2021) (The Circuit Court, in and for Putnam County, granted declaratory and injunctive relief based on a legally insufficient recall petition.). 13 local recall elections, which are inherently contentious and personal in
smaller close-knit towns; a statewide recall election involving millions of
voters is one thing; a recall election in a quaint neighborly community such
as Crescent City, with sixteen hundred and fifty-four residents on 2.1 square
miles, is quite another.
Recall systems serve a limited and important purpose: empowering the
people to pull the plug on elected public officials who engage in bribery,
corruption, and other forms of bad behavior before the completion of their
terms. They require a delicate balance of the people’s sovereign power over
elected officials and the guardrails necessary to ensure that recalls aren’t
misused to the detriment of local communities and the destabilizing of the
democratic process.
The nature of the recall process balances two opposing positions: the democratic ideal of allowing the people to rectify serious mistakes in choosing officials, on the one hand, and the goal of allowing officials to serve out their term of office unimpeded by having to defend against a series of recall attempts for trifling reasons, by disgruntled political opponents, and the like, on the other.
Jay M. Zitter, Sufficiency of Technical and Procedural Aspects of Recall
Petitions, 116 A.L.R.5th 1 § 2(a) (2023); see also Jay M. Zitter, Sufficiency
of Particular Charges as Affecting Enforceability of Recall Petition, 114
A.L.R.5th 1 § 2(a) (2023) (same).
14 Elections themselves are the fundamental check on elected
representatives. The longer a representative’s term in office, however, the
greater the potential for a lack of responsiveness to constituents and a
departure from legal norms between elections, and thereby the need for an
intra-term means of removing a corrupt elected official; officials mindful of
recalls are less likely to engage in corrupt acts because the specter of
removal is omnipresent. A downside to recall systems is that they potentially
short-circuit the regular election process if used for invalid political or
personal purposes; they can create a poisonous atmosphere of charges,
counter charges, and vitriol that damage the democratic system itself and
reduce rather than increase the potential for effective local governance. Plus,
off-cycle recall elections tend to have lower turnouts, potentially skewing the
outcomes. 2
The bottom line on Florida’s recall system was best stated almost a
quarter century ago by our supreme court in Garvin v. Jerome:
As the statutory scheme for recall elections presently stands, it is apparent that recall is treated as an extraordinary proceeding with the burden on those seeking to overturn the regular elective process to base the petition upon lawful grounds
2 The City has 1,013 registered voters, of which only 306 (30.2%) voted in the May 30, 2023, recall election (held the day after the Memorial Day holiday): 180 to remove Burton and 126 to retain her. By contrast, Burton received 350 votes to her opponent’s 331, a total voter turnout of 681 (69% of the 987 registered voters at the time) in the 2020 election cycle. 15 or face the invalidation of the proceedings. In our view, the present legislative scheme protects public officials from being ousted when illegal grounds provide the basis for recall. Since we place enormous value on the regular elective process, this legislative scheme is certainly not unreasonable.
767 So. 2d 1190, 1193 (Fla. 2000) (emphasis added). The legal issue in
Garvin was whether the inclusion of one valid ground in a recall petition that
contained four invalid grounds for removal nullified the recall process. Id. at
1190–91. The court concluded that “[t]here can be little doubt that the
presence of the invalid grounds would taint any recall election based
thereon.” Id. at 1193.
The reason is that “approval of a ballot containing invalid grounds
would almost certainly lead to abuse.” Id. As an example, an “astute
draftsman could couple legally insufficient (but politically charged)
allegations with legally sufficient (but less politically compelling) grounds” in
a recall petition, hoping to gain support and signatures because, although
“the valid grounds might not generate support for the recall petition, the
invalid grounds might.” Id. Due to the potential for misuse, the supreme court
concluded that judicially invalidating a defective petition was necessary, else
the “legitimate purposes served by the recall statute would be severely
undermined.” Id.
16 For similar reasons, petitions that make conclusory legal claims or are
based on conduct that is lawful (or not unlawful) are facially invalid. For
instance, a petition claiming that an official “violated the public meetings”
laws—without a supporting statement of facts demonstrating how—is legally
insufficient. Richard v. Tomlinson, 49 So. 2d 798, 799 (Fla. 1951) (finding a
petition invalid where it constituted “nothing more than the statement of a
conclusion or opinion without any tangible basis in fact”); see also Bent v.
Ballantyne, 368 So. 2d 351, 353 (Fla. 1979) (“[T]he mere recital of a statutory
ground, without an allegation of conduct constituting that ground[] is
insufficient.”); Moultrie v. Davis, 498 So. 2d 993, 996–97 (Fla. 4th DCA 1986)
(holding unspecified allegations in a petition insufficient, citing Richard and
Bent). A reviewing court cannot make a judgment on the facial sufficiency of
a bare legal claim without a sufficiently detailed statement of alleged facts.
See Bent, 368 So. 2d at 352.
The same is true of a claim, supported by a statement of alleged facts,
that is false or misleading without additional facts or context. For example, a
recall petition that says a mayor failed to attend city commission meetings is
invalid because the city charter, which allowed but did not require
attendance, did not establish a legal duty to attend. Sanchez v. Lopez, 219
So. 3d 156, 159 (Fla. 3d DCA 2017) (“Since the City Charter does not require
17 that the mayor attend commission meetings, then it stands to reason that
there cannot be a violation of such duty because the duty does not exist.”).
Within this category of claims are half-truths, such as a claim that a public
official attended a meeting that excluded the public; if the claim fails to
mention that a reasonable means of public access was allowed, it amounts
to a misleading claim that will lead to invalidation. This type of half-true claim
is the “blackest of lies.” Ross v. Bank S., N.A., 885 F.2d 723, 757 (11th Cir.
1989) (“That a lie which is half a truth is ever the blackest of lies, That a lie
which is all a lie may be met and fought with outright, But a lie which is part
a truth is a harder matter to fight.”) (Clark, J., dissenting) (quoting Tennyson,
The Grandmother, stanza 8 (1864)). Citizens have the right to recall their
municipal officials, but their petitions must fully and accurately state ultimate
facts to be considered by the electorate.
In conclusion, recalls of elected officials based on lawful grounds meet
the heavy burden our supreme court has set. At the same time, the supreme
court has made clear “that the public policy underlying the legislative scheme
does not mandate that officials who have been duly elected to their positions
of responsibility should have to face an extraordinary recall election with
every vote they cast or statement they make.” Garvin, 767 So. 2d at 1193
(“[P]ublic officials should not face removal from the office they were lawfully
18 and properly elected to on a ballot that contains illegal grounds for recall in
express violation of the statute.”). Based on these principles, I fully concur in
Chief Judge Lambert’s opinion, which holds that the most recent recall
attempt in Crescent City’s municipal governance is marred both procedurally
and substantively. It’s worth pointing out that efforts to recall public officials
that fail due to procedural infirmities or substantive shortcomings are a drain
on not only a community’s psyche, but on its limited financial and
governmental resources, including legal fees. See Thornber v. City of Ft.
Walton Beach, 568 So. 2d 914, 917–20 (Fla. 1990). Just as those in public
office must safeguard democratic principles and protect the public coffers,
those who seek to overturn the regular elective process must strictly comply
with procedural and substantive requirements to avoid unnecessarily
wasting the people’s money.
19 Case No. 5D23-1573 LT Case No. 2023-CA-8
PRATT, J., concurring in part and concurring in result.
The majority opinion correctly acknowledges that the text and structure
of the relevant statutes—and no other considerations—control our resolution
of this appeal. See Forrester v. Sch. Bd. of Sumter Cty., 316 So. 3d 774, 776
(Fla. 5th DCA 2021) (Sasso, J.). As to the recall petition’s substantive defect,
I fully concur in the majority’s conclusion that the Sunshine Law contains no
requirement that public meetings permit in-person attendance. While section
286.011(1), Florida Statutes (2020), requires that local government meetings
be “open to the public at all times,” it does not “prescribe any particular
means of holding” open public meetings. Op. Att’y Gen. Fla. 2020-03 (2020)
(emphasis in original). The majority properly rejects Oates’s invitation to add
the phrase “in person” to the statute.
However, as to the recall effort’s procedural defect, unlike the majority,
I would not reach the issues of whether section 100.361, Florida Statutes
(2022), allows only one person to act as the clerk’s or auditor’s equivalent
and whether Karen Hayes is that person. Instead, I would hold only that the
county supervisor of elections cannot, under any circumstances, qualify.
That conclusion follows clearly from the statutory text and suffices to
adjudicate Burton’s procedural defect claim.
20 Section 100.361(2) provides that the recall committee chair “shall file
the signed petition forms with the auditor or clerk . . . or his or her equivalent,”
and then directs that “[i]mmediately after the filing of the petition forms, the
clerk shall submit such forms to the county supervisor of elections” so the
supervisor may “promptly verify the signatures[.]” § 100.361(2)(f)–(g). The
statute goes on to allocate additional responsibilities between the clerk and
the supervisor. See generally § 100.361(2)–(4). Whatever under-
determinacy might flow from the statute’s use of the term “equivalent”—and
regardless whether the statute contemplates that multiple officials might
qualify—the supervisor cannot fit the bill. Why? Because the statute clearly
assigns one set of responsibilities to the clerk, and another to the supervisor.
Treating the supervisor as the clerk’s equivalent would eviscerate the
statute’s allocation of petition processing responsibilities between two
officials and flout the statutory text by consolidating those responsibilities into
one official.
Thus, regardless whether Ms. Hayes may be the clerk’s equivalent,
and regardless whether additional persons might fit that description, the
statute makes very clear that at least one official can’t: the supervisor. For
that reason, I concur in the majority’s conclusion that the recall effort is
procedurally defective. I likewise concur in its conclusion that the statute’s
21 mandatory language and lack of exceptions preclude Oates’s substantial-
compliance argument.