Gordon v. Leatherman

450 F.2d 562
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 8, 1971
DocketNo. 71-1926
StatusPublished
Cited by18 cases

This text of 450 F.2d 562 (Gordon v. Leatherman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordon v. Leatherman, 450 F.2d 562 (5th Cir. 1971).

Opinions

RIVES, Circuit Judge:

The issue presented for review is whether the due process clause of the Fourteenth Amendment prevents a home rule charter of government from attaching to the office of an elected county commissioner a condition that, after one year in office and at a recall election requested in a petition signed by at least 10,000 voters, the commissioner is subject to recall without reason or cause being stated either in the petition or otherwise. We hold that the Fourteenth Amendment does not prevent the attachment of such a condition to an elective office.

Posture of Case

Alex Gordon (Plaintiff-Appellee) and five of the other nine Commissioners of Dade County, Florida, were the object of a recall campaign conducted by Clark Merrill (Intervenor-Appellant). Gordon sought a declaratory judgment in federal district court that the Dade County Home Rule Charter provisions establishing the procedure in respect of recalling elected officials violates the Fourteenth Amendment to the United States Constitution. Specifically, Gordon argued that the recall procedure is invalid since it serves to deprive him of a valuable property right, namely his public office, without due process of law. Further, Gordon prayed for an injunction forbidding E. B. Leatherman (Defendant-Ap-pellee), the official having technical authority for initiating a recall election, from certifying the recall petitions and from ordering a recall election thereon. The district court issued a memorandum opinion, 325 F.Supp. 494, declaring the provisions in question unconstitutional and granting the .injunction sought. From that decision, Merrill alone has timely filed this appeal.

Facts

There is no substantial disagreement as to the critical facts in this case. [564]*564Article VIII, section 11 of the Florida Constitution of 1885, F.S.A., as amended provides:

“(1) The. electors of Dade County, Florida, are granted power to adopt, revise, and amend from time to time a home rule charter of government for Dade County, Florida, under which the Board of County Commissioners of Dade County shall be the governing body. This charter:
* * *
“(i) Shall provide a method for the recall of any commissioner and a method for initiative and referendum, including the initiation of and referendum on ordinances and the amendment or revision of the home rule charter * *

Pursuant to that authority, the electors of Dade County on May 21, 1957, adopted the Metropolitan Dade County Home Rule Charter. Section 7.02 of that Charter1 provides, inter alia, that after one year in office “[a]ny member of the Board of Commissioners * * * may be removed from office by the electors of the county * * * by which he was chosen” upon the majority vote of the electors voting. Such recall elections shall be conducted only on the petition of 10 percent or at least 10,000, whichever is smaller, of the qualified voters in the county. There is no requirement that such recall petitions contain any allegation or statement as to the reasons for the recall sought. Finally, Article VIII, section 6(e) of the Florida Constitution of 1968 seeks to validate the procedure with the following language:

“All provisions of the Metropolitan Dade County Home Rule Charter, heretofore or hereafter adopted by the electors of Dade County pursuant to Article VIII, Section 11, of the Constitution of 1885, as amended, shall be valid * *

The current term of the Board of County Commissioners began in 1968 and extends into 1972. In late 1970, Clark Merrill, as chairman of a recall committee dissatisfied with the performance of six of the nine Dade County [565]*565Commissioners, had petitions drafted seeking the requisite 10,000 signatures to warrant a recall election. In accordance with the recall procedures enumerated in section 7.02 of the Home Rule Charter, Merrill first had the petitions approved by the Clerk of the Circuit Court, E. B. Leatherman. Upon obtaining the signatures required, Merrill then resubmitted the petitions to Leatherman, charged by section 7.02 with responsibility for canvassing and certifying the petitions, after which a recall election must be held within 45 to 90 days. Before Leatherman could perform his duties, however, Alex Gordon, one of the six commissioners sought to be recalled, filed suit in federal district court seeking to enjoin Leatherman from proceeding further with his tasks and seeking also to have section 7.02 declared unconstitutional.

At the heart of Gordon’s complaint is the notion that the recall procedure of Dade County subjects him to the loss of his office, a valuable property right, without dué process of law. In short, Gordon complained of the absence from section 7.02 of any requirement that recall petitions contain a statement as to the reasons for which recall is sought. The lack of such notice of charges, said Gordon, violates due process of law.

Leatherman, the nominal defendant to Gordon’s suit, answered that he was not able to determine the applicable Florida law, that he had no adversary position to assert, and that he would abide by the district court’s decision. Merrill then moved that he be allowed to intervene in order to oppose Gordon’s complaint, which motion was granted. On March 23, 1971, the district court filed its memorandum opinion in which section 7.02 was declared unconstitutional “to the limited extent that it fails to require some form of notice of the reasons for recall,” and in which E. B. Leatherman was “permanently enjoined from proceeding with the canvassing and certification of the recall petition.” 325 F. Supp. at 500.

Discussion

The district court in granting declaratory and injunctive relief first reasoned that plaintiff, as an elected official, “has a property right in his office which cannot be taken away except, by due process of law.” (App. 63) That statement is correct so far as it goes. But it is also true that an official takes his office subject to the conditions imposed by the terms and nature of the political system in which he operates. The question then becomes whether there is any constitutional infirmity in section 7.02 as comprising part of that system.

For primary authority, the district judge noted various Florida court decisions in which it was held

“that the recall procedure is available only if the charges presented in the petition relate to: (a) the official’s conduct in office, and the ground of the action must be something stronger than a belief; (b) ‘alleged ill-advised and possibly unlawful acts which the affiants * * * say resulted in a depreciation of the city treasury’; and (c). something other than dissatisfaction with the manner in which the official exercised his judgment on a matter before him.”

325 F.Supp. at 497-98 (footnotes omitted. In our opinion, the district court has misread the cases cited as authority for the above proposition.2 3

As the district court remarked, this case is one of first impression. Correctly interpreted, the Florida cases to which the district court referred go no [566]*566further than to require strict adherence to the various statutory and charter recall provisions.

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Gordon v. Leatherman
450 F.2d 562 (Fifth Circuit, 1972)

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Bluebook (online)
450 F.2d 562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-leatherman-ca5-1971.