In re the Recall of Koretsky

541 So. 2d 1362, 14 Fla. L. Weekly 1064, 1989 Fla. App. LEXIS 2276, 1989 WL 43292

• Court: District Court of Appeal of Florida
• Decided: April 26, 1989
• Docket: No. 89-0488
• Status: Published

Opinion

PER CURIAM.

This is an appeal and an application for a constitutional stay writ concerning an order scheduling an election and attendant proceedings for a recall election pursuant to section 100.361, Florida Statutes (1987). We grant the writ and reverse the order on appeal.

At issue is whether the provisions of section 100.361 apply to a municipality that has no recall provisions in its charter or ordinances. We answer that question in the negative but certify the issue as one of great public importance so that the parties may seek further review in the Florida Supreme Court.

Section 100.361 contains a comprehensive scheme for the recall of municipal and charter county governing officials. Three (3) provisions of section 100.361 concern us here. Section 100.361(1) sets out the provisions governing a recall petition and provides that any member of the governing body of a municipality may be removed by recall. Section 100.361(8) states that it is the intent of the legislature that recall procedures be uniform statewide and that any municipal laws to the contrary stand repealed. Section 100.361(9)¹ is entitled “PROVISIONS APPLICABLE” and provides:

The provisions of this act shall apply to cities and charter counties which have adopted recall provisions.

We believe the plain meaning of subsection (9) is to limit the application of section 100.361 to cities and charter counties which have adopted recall provisions. Since it is undisputed in this case that the city of Pembroke Park has not adopted any recall provisions, or otherwise adopted the provisions of section 100.361, we hold that there is no legal authority for a recall election in the city of Pembroke Park.²

Because we believe this issue to be one of great public importance we hereby certify the following question to the Florida Supreme Court so that the parties may petition that court for further review:

Do the provisions of section 100.361 apply to a municipality which has adopted no provisions for recall elections?

ANSTEAD, GUNTHER and WARNER, JJ., concur.

1 . The provisions of section 100.361 were originally enacted into law in three (3) separate sections, section 1. providing the substance of the recall procedure, section 2. providing that the provisions shall apply to cities and charter counties which have adopted recall provisions, and section 3. providing the effective date of the law.

2 . The parties have not cited, and, we are unaware of any caselaw directly on point. Cf. City of Laurel Hill v. Sanders, 392 So.2d 33 (Fla. 1st DCA 1980) (municipal provisions adopting election laws set out in chapter 100 include section 100.361). There are four (4) opinions of the attorney general and the division of elections on this issue, three opinions that section 100.361 applies to all cities, and one taking the view we adopt here. See 1979 Op.Atty.Gen.Fla. 79-38 (Apr. 18, 1979); 1975 Op.Atty.Gen.Fla. 075-242 (Aug. 28, 1975); 1978 Op.Div.Elec.Fla. 78-48-(Nov. 6, 1978); 1977 Op.Div.Elec.Fla. 077-10-(Mar. 22, 1977).