Terrence Boatman v. Thomas "Tommy" Hardee, in his official capacity etc.

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-2872

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TERRENCE BOATMAN,

Appellant,

v.

THOMAS “TOMMY” HARDEE, in

his official capacity as the

Supervisor of Elections for

Madison County, Florida and

SUSIE BISHOP WILLIAMSON, an

individual and candidate for the

office of member of the School

Board of Madison County,

Florida, for District 1,

Appellees.

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On appeal from the Circuit Court for Madison County.

Andrew J. Decker, III, Judge.

August 23, 2018

WOLF, J.

Appellant, Terrence Boatman, challenges an emergency

declaratory judgment finding he did not properly qualify as a

candidate for election to the school board in Madison County

because he paid his qualifying fee using a cashier’s check

purchased with funds from his campaign account rather than a

check drawn upon his campaign account. We find section

105.031(5)(a)1., Florida Statutes (2017), is unambiguous and

required a check drawn upon his campaign account. Thus, we

affirm.

FACTS

Appellee Thomas “Tommy” Hardee, who is the Supervisor of

Elections for Madison County, filed a complaint for emergency

declaratory relief against appellant and Susie Bishop Williamson,

both of whom sought to run for the office of member of the School

Board of Madison County. The supervisor sought a declaratory

judgment as to whether appellant’s decision to pay his qualifying

fee using a cashier’s check disqualified him because it did not

meet the statutory requirement of a “check drawn upon the

candidate’s campaign account.” § 105.031(5)(a)1., Fla. Stat. The

supervisor attached a copy of the check:

The trial court conducted an evidentiary hearing. Appellant

testified he purchased the cashier’s check with funds drawn from

his campaign account. He did so because his campaign account

was relatively new and he did not want to pay with a “starter

check.” He turned in the cashier’s check with his qualifying

papers several days before the filing deadline because he was

going on a cruise. He stated he was given a “high degree of

certainty” by the deputy supervisor of elections who accepted his

papers that he had met all of the requirements.

While appellant was on the cruise, the supervisor of elections

notified appellant that he needed to submit a check from the

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campaign account. However, appellant stated that was not

possible because he was the only person designated to write

checks on the campaign account. At the supervisor’s request,

appellant had someone submit a personal check, though

appellant knew that would not be sufficient. Thereafter,

appellant’s status on the supervisor of elections’ website briefly

reflected that he was “qualified,” but then his status changed

back to “filed.” The supervisor of elections told appellant he

changed the status because he never should have qualified him

as a candidate. When appellant returned from the trip, the

qualifying period had ended. Regardless, at the supervisor’s

request, he brought a check from the campaign account.

The supervisor submitted into evidence an affidavit from the

deputy supervisor who accepted appellant’s qualifying papers.

She stated she “briefly reviewed” appellant’s papers when she

time-stamped them. Appellant stated he was going on vacation

and asked “if there was anything else that he needed to turn in

for qualifying.” She responded, “no.”

The supervisor’s counsel agreed that appellant did

everything he needed to do to qualify except submit a check from

the campaign account. He did not dispute appellant’s claim that

he purchased the cashier’s check with funds from the campaign

account. However, the supervisor argued appellant did not satisfy

section 105.031(5)(a)1., Florida Statutes, which requires a

candidate for the school board to submit a “check drawn upon the

candidate’s campaign account,” and only permits the candidate to

use a cashier’s check “[i]f a candidate’s check is returned by the

bank for any reason,” which was not the case here. Because the

statute set a bright line rule for paying the filing fee, he argued

strict compliance was required.

Appellant conceded a “cashier’s check, by definition, is a

check drawn on bank funds,” not upon his campaign account.

However, he argued that because he purchased the cashier’s

check with funds from the campaign account, the check was

technically funded through his campaign account. He further

reasoned that if a cashier’s check was an acceptable form of

payment after a candidate issued a bad check that was returned

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by the bank, a cashier’s check should be an acceptable form of

payment at the outset.

The trial court orally found appellant failed to qualify

because strict compliance with the statute was required, noting

this statute was based on the need to keep a clear paper trail for

contributions and expenditures of campaign funds.

The trial court entered a final declaratory judgment finding

appellant failed to qualify as a candidate. The court made factual

findings consistent with appellant’s testimony, including that the

cashier’s check was purchased with funds from the campaign

account, and that the deputy supervisor told him he did not need

to turn in anything else to qualify. Regardless, the court found

the qualifying fee was an express statutory requirement, not a

mere technical requirement; thus, “substantial compliance” was

not enough. The court also found responsibility to comply with

the qualifying requirements lies with the candidate, not the

supervisor of elections. A cashier’s check by definition is drawn

from the bank’s funds. Thus, it does not meet the requirement of

a check drawn upon the campaign account. As such, the court

found appellant failed to qualify and instructed that appellant’s

name not appear on the ballot for the primary race to be

conducted on August 28, 2018.

ANALYSIS

Appellant argues section 105.031(5)(a)1. is ambiguous as to

whether a candidate may submit a cashier’s check without first

submitting a check drawn upon the campaign account. Thus, he

asserts his cashier’s check substantially complied with the

statute, and the trial court’s interpretation of the statute

requiring hypersensitive compliance led to an absurd result. He

also argues that barriers to qualification should be construed in

favor of ballot access, and he reasonably relied on the deputy

supervisor’s assurance that his application was sufficient. The

supervisor of elections disagrees and also argues the trial court

correctly found that a cashier’s check is not a check drawn upon

the campaign account.

We find the statute is unambiguous and its plain language

should be applied here. Thus, we affirm and specifically address

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appellant’s arguments regarding the doctrines of substantial

compliance and absurd result.

I. Pertinent Statutes

Questions of statutory interpretation are subject to de novo

review. Borden v. E.-European Ins. Co., 921 So. 2d 587, 591 (Fla.

2006).

Because appellant seeks to run for the office of school board

member, the operative statute in this case is section

105.031(5)(a)1.:

(5) Items required to be filed.--

(a) In order for a candidate for judicial office or the office

of school board member to be qualified, the following

items must be received by the filing officer by the end of

the qualifying period:

1. Except for candidates for retention to judicial office, a

properly executed check drawn upon the candidate’s

campaign account in an amount not less than the fee

required by subsection (3) or, in lieu thereof, the copy of

the notice of obtaining ballot position pursuant to s.

105.035. 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 funds of the campaign

account. Failure to pay the fee as provided in this

subparagraph shall disqualify the candidate.

§ 105.031(5)(a)1., Fla. Stat. (2017) (emphasis added).

Appellant notes that while there is not an abundance of case

law interpreting section 105.031(5)(a)1., there is more case law

interpreting section 99.061(7)(a)1., Florida Statutes, which

applies broadly to filing fees for candidates for federal, state,

district, or county offices other than judicial or school board

member. § 99.061(1)-(3), Fla. Stat. This statute includes nearly

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identical language as section 105.031 with regards to payment of

the qualifying fee:

(7)(a) In order for a candidate to be qualified, the

following items must be received by the filing officer by

the end of the qualifying period:

1. A properly executed check drawn upon the candidate’s

campaign account in an amount not less than the fee

required by s. 99.092 or, in lieu thereof, as applicable,

the copy of the notice of obtaining ballot position

pursuant to s. 99.095. The filing fee for a special district

candidate is not required to be drawn upon the

candidate's campaign account. 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 funds of the campaign account. Failure to pay the

fee as provided in this subparagraph shall disqualify the

candidate.

§ 99.061(7)(a)1., Fla. Stat. (2010) 1 (emphasis added).

II. Whether section 105.031(5)(a)1. is Ambiguous

“When the language of the statute is clear and unambiguous

and conveys a clear and definite meaning, there is no occasion for

resorting to the rules of statutory interpretation and

construction; the statute must be given its plain and obvious

meaning.” Clines v. State, 912 So. 2d 550, 555-56 (Fla. 2005)

1 We refer to the 2010 version of this statute because it was

revived by operation of law when the supreme court determined

the more recent version of this statute passed in 2011 was

unconstitutional. See Wright v. City of Miami Gardens, 200 So. 3d

765 (Fla. 2016).

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(quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159

(1931)). “When necessary, the plain and ordinary meaning of

words can be ascertained by reference to a dictionary.” Reform

Party of Fla. v. Black, 885 So. 2d 303, 312 (Fla. 2004) (quoting

Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So. 2d

201, 204–05 (Fla. 2003)).

Appellant argues “ambiguity exists as to whether it is

permissible to pay the qualifying fee with a cashier’s check

purchased with campaign account funds without first attempting

to pay with a check drawn upon the campaign account.” 2

We find section 105.031(5)(a)1. clearly sets forth a process. It

requires that a candidate “must” submit “by the end of the

qualifying period” a “check drawn upon the candidate’s campaign

account.” § 105.031(5)(a)1., Fla. Stat. Then, only “[i]f a

candidate’s check is returned by the bank,” the filing officer “shall

immediately notify the candidate” of this return, and the

candidate shall have “48 hours from the time such notification is

received” to submit “a cashier’s check purchased from funds of the

campaign account.” Id. (emphasis added).

The word “if” is conditional. It is defined as “in the event

that; allowing that; on the assumption that; on condition that.” If,

Merriam-Webster, http://www.merriam-webster.com/dictionary/if

(last visited Aug. 15, 2018) (emphasis added). By conditioning

that a cashier’s check may be used “[i]f the candidate’s check is

returned by the bank,” and by calculating the time period for

filing a cashier’s check from the time the candidate receives

notice of the returned check, the statute clearly contemplates a

2 We find the trial court correctly determined that a cashier’s

check is not a “check drawn upon the candidate’s campaign

account” as required by section 105.031(5)(a)1., Florida Statutes,

because a cashier’s check is drawn upon the bank. See Warren

Fin., Inc. v. Barnett Bank of Jacksonville, N.A., 552 So. 2d 194,

197 (Fla. 1989) (“[A] cashier’s check is payable from the issuing

bank’s own account.”); State of Pa. v. Curtiss Nat’l Bank of Miami

Springs, Fla., 427 F.2d 395, 398 (5th Cir. 1970) (“[A] cashier’s

check is . . . drawn by a bank upon itself . . . .”). We also note the

statute itself draws a distinction between the two types of checks.

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process by which a cashier’s check may only be used on the

condition that the campaign check is returned by the bank. Thus,

there is no ambiguity.

III. Applicability of the Doctrines of Substantial Compliance and

Absurd Result

Appellant argues the trial court erred by interpreting section

105.031(5)(a)1. to require total, hypersensitive compliance. He

reasons that because he paid with a secured form of payment

that is expressly recognized by the statute, he substantially

complied with its requirements. Thus, disqualifying him is an

absurd result. He relies primarily on the supreme court’s

decisions in State ex rel. Siegendorf v. Stone, 266 So. 2d 345 (Fla.

1972), and Wright v. City of Miami Gardens, 200 So. 3d 765 (Fla.

2016).

In Siegendorf, a judicial candidate filled out an oath of office

stating he was running for group “3,” but failed to specify that he

was running for “county” judge. 266 So. 2d at 346. After the

qualifying period ended, another candidate alleged the oath did

not meet the statutory requirement that a candidate’s oath

should include the “title of the office” for which he is a candidate.

Id. at 347.

The supreme court rejected this argument. It reasoned that

“[l]iteral and ‘total compliance’ with statutory language which

reaches hypersensitive levels and which strains the quality of

justice is not required to fairly and substantially meet the

statutory requirements to qualify as a candidate for public office.”

Id. at 346 (emphasis added). While it would have been preferable

for the candidate to clarify he was running for “county judge” on

the form, the Secretary of State was obviously able to ascertain

which position was involved because he charged the candidate

the correct fee amount for the county judge race. Id. at 347. “So

long as basic requirements have been met,” the supreme court

found the appropriate time for changes or corrections to the oath

“was at the qualification desk,” where the corrections “could very

simply have been added,” rather than permitting a competitor to

wait until after the qualifying period had ended to bring this

challenge. Id. (emphasis added). (Courts have gone on to refer to

this doctrine set forth in Siegendorf as the “substantial

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compliance” doctrine. See Browning v. Young, 993 So. 2d 64, 67

(Fla. 1st DCA 2008) (“Substantial compliance, as the term is used

in Siegendorf, is the functional equivalent of legal compliance.”)).

In a footnote, however, the Siegendorf court distinguished

that it reached a different result in cases that “dealt with a lack

of a basic qualifying requirement, i.e., paying a proper fee, the

filing of necessary qualifying papers and registering to vote.” Id.

at 347 n.3 (emphasis added). The court cited State ex rel. Taylor

v. Gray, 25 So. 2d 492, 496 (Fla. 1946), which found a candidate

who paid less than the required amount for a qualifying fee failed

to qualify, even though he paid the amount that he was

instructed to pay by the Secretary of State’s office, because

compliance with the qualifying statutes “constitutes a condition

precedent” to becoming a candidate and the statute placed

“responsibility for compliance” on the candidate.

Appellant argues the case at hand is analogous to Siegendorf

because he substantially complied with the fee statute by

submitting a campaign check paid for with funds from his

campaign account. However, appellant seems to overlook the fact

that Siegendorf distinguished that the substantial compliance

doctrine does not apply to basic qualifying requirements, such as

paying a proper fee.

Appellant also argues the trial court’s interpretation of the

statute requiring hypersensitive compliance led to an absurd

result. He relies on Wright, 200 So. 3d 765, in which the supreme

court suggested that requiring strict compliance with the fee

provision in section 99.061 led to an absurd result in that case,

though the court declined to apply the absurd result doctrine

because it found the statute was not ambiguous. Appellant asks

this court to follow Wright to the extent that it found strict

compliance with a fee statute may create an absurd result.

Wright timely paid his qualifying fee with a “starter check”

from his newly opened campaign account, but it was returned by

the bank due to a bank error after the qualifying period had

ended. Wright, 200 So. 3d at 767. Section 99.061(7)(a)1. had

previously permitted a candidate a 48-hour window to provide a

cashier’s check in that situation, even if the qualifying period had

ended. Id. at 772-73. However, the Legislature struck that

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language in 2011. The version of the statute applicable in Wright

stated that if the campaign check was “returned by the bank for

any reason,” the candidate had only “until the end of qualifying to

pay the fee with a cashier’s check.” Id. at 772 (emphasis added)

(citing § 99.061(7)(a)1., Fla. Stat. (2016)). Because the check was

not returned until after the end of the qualifying period, Wright

had no opportunity to submit a cashier’s check. Regardless, he

was disqualified. Id. at 767.

The Third District found the clear and unambiguous

language of the statute must be applied despite the harsh result.

Id. at 769. It agreed with this court’s decision in Levey v. Detzner,

which reached the same conclusion on nearly identical facts. Id.

(citing Levey v. Detzner, 146 So. 3d 1224 (Fla. 1st DCA 2014)

(finding candidate whose check was returned by bank after the

qualifying period had ended was disqualified per the clear and

unambiguous language of the statute)).

The supreme court in Wright acknowledged it was “alluring”

to apply the absurd result doctrine in that case because a

candidate who “did everything right is disqualified due to a

banking error beyond the candidate’s control.” Wright, 200 So. 3d

at 772. However, the court found the language of that statute was

clear and unambiguous in requiring payment before the end of

the qualifying period, regardless of the reason the check was

returned by the bank. It noted the Legislature must have

intended to create a bright-line rule when it removed the 48-hour

cure period from the statute. Id. at 772-73. Thus, the court found

the absurd result doctrine was inapplicable and the plain and

unambiguous language of the statute must be applied, despite its

harsh result. Id.

However, the court concluded this statute was

unconstitutional because its provision disqualifying a candidate

whose check was returned through no fault of his or her own was

arbitrary and without a rational basis. Id. at 776-79. Thus, the

court revived the prior version of the statute with the 48-hour

window, giving Wright a chance to qualify with a cashier’s check.

Id. at 778-79.

Appellant acknowledges the Wright court did not apply the

absurd result doctrine because it found the statute was not

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ambiguous. 3 However, he relies on the court’s suggestion that it

was, in fact, absurd to disqualify the candidate in that case.

Similarly here, he asks this court to find it would be an absurd

result to disqualify appellant for paying his qualifying fee with a

secured payment instrument that is expressly recognized by the

statute. 4

Appellant seems to overlook a key distinction between this

case and Wright. The Wright court suggested the result in that

case was absurd because a candidate who “did everything right is

disqualified due to a banking error beyond the candidate’s

control.” Wright, 200 So. 3d at 772. Here, appellant did not “do

everything right” and the error was wholly within his control.

The statute expressly required him to provide a check drawn

upon his campaign account, and he used a cashier’s check

instead. His hesitancy to use a starter check is understandable

3 In his reply brief, appellant argues the Wright court’s

determination that section 99.061(7)(a)1., Florida Statutes, was

not ambiguous is not binding on this court, even though section

105.031(5)(a)1., Florida Statutes, contains similar language,

because Wright considered a different aspect of the statute. He is

correct. Wright considered whether section 99.061(7)(a)1. was

ambiguous as to whether a candidate whose check was returned

due to bank error after the end of the qualifying period could still

submit a cashier’s check. Wright, 200 So. 3d at 771-72. In

contrast, the issue here is whether a candidate may submit a

cashier’s check without first using a campaign check under

section 105.031(5)(a)1. Thus, Wright is not controlling here on the

question of ambiguity.

4 Even though the absurd result doctrine may be applied

under rare circumstances when a statute is unambiguous, “the

absurdity doctrine is not to be used as a freewheeling tool for

courts to second-guess and supplant the policy judgments made

by the Legislature. It has long been recognized that the absurdity

doctrine ‘is to be applied to override the literal terms of a statute

only under rare and exceptional circumstances.’” State v. Hackley,

95 So. 3d 92, 95 (Fla. 2012) (quoting Crooks v. Harrelson, 282

U.S. 55, 60 (1930)).

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considering that in Wright, the candidate’s starter check was

returned by the bank through no fault of the candidate. However,

unlike in Wright, here the applicable statute provided a 48-hour

cure period during which appellant could have provided a

cashier’s check notwithstanding the end of the qualifying period

if the bank returned his starter check. The supervisor of elections

timely notified appellant of his error, but he was unable to correct

it because he chose to leave the country during the last week of

the qualifying period without authorizing anyone else to write a

check from his campaign account. Nothing that happened in this

case was outside of appellant’s control.

The supervisor of elections argues that a strict interpretation

of this statute does not lead to an absurd result because the

Legislature had good reason for requiring candidates to use

campaign checks whenever possible. Doing so provides a “paper

trail” to ensure all expended funds came from the campaign

account. Wright, 200 So. 3d at 782 (Polston, J., dissenting)

(“Because section 99.061(7)(a)1. serves the legitimate government

purpose of ensuring that candidates for office lawfully pay the

required qualifying fee with campaign funds, it passes the

rational basis test and is, therefore, constitutional.”).

The supervisor notes that a similar federal provision

requires political candidate committees to pay expenditures only

through a “check drawn on” the campaign account. See 52 U.S.C.

§ 30102(h)(1). The Federal Election Commission explained in an

advisory opinion that these requirements “seem designed to

support the general statutory intention of the Act and the

regulations to assure a complete and reliable ‘paper trail’ for

record keeping, disclosure and audit purposes.” Op. Fed. Elec.

Comm’n 1993-04 n.2. See also Op. Fed. Elec. Comm’n 1975-10 at

1-2 (advising that while “[i]t is clear that the statute requires all

contributions and all expenditures to pass through the checking

account at the designated campaign depository,” transferring

funds from a checking to a savings account was permissible so

long as the campaign “compli[ed] with the reporting

requirements . . . that all contributions and all expenditures flow

through the checking account”). As such, the supervisor argues

that requiring candidates to initially use a campaign check to pay

the qualifying fee is not an absurd result. We agree.

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In summation, we find section 105.031(5)(a)1. is

unambiguous, and neither the substantial compliance doctrine

nor the absurd result doctrine entitles appellant to relief. Thus,

we AFFIRM.

LEWIS and RAY, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Ronald G. Meyer, Jennifer S. Blohm, Lynn C. Hearn, and Major

R. Thompson of Meyer, Brooks, Demma and Blohm, P.A.,

Tallahassee, for Appellant.

George T. Reeves, Madison, for Thomas “Tommy” Hardee,

Appellee.

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