Garvin v. Jerome

767 So. 2d 1190, 25 Fla. L. Weekly Supp. 692, 2000 Fla. LEXIS 1892, 2000 WL 1354005
CourtSupreme Court of Florida
DecidedSeptember 21, 2000
DocketNo. SC94751
StatusPublished
Cited by4 cases

This text of 767 So. 2d 1190 (Garvin v. Jerome) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garvin v. Jerome, 767 So. 2d 1190, 25 Fla. L. Weekly Supp. 692, 2000 Fla. LEXIS 1892, 2000 WL 1354005 (Fla. 2000).

Opinions

ANSTEAD, J.

We have for review Garvin v. Jerome, 721 So.2d 1224 (Fla. 5th DCA 1998), in which the Fifth District Court of Appeal held, contrary to the Fourth District’s decision in Davis v. Friend, 507 So.2d 796 (Fla. 4th DCA 1987), but consistent with the Second District’s determination in Wolfson v. Work, 326 So.2d 90, 91 (Fla. 2d DCA 1976), that despite the invalidity of four of the five grounds upon which a recall election for Phyllis T. Garvin was predicated, Garvin’s recall from office would stand. This Court has jurisdiction. See Art. V, § 3(b)(3), Fla. Const. We quash Garvin.

MATERIAL FACTS AND PROCEEDINGS BELOW

Prior to September 4, 1998, petitions to recall Phyllis T. Garvin, a Councilmember and Vice Mayor of the City of Daytona Beach Shores, Florida, were circulated among voters by members of a recall committee. In the petition, five separate grounds were alleged for Garvin’s removal:

1. Malfeasance due to persistent repeated violations of City Manager form of government and section 3.06 of the Charter by:
a. Giving direct work instructions to city employees William Lazarus, Cathy Benson and Joe Blankenship, [1191]*1191without first going through city manager.
b. Without Council discussion or approval, taking unlawful unilateral action to advertise for a part-time interim City Manager.
2. Malfeasance, as without lawful grounds she makes every effort to deprive applicants of their rights of due process of law.
3. Violation of her oath of office (Sec.2.08) by subverting the City Manager form of government.
4. Misfeasance, in that she continually intimidates and harasses city employees to effectuate her personal desires.
5. Malfeasance of office in that she urged council member Marion Kyser not to attend a council meeting so that a quorum would not be available.

Garvin, 721 So.2d at 1226. On September 4, 1998, the completed petitions were submitted to the Supervisor of Elections of Volusia County. On the same day, Garvin filed a complaint for declaratory relief and injunctive relief with the circuit court, seeking to enjoin the recall proceedings on the basis that the five alleged grounds were improper and invalid.

The trial court conducted a hearing on September 19, 1998, and subsequently entered its Findings of Fact, Conclusions of Law and Order Scheduling Recall Election. In this order, the trial court concluded that three of the five grounds contained in the petition for recall were legally insufficient. Nevertheless, it also determined that inclusion of those three legally insufficient bases did not invalidate the petition. Garvin appealed.

FOUR OF FIVE GROUNDS INVALID

Upon review, the Fifth District concluded that four of the five grounds included therein were not legally sufficient: three were determined to be too vague, and the fourth (the “not uncommon political strategy” of urging a fellow councilman not to attend a meeting to deprive it of a quorum) was determined not to be a violation of the City Charter. See id. at 1226. However, the appellate court still affirmed the trial court’s decision, on the basis that one ground alleged in the petition was legally sufficient.1 See id. at 1226-27.

The district court disagreed with Gar-vin’s argument that the legally insufficient bases should invalidate the entire petition. Rather, consistent with the Second District’s opinion in Wolfson (and contrary to the Fourth District’s rationale in Davis), it held that pursuant to section 100.361, Florida Statutes, a petition containing one legally sufficient ground for recall would not be invalidated because it includes other, insufficient grounds.2 See 721 So.2d at 1227.

[1192]*1192LAW AND ANALYSIS

Section 100.361(l)(a), Florida Statutes (1997), expressly provides that a recall petition must be “limited solely to the grounds specified in paragraph [1](b).” In fact, the “limited” language was added soon after the Wolfson case was decided. Here, it has been determined that four of the five grounds set out in the recall petition fall outside the grounds provided in paragraph (l)(b) and are invalid. In Davis, the Fourth District held that, where a recall proceeding was predicated on four substantive charges set forth in a recall petition and three of the four were stricken as legally insufficient, the petition with its one remaining charge could not serve as the basis for a recall election. See 507 So.2d at 796-97. In Wolfson, the Second District held that one legally sufficient charge in a recall petition provides a valid basis for the recall process, and “[o]nly the complete failure of all the charges to meet the statutory requirements will justify enjoining an election.” 326 So.2d at 91.

Based upon the unambiguous language of the recall statute we conclude that the opinion of the Fourth District in Davis contains the correct analysis. In Davis, the court explained:

[W]e agree with appellants that the instant recall proceedings, predicated from the outset on four (4) substantive charges, cannot serve as the basis for a recall election now that three (3) of the four (4) charges have been stricken.
The trial court correctly ruled that in the absence of controlling precedent from this court, it was obligated to follow the holding of our sister court that a recall election may proceed under similar circumstances. See Wolfson v. Work, 326 So.2d 90 (Fla. 2d DCA 1976). Wolfson may be distinguishable in that the trial and appellate courts refused to rule on the validity of several charges after determining that the first ground was sufficient to sustain recall proceedings. The appellate court noted that the additional allegations “would likely surface during a campaign anyway.” Id. at 92. The recall statute requires the approval of a petition by a substantial number of voters before a recall election may be scheduled pursuant to that petition. § 100.361, Fla. Stat. (1985). Here, three (3) distinct charges have actually been ruled invalid and it is undisputed on this record that a substantial number of voters endorsed the petition on the basis of all four charges. We agree with appellants that it is impossible to determine whether those voters would have endorsed the recall petition in the absence of three (3) charges, all of which we note superficially appear to be more serious than the remaining charge. We disagree with Wolfson to the extent it holds that recall proceedings may not be enjoined even though they are predicated on a petition substantially based on invalid grounds.

Davis v. Friend, 507 So.2d at 797. We agree with the Fourth District that the potential for abuse inherent in a rule of law which would allow a recall election to be based upon a petition containing invalid grounds is patent.

In this case we are urged to permit the recall of a duly elected public official upon grounds that have been determined to be invalid under the statutory scheme for recall elections. To permit a recall under such circumstances would constitute a clear violation of the statute’s limitation of [1193]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sanchez v. Lopez
219 So. 3d 156 (District Court of Appeal of Florida, 2017)
Carol Gibson v. Stephen Kesterson, Sr. and Tammy Jones, etc.
188 So. 3d 125 (District Court of Appeal of Florida, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
767 So. 2d 1190, 25 Fla. L. Weekly Supp. 692, 2000 Fla. LEXIS 1892, 2000 WL 1354005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garvin-v-jerome-fla-2000.