Opinion
Nos. 3D20-464 3D20-466
05-27-2020
CITY OF MIAMI, et al., Appellants, v. Robert F. PIPER, III, etc., Appellee.
Victoria Mendez, City Attorney, and Kerri L. McNulty, Sr. Appellate Counsel for City of Miami & Todd Hannon; Kuehne Davis Law, P.A., and Benedict P. Kuehne and Michael T. Davis, for Commissioner Joe Carollo. Law Firm of Juan-Carlos Planas, P.A., and Juan-Carlos Planas ; David J. Winker, P.A., and David J. Winker, for appellee.
Victoria Mendez, City Attorney, and Kerri L. McNulty, Sr. Appellate Counsel for City of Miami & Todd Hannon; Kuehne Davis Law, P.A., and Benedict P. Kuehne and Michael T. Davis, for Commissioner Joe Carollo.
Law Firm of Juan-Carlos Planas, P.A., and Juan-Carlos Planas ; David J. Winker, P.A., and David J. Winker, for appellee.
Before LOGUE, HENDON, and LOBREE, JJ.
LOGUE, J.
In this consolidated case, the City of Miami, the City Clerk, and Joe Carollo, a City Commissioner, appeal the trial court's writ of mandamus directing the Clerk to deliver certain recall petitions to the Miami-Dade County Supervisor of Elections. Because we conclude that the trial court correctly issued the writ, we affirm.
BACKGROUND
Appellee Robert F. Piper, III is the Chair of Take Back Our City, a Miami political committee that filed a petition to recall Commissioner Carollo, pursuant to section 100.361, Florida Statutes. On February 29, 2020, counsel for Piper electronically submitted the recall petition to the Clerk's office, and on Monday March 2, 2020, Piper and his counsel hand-filed the recall petition at the Clerk's office. That same day, the Clerk notified Piper that the recall petition would not be transmitted to the Supervisor of Elections for the following reasons: (1) the February 29, 2020 submission was improper because the Clerk's office offers no electronic filing option for recall petitions; (2) the February 29, 2020 submission was deficient because the statute contains a non-delegable duty that the chair of the committee file the petition; and (3) the March 2, 2020 filing was untimely because the first signature was obtained on January 31, 2020.
Piper filed an Emergency Complaint for Writ of Mandamus, pursuant to Florida Rule of Civil Procedure 1.630, against the City and the Clerk. Commissioner Carollo intervened in that proceeding. Following a hearing, the trial court issued a writ of mandamus directing the Clerk to deliver the recall petition to the Supervisor of Elections.
This appeal followed.
ANALYSIS
Section 100.361, Florida Statutes, provides the statutory framework for electors to recall a member of a municipal governing body from office. With respect to the role of the clerk, the statute mandates:
Immediately after the filing of the petition forms, the clerk shall submit such forms to the county supervisor of elections. No more than 30 days after the date on which all petition forms are submitted to the supervisor by the clerk, the supervisor shall promptly verify the signatures in accordance with s. 99.097, and determine whether the requisite number of valid signatures has been obtained for the petition.
§ 100.361(2)(g) 1., Fla. Stat. (emphasis added).
"When the language of the statute is clear and unambiguous ... the statute must be given its plain and obvious meaning." Cascar, LLC v. Cty. of Coral Gables, 274 So. 3d 1231, 1235 (Fla. 3d DCA 2019) (quoting Atwater v. Kortum, 95 So. 3d 85, 90 (Fla. 2012) ); Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). The plain and obvious meaning of the language of this statute requires the clerk "immediately after the filing of the petition forms" to "submit such forms to the county supervisor of elections." The language confers no discretion on the clerk to review the recall petition for facial or legal sufficiency. The use of the word "shall" only reinforces that the clerk's responsibility is ministerial.
Our reading is supported by the 2000 legislative amendments to the statute. Prior to that time, the statute expressly authorized the clerk to determine the validity of the petition. In this regard, it read, "[i]f it is determined by the clerk that the petition does not meet requirements of paragraph (b) and therefore is not facially valid, the clerk shall so notify the governing body". See § 100.361(d), Fla. Stat. (2000). This language, however, was deleted. See Ch. 2000-249, § 1 (Eff. Date July 1, 2000). The deletion of the language granting the clerk the authority to review the petition for legal sufficiency must be read as reflecting the legislature's intent to terminate that authority. Bd. of Trs., Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 126 (Fla. 2016) (citation and quotation omitted) ("When a statute is amended to change a key term or to delete a provision, it is presumed that the Legislature intended it to have a meaning different from that accorded to it before the amendment." ).
This reading is consistent with long-standing interpretations of versions of the same and similar recall statutes that, like the subject version, contained no express language giving the clerk authority to review for facial or legal sufficiency. See State ex rel. Landis v. Tedder, 106 Fla. 140, 143 So. 148, 150 (1932) (The city clerk "is vested with no judicial powers to determine the sufficiency of the recall petitions, nor do anything other than comply with the statute."); Jividen v. McDonald, 541 So. 2d 1276, 1279 (Fla. 2d DCA 1989) ("Recognizing that this opinion may require a city official sought to be recalled to file a court action to test the legal sufficiency of the recall petition, we still must agree with the trial court that the city clerk's function is ministerial only. Any change in recall procedure must rest with the legislature."). We do not reach the merits of whether the recall petition is facially or legally sufficient.
Affirmed.