In re Koretsky

Full title: IN RE THE RECALL OF BARNEY KORETSKY, AS MAYOR OF PEMBROKE PARK, FLORIDA

Court: District Court of Appeal of Florida, Fourth District

Date published: Apr 26, 1989

541 So. 2d 1362 (Fla. Dist. Ct. App. 1989)

Opinion

No. 89-0488.

April 26, 1989.

Appeal from the Circuit Court, Broward County, Miette K. Burnstein, J.

Catherine Rafferty of Miller, Squire Rafferty, Chartered, Fort Lauderdale, for appellant Barney Koretsky.

Emilie M. Tracy of Platt, Haas, Landsman and Gabriel, P.A., Fort Lauderdale, for appellee Sarah Phelps, Chairwoman of the Recall Committee.

Samuel S. Goren of Josias Goren, P.A., Fort Lauderdale, for appellee Jane Carroll, Supervisor of Elections of Broward County.

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intent of the legislature that recall procedures be uniform statewide and that any municipal laws to the contrary stand repealed.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:

1 The provisions of section 100.361 were originally enacted into law in three (3) separate sections, section 1.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.

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

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).

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.