Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

TYRON FRANCOIS,

as candidate for Broward County Commission District 2,

Appellant,

v.

JENNIFER BRINKMANN, an individual, RICO PETROCELLI, an

individual, and DR. BRENDA C. SNIPES, in her official capacity as

Supervisor of Elections of Broward County, Florida,

Appellees.

No. 4D14-2739

[September 10, 2014]

Appeal of an non-final order from the Circuit Court for the Seventeenth

Judicial Circuit, Broward County; Sandra Perlman, Judge; L.T. Case No.

CACE14-012324 (09).

Mark Herron, J. Brennan Donnelly, and Robert J. Telfer III of Messer

Caparello, P.A., Tallahassee, and Robert C.L. Vaughan of Kim Vaughan

Lerner, LLP, Fort Lauderdale, for appellant.

Daniel S. Weinger, William R. Scherer and Michael E. Dutko, Jr. of

Conrad & Scherer, LLP, Fort Lauderdale, for appellees.

PER CURIAM.

This appeal arises from a trial court order declaring that Tyron Francois

was not a qualified write-in candidate for the office of Broward County

Commissioner for District 2 and opening the Democratic Primary for that

office to all registered District 2 voters. At issue is whether a statute can

impose a residency requirement for placement on the ballot that differs

from the Florida Constitution’s residency requirement for the office of

county commission. We agree with Francois that section 99.0615, Florida

Statutes (2014), is unconstitutional, and the circuit court improperly

removed him from the ballot for the general election. We also agree that

the circuit court’s injunction opening the Democratic primary to all

registered District 2 voters was improper.

Factual Background and Trial Court Proceedings

Five candidates for Broward County Commissioner for District 2, all

Democrats, qualified to have their names printed on the ballot for the

August 2014 primary election. No Republican or Independent candidates

filed qualifying papers. Francois, a sixth candidate and also a Democrat,

filed qualifying paperwork to run as a write-in candidate. As a duly

qualified write-in candidate, a blank space on the ballot for the November

2014 general election would have been provided to allow voters to write in

Francois’s name as their vote for the county commissioner to serve District

2.1 Francois’s status as a qualified write-in candidate would constitute

“opposition,” as that term has been interpreted in relation to the Universal

Primary Amendment (UPA), Article VI, section 5(b) of the Florida

Constitution, thus requiring that the primary election be closed.2 See Telli

v. Snipes, 98 So. 3d 1284 (Fla. 4th DCA 2012).

Appellee Brinkmann, a resident voter, filed a complaint in the circuit

court, alleging that Francois was not properly qualified to be a write-in

candidate because he did not physically live within the boundaries of the

district as required by section 99.0615, Florida Statutes (2014).

Brinkmann also sought an order forcing the primary election to be opened

to all voters pursuant to the UPA. Francois conceded below, as he does

on appeal, that he did not live in the district at the time he filed papers to

qualify as a write-in candidate. However, he contends that section

99.0615 is facially unconstitutional because it conflicts with the Florida

Constitution and violates equal protection. After an evidentiary hearing,

the circuit court found that section 99.0615 is constitutional and

disqualified Francois as a write-in candidate. The circuit court also

entered an injunction that opened the primary election to all registered

voters.3

1 Pursuant to section 99.061(4)(b), Florida Statutes (2014), write-in

candidates are granted write-in access on the ballot for the general election,

irrespective of party affiliation. § 99.061(4)(b), Fla. Stat. (2014).

2 The UPA states: “If all candidates for an office have the same party affiliation

and the winner will have no opposition in the general election, all qualified

electors, regardless of party affiliation, may vote in the primary elections for that

office.” Art. VI, § 5(b), Fla. Const.

3 The primary election was conducted on August 26, 2014. While this Court

ordered an expedited briefing schedule, the circuit court’s order had the effect of

removing Francois as a write-in candidate in the general election to be held on

November 4, 2014. As it currently stands, the primary election for the Broward

County Commissioner District 2 will be conducted concurrently with the general

election on November 4, 2014, and will be open to all voters.

2

Legal Analysis

Francois argues that section 99.0615 is facially unconstitutional

because it conflicts with the language of the Florida Constitution,

according to supreme court interpretation, and constitutes a denial of

equal protection. Francois also contends that because the circuit court’s

decision to issue an injunction was based on its decision to disqualify him,

an error in disqualifying him makes the injunction to open the primary

improper. After reviewing the circuit court’s order, we are satisfied that

the circuit court’s decision to disqualify Francois as a candidate was the

primary predicate supporting its decision to issue the injunction.

Because the issue of disqualification in this case involves interpretation

of the Florida Constitution, our review is de novo. Browning v. Florida

Hometown Democracy, Inc. PAC, 29 So. 3d 1053, 1063 (Fla. 2010).

Statutes regulating the conduct of elections come to the court with “an

extremely strong presumption of validity.” Pasco v. Heggen, 314 So. 2d 1,

3 (Fla. 1975) (citing Bodner v. Gray, 129 So. 2d 419, 421 (Fla. 1961)).

Moreover, “only unreasonable or unnecessary restraints on the elective

process are prohibited.” Id. (citing State v. Dillon, 32 So. 383 (Fla. 1893)).

The Florida Supreme Court has explained that in order to hold a legislative

act unconstitutional, courts “must be convinced beyond a reasonable

doubt that the act contravenes the superior law.” Mairs v. Peters, 52 So.

2d 793, 795 (Fla. 1951).

The crux of Francois’s argument is that section 99.0615 is

unconstitutional because the timing of its residency requirement for write-

in candidates at the time of qualifying conflicts with the timing of the

residency requirement for county commission candidates at the time of

election as determined by the Florida Supreme Court in decisions

interpreting Article VIII, section 1(e) of the the Florida Constitution.

Article VIII, section 1(e) of the Florida Constitution states:

Except when otherwise provided by county charter, the

governing body of each county shall be a board of county

commissioners composed of five or seven members serving

staggered terms of four years. After each decennial census

the board of county commissioners shall divide the county

into districts of contiguous territory as nearly equal in

population as practicable. One commissioner residing in each

district shall be elected as provided by law.

3

Art. VIII, § 1(e), Fla. Const. (emphasis added). In State v. Grassi, 532 So.

2d 1055, 1056 (Fla. 1988), our supreme court construed the constitutional

provision regarding the residency requirement for county commissioners

and stated “[t]he Florida Constitution requires residency at the time of

election.” (emphasis added). It then held unconstitutional a statute which

required a candidate for county commissioner to live in the district in

which he sought to run at the time of qualification for the office.

Section 99.0615, a one-sentence statute applicable to only write-in

candidates, states that: “At the time of qualification, all write-in candidates

must reside within the district represented by the office sought.” §

99.0615, Fla. Stat. (2014) (emphasis added). Thus, Grassi addressed an

identical claim as is present in this case.

In addition to Grassi, Francois argues that several cases have

consistently held that “[n]o statute can add to or take from the

qualifications for office set forth in the Constitution.” Norman v. Ambler,

46 So. 3d 178, 183 (Fla. 1st DCA 2010); see also Wilson v. Newell, 223 So.

2d 734, 735-36 (Fla. 1969) (holding, under a previous version of the

Florida Constitution, that a statute imposing an additional residency

qualification for candidates for county commission was facially

“unconstitutional, invalid and ineffective because it prescribes

qualifications for the office of County Commission in addition to those

prescribed by the Constitution”).

In view of the supreme court’s decision in Grassi, we are “convinced

beyond a reasonable doubt that the act contravenes the superior law.”

Mairs, 52 So. 2d at 795. We hold that section 99.0615, Florida Statutes

(2014), is facially unconstitutional because the timing of its residency

requirement for write-in candidates conflicts with the timing of the

residency requirement for county commission candidates as established

by Article VIII, section 1(e) of the Florida Constitution. Because we

determine that section 99.0615 is facially unconstitutional, we do not

address the equal protection argument raised. Thus, we reverse the circuit

court’s order disqualifying Francois as a valid write-in candidate for office.

We also reverse the injunction entered by the trial court opening the

primary election to all voters. We remand for further proceedings

consistent with this opinion.

Reversed and remanded.

WARNER, GROSS and CONNER, JJ., concur.

4

* * *

Not final until disposition of timely filed motion for rehearing.

5