Checks, balances and Tom Paine

Submitted by Adam Kaufman
Legal Analyst
September 26, 2016 1:00 a.m.

Our form of constitutional government relies on a system of checks and balances, with three co-equal branches, executive, legislative and judicial, operating independently but each having the ability to limit the other two.

In the upcoming election for Fernandina Beach City Commissioner actual checks and balances have roiled the waters in the campaign for Commissioner between Mayor Johnny Miller and former Commissioner Eric Childers. The dispute is about actions of the City Clerk, a Florida statute, as amended in 2011 that by its terms may have disqualified Miller and a Florida Supreme Court decision in September 2016 that may be the vehicle for Miller to remain on the ballot.

As reported in the News-Leader, Miller, together with filing the paper work to qualify as a candidate provided a $120 check drawn on his campaign account to City Clerk Caroline Best on August 3, 2016. The qualifying period for candidates ended Friday, August 5, 2016. Two weeks later, Best was notified by the City’s Finance Department that the check had been returned unpaid purportedly because a monthly maintenance fee had been charged against the account and therefore there were insufficient funds. Best is reported to have stated that she notified Miller on August 19, and it is claimed that Miller presented a cashier’s check within 30 hours thereafter. Best apparently has cited Florida Statute 105.031 which applies to “nonpartisan elections” claiming that when Miller provided payment within 48 hours he qualified to be on the ballot.

Florida Statute 105.031 does provide a grace period stating that: “If a candidate’s check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall, the end of qualifying notwithstanding, have 48 hours from the time such notification is received, excluding Saturdays, Sundays, and legal holidays, to pay the fee with a cashier’s check purchased from fund of the campaign account.”

For those who reflexively react: the City Commission election is nonpartisan. End of discussion. Not so quick. The statute appears only to apply to judicial office or the office of school board member. The statute does not reference other nonpartisan elected positions.

Florida Statute Title IX Chapter 99 provides the procedure for qualifying for nomination or election to federal, state, county, or district office. Statute 99.061 (7)(a)(1) which requires a check for a filing fee with a check drawn upon the candidate’s account for other offices, unless that candidate has obtained the required number of signatures on petitions until 2011 had a similar grace period if that filing fee check was returned. The Florida legislature deleted the 48 hour post qualifying grace period provision that remains in Statute 105.031 that year.

The statute requires that: “If a candidate’s check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall have until the end of qualifying to pay the fee with a cashier’s check purchased from funds of the campaign account.” The statute, by its clear language, requires disqualification of a candidate that did not pay the fee by the end of the qualifying period.

The filing for City Commissioner closed on August 5, 2016. Miller made payment after August 19.

In 2014 Laura Rivero Levey was an intended candidate for the Florida House of Representatives. The qualifying period for the 2014 election cycle commenced on Monday, June 16, 2014 and ended on Friday, June 20, 2014. On June 17, 2014, Levey completed the filing of her qualifying papers and tendered a check for the qualifying fee drawn on her campaign account. The check was not honored by Levey’s bank SunTrust, and state officials were not notified of that fact until after the qualifying period had closed. Levey was first notified that her check had not cleared and that she was to be disqualified on July 1. Upon learning that the check had been returned, Levey on July 3, 2014 attempted to tender a cashier’s check for the filing accompanied by a letter from a senior vice president of SunTrust explaining the return of the qualifying check was due to bank error and through no fault of hers. The check was refused because the qualifying period had ended and she was disqualified.

The District Court of Appeal, First District in September 2014 held that Levey’s failure to timely pay the qualifying fee, even though the bank had mistakenly dishonored her original check disqualified her. “The statute at issue is clear and unambiguous. Although we agree with the trial court that this result is harsh, it is mandated by the clear language of the statute. If a candidate’s qualifying check is returned for any reason, the candidate must pay the qualifying fee before the end of the qualifying period. Levey’s check was returned, the reason for that occurring is immaterial, and she failed to cure the deficiency within the time allotted by the statute. This circumstance ‘shall disqualify the candidate.’ Courts are not at liberty to extend, modify, or limit the express and unambiguous terms of a statute,” said the Court of Appeal.

The court noted that the Legislature had specifically eliminated the possibility of a “post-qualifying cure” in 2011.

That was the law until September 15, 2016.

Enter James Barry Wright. Seeking to run for Mayor of Miami Gardens in the City’s August 30, 2016 nonpartisan mayoral election, Wright opened a campaign account with Wells Fargo Bank in February of 2016. Wells Fargo issued Wright a number of “starter checks.” The qualifying period ran from May 26, 2016 through June 2, 2016.

Using one of his “starter checks,” Wright paid the qualifying fee to the city clerk on June 1, 2016. On June 16, 2016, the city clerk was notified by the City’s finance department that Wright’s check had been returned to the City “because the account number on the check could not be located.” On June 20, 2016 Wright was informed by the city clerk that his qualifying check had been returned to the City by the City’s bank. The city clerk initially told Wright he could pay the filing fee (and the $45.00 returned check fee that Wells Fargo had charged the City) with a cashier’s check, Wright was later sent an email from the city clerk stating that Wright had been disqualified. It was undisputed that Wright’s account had ample funds. It was also undisputed that Wells Fargo processed and honored some of Wright’s other “starter checks” used to pay campaign expenses.

When Wright requested an explanation he was referred to 99.061(7) (a) and the First District Court of Appeal decision in Levey requiring disqualification under similar circumstances and was informed that the operative language of the current statute, which eliminated the possibility of a post-qualifying cure period was adopted by the legislature in 2011.

Wright sought review in the courts. The Third District Court of Appeal upheld his disqualification relying on the statutory language and the Levey decision “despite our tremendous distaste for the result.”

The Court of Appeal underscoring the issue’s recurrence certified the following question to be reviewed by the Florida Supreme Court:
Does section 99.061(7) (a) 1. require a candidate’s disqualification when the candidate’s qualifying fee check is returned by the bank after the expiration of the qualifying period due to a banking error over which the candidate has no control?

The Supreme Court accepted jurisdiction and ruled on September 15, 2016 reversing the Third District Court of Appeal.

The Court relying upon the registration and election provision of the Florida Constitution, Article VI, that has been interpreted to ban “unreasonable or unnecessary restraints on the elective process” stated it was “convinced beyond a reasonable doubt that disqualifying a candidate who did everything right due to an error of a third party bank that was totally beyond the control of the candidate is both unreasonable and unnecessary, as well as plainly irrational” and found the law unconstitutional.

The Court concluded “that this law unconstitutionally erects a barrier that is an unnecessary restraint on one’s right to seek elective office. This unnecessary and irrational barrier, which has already in the case of Levey completely deprived the citizens of an election, can no longer stand. Unreasonable and unnecessary restrictions on the elective process are a threat to our republican form of government. At their worst, they cloak tyranny in the garb of Democracy.”

For good measure, in support of its position the Court quoted Tom Paine: “The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case.”

The Court ordered a new election in Miami Gardens, Wright’s name is to appear on the November ballot. The previous statute as it existed prior to 2011 is now the law. A candidate if a check is returned by a bank “shall, the end of qualifying notwithstanding, have 48 hours from the time such notification is received, excluding Saturdays, Sundays, and legal holidays, to pay the fee with a cashier’s check purchased from funds of the campaign account.”

While the facts in Levey and Wright addressed banking errors over which the candidate had no control causing return of the bank check, there is no requirement in the statute as codified prior to 2011 that the post qualifying 48 hour cure period is dependent upon or must be the result of a blameless error or the absence of fault on the part of the candidate.

Editor’s Note: Adam Kaufman is a semi-retired mediator and attorney. A graduate of Northwestern University School of Law, he was born and raised in the Bronx, NY. and attended NYC public schools, including Stuyvesant High School. He still serves on the American Arbitration Association Labor Panel. From 1994 – 2005, he was Regional Director for the New York State Public Employment Relations Board.