CYNTHIA BURTON vs CRAIG OATES, AS CHAIR OF THE RECALL COMMITTEE

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CYNTHIA BURTON,

Appellant,

v. Case No. 5D23-1573

LT Case No. 2023-CA-8

CRAIG OATES, AS CHAIR OF THE

RECALL COMMITTEE,

Appellee.

________________________________/

Opinion filed June 12, 2023

Appeal from the Circuit Court

for Putnam County,

Kenneth J. Janesk, Judge.

Meagan L. Logan, of Douglas &

Douglas, Lake City, for Appellant.

Marc J. Randazza and Richard J.

Mockler, of Randazza Legal Group,

PLLC, Tampa, for Appellee.

LAMBERT, C.J.

On January 14, 2021, Appellant, Cynthia Burton, an elected city

commissioner for the city of Crescent City, attended a regularly scheduled

meeting of the city commission. The agenda for the meeting stated that the

“meeting will be conducted in a virtual environment due to the recent

escalating COVID-19 outbreaks” but provided a specific description of the

procedures to be followed for any member of the public who wished to attend

or speak at the meeting.

Approximately twenty-three months after this meeting, Appellee, Craig

Oates, filed a petition under section 100.361, Florida Statutes (2022), to

recall Burton as city commissioner. The petition designated Oates as the

chair of the recall committee and alleged that at the aforementioned January

14, 2021 commission meeting, Burton committed an act of malfeasance

under section 100.361(2)(d)1., Florida Statutes, when she, the other city

commissioners, the mayor, and the city manager met “in private, behind

locked doors at . . . City Hall, depriving members of the general public from

attending the meeting in person as required under Florida[’s Government-in-

the-Sunshine L]aw.” The petition stated that “[d]uring the meeting, a motion

for an ordinance to abolish the Crescent City Police Department was made.”

In response to the recall petition, Burton promptly filed suit in circuit

court. She sought a declaratory judgment that the grounds alleged in the

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recall petition did not constitute “malfeasance” under section 100.361(2)(d),

Florida Statutes, and that the recall petition to remove her from office was

thus legally insufficient. Burton also sought a judicial determination that

Oates, as recall committee chair, did not follow the statutory procedures

outlined in section 100.361 when he filed the recall petition directly with the

Putnam County Supervisor of Elections instead of the Clerk for the City of

Crescent City, thus rendering the petition invalid. Based on these alleged

violations, Burton also asked the trial court to enjoin the recall proceedings.

Oates answered the complaint, admitting, among other things, that he

filed the recall petition with the director of services for the Supervisor of

Elections of Putnam County. The trial court advanced the case on its

calendar and promptly held an evidentiary hearing on Burton’s complaint. By

the time of the hearing, the election on whether to recall Burton had been set

for Tuesday, May 30, 2023.

The trial court denied Burton’s request for declaratory and injunctive

relief. In its written order, the court found that the recall petition was “legally

sufficient.” The court also found that while it was “clear” from the evidence

that a Ms. Karen Hayes “did and still does perform the duties of the ‘Crescent

City Clerk,’” it was nevertheless permissible under section 100.361 for Oates

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to have filed the recall petition directly with the Putnam County Supervisor of

Elections, instead of Ms. Hayes.

Burton has timely appealed. Due to the abbreviated time frame before

the election, an emergency panel was assigned on May 26, 2023, that issued

an order allowing the May 30th election to go forward; it also stayed the result

of the election and prohibited Burton’s removal from office pending

disposition of this appeal. For the following reasons, we reverse the order

denying Burton relief.

ANALYSIS

Burton first argues that the trial court erred in denying her relief

because, procedurally, Oates failed to comply with the requirement of

section 100.361, Florida Statutes, by failing to file the recall petition with the

Clerk of Crescent City. We agree.

Section 100.361 is succinctly titled “Municipal recall” and sets forth the

procedure by which a city commissioner of a municipality may be recalled

from office by the electors of the municipality. The statute carefully

delineates: (1) the content requirements for the recall petition; (2) the

requisite number of signatures for the petition based upon the number of

registered electors in the municipality; (3) that there be a designated recall

committee, with a specific person named as the chair who acts on behalf of

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the committee; (4) the limited, enumerated grounds for the removal of an

elected official and the requirement that the grounds for recall be set forth in

the petition; and (5) the process of obtaining electors’ signatures on the recall

petition. See § 100.361(2)(a)–(e), Fla. Stat. (2022).

Subsection 100.361(2)(f) addresses the process of filing the recall

petition forms. Specifically, the chair of the recall committee “shall file the

signed petition forms with the auditor or clerk of the municipality . . . , or his

or her equivalent.” § 100.361(2)(f). The trial court found in its order that

“[t]he testimony was clear that [an individual by the name of] Karen Hayes is

absolutely the Clerk of Crescent City, now in name, but since 2021 in job

duties.” Equally clear was that Oates did not file the recall petition with Ms.

Hayes. Instead, as previously mentioned, he filed it with the office of the

Putnam County Supervisor of Elections.

Burton argued below, as she does here, that Oates’s filing of the recall

petition with the Supervisor of Elections violated the plain language of the

statute. The trial court disagreed, explaining that filing the recall petition with

the County Supervisor of Elections was permissible under section

100.361(2)(f) because the statute was silent as to whether only one person

can serve as the municipality’s “auditor, clerk, or equivalent” and that

“common sense would say that there is no prohibition on multiple clerks.”

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Thus, the issue before our court is one of statutory interpretation—

whether the trial court correctly interpreted section 100.361(2)(f) to permit a

County Supervisor of Elections to separately be the “equivalent” of the clerk

of a municipality in a recall election when there is an existing clerk of the

municipality. We review statutory interpretation de novo. Cohen v. Autumn

Vill., Inc., 339 So. 3d 429, 430 (Fla. 1st DCA 2022) (citing Ag. for Health Care

Admin. v. Best Care Assurance, LLC, 302 So. 3d 1012, 1015 (Fla. 1st DCA

2020)). The Florida Supreme Court has made very clear that, for purposes

of statutory interpretation, courts are to apply the “supremacy-of-text

principle”—namely, that “[t]he words of a governing text are of paramount

concern, and what they convey, in their context, is what the text means.”

Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020)

(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 56 (2012)).

Here, the plain text of section 100.361(2)(f) does not provide for

multiple persons to act as the auditor or clerk of the municipality. The text

provides that the recall petition is to be filed with the auditor or clerk of the

municipality and, if there is no clerk or auditor, with someone who is acting

as their “equivalent.” As found by the trial court, there was a clerk of the

municipality—Karen Hayes. Moreover, the Legislature set forth in section

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100.361 very distinct and separate duties for the clerk of a municipality and

the County Supervisor of Elections in the recall election process. See §

100.361(2)(g), (3). Had the Legislature also intended the County Supervisor

of Elections to act as the “equivalent” of the clerk of the municipality during

a recall election, it could have easily, clearly done so. It did not.

We further reject Oates’s separate argument that the trial court’s order

should be affirmed because the recall committee substantially complied with

section 100.361 by filing the recall petition with the Supervisor of Elections.

First, section 100.361(2)(f) provides that the petition shall be filed with the

municipality’s auditor, clerk, or their equivalent. “Shall” is mandatory.

Sanders v. City of Orlando, 997 So. 2d 1089, 1095 (Fla. 2008) (citing Fla.

Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002)).

Second, section 100.361 contains no language that permits substantial

compliance with the statute. Nor does it provide that the failure to comply

with the filing requirements of the statute can be excused if there is an

alleged lack of prejudice to the elected official targeted for election recall.

Accord Demase v. State Farm Fla. Ins., 351 So. 3d 136, 139–41 (Fla. 5th

DCA 2022) (Sasso, J., concurring specially) (rejecting a substantial

compliance argument as there was nothing in the text of the statute that

permitted substantial compliance, “the statute employs the mandatory

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language ‘shall,’” and the Florida Legislature did not include either a

substantial compliance or a prejudice exception).

Accordingly, we hold that Oates failed to comply with the procedural

requirement of section 100.361 when he filed the signed recall petition with

the Putnam County Supervisor of Elections, instead of with Karen Hayes, the

Clerk of Crescent City.

We next address Burton’s claim that the trial court erred when it

determined that the recall petition was “legally sufficient.” Section

100.361(2)(d) provides seven enumerated grounds for the recall of an

elected municipal officer from office. The recall petition filed in this case

alleged that Burton had committed an act of “malfeasance” under section

100.361(2)(d)1.

Malfeasance is the “performance of a completely illegal or wrongful

act” by an elected official. Moultrie v. Davis, 498 So. 2d 993, 995 (Fla. 4th

DCA 1986). As previously stated, the alleged malfeasance in this case was

that on January 14, 2021, Burton met with other Crescent City

commissioners, together with the mayor and city manager, in private, behind

locked doors at City Hall, thus depriving members of the general public from

attending the commission meeting in person, “as required by Florida law,”

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and that, during this meeting, a motion was made for “an ordinance to abolish

the Crescent City Police Department.”

The “law” Oates asserted that Burton violated is Florida’s “Sunshine

Law,” codified at section 286.011, Florida Statutes (2020). Subsection (1) of

this statute provides, in pertinent part, that “[a]ll meetings of any . . .

commission of any . . . municipal corporation . . . at which official acts are to

be taken are declared to be public meetings open to the public at all times,

and no resolution, rule, or formal action shall be considered binding except

as taken or made at such meeting.” Accord Art. I, § 24(b), Fla. Const.

We begin our analysis with matters that are not in dispute. First,

commissioners of a municipality must comply with Florida’s Sunshine Law.

The failure to do so can constitute an act of malfeasance that is properly

presented in a recall petition. Thompson v. Napotnik, 923 So. 2d 537, 540

(Fla. 5th DCA 2006). Second, a public meeting was held at City Hall on

January 14, 2021, attended by Commissioner Burton at which business of

Crescent City was conducted. Third, the public was permitted to attend this

meeting “virtually,” but could not attend in person.

From these facts, the dispositive question is whether, under section

286.011(1), this January 14, 2021 meeting was “open to the public.” If so,

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then Burton, by definition, did not commit an act of “malfeasance” by her

attendance.

In Herrin v. City of Deltona, 121 So. 3d 1094, 1097 (Fla. 5th DCA

2013), our court addressed the phrase “open to the public” contained in

Florida’s Sunshine Law. We concluded that the term reasonably meant that

city commissioner meetings must be properly noticed and made reasonably

accessible to the public. Id. We also held that the public had no right to

speak or be heard at such a meeting. Id.

What Oates is essentially asking here is that we interpret section

286.011(1)’s language to mean that a meeting is “open to the public” only if

the public can attend the meeting in person, despite the language “in person”

being conspicuously absent from the statute. We respectfully decline to do

so.

Simply stated, a court “may not ‘rewrite the statute or ignore the words

chosen by the Legislature so as to expand its terms.’” State v. Gabriel, 314

So. 3d 1243, 1248 (Fla. 2021) (quoting Knowles v. Beverly Enters.-Fla., Inc.,

898 So. 2d 1, 7 (Fla. 2004)). Had the Legislature intended that a meeting is

only “open to the public” under Florida’s Sunshine Law when the public is

permitted to attend in person, it could have easily stated so. That is the

Legislature’s prerogative, not ours.

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Due to the global pandemic, Crescent City placed the public on notice

that its January 14, 2021 commission meeting would be conducted in a

“virtual environment.” The notice specifically advised the public that anyone

wishing to participate and speak at the meeting could do so; and, in bold

letters, directions were given to the public on how to do so. Oates does not

argue here that the public was precluded from participating in the January

14 meeting through the virtual platform described, nor does he contend that

the public was not properly noticed concerning the date or time of the

meeting.

Lastly, we find the cases cited by Oates in his brief for the proposition

that Burton committed malfeasance to be distinguishable. In Parris v. State,

48 Fla. L. Weekly D733 (Fla. 4th DCA Apr. 12, 2023), despite the earlier

cancellation of a properly noticed city council meeting, three city council

members held the meeting and addressed matters related to the city. In

Rhea v. Alachua County School Board, 636 So. 2d 1383, 1384 (Fla. 1st DCA

1994), the Alachua County School Board held a public meeting more than

100 miles away from its headquarters. In contrast, the citizens of Crescent

City were given sufficient notice of the January 14, 2021 meeting, together

with a specific procedure that allowed them, as members of the public, to

attend and be heard at the meeting.

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Accordingly, we hold that the recall petition alleging that Burton

committed an act of malfeasance under section 100.361(2)(d) was legally

insufficient. We therefore reverse the trial court’s order and the results of the

subject petition and election to recall Burton as city commissioner for

Crescent City.

REVERSED and REMANDED for entry of judgment in favor of Burton.

MAKAR, J., concurs, with opinion.

PRATT, J., concurs, in part, and concurs in result, with opinion.

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Case No. 5D23-1573

LT Case No. 2023-CA-8

MAKAR, J., concurring.

Sandwiched between Crescent Lake on its east and Lake Stella on its

west, Crescent City, Florida (pop. 1,654), is the birthplace of A. Philip

Randolph, who became a prominent civil rights leader in the 1950s and

1960s, and the hometown of Raymond Ehrlich, a future Florida supreme

court justice, whose family moved there in 1926. Idyllic lake sunrises and

sunsets, along with boating, watersports, and fishing (it is dubbed the “Bass

Capitol of the World”), make Crescent City a desirable venue for a laid-back

and relaxing lifestyle. Indeed, it describes itself as a “humble community” that

is “the oasis of Old Florida” with a “serenity and peacefulness . . . that is like

no other.”

Despite its tranquil and picturesque veneer, the City has been beset

by political acrimony in the form of attempted recalls of municipal officials in

recent years.1 In communities both large and small, the divisiveness of

politics that arises during election cycles can spin off into off-cycle squabbles

that deteriorate into efforts to recall elected officials. Florida has a history of

1

See Order on Plaintiff’s Complaint for Declaratory and Injunctive

Relief, West v. Tatum, No. 2021-CA-87 (Fla. 7th Cir. Ct. May 5, 2021) (The

Circuit Court, in and for Putnam County, granted declaratory and injunctive

relief based on a legally insufficient recall petition.).

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local recall elections, which are inherently contentious and personal in

smaller close-knit towns; a statewide recall election involving millions of

voters is one thing; a recall election in a quaint neighborly community such

as Crescent City, with sixteen hundred and fifty-four residents on 2.1 square

miles, is quite another.

Recall systems serve a limited and important purpose: empowering the

people to pull the plug on elected public officials who engage in bribery,

corruption, and other forms of bad behavior before the completion of their

terms. They require a delicate balance of the people’s sovereign power over

elected officials and the guardrails necessary to ensure that recalls aren’t

misused to the detriment of local communities and the destabilizing of the

democratic process.

The nature of the recall process balances two opposing

positions: the democratic ideal of allowing the people to rectify

serious mistakes in choosing officials, on the one hand, and the

goal of allowing officials to serve out their term of office

unimpeded by having to defend against a series of recall

attempts for trifling reasons, by disgruntled political opponents,

and the like, on the other.

Jay M. Zitter, Sufficiency of Technical and Procedural Aspects of Recall

Petitions, 116 A.L.R.5th 1 § 2(a) (2023); see also Jay M. Zitter, Sufficiency

of Particular Charges as Affecting Enforceability of Recall Petition, 114

A.L.R.5th 1 § 2(a) (2023) (same).

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Elections themselves are the fundamental check on elected

representatives. The longer a representative’s term in office, however, the

greater the potential for a lack of responsiveness to constituents and a

departure from legal norms between elections, and thereby the need for an

intra-term means of removing a corrupt elected official; officials mindful of

recalls are less likely to engage in corrupt acts because the specter of

removal is omnipresent. A downside to recall systems is that they potentially

short-circuit the regular election process if used for invalid political or

personal purposes; they can create a poisonous atmosphere of charges,

counter charges, and vitriol that damage the democratic system itself and

reduce rather than increase the potential for effective local governance. Plus,

off-cycle recall elections tend to have lower turnouts, potentially skewing the

outcomes. 2

The bottom line on Florida’s recall system was best stated almost a

quarter century ago by our supreme court in Garvin v. Jerome:

As the statutory scheme for recall elections presently

stands, it is apparent that recall is treated as an extraordinary

proceeding with the burden on those seeking to overturn the

regular elective process to base the petition upon lawful grounds

2

The City has 1,013 registered voters, of which only 306 (30.2%) voted

in the May 30, 2023, recall election (held the day after the Memorial Day

holiday): 180 to remove Burton and 126 to retain her. By contrast, Burton

received 350 votes to her opponent’s 331, a total voter turnout of 681 (69%

of the 987 registered voters at the time) in the 2020 election cycle.

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or face the invalidation of the proceedings. In our view, the

present legislative scheme protects public officials from being

ousted when illegal grounds provide the basis for recall. Since

we place enormous value on the regular elective process, this

legislative scheme is certainly not unreasonable.

767 So. 2d 1190, 1193 (Fla. 2000) (emphasis added). The legal issue in

Garvin was whether the inclusion of one valid ground in a recall petition that

contained four invalid grounds for removal nullified the recall process. Id. at

1190–91. The court concluded that “[t]here can be little doubt that the

presence of the invalid grounds would taint any recall election based

thereon.” Id. at 1193.

The reason is that “approval of a ballot containing invalid grounds

would almost certainly lead to abuse.” Id. As an example, an “astute

draftsman could couple legally insufficient (but politically charged)

allegations with legally sufficient (but less politically compelling) grounds” in

a recall petition, hoping to gain support and signatures because, although

“the valid grounds might not generate support for the recall petition, the

invalid grounds might.” Id. Due to the potential for misuse, the supreme court

concluded that judicially invalidating a defective petition was necessary, else

the “legitimate purposes served by the recall statute would be severely

undermined.” Id.

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For similar reasons, petitions that make conclusory legal claims or are

based on conduct that is lawful (or not unlawful) are facially invalid. For

instance, a petition claiming that an official “violated the public meetings”

laws—without a supporting statement of facts demonstrating how—is legally

insufficient. Richard v. Tomlinson, 49 So. 2d 798, 799 (Fla. 1951) (finding a

petition invalid where it constituted “nothing more than the statement of a

conclusion or opinion without any tangible basis in fact”); see also Bent v.

Ballantyne, 368 So. 2d 351, 353 (Fla. 1979) (“[T]he mere recital of a statutory

ground, without an allegation of conduct constituting that ground[] is

insufficient.”); Moultrie v. Davis, 498 So. 2d 993, 996–97 (Fla. 4th DCA 1986)

(holding unspecified allegations in a petition insufficient, citing Richard and

Bent). A reviewing court cannot make a judgment on the facial sufficiency of

a bare legal claim without a sufficiently detailed statement of alleged facts.

See Bent, 368 So. 2d at 352.

The same is true of a claim, supported by a statement of alleged facts,

that is false or misleading without additional facts or context. For example, a

recall petition that says a mayor failed to attend city commission meetings is

invalid because the city charter, which allowed but did not require

attendance, did not establish a legal duty to attend. Sanchez v. Lopez, 219

So. 3d 156, 159 (Fla. 3d DCA 2017) (“Since the City Charter does not require

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that the mayor attend commission meetings, then it stands to reason that

there cannot be a violation of such duty because the duty does not exist.”).

Within this category of claims are half-truths, such as a claim that a public

official attended a meeting that excluded the public; if the claim fails to

mention that a reasonable means of public access was allowed, it amounts

to a misleading claim that will lead to invalidation. This type of half-true claim

is the “blackest of lies.” Ross v. Bank S., N.A., 885 F.2d 723, 757 (11th Cir.

1989) (“That a lie which is half a truth is ever the blackest of lies, That a lie

which is all a lie may be met and fought with outright, But a lie which is part

a truth is a harder matter to fight.”) (Clark, J., dissenting) (quoting Tennyson,

The Grandmother, stanza 8 (1864)). Citizens have the right to recall their

municipal officials, but their petitions must fully and accurately state ultimate

facts to be considered by the electorate.

In conclusion, recalls of elected officials based on lawful grounds meet

the heavy burden our supreme court has set. At the same time, the supreme

court has made clear “that the public policy underlying the legislative scheme

does not mandate that officials who have been duly elected to their positions

of responsibility should have to face an extraordinary recall election with

every vote they cast or statement they make.” Garvin, 767 So. 2d at 1193

(“[P]ublic officials should not face removal from the office they were lawfully

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and properly elected to on a ballot that contains illegal grounds for recall in

express violation of the statute.”). Based on these principles, I fully concur in

Chief Judge Lambert’s opinion, which holds that the most recent recall

attempt in Crescent City’s municipal governance is marred both procedurally

and substantively. It’s worth pointing out that efforts to recall public officials

that fail due to procedural infirmities or substantive shortcomings are a drain

on not only a community’s psyche, but on its limited financial and

governmental resources, including legal fees. See Thornber v. City of Ft.

Walton Beach, 568 So. 2d 914, 917–20 (Fla. 1990). Just as those in public

office must safeguard democratic principles and protect the public coffers,

those who seek to overturn the regular elective process must strictly comply

with procedural and substantive requirements to avoid unnecessarily

wasting the people’s money.

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Case No. 5D23-1573

LT Case No. 2023-CA-8

PRATT, J., concurring in part and concurring in result.

The majority opinion correctly acknowledges that the text and structure

of the relevant statutes—and no other considerations—control our resolution

of this appeal. See Forrester v. Sch. Bd. of Sumter Cty., 316 So. 3d 774, 776

(Fla. 5th DCA 2021) (Sasso, J.). As to the recall petition’s substantive defect,

I fully concur in the majority’s conclusion that the Sunshine Law contains no

requirement that public meetings permit in-person attendance. While section

286.011(1), Florida Statutes (2020), requires that local government meetings

be “open to the public at all times,” it does not “prescribe any particular

means of holding” open public meetings. Op. Att’y Gen. Fla. 2020-03 (2020)

(emphasis in original). The majority properly rejects Oates’s invitation to add

the phrase “in person” to the statute.

However, as to the recall effort’s procedural defect, unlike the majority,

I would not reach the issues of whether section 100.361, Florida Statutes

(2022), allows only one person to act as the clerk’s or auditor’s equivalent

and whether Karen Hayes is that person. Instead, I would hold only that the

county supervisor of elections cannot, under any circumstances, qualify.

That conclusion follows clearly from the statutory text and suffices to

adjudicate Burton’s procedural defect claim.

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Section 100.361(2) provides that the recall committee chair “shall file

the signed petition forms with the auditor or clerk . . . or his or her equivalent,”

and then directs that “[i]mmediately after the filing of the petition forms, the

clerk shall submit such forms to the county supervisor of elections” so the

supervisor may “promptly verify the signatures[.]” § 100.361(2)(f)–(g). The

statute goes on to allocate additional responsibilities between the clerk and

the supervisor. See generally § 100.361(2)–(4). Whatever under-

determinacy might flow from the statute’s use of the term “equivalent”—and

regardless whether the statute contemplates that multiple officials might

qualify—the supervisor cannot fit the bill. Why? Because the statute clearly

assigns one set of responsibilities to the clerk, and another to the supervisor.

Treating the supervisor as the clerk’s equivalent would eviscerate the

statute’s allocation of petition processing responsibilities between two

officials and flout the statutory text by consolidating those responsibilities into

one official.

Thus, regardless whether Ms. Hayes may be the clerk’s equivalent,

and regardless whether additional persons might fit that description, the

statute makes very clear that at least one official can’t: the supervisor. For

that reason, I concur in the majority’s conclusion that the recall effort is

procedurally defective. I likewise concur in its conclusion that the statute’s

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mandatory language and lack of exceptions preclude Oates’s substantial-

compliance argument.

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