Miller v. Mendez

804 So. 2d 1243, 26 Fla. L. Weekly Supp. 829, 2001 Fla. LEXIS 2309, 2001 WL 1628487
CourtSupreme Court of Florida
DecidedDecember 20, 2001
DocketNo. SC00-2096
StatusPublished
Cited by7 cases

This text of 804 So. 2d 1243 (Miller v. Mendez) 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
Miller v. Mendez, 804 So. 2d 1243, 26 Fla. L. Weekly Supp. 829, 2001 Fla. LEXIS 2309, 2001 WL 1628487 (Fla. 2001).

Opinions

QUINCE, J.

We have for review the decision of the Third District Court of Appeal in Miller v. Mendez, 767 So.2d 678 (Fla. 3d DCA 2000), which certified conflict with the Fourth District Court of Appeal’s decision in Miller v. Gross, 788 So.2d 256 (Fla. 4th DCA), review denied, 770 So.2d 159 (Fla.2000), on the issue of whether residence under the election laws refers to residence at the [1244]*1244time of qualifying or residence at the time of assuming office. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we approve the Third District’s decision in Miller v. Mendez, and disapprove the Fourth District’s decision in Miller v. Gross.

Factual Background

On September 8, 2000, Ari Miller (Miller) 1 sued Gina Mendez (Mendez), a judicial candidate, Katherine Harris as Secretary of State, and David Leahy as Supervisor of Elections of Miami-Dade County for declaratory and injunctive relief. Miller alleged that Mendez was not a qualified candidate for the office of circuit court judge for the Eleventh Judicial Circuit in Miami-Dade County because she was not a resident of Miami-Dade County on July 18, 2000, the date she filed her oath of candidate.2 Miller argued that article V, section 8 of the Florida Constitution3 and the recent de-cisión of Miller v. Gross, 788 So.2d 256 (Fla. 4th DCA 2000), require a candidate to be eligible at the time the oath of candidate is filed.

On September 26, 2000, the trial court entered a final judgment declaring that Mendez was eligible to be a candidate for circuit court judge in the November 2000 election. The trial court ruled that the eligibility requirements of article V, section 8 refer to eligibility at the time of assuming office, not at the time of qualification or election to office.

On September 27, 2000, Miller appealed to the Third District Court of Appeal. On October 5, 2000, the Third District affirmed and adopted the trial court’s order in its entirety. The Third District then certified conflict with Miller v. Gross. Mendez ultimately lost the November 7, 2000, election for Circuit Judge of the Eleventh Judicial Circuit, Division 25.

[1245]*1245Discussion

In adopting the order of the trial court in its entirety, the Third District of necessity found that the residence requirement embodied in article V, section 8 of the Florida Constitution refers to residence at the time of assuming office. This holding conflicts with the Fourth District’s holding in Miller v. Gross, where the Fourth District found that the residence requirement refers to residence at the time of qualifying or taking the oath of candidate. We approve the conclusion reached by the Third District that a candidate for judicial office must be a resident of the territorial jurisdiction of the court at the time he or she assumes office.

On July 18, 2000, Mendez signed an oath of candidate which indicated she was a resident of Broward County, Florida, was a candidate for a judicial office in the Eleventh Judicial Circuit, and was qualified to run for the position stated. It is undisputed that Mendez had not established residency in Miami-Dade County (the territorial jurisdiction of the Eleventh Judicial Circuit) at the time she filed her oath of candidate for judicial office there. Mendez did not do so because she relied on a letter from the Division of Elections dated July 18, 2000, which stated she would only need to establish her residency in Miami-Dade County if she won, and by the time her term of office began.

The position taken by the Division of Elections is supported by a number of advisory opinions from this Court to the Governor. For example, in In re Advisory Opinion to the Governor—Terms of County Court Judges, 750 So.2d 610 (Fla.1999), this Court was asked the effect of the constitutional amendment extending the term of county court judges from four years to six years4 on the terms of county court judges elected in 1996 and 1998. One question presented was whether a judge’s right to a specific term of office accrued on the date of election to office or the date of assuming office. In determining that a judge’s right to a specific term accrues on the date of assuming office, we relied in part on another advisory opinion that addressed the eligibility requirement of five years membership in The Florida Bar.5 In In re Advisory Opinion to the Governor, 192 So.2d 757, 759 (Fla.1966), we said the bar membership eligibility requirements “refer to eligibility at the time of assuming office and not at the time of qualification or election to office.” See also Newman v. State, 602 So.2d 1351, 1352 (Fla. 3d DCA 1992).6

In addition to the advisory opinions from this Court, the Division of Elections has also consistently advised candidates that eligibility requirements need not be satisfied until the time of taking office. See Division of Elections Opinion 78-31 (August 3, 1978); Division of Elections Opinion 92-10 (June 24, 1992). The Division of Elections gave the same advice to Mendez when she inquired as to the deadline for meeting the residency requirement [1246]*1246for judicial office. The Division of Elections’ advisory opinions are binding upon any person who seeks them. See § 106.23(2), Fla. Stat. (1999). Although an advisory opinion is not binding judicial precedent, it is persuasive, and if the Division’s opinion is reasonable, it is given great weight. See Krivanek v. Take Back Tampa Political Committee, 625 So.2d 840 (Fla.1993). The Division’s interpretation of the residence requirement for judicial office as set forth in its letter opinion to Mendez is reasonable. Because it is reasonable and because it is consistent with our long-standing interpretation of the eligibility requirements for judicial office as set forth in the Florida Constitution, we will not deviate from the principle that article V, section 8 of the Florida Constitution requires a candidate for judicial office meet the eligibility requirements by the date the term of office begins. This includes the requirement that the person elected to judicial office be a resident of the territory that encompasses the particular court.

The Fourth District relied on the language in the oath of candidate itself in support of its conclusion that the residency requirement must be met at the time the oath of candidate is filed. The Fourth District reasoned that the present tense used in the oath means the candidate must be presently qualified, that is, qualified at the time the oath is completed and filed.7

Pursuant to section 105.031(4)(b), Florida Statutes (2000), all candidates for judicial office must file an oath in substantially the following form:

State of Florida
County of_
Before me, an officer authorized to administer oaths, personally appeared (please print name as you wish it to appear on the ballot), to me well known, who, being sworn, says he or she: is a candidate for the judicial office of _; that his or her legal residence is _County, Florida: that he or she is a qualified elector of the state and of the territorial jurisdiction of the court to which he or she seeks election; ....

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Cite This Page — Counsel Stack

Bluebook (online)
804 So. 2d 1243, 26 Fla. L. Weekly Supp. 829, 2001 Fla. LEXIS 2309, 2001 WL 1628487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-mendez-fla-2001.