Petition for Writ of Certiorari — Fischer v. Florida Division of Elections
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Court, 0.8.
: FILED
[6—6d9S 6H 4 UN 1 1998
No. GEEICE OF De CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
KYLEEN FISCHER,
Petitioner,
v.
STATE OF FLORIDA, DIVISION OF
ELECTIONS AND THE FLORIDA
ELECTIONS COMMISSION,
Respondents.
Petition for Writ of Certiorari
from the First District Court of Appeal
of the State of Florida
PETITION FOR WRIT OF CERTIORARI
AND APPENDIX
Mark Herron*
Mark Herron, P.A.
216 S. Monroe St., Suite 200-A
Tallahassee, FL 32301-1859
(850) 567-4878
Counsel for Petitioner
*Counsel of Record
QUESTION PRESENTED
Can the State of Florida impose punishment
upon candidates for political office for state-
ments made in the course of a political cam-
paign which, as a matter of law, are not vio-
lative of the standard established in New York
Times v. Sullivan, 376 U.S. 254(1964).
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PARTIES TO THE PROCEEDING
The Petitioner is Kyleen Fischer who was a candidate for
election to the School Board of Lake County, Florida, at the
general election held in November of 1994.
The Respondents are the Division of Elections of the State
of Florida and the Florida Elections Commission, which are
responsible for enforcing Florida’s election laws.
TABLE OF CONTENTS
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Statement of Basis for Jurisdiction ..............:.ccccceceeceeeeeeeeeees |
Constitutional and Statutory Provisions Involved ................. 3
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TABLE OF AUTHORITIES
Page
Cases
Garrison v. Louisiana,
379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125
SER docbikcicisnsisncciacaitdinintn beaded dwanben 12, 13
Gertz v. Robert Welsh, Inc.,
BE Rs Bie he ee CS I vcskiccdchenncdntnardeninscinns 19
Jenkins v. State,
FBS Te 15505 LS Fe CER FIG) viincsisinrsvcccctcicterces |
New York Times Co. v. Sullivan,
376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686
ERED sciisntasinteinssteesben ned 11, 32,43, 15, 16, 17.48
Pestrak v. Ohio Elections Commission,
GZ Fue. Dee Fee Ce I FF ED caiientivacadedvcsccenenness 12
Sadowski v. Shevin,
SRS 2k SI, DIS COTE VITA) voksisccceiendustnsionsersinens 14
Seropian v. Forman,
652 So.2d 490, 493-494 (Fla. 4th DCA 1995) ........ 13
St. Amant v. Thompson,
390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262
CO IUMED KictdacaVersicasesaersantcnandielentesnitvapuebeaiihiaeasas 13, 17
Time, Inc. v. Pape,
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Statutes
Section 104.271(2), F. S.
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On January 3, 1997, The Florida Elections Commission (the
“Commission”) rendered an order finding that Kyleen Fischer
(“Fischer”) violated Section 104.271(2), F. S. (1995), on two
occasions by disseminating false statements about an opposing
candidate with actual malice. Appendix I. Fischer timely
appealed this decision to the First District Court of Appeal of
the State o Florida (the “District Court”). Appendix II.
On January 23, 1998, the District Court rendered a “per
curium affirmed” decision without opinion affirming the
decision of the Commission. Appendix III]. On January 27,
1998, the District Court rendered a corrected “per curium
affirmed” decision without opinion affirming the decision of
the Commission, which-indicated that there was a dissent to the
District Court’s decision. Appendix IV.
On February 9, 1998, Fischer timely filed a motion for
rehearing or clarification with the District Court noting that this
case presented a question of first impression and raised
significant First Amendment issues. Appendix V. On March 3,
1998, the District Court, with one judge dissenting, denied
Fischer’s Motion for Rehearing or Clarification. Appendix VI.
Fischer has exhausted all avenues of appeal or review under
Florida law. In Jenkins v. State, 385 So.2d 1356, 1359 (Fla.
1980), the Florida Supreme Court held that on or after April |,
1980, it lacked jurisdiction to review per curium decisions of
the district courts of appeal without opinion. No other
jurisdiction granted under Florida law would permit review by
the Florida Supreme Court or any other judicial body. See,
Article V, Section 3, Fla. Const. Appendix VII.
Counsel for the Florida Elections Commission has been
notified that Fischer intends to seek a writ of certiorar! from
this Court.
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3
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
is Vici SA Re iN hi
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The constitutional and statutory provisions involved in this
case are the First Amendment to the Constitution of the United
States and Section 104.271(2), FS. (1995), which provides as
follows:
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(2) Any candidate who, in a primary election or
other election, with actual malice makes or
causes to be made any statement about an
opposing candidate which is false is guilty of a
violation of this code. An-aggrieved candidate
may file a complaint with the Division of
Elections pursuant to s. 106.25. The division
shall adopt rules to provide an expedited hearing
before the Florida Elections Commission of
complaints filed under this subsection.
Notwithstanding any other provision of law, the
Florida Elections Commission shall assess a civil
penalty of up to $5,000 against any candidate
j found in violation of this subsection, which shall
be deposited to the account of the General
Revenue Fund of the state.
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STATEMENT OF THE CASE
In 1994, Fischer was a Republican candidate for the School
Board in Lake County, Florida. Fischer had previously served
on the School Board having won a four-year term in the 1982
general election. She was defeated for reelection in 1986.
Fischer had primary opposition in both the first and second
primaries in 1994,
Fischer’s opponent in the 1994 election was Sandra Green
(“Green”), the incumbent who had won election to the School
Board as a Republican in 1990. However, Green had changed
parties and was running as a Democrat in 1994. Green had no
primary opposition in 1994, Fischer and Green were the
candidates at the general election held in November of 1994.
Fischer’s campaign produced two political advertisements
which are the subject of this case: a flier which was mailed to
voters in Umatilla, a small town in northeast Lake county, and
a radio advertisement which began airing on the Saturday before
the election.
The flier was developed by Fischer’s daughter, Leah, who
volunteered in her mother’s campaign. The subject of the flier
was the possible consolidation of Umatilla High School with
Eustis High School. Leah Fischer had learned of this issue in a
conversation with Holly Newby, the Editor of The North Lake
Outpost. Leah Fischer and Ms. Newby researched past issues
of The North Lake Outpost and found the only article on the
issue in the November 26, 1992 edition. That article became
the basis for the flier.
In the fall of 1992 during School Board budget workshops,
Green proposed the consolidation of Eustis and Umatilla High
3
Schools as an alternative to the expenditure of millions of
dollars to upgrade current facilities. Though no other support
was voiced for the proposal at the workshop, Green called a
meeting of approximately 12-15 persons comprised of teachers,
parents, and former students of hers, to discuss the consolidation
idea. The meeting was held in early November 1992. It was
clear from the meeting that residents of Umatilla did not support
the consolidation concept. During the meeting, Green indicated
she would try to arrange a visit to Lyman High School, a
consolidated high school in Orange County. On November 26,
1992, an article appeared in The North Lake Outpost, a weekly
newspaper circulated in the Umatilla area, which reported on
the meeting Ms. Green had held and provided comments from
some who attended the meeting.
Prior to arranging for such a visit, however, Green learned
of a meeting of residents of Umatilla in opposition to the
consolidation idea. As a result, Green did not arrange a visit to
Lyman High School and did not actively pursue the
consolidation issue further.
The campaign flier consisted of a single sheet of 8-1/2 x | 1"
paper folded in half. The front flap contains a statement in
capitalized, bold letters “ONE SCHOOL BOARD
CANDIDATE WANTS TO CLOSE UMATILLA HIGH
SCHOOL.” The top half of the inside flap of the flier identifies
Democratic candidate Sandra T. Green in response to the
statement on the front flap. Immediately below that
identification is a reproduction of the masthead of The North
Lake Outpost with the date November 26, 1992. Immediately
under the masthead and date is the headline from the newspaper
article of that date and two paragraphs excerpted from the
article. Following those two paragraphs in a box is an excerpt
6
from another paragraph from the article. The boxed portion
reads:
DEMOCRAT GREEN STATE:
“Green said ... she personally favored
consolidation for Eustis and Umatilla.”
- The North Lake Outpost
Following that, on the lower flap of the inside portion of
the flier is a line of stars creating a “definition break” and
demarcating the end of the newspaper article and the beginning
of campaign statements in support of Fischer and her position
on consolidation of Umatilla High School, which she opposed.
The outside of the back flap contains additional campaign
statements regarding Fischer’s support for a separate high
school for Umatilla and requesting support for Fischer’s
election.
The November 26, 1992 article in The North Lake Outpost
represents the only published article regarding the possibility
of consolidating Umatilla High School and Eustis High School.
Green subsequently never made any public statements or issued
any press releases on the issue.
The second campaign advertisement at issue here is a radio
advertisement which aired on WKIQ-AM. The ad falsely stated
that the NAACP had endorsed Sandra T. Green. Fischer
admitted that the statement is false, and the only issue contested
in the lower tribunal was whether the statement was made with
actual malice.
The single most important issue in the School Board races,
at least in the African-American community, was the future of
7
Eustis Middle School. The building was located in the African-
American community in Eustis and had served that community
as a school facility for many years. In the spring of 1994, the
School Board had voted to renovate the existing facility rather
than build a new school. The vote was 3-2 with Green voting
in the minority. She wanted to build a new school at a different
location.
There were three seats on the School Board up for election
in 1994, and the African-American community wanted to
preserve the majority on the School Board who supported
keeping the Eustis Middle School at its present site.
During the general election campaign, Fischer developed a
10-point education platform which stated her positions on a
variety of issues. In her platform, Fischer advocated building a
new Eustis Middle School and converting the old site into a
vocational school. However, Fischer did not indicate support
for a specific site for the new school building.
Tom Poole (“Poole”) was a leader in the minority
community in Lake County. A former school teacher and coach,
he had served for over 25 years as President of the Tri-City
Branch of the NAACP, as well as serving on the state, regional,
and national levels of that organization. He also served a
President of the Voter’s League of Lake County, a political
committee formed for the purpose of voter education,
registration and participation among the minority community.
During each election cycle since its formation in 1978, the
directors of the Voter’s League met to discuss and make
endorsements in election campaigns. The process was informal
and generally was determined based on aconsensus of directors
in attendance. The endorsement decisions of the Voter’s
8
League of Lake County were disseminated to minority voters
by mailing a sample ballot showing the endorsed candidates,
In the 1994 School Board elections, there was no consensus
among the directors of the Voter’s League of Lake County on
the Fischer/Green race. The decision was delegated to Poole
as President.
Neither Fischer nor Phillips were familiar with the Voter’s
League of Lake County. The Voter’s League is not a high profile
organization. Fischer did not have any African-Americans active
in her campaign. Because of Poole’s high profile with the
NAACP, both Phillips and Fischer assumed that any
endorsement by Poole was an NAACP endorsement.
On the Thursday or Friday prior to the election, Poole ran
into Ron Phillips (“Phillips”), a volunteer campaign consultant
for Fischer. The two men knew each other well. Phillips had
been a student of Poole’s years earlier and still referred to Poole
as “Coach.” The conversation primarily focused on
endorsements in the upcoming county elections.
The result of the conversation is disputed, Phillips came
away from the conversation with the understanding that Poole
and his organization (NAACP) would be endorsing Green. Poole
denies that he indicated any endorsement in the Green/Fischer
race. He did, however, tell Phillips the name of the candidate
who was endorsed in another race. Poole knew that Phillips’
primary interest was an endorsement in the Fischer race, and
he admitted that he did not give him a direct answer.
Based on his understanding of this conversation with Poole,
and fearing a late movement in the campaign and the possibility
9
of being sandbagged by this late development, Phillips
recommended, and Fischer agreed, to develop an ad. The
primary purpose of the ad was to reiterate Fischer's stand on
the Eustis Middle School issue. The ad ran twice on the Saturday
prior to the general election and once on Monday morning prior
to the general election.
The endorsement of the Voter’s League of Lake County
ultimately went to Fischer. Poole stated he made the decision
on a “glimmer of hope.” Despite Fischer's platform position,
Poole perceived she was open on the issue of the Eustis Middle
School because she had not advocated a specific new site for the
school and because she had not yet had the opportunity to vote
officially on the issue.
When the error was brought to her attention on Monday
morning, both Fischer and Phillips, who helped develop the ad,
called the radio station, apologized to the NAACP, and asked
that the ad be removed from the air. a
On November 22, 1994 when the Div‘sion of Elections
(“Division”) received a sworn complaint alleging violations of
Florida’s election law by Fischer. After an investigation by the
Division to determine whether the facts alleged in the
Complaint constituted probable cause to believe that Fischer
had violated Section 104.271(2), F.S., was violated. On
December 27, 1995, the Complainant, pursuant to Section
106.25(7), F:S., filed a notice with the Commission appealing
the finding of no probable cause by ihe Division.
On February 2, 1996, the Commission heard the appeal and
on February 9, 1996, reversed the finding of the Division and
entered an Order finding that there was probable cause to
believe that Fischer violated Section 104.271(2), FS. On
10
February 28, 1996, Fischer timely filed her request for a formal
hearing and requested the appointment of a hearing officer with
the Division of Administrative Hearings to conduct the
administrative hearing.
A formal hearing before the Commission commenced on
June 6, 1996 in Tallahassee, Florida. At the formal hearing,
Fischer presented an oral motion to dismiss the charges against
her relating to the publication of the flier concerning school
consolidation. Fischer’s motion was denied.
At the hearing on June 6, 1996, the Division presented the
oral testimony of David Bradford, an investigator for the
Division of Elections, and Tom Poole, Chairman of the Lake
County Voter’s League. Following those witnesses, the hearing
was continued until the Commission’s next meeting on August
2, 1996 in Orlando, Florida. At the reconvened hearing, the
Division presented the oral testimony of Green, the
Complainant, who was Fischer’s opposing candidate in the
election. The Division also presented the oral testimony of
Fischer. The Division offered one exhibit which was admitted
into evidence, presented the testimony of Ron Phillips, a
volunteer in the Fischer campaign, and offered one exhibit.
Fischer and the Division each timely filed written closing
argument and proposed final orders.
On September 12, 1996, the Commission issued a notice of
formal hearing indicating that it would take up the matter at its
meeting on October 4, 1996. At its meeting on October 4, 1996,
the Commission, in light of the written submissions, dispensed
with oral argument and found that Fischer, in two separate
campaign advertisements, made false statements about an
opposing candidate and that such statements were made with
actual malice. The Commission ordered Fischer to pay a total
11
of $5,500.00 for the two separate violations. The Commission's
written final order was issued on January 3, 1997. Appendix I.
Section 104.271(2), F.S. (1995), purports to be consistent
with the New York Times v. Sullivan standard and its progeny
which permits limitations on political speech. Application of
the standard has been central to the Division’s prosecution of
the complaint against Fischer since the initial stages. It was
central to Fischer’s post-hearing submission to the Commission.
Appendix VIII. It was raised by Fischer in her Initial Brief on
appeal to the District Court.
12
ARGUMENT
The First Amendment, made applicable to the states through
the Fourteenth Amendment, embodies a
profound national commitment to the principle
that debate on public issues should be
uninhibited, robust and wide-open, and that it
may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on
government and public cfficials.
In New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,
11 L.Ed.2d 686 (1964), the United States Supreme Court held
that the Constitution limits state power, in a civil action brought
by a public official for criticism of his official conduct, to an
award of damages for a false statement “made with ‘actual
malice’ - that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.” 376 U.S. at 279-280.
Garrison v. Louisiana, supra, held that the New York Times rule
also limits state power to impose criminal sanctions for criticism
of the official conduct of public officials. 379 U.S. at 67. The
New York Times rule is likewise applicable in this case where
the State of Florida, through an administrative agency,
endeavors to regulate and punish political speech. Pestrak v.
Ohio Elections Commission, 926 F.2d, 573, 578 (6th Cir. 1991).
As applied by Florida’s Fourth District Court of Appeal:
So great is the protection given to writers and
speakers under the First Amendment that the
Supreme Court has held that a public official,
such as a plaintiff in this case, can make out a
good claim of damages for defamatory
13
falsehood only where the official can show that
the writer published a defamatory falsehood with
knowledge that it was false, or with reckless
disregard as to whether is true or false. New
York Time Co. v. Sullivan, 376 U.S. 254, 84 S.Ct.
710, 11 L.Ed.2d 686 (1964). Stated differently,
the burden is to show that the writer deliberately
lied and falsified something or, as an alternative
to a knowing lie, that the writer of a defamatory
falsehood “in fact entertained serious doubts as
to the truth of his publication,” St. Amant v.
Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20
L.Ed.2d 262 (1968), or that he acted with a “high
degree of awareness of *** probable falsity, “
Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209,
13 L.Ed.2d 125 (1964). Moreover, the official
must prove the essential fact, not with the
ordinary evidentiary burden of most civil cases,
called the “greater weight” of the evidence in
Florida, but instead with a higher, more
demanding, burden called “clear and
convincing” evidence. Id. (footnote omitted)
Seropian v. Forman, 652 So.2d 490, 493-494 (Fla. 4th DCA
1995).
By finding a violation of Section 104.271(2), FS., with
respect to the flier, the Commission seeks to punish Fischer for
true statements, albeit in a form not approved by the
Commission, and for statements of opinion and comment
relating to the truthful statement. There is no dispute in the
record to the accuracy of the statement that “Sandra Green...
personally favored consolidation of Eustis and Umatilla” high
14
schools. The Commission disagrees with the phrasing of the
Statement by the Fischer campaign on its flier. The
Commission focuses on the fact that Sandra Green had not
made any public statements on the consolidation issue since
1992.
While the Commission seexs to control the quality of the
information about an opposing candidate during the course of
a campaign, this is not an appropriate or constitutional role for
the Commission. The Commission is placing itself in the
position of defining the issues that can be addressed in a
campaign by restricting the ability of the candidates to raise
issues that they view as important and significant. It is not the
Commission's role to determine whether a statement made in
1992 is an appropriate issue. Rather
[t]he decision as to which contender for a
political office should be entrusted with the
power of that office rests exclusively with the
people. They are entitled to all the information
that each candidate can provide about himself,
his opponent and their respective positions on
the relevant political issues. The entire process
is hampered if the information is restricted or
unavailable. The public’s “need to know” is
most critical during an election campaign.
Sadowski v. Shevin, 345 So.2d 330, 333 (Fla. 1977)
The Commission’s view of its role cannot be squared with the
First Amendment.
The Commission noted that the statement in the flier that
“Green said... she personally favored consolidation for Eustis
and Umatilla” was never made by Sandra Green. The
15
Commission, likewise, notes that the flier omitted qualifying
language that was “material to the campaign” and that
“{w]ithout the qualifying language the statement implied that
Ms. Green would act on her own to bring about the
consolidation of Eustis and Umatilla high schools.” The
Commission concluded Fischer made the statement with actual
malice because she knew the truth and elected to disregard it.
Yet the flier contained a reproduction of the masthead of the
newspaper where the article appeared with the date of the article
and three paragraphs from that article.
The Commission’s conclusion is not supported by United
States Supreme Court precedent. In Time, Inc. v. Pape, 401
U.S. 279 (1971), the Supreme Court held that the failure of a
news magazine article to state that the article regarding a Civil
Rights Commission Report on police brutality, wnich contained
“allegations” of brutality against a public official rather than
proven instances, was not a falsification sufficient in itself to
justify a finding of actual malice. In that case, the Court
concluded:
Time’s omission of the word “alleged”
amounted to the adoption of one of a number of
possible rational interpretations of a document
that bristled with ambiguities. The deliberate
choice of such an interpretation, though
arguably reflecting a misconception, was not
enough to create a jury issue of “malice” under
New York Times. To permit the malice issue to
go to the jury because of the omission of a word
like “alleged,” despite the context of that word
in the Commission Report and the external
evidence of the Report’s overall meaning, would
be to impose a much stricter standard of liability
16
on errors of interpretation or judgment than on
errors of historical fact.
401 U.S. at 290-291. In this case, the Commission focuses on
the allegedly ambiguous statements contained in the quotation
and ignores the essential truth of Green’s statement, namely
that she favors consolidation.
Similarly, the Commission concludes that it was false for
the flier to state that Green wants to close Umatilla High
School. Green’s consolidation proposal contemplated Eustis
Middle School moving to the Eustis High School and Umatilla
Middle School moving to the Umatilla High School, and the
construction of a new consolidated high school to replace both
existing high schools. This proposal would effectively close
Umatilla High School. While the Commission concludes that
Green did not advocate the consolidation of Eustis or Umatilla
High Schools or the closing of Umatilla High School “during
the 1994 elections” , the record clearly reflects her proposal to
do so during her term on the School Board.
In finding a violation of Section 104.271(2), F.S., with
respect to the radio advertisement, the Commission focuses on
the “reckless disregard” prong of the New York Times rule. To
support its conclusion that Fischer acted with “reckless
disregard” of whether statements contained in the radio
advertisement were true or false, the Commission found that
both Fischer and her campaign advisor, Ron Phillips, “were
shocked when they mistakenly jumped to the conclusion that
Mr. Poole (and the Voter’s League) was going to support Ms.
Green.” The Commission found that the Fischer campaign failed
to take any steps to verify the endorsement.
Failure to investigate does not itself establish bad faith.
17
New York Times v. Sullivan, supra, at 287-288. “[R]eckless
conduct is not measured by whether a reasonably prudent inan
would have published, or would have investigated before
publishing. There must be sufficient evidence to permit the
conclusion that the defendant in fact ascertained serious doubts
as to the truth of his publication.” St. Amant v. Thompson, 390
U.S. 727, 731 (1968) With respect to establishing a
requirement of absolute verification, it has been stated:
We create a grave risk of serious impairment of
the indispensable service of a free press in a free
society if we saddle the press with the
impossible burden of verifying to a certainty the
facts associated in news articles with a person's
name, picture or portrait, particularly as related
to a nondefamatory matter.
Time, Inc. v. Hill, 385 U.S. 374, 389 (1967) Within the facts
established at the hearing before the Commission, there was no
other source other than Tom Poole, with whom to verify the
reported endorsement. The endorsement decision had been
delegated solely to Poole. No other member of the Voter's
League was in a position to verify the endorsement information.
The Commission’s conclusion that the radio ad, which
implied that Sandra Green had made a “political deal” in return
for the NAACP’s endorsement, was produced with actual malice
fails to meet the constitutional threshold required by the New
York Times rule. The evidence was constitutionally defective
to support a finding by the Commission that allegedly false
statements were made “about an opposing candidate.” See,
Section 104.271(2), ES. The advertisement does not state that
Green made a deal. It states clearly and unequivocally that
Fischer will not make any political deals. [Jt. Exhibit 14] The
18
reference that Green made a deal is implied by the Commission.
It is akin to legal alchemy by which the Commission creates a
false statement where none is made, imputes motive, and
concludes that punishment is warranted.
The constitutional danger implicit in the Commission’s
actions are the same as noted in New York Times v. Sullivan,
supra, when statements which were attacks on government
were imputed to be attacks on the officials of whom the
government is composed:
Raising as it does the possibility that a
good-faith critic of government will be
penalized for his criticism, the proposition relied
on by the Alabama courts strikes at the very
center of the constitutionally protected area of
free expression. (footnote omitted) We hold that
such a proposition may not constitutionally be
utilized to establish that an otherwise
impersonal attack on governmental operations
was a libel of an official responsible for those
operations.
New York Times v. Sullivan, supra, at 292. The evidence relied
upon the by the Commission to find a violation of Section
104.271(2), FS., was constitutionally insufficient to support a
finding that a statement was made about an opposing candidate.
Even assuming that it is appropriate to imply from the ad
that it falsely states that Green made a deal, such a statement is
a statement of opinion, not of fact. The United States Supreme
Court has stated that
{[U]nder the First Amendment there is no such
19
thing as a false idea. However, pernicious an
opinion may seem, we depend for its correction
not on the conscience of judges or juries to
correct but on the competition of other ideas.
Gertz v. Robert Welsh, Inc., 418 U.S. 323, 339-40 (1974). As a
statement of opinion, the statement is entitled to constitutional
protection.
20
CONCLUSION
For these reasons stated a petition of writ of certiorari should
be issued by this Court.
Dated this M& day of August, 1998.
Matk Herrgn
Mark Heryon, P.A.
216 S. Monroe Street
Suite 200-A .
rallahassee, FL 32301-1859
(850) 567-4878
App. |
APPENDIX
Division of Elections Final Order ...............c..cccccsesesseeseeeees 2
PN Nr PRN i iiaat sc ralibravdsekerskashideeisvabsssvovevennevescceccaveess 33
SEITEN GE TONNE Cy BFPO iccvncccnccgnsssesisavsvecosevsevnsessosconss 35
Corrected Opinion of January 23, 1998.00.00... cece 36
Motion for Rehearing or Clarification .........0......ccccceeeees 37
Order Denying Motion for Rehearing
Neo. csbubvheeckevoeveseces 40
Article V, Section 3, Florida Constitution .................000..0000.. 4]
RUMOUR @ SPOUSE ATA CIRGEE oan icsiscsnccinsessvecienssccssesrsesseees 44
App. 2
STATE OF FLORIDA
FLORIDA ELECTIONS COMMISSION
Division of Elections,
Petitioner,
V. Case No.: FEC 94-122
F.O. No.: DOSFEC 96-88
Kyleen Fischer,
Respondent.
/
FINAL ORDER
THIS CAUSE came on to be heared at formal hearings held
hefore the Florida Elections Commission (Commission) on
June 6 and August 2, 1996, in Tallahassee and Orlando, Florida.
APPEARANCES
For Division: Barbara M. Linthicum
Assistant General Counsel
Department of State
Division of Elections
Room 2002, The Capitol
Tallahassee, Florida 32399-0250
For Respondent: Chris Haughee
Akerman, Senterfitt & Edison, P.A.
216 South Monroe, Suite 200
Tallahassee, Florida 32302-2555
App. 3
STATEMENT OF THE ISSUE
Whether the Respondent violated Section 104.271(2),
Florida Statutes, when she made false statements with actual
malice about Sandra Green, her opposing candidate, on two
occasions during the 1994 elections to the Lake County School
Board.
PRELIMINARY STATEMENT
On November 22, 1994, the Division of Elections rec zived
a sworn complaint alleging violations of Florida’s election laws.
The division conducted an investigation to determine whether
the facts alleged in the complaint constituted probable cause to
believe that the Respondent violated Section 104.271 (2),
Florida Statutes.
On November 27, 1995, the Director of the Division of
Elections signed a Statement of Findings determining that there
was no probable cause to believe that Section 104.271(2),
Florida Statutes, was violated. On December 27, 1995, the
Complainant filed a notice with the Commission, as provided
in Section 106.25(7), Florida Statutes, appealing the Division
of Elections’ dismissal of the case based on the finding of no
probable cause.
On February 2, 1996, the Florida Elections Commission
heard the appeal and on February 9, 1996, entered an Order of
Probable Cause finding that there was probable cause to believe
that the Respondent violated Section 104.271(2), Florida
Statutes. The Respondent timely requested a formal hearing.
On March 25, 1996, the Respondent filed a Motion for
Appointment of Division of Administrative Hearings’ Hearing
App. 4
Officer to Conduct Formal Hearing. The Division responded
and the motion was set for hearing before the Commission on
April 5, 1996, in Tampa, Florida. The Commission, after
hearing arguments of counsel, issued an order on April 12,
1996, denying Respondent’s motion.
The Respondent was noticed to appear before the
Commission for formal hearing on June 6, 1996, in Tallahassee,
Florida. At the formal hearing, The Respondent presented a
Motion to Dismiss the charges against her and a Motion in
Limine to exclude any evidence that identified any allegedly
false statements contained in the campaign material of the
Respondent other than those statements identified in the
Division's answers to interrogatories. The Commission denied
both motions. The Division and Respondent presented a Joint
Stipulation of Facts and 24 joint exhibits, all of which were
admitted into evidence.
The Division also presented the oral testimony of David
Bradford, investigator for the Division of Elections, and Tom
Poole, Chairman of the Voter’s League of Lake County. The
hearing was adjourned until the next meeting of the
Commission on August 2, 1996, in Orlando, Florida.
At the reconvened hearing, the Division presented the
testimony of Sandra Green and Respondent Kyleen Fischer, and
one exhibit that was admitted into evidence. The Respondent
presented the testimony of Ron Phillips, a volunteer in the
Kyleen Fischer campaign, and offered one exhibit.
Two transcripts were prepared in thiscase. Therefore, the
“TI” cite used below refers to the transcript for the June 6,
1996, meeting and the “T2” cite refers to the transcript for the
Axgust 2, 1996, meeting.
App. 5
FINDINGS OF FACT
I - Overview
1. The Florida Elections Commission is charged with
enforcing Section 104,271(2) and Chapter 106, Florida Statutes,
the campaign financing law.
2. Kyleen Fischer (Republican) and Sandra Green
(Democrat) were opposing candidates for the Lake County
School Board, District 5 seat, in the 1994 general election. Ms.
Green lost the election by 1170 votes. (Exhibit 17)
3. Ms. Fischer had primary opponents in the first and
second primaries. (T2 - 32-34) She had previously served on
the School Board from 1982-1986, when she was defeated for
re-election. (T2 - 104) Ms. Green, on the other hand, was the
incumbent, first elected in 1990. Ms. Green had no primary
opponents in 1994, (T2 - 31) (Exhibit 15)
4. The Fischer campaign was run with a volunteer staff that
primarily consisted of the candidate; her daughter, Leah
Fischer; Judy Susie Farley, the campaign manager; Ron
Phillips, a family friend and experienced political operative who
served as advisor and consultant; and other friends and family.
(T2 - 112, 142-143, 167-169)
5. On November 22, 1994, the Division of Elections
received a sworn complaint signed by Sandra Green alleging
that Kyleen Fischer had published and circulated political
advertisements that contained false and malicious statements
about Sandra Green, in violation of Section 104.271(2), Florida
Statutes. (Exhibit 21) One such advertisement was a campaign
flyer published by Ms. Fischer that concerned the consolidation
of the Eustis and Umatilla high schools. (Exhibit 13) The other
App. 6
was a radio advertisement that aired on WKIQ in Eustis during
the last weekend of the campaign and concerned the alleged
endorsement of Ms. Green by the NAACP. (Exhibit 14)
Il - The Flyer
6. The Fischer campaign, with the candidate’s review and
approval, produced a political advertisement as a mailing flyer
during the general election campaign. (T2 - 76-78, 169)
(Exhibit 13) The flyer dealt with Green’s purported advocacy
of the consolidation of the Eustis and Umatilla high schools and
closure of Umatilla High School, a position (if it had been
espoused by a candidate) which would have been of great
importance in the campaign. (T2 - 145, 149, 153) The flyer was
mailed to residents in Umatilla, a community of approximately
2200.
7. Leah Fischer’s statement indicated that she learned of
the possibility of the consolidation issue being used against Ms.
Green from Holly Newby, editor of the North Lake Outpost,
when they were discussing issues of concern to the residents of
Umatilla. (Stipulation 43) Leah Fischer and Ms. Newby
researched past issues of the North Lake Outpost and found the
only article regarding Green’s position on the issue in the
November 26, 1992 edition. (Stipulation 43)
8. Kyleen Fischer, Leah Fischer and Ron Phillips
participated in drafting the language that was used in the
political advertisement. (Stipulation 74) In drafting the
language in the political advertisement, they relied exclusively
on the newspaper article. (T2 - 77) The Fischer campaign
mailed the political advertisement to the Umatilla area the week
prior to the general election. (T2 - 77, 149) The political
advertisement was paid for from the Fischer campaign account.
App. 7 —
(Exhibit 6)
9. The political advertisement contained the following
statement: “One Schoo! Board Candidate Wants to Close
Umatilla High School.” (E.S.) (Exhibit 13) This statement was
not true. Sandra Green testified that she did not want to close
Umatilla High School in 1994. (T2 - 20) In fact, in the Spring
of 1994, Ms. Green and the Lake County School Board voted
to spend several million dollars on a new media center for
Umatilla High School, further showing that she did not intend
to seek to close the high school in 1994. (T2 - 20, 60) At no
time during the 1994 elections did Ms. Green advocate either
the consolidation of Umatilla and Eustis high schools or the
closing of Umatilla High School. (T2 - 20)
10. The political advertisement also contained the following
statement: “A group of parents and teachers from Eustis and
Umatilla, under the guidance of school board member Sandra
Green are examining the possibility of consolidating Umatilla
and Eustis High Schools.” (E.S.) (Exhibit 13) This statement
was also untrue. The only meeting held by Ms. Green to
examine the possibility of consolidating Umatilla and Eustis
high schools was held two years before the 1994 elections. (T2
- 24) No meetings were held to discuss this issue during the
1994 elections. (T2 - 24)
11. The Lake County School Board never formally
considered the consolidation of Umatilla and Eustis high
schools. (Stipulation (6) The only time the issue was
mentioned was at a 1992 workshop session on facilities
funding. (Stipulation ¥6) At that time, Ms. Green suggested
consolidating Eustis High School and Umatilla High School as
an alternative to spending approximately $26 million needed to
upgrade facilities at those two schools. No support was
App. 8
expressed by other board members in attendance at the
workshop. (Stipulation {6)
12. In November of 1992, after the School Board workshop,
Sandra Green called a meeting of approximately 12 to 15
teachers, parents, and former students to discuss consolidation
of the Eustis and Umatilla high schools. (Stipulation (7) Also
at the meeting were representatives from South Lake High
School, a high school that had already been consolidated.
(Stipulation 7)
13. Paul Bryan, formerly a student of Sandra Green’s and
currently a resident of Umatilla, attended the meeting.
(Stipulation 8) Mr. Bryan opposed the consolidation of the
two schools. (Stipulation (8) Mr. Bryan stated that Sandra Green
appeared to be in favor of consolidation, but she did not state at
the meeting that she would pursue the issue after the meeting.
(Stipulation 8)
14. Teena Stoneking, another former student of Sandra
Green’s and a Umatilla resident, attended the meeting and
spoke in opposition to consolidation. (Stipulation {9) Ms.
Stoneking stated that Ms. Green appeared to favor
consolidation, but she did not hear Ms. Green state that she
would pursue the issue. (Stipulation (9)
15. Both Bryan and Stoneking said that they expected the
issue of consolidation to be discussed further in a public setting.
(Stipulation {10) After the meeting, they formed a group of
Umatilla residents to oppose the issue. (Stipulation (10) They
both stated that they never heard Sandra Green discuss the issue
again until Kyleen Fischer circulated the attached political
advertisement in her 1994 campaign for a seat on the school
board. (Stipulation 910)
a
App. 9
16. The political advertisement continued as follows:
DEMOCRAT GREEN STATED: “Green said...she personally
favored consolidation for Eustis and Umatilla.” (E.S.) (Exhibit
13) This statement was untrue. Although the advertisement
said, “DEMOCRAT GREEN STATED,” the advertisement
quoted the North Lake Outpost article and not Ms. Green. (T2
- 81) Ms. Green never made the statement quoted in the
advertisement. (T2 - 27, 80 - 81) The newspaper's reporter
paraphrased Ms. Green when she wrote, “Green said while she
personally favored consolidation for Eustis and Umatilla, and
the expanded curriculum it should bring, that it would
ultimately be up to the parents to decide whether to proceed
with the concept or not.” (Exhibit 23)
17. The language in the flyer also omitted the language that
qualified Ms. Green’s position on consolidating the high
schools without indicating that the qualifying language was
omitted, thus rendering the statement in the flyer misleading.
(T2 - 81, 83) This omission was material to the campaign.
Without the qualifying language, the statement implied that Ms.
Green would act on her own to bring about the consolidation of
Eustis and Umatilla high schools. Such a position would have
inflamed public opinion against her in light of the importance
to small communities such as Eustis and Umatilla of retaining
their local high schools.
18. Kyleen Fischer stated that she had reasonable grounds
to believe that Sandra Green favored the consolidation of the
Eustis and Umatilla high schools, as Sandra Green had stated in
1992. (Stipulation (11) Ms. Fischer based her statement on the
fact that she had no information that Sandra Green had changed
her stand on this issue. (Stipulation {1 1) However, Ms. Fischer
said that she never heard Ms. Green make a public statement
during the 1994 elections that she wanted to close Umatilla
App. 10
High School. (T2 - 78) Further, Ms. Fischer testified that she
never saw any campaign literature during the 1994 elections in
which Ms. Green said she wanted to close Umatilla High
School. (T2 - 78)
19. Sandra Green stated that the newspaper article that was
quoted in the political advertisement was two years old.
(Stipulation 12) Since !992, she never publicly sought or
indicated a subsequent desire or intent to close Umatilla High
School. (Stipulation 412)
20. Sandra Green stated in May of 1996, that she still
personally considered consolidation of two schools a good idea,
because it would allow for an expanded curriculum as well as
other benefits for students. (Stipulation 413) However, she also
stated that if she were a school board member, she would rely
on the input of her constituents on the issue. (Stipulation 13)
She still believes that it would ultimately be up to the parents
and students to decide the issue. (T2 - 17, 18)
Ill - The Radio Advertisement
A - The Broadcast
21. The Fischer campaign aired a political advertisement on
WKIQ radio station in Eustis the weekend before the election.
The advertisement was broadcast on several dates, possibly on
Friday, November 4, 1994; twice on Saturday, November 5,
1994, during the Florida State University football game; and
once on Monday, November 7, 1994, the day before the
election. (T2 - 31, 150, 158-59, 186)
App. ||
The advertisement stated as follows:
During the 1994 elections season here in Lake
County, we have seen many political deals.
There is one Republican School Board
candidate who refuses to make political deals.
Kyleen Fischer has refused to change her
position on building a new Eustis Middle
School. This position has cost her politically.
The NAACP has endorsed her opponent, Sandra
T. Green. Kyleen Fischer will not make
political deals with out children’s future. On
November 8, vote “No” on political deals. Vote
“Yes” for Kyleen Fischer, School Board. Paid
Republican Political Ad, Campaign Fund for
Kyleen Fischer. (Exhibit 14)
22. The single most important issue in the school board race
was the fate of the Eustis Middle School that was in a state of
disrepair. (T1 - 158, 169, 171) The Eustis Middle School,
formerly the all black Cartwight High School, was located in
and serviced the African-American community in Eustis. (T1 -
169) In the Spring of 1994, the Lake County School Board, by
a vote of three to two, decided not to build a new middle school,
but to repair the existing school. (TI - 169) The dissenting
members, one of whom was Sandra Green, wanted to build a
new school at a different location.
B - The Voter’s League, the NAACP, and Endorsements
23. In the 1994 elections, three of the five school board
seats were up for election. (T1 - 169) The African-American
community was very interested in retaining its majority on the
issue and in electing candidates who wanted to keep the Eustis
App. 12
Middle School at its present site. (Tl - 170) As a result, Tom
Poole, President of the Voter’s League of Lake County, became
actively involved in evaluating each candidate’s position on the
Eustis Middle School and providing that information to the
African-American community. (TI - 153)
24. The Voter’s League of Lake County is a political
committee that was formed in 1978 to encourage individuals in
the minority community to register and vote and to provide
education and guidance to the community on the position of
candidates on issues important to the minority community. (T]
- 153) Since 1978, it has been the practice of the League, on the
Thursday or Friday prior to each election, to mail to each
member of the African-American community in Lake County
a sample ballot marked with the names of the candidates
endorsed by the League. (T1 - 159) In the 1994 Lake County
School Board election, the endorsement of the League was
based exclusively on the candidate’s position on the Eustis
Middle School. (TI - 185)
25. The general procedure used by the League in selecting
candidates began with the League holding a preliminary
meeting of its directors who come from each of the
communities in Lake County. (TI - 162) The directors would
talk generally about each race and assign people to research
each candidate. (T1 - 160, 193-195) Researching each
candidate involved reading newspaper accounts about the
candidate, examining the candidate’s record, listening to
speeches, and reading campaign literature. (T1 - 161, 162)
26. The directors would meet again approximately a week
before the election and mark a sample ballot with their
selections. (Tl - 163) The ballot would be given to the area
directors who mailed the ballot to all minority voters in their
App. 13
home town. While no formal notice to candidates of an
endorsement was made by the Voter’s League, the endorsed
baliot was also mailed to the candidates on the Thursday or
Friday before the Tuesday election. (T1 - 163-164, 210 242)
27. The League would not make a public announcement of
its endorsements, other than the mailings, because it wanted to
avoid the possibility that the candidate who was not endorsed
would use it against the candidate who was. (TI - 165-166,
179, 232) Mr. Poole testified that residents in lake County know
that the sample ballot comes from the Voter’s League of Lake
County. (TI - 195, 211)
28. The Voter’s League of Lake County had been a
consistent supporter of Kyleen Fischer during her political
career. (T1 - 107) The League first supported Ms. Fischer when
she ran successfully for the school board in 1982. (TI - 158)
(Exhibit 3) The League also supported her in the 1994
Republican primaries for the District 5 school board seat. (T1
- 32) (Exhibit 8) Finally, the League actually selected Kyleen
Fischer over Sandra Green in the 1994 general election for the
School Board of Lake County, District 5. (Exhibit 16)
29. Tom Poole was president of the Tri-City branch of the
National Association for the Advancement of Colored People
(NAACP) from 1968 until 1994. (T1 - 151) The constitution of
the NAACP prohibits all of its branches from endorsing
candidates. (Tl - 153) (Exhibit 2) The Tri-City Branch of the
NAACP (which includes the school board district) did not
endorse either Sandra Green or Kyleen Fischer in the school
board race. (T1 - 99, 153; T2 - 135) (Exhibit 2)
30. Prior to the radio advertisement aired by the Kyleen
Fischer campaign, Mr. Poole had never seen any candidate
App. 14
advertise that the NAACP endorsed his candidacy for public
office. (T1 - 154-155, 250-251) Mr. Poole testified that the
radio advertisement is the first time in his experience in Lake
County politics that a candidate has asserted that the NAACP,
instead of the Voter’s League of Lake County, endorsed a
candidate. (Tl - 248) Ms. Green testified that she knew the
NAACP did not endorse candidates. (T1 - 99; T2 - 31-32, 35)
31. Mr. Poole testified that the reason why the Voter's
League of Lake County endorsed Kyleen Fischer over Sandra
Green was because Sandra Green was “deadly opposed” to the
Eustis Middle School staying at its present location. (T1 - 170)
Mr. Poole believed that there was no flexibility in Ms. Green’s
position; she was “solid” on the issue. (T1 - 172)
32. Further, Ms. Green had publicly taken a position against
leaving the school in its present location. (T1 - 170; T2 - 41)
While a member of the Lake County School Board, Ms. Green
had voted to move the school to a new site. (T1 - 170; T2 - 41)
(Exhibit 25) Ms. Green proposed establishing a magnet school
on the Eustis Middle School site. (T1 - 238-239) (Exhibit 25)
33. Kyleen Fischer, however, was viewed by the African-
American community as the swing vote on the issue of
relocating the Eustis Middle School. (T1 - 171, 233) Mr. Poole
spoke to Ms. Fischer early in the campaign and Ms. Fischer
said she was open on the issue. (T1 - 172, 222) Although as the
campaign progressed, Ms. Fischer indicated that she favored a
new Eustis Middle School, she never took a firm position on the
site of the new school before she aired the radio advertisement.
(TI - 173; T2 - 40, 108-110) Bob Green, the radio announcer
for WKIQ, said on the air the Monday before the election that
he had spoken to Ms. Fischer and while she said she favored a
new Eustis Middle School, she would remain open on the
. App. 15
location of the school, if elected. (T1 - 120)
34. Mr. Poole talked to Ms. Fischer during the last month
of the campaign, and he also said that she had told him that she
remained open on the issue of the location of the new school.
(T1 - 202-207) Ms. Fischer’s Ten Point Plan simply indicated
that if the school was moved to a different location, she favored
a vocational high school on the old site. (T1 - 204-205; T2 -
53-54) Her plan did not advocate building a new school at a
different site. (T1 - 205; T2 - 41) (Exhibit 12)
35. On the issue of the Eustis Middle School, Mr. Poole’s
position and the position of the Voter’s League of Lake County
was clearly more consistent with the position of Ms. Fischer
than with Ms. Green’s. (Tl - 170-175) Further, if the Eustis
Middle School was not going to remain at its present location,
Ms. Fischer’s alternative, to locate a vocational school at the
site, was more acceptable to Mr. Poole and the Africa-American
community than Ms. Green’s alternative, to locate a magnet
school at the site. (T1 - 174-175, 238-239)
36. Ms. Fischer testified that Ms. Green told he repeatedly
during the campaign that Mr. Poole for the Voter's League of
Lake County endorsed her. (T2 - 107-108) At a round table
discussion in mid-October of 1994, Ms. Green told Ms. Fischer
that Mr. Poole endorsed her. (T1 - 89) Ms. Fischer responded
by saying that she appreciated the endorsement. (TI - 89) She
went on to say that she would like to see that school stay in the
community as a vocational high school. (T1 - 89)
37. Ms. Green never solicited the endorsement of the
Voter’s League of Lake County during the campaign. (T2 - 49)
In fact, she never spoke with Mr. Poole about the Eustis Middle
School issue. (T2 - 36) She recognized that her position was
App. 16
contrary to the position of the League. (T2 - 49)
38. Ms. Green did not make any deals with the NAACP, the
League, or Mr. Poole. (T1- 184-187; T2 - 50) The statement in
the radio advertisement that Ms. Green had been endorsed by
the NAACP was false, a fact conceded by Ms. Fischer
(Respondent’s Proposed Findings of Fact 26)
C - The Poole — Philips Meeting and the Creation
of the Radio Advertisement
39. On Friday, November 4, 1996, Tom Poole and Ron
Phillips met outside the offices of the Lake Sentinel in Tavares.
(T1 - 176-182, 221-224, 249) (Exhibit 20) Ron Phillips asked
Tom Poole whether he was going to support Ms. Fischer in the
election. (Tl - 176-182, 221-224, 249) Mr. Poole asked Mr.
Phillips why he should support Ms. Fischer. (T1 - 176-182,
221-224, 249) Mr. Phillips gave Mr. Poole a summary of Ms.
Fischer’s strong points. (T1 - 176-182, 221-224, 249)
40. Mr. Poole then explained how important the Eustis
Middle School issue was and told Mr. Phillips that he and his
organization needed to know where Ms. Fischer stood on that
issue. (T1 - 176-182, 221-224, 249) Mr. Phillips waffled and
Mr. Poole replied that he knew where Sandra Green stood on
the issue. (Tl - 176-182, 221-224, 249) Mr. Phillips took that
statement to mean that Mr. Poole was going to support Sandra
Green. (Tl - 176-182, 221-224, 249) (Exhibit 22)
41. While Mr. Phillips also testified that Poole told him that
“we are going to go with the other lady (Green),” it is the
Commission’s finding, in light of the fact that Mr. Poole and
the Voter’s League had not yet made a formal decision, that this
statement is not credible. (Exhibit 22)
App. 17
42. Shortly after his conversation with Mr. Poole, Mr.
Phillips called Ms. Fischer to tell her about his conversation
with Mr. Poole. (T2 - 205) Both Ms. Fischer and Mr. Phillips
testified that he told Ms. Fischer that Mr. Poole said that the
NAACP was endorsing Sandra Green. (T2 - 180) However, for
the reasons set forth in Paragraph 41, the Commission finds that
the testimony of both Ms. Fischer and Mr. Phillips is not credible
on this point.
43. Mr. Phillips signed an affidavit indicating that he asked
Mr. Poole whether he had cut a deal with Ms. Green. (Exhibit
20) He further indicated in his affidavit that in response, Mr.
Poole smiled. (Exhibit 20) Mr. Poole denied any conversation
about a political deal. (T1 - 184-185) He said that he did not
make a deal with Ms. Green and that in his 28 years in Lake
County politics he had never made a political deal. (TI - 184-
185, 187) He also said that Mr. Phillips did not ask him whether
a deal was made. (T1-182)
44. Ms. Fisher testified that Mr. Phillips did not tell her that
Mr. Poole had made a deal with Ms. Green. (T2 - 112-113) Mr.
Phillips did not mention it when he called her shortly after his
conversation with Mr. Poole or when he met her at the radio
station to edit and record the radio advertisement. (T2 - 160-
161) Clearly no evidence of a political “deal” between Mr.
Poole and Ms. Green was communicated by Mr. Phillips to Ms.
Fischer.
45. Both Ms. Fischer and Mr. Phillips testified that they
were shocked when they mistakenly jumped to the conclusion
that Mr. Poole (and the Voter’s League) was going to support
Ms. Green. (T2 - 216) (Exhibit 20) Mr. Phillips felt that way
because it was his understanding that Ms. Green’s position on
the Eustis Middle School was diametrically opposed to Mr.
App. 18
Poole’s. (T2 - 216) Ms. Fischer was shocked because she
expected to get the endorsement of the Voter’s League. (T2 -
117) Although both Ms. Fischer and Mr. Phillips were surprised
and nonplused at the news of the “endorsement,” Ms. Fischer
aired the radio advertisement before taking any steps to verify
the “endorsement.” (T2 - 117-118)
46. During the telephone conversation with Ms. Fischer,
Mr. Phillips suggested that they go public on the issue. (T2 -
181-182) Mr. Phillips, therefore, wrote the advertisement, and
Ms. Fischer joined him at the radio station and edited and
helped record the radio advertisement. (T2 - 150-151, 160) The
Fischer campaign paid for the radio advertisement. (Exhibit 6)
47. When the political advertisement spoke of “political
deals,” one of the “deals” that Ms. Fischer was referring to was
a “deal” on the Eustis Middle School. (T2 - 97) Mr. Poole
testified that everyone in the community understood the radio
advertisement to mean that Ms. Green had made a political deal
on the Eustis Middle School with the NAACP to get its
endorsement. (T1 -245-246) No such deal had been made and
the Fischer campaign had no evidence pointing to such a deal.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction over the parties to and
the subject matter of this cause, pursuant to Sections 104.271
and 106.26, Florida Statutes.
2. The Respondent is charged with violating Section
104.271(2), Florida Statutes, which provides as follows:
Any candidate who, in a primary election or
other election, with actual malice makes or
App. 19
causes to be made any statement about an
opposing candidate that is false is guilty of a
violation of this code.
3. Therefore, to prove a violation of this section, the
Division must prove by clear and convincing evidence! the
following four elements: 1) The Respondent made or caused to
be made the statement at issue in the case. 2) The statements
were made about a candidate opposing the Respondent. 3) The
statements made about the opposing candidate were false. 4)
The Respondent made the statements with actual malice.
4. As to both the flyer and the radio advertisement, there is
no dispute that the first two elements are present. Both
advertisements were produced and authorized by Ms. Fischer
and both were explicitly aimed at her opponent, Ms. Green.
Ms. Fischer admitted at the hearing that she helped draft and
approved the flyer before it was mailed, and edited and helped
record the radio advertisement before it was aired. Ms. Fischer
also admitted, and her campaign treasurer’s reports show, that
she paid for both advertisements out of her campaign account.
Both advertisements mentioned Ms. Green specifically and
made factual assertions about Ms. Green’s activities in order to
sway voters to support Ms. Fischer in the campaign.
5. The evidence shows that the statements contained in the
flyer and the radio advertisement were false and misleading. As
a necessary corollary to the requirement that the statements be
false, they must also be derogatory, defamatory, or otherwise
be actionable as knowing misrepresentations of an opposing
candidate’s positions that are intended to result in damage to the
‘Dep't of Banking and Finance v. Osborne Stern and Co., 670
So. 2d 933 (Fla. 1996); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
oe
App. 20
candidate’s electoral prospects. Cf. State v. Petersilie, 432 S.E.
2d 832, 839 (N.C. 1993).
6. In determining whether the statements at issue herein are
damaging or derogatory, it is necessary to analyze both the
overall impact of and the implications contained in the
statements. Cf. Jones v. American Broadcasting Companies,
Inc., 694 F. Supp. 1542, 1551-1554 (M.D. Fla. 1988), aff’d
(after remand), 961 F. 2d 1546 (1 Ith Cir. 1990).
7. In the context of Section 104.271(2), Florida Statutes, it
is Clear, at the very least, that a false statement made about a
candidate is actionable is such a statement damages the
candidate by attributing a position to the candidate that is false.
Clearly, in the midst of a campaign nothing is more damaging
to a candidate than to have an opposing candidate make false
assertions, purportedly based upon facts, which tie a candidate
to positions that are unpopular with the electorate.
8. An examination of the flyer shows that it contained
several false statements. During the 1994 elections, Ms. Green
did not “want to close Umatilla High School,” nor was she
“examining the possibility of consolidating Umatilla and Eustis
High Schools.” Ms. Fischer testified that her campaign workers
obtained material used to provide the statements in the flyer
from a newspaper article in the North Lake Outpost printed two
years before the election. Although Ms. Fischer did not hear
Ms. Green make any statement or see her circulate any
campaign material about the consolidation of Eustis and
Umatilla high schools in the 1994 elections, Ms. Fischer
worded the statements in the flyer in the present tense.
10. Ms. Green testified that she never wanted to close
Umatilla High School, only to consolidate it with Eustis High
~ App. 21
School. Ms.Green further testified that the only action she took
regarding the consolidation of Eustis and Umatilla high schools
was to call a meeting of teachers, parents, and former students
to discuss the issue a full two years before the election. Ms.
Green never sought or indicated a desire or intent to consolidate
Umatilla and Eustis high schools after that meeting. In fact, she
voted to build a several million dollar media center at Umatilla
High School, further showing her intent not to close or
consolidate the school. Therefore, these two statements made
by Ms. Fischer in the campaign flyer were false.
11. However, the most egregious of the false statements in
the flyer was the statement in the middle of the inside page that
in large letters read: DEMOCRAT GREEN STATED: “Green
said...she personally favored consolidation for Eustis and
Umatilla.” Green never made that statement and she testified
that was not her position in the 1994 elections. The newspaper
article from which Ms. Fischer obtained her information did not
contain any quotations from Ms. Green. Although the flyer
used the words: “DEMOCRAT GREEN STATED,” Ms.
Fischer actually quoted the reporter who wrote the newspaper
article and not Ms. Green.
12. Further, the language quoted from the newspaper article
was substantially altered to change its meaning. The statement
that Ms. Green favored consolidation was qualified by the
following language in the newspaper article at the end of the
language quoted in the flyer: “that it would be ultimately up to
the parents to decide whether to proceed with the concept or
not.”
13. The impact of the deletion of the qualifying language is
amplified by the fact that the flyer was a targeted mail piece for
the Umatilla area and was intended to tar Ms. Green with
App. 22
actively espousing a position that, if implemented, would result
in a small rural community losing its high school. The failure
to include the qualifying language or to indicate that language
was omitted substantially changed the meaning of the statement
and would lead a reader to the conclusion that Ms. Green had
announced a firmly held position to vote to consolidate the two
high schools.
14. It takes no special knowledge to see that the attribution
to Ms. Green of a position that would result in the substantial
diminution of the Umatilla community’s identity through the
closure of its own high school would not have endeared her to
the Umatilla electorate. It is obvious that the flyer was intended
to damage Ms. Green’s campaign in just this way. In light of
the plain language of Section 104.271(2), Florida Statutes,
clearly just such a tactic is intended to be prohibited by the
statute, if the statements are false and disseminated with actual
malice.
15. The radio advertisement also contained false statements.
As admitted by Ms. Fischer in her Proposed Final Order, the
NAACP does not endorse candidates running for public office.
The constitution of the NAACP prohibits all branches of the
organization from endorsing candidates. Mr. Poole, the
president of the Tri-City Branch of the NAACP from 1968 to
1994, testified that the organization’s’s constitutional
prohibition is adhered to by the Tri-City Branch. He further
testified that it was the Voter’s League of Lake County and not
the NAACP that made endorsements. In fact, the Voter’s
League endorsed Ms. Fischer and not Ms. Green.
16. The radio advertisement, taken as a whole, falsely
implied that Ms. Green made a deal with the NAACP on the
Eustis Middle School to obtain its endorsement. As Mr. Poole
App. 23
testified, everyone in the community understood the radio
advertisement to mean that Ms. Green had made a political deal
on the Eustis Middle School with the NAACP to get its
endorsement. No such deal, however, had ever been made.
17. The law does not require that Ms. Fischer make an
explicit statement that Ms. Green had made a political “deal” in
order for her advertisement to make the defamatory assertion
that Ms. Green lacked integrity. What is required, is that the
statement necessarily results in that conclusion and that the
conclusion is false, because the “facts” upon which it is based
are false.3
18. Since Section 104.271, Florida Statutes, regulates
political speech, it must be construed in accordance with the
United States Supreme Court’s pronouncements concerning the
? Once again, in the context of this particular campaign Green
had publicly adopted a hard and fast stand which was contrary to the
NAACP’s (Voter’s League's) position on the Eustis Middle School issue.
Thus, such an assertion of a political “deal” could only be considered to
be an attempt by Fischer to cast aspersions upon the integrity and
character of Green by implying that Green had not stuck to her
announced position but had reversed field in order to gain support.
* The advertisement’s underpinnings are grounded in concrete
real world assertions of fact—the NAACP endorsement, the Eustis Middle
School issue and the implied volte-face on the part of Green to get the
endorsement. Thus, the context of the radio advertisement shows that its
assertions are not “imaginative expressions or rhetorical hyperbole” and
are not in the realm of “faise opinion” but are rather statements of
purported fact and thus are within the ambit of unprotected speech if they
are false and made with actual malice. Cf. Milkovich v. Lorain Journal
Co., 497 U.S. 1, 20-21, 110 S. Ct. 2695, 2706-2707 (1990), Pullam vy.
Johnson, 647 So. 2d 254, 256-258 (Fla. Ist DCA 1994) rev, den. 654 So.
2d 919 (Fla. 1995).
App. 24
protection afforded this type of speech by the First Amendment
to the United States Constitution.
19. In 1964, the Supreme Court in the case of the New York
Times Co. v. Sullivan, 376 U.S. 254 (1964), established the
standard of what must be shown before a public figure can
recover damages for a defamatory falsehood relating to his
official conduct. New York Times v. Sullivan and it’s progeny,
therefore, must be followed in determining whether the facts of
this case meet the “actual malice” standard required by the
statute and the First Amendment. “Actual malice” requires a
showing that the Respondent made the false statements with
knowledge that the statements were false or with reckless
disregard of whether they were true or false. Id. at 280.
20. The evidence shows that at the time Ms. Fischer mailed
the flyer on consolidation to the Umatilla area one week before
the election, she knew the false statements made in the flyer
were, in fact, false. As Ms. Fischer testified, the flyer was
based on the one newspaper article from the North Lake
Outpost published in 1992. Ms. Fischer admitted that during
the 1994 campaign, she had not heard Ms. Green make
statements about the consolidation issue and she had not seen
any other written material from the newspaper, Ms. Green, or
the Lake County School Board on the issue. Therefore, when
Ms. Fischer published the flyer on consolidation, she knew the
truth and elected to disregard it.
21. As mentioned above, the false statement in the
*In Sullivan, the police commissioner of Montgomery, Alabama
sued certain civil rights and the newspaper for inaccuracies in a
newspaper advertisement soliciting donations to the civil rights
movement.
Danaea ne er ean orate a
App. 25
\
consolidation flyer that allegedly quoted Ms. Green was
particularly egregious. The Supreme Court has recognized that
quotation marks around a statement add authority to that
statement. In Mason v. New Yorker Magazine,Inc., 501 U.S.
496, 511 (1991), the Supreme Court held:
In general, quotation marks around a passage
indicate to the reader that the passage
reproduces the speaker’s words verbatim. They
inform the reader that he or she is reading the
statement of the speaker, not a paraphrase or
other indirect interpretation by an author. By
providing this information, quotations add
authority to the statement and credibility to the
author’s work. Quotations allow the reader to
form his or her own conclusions and to assess
the conclusions of the author, instead of relying
upon the author’s characterization of her
subject.
22. Because quotation marks may be a devastating
instrument for conveying false meaning, the Supreme Court
concluded that the deliberate alteration of the words spoken by
another may equate with knowledge of the falsity of the
statement, if the alteration results in a material change in the
meaning conveyed by the quoted statement and the material
change defames or harms the alleged speaker. Id. at 517-520.
23. Here, Ms. Fischer attributed to Ms. Green a statement
that was never made by Ms. Green. The language came from a
newspaper article that did not attach quotation marks to any
statement of Ms. Green and was at best an asserted paraphrase
of Ms. Green by the reporter who wrote the newspaper article.
Nevertheless, Ms. Fischer, in her flyer, attributed the actual
App. 26
statement to Ms. Green herself by using quotation marks around
the paraphrased material and by introducing the quoted
language with the salutation — DEMOCRAT GREEN
STATED.
24. Also, Ms. Fischer changed the meaning of the
paraphrased material by omitting critical qualifying language
used in the newspaper article and by leading the reader to
believe that any language omitted from the statement did not
relate to Ms. Green’s position on the consolidation issue. Ms.
Fischer’s conduct was malicious, because she knew the truth
and elected to disregard it.
25. Ms. Fischer’s false statements made in her radio
advertisement were also made with “actual malice.” However,
in this case, the advertisement was made with reckless disregard
of whether the statements were true or false, rather than with
actual knowledge that they were false.
26. The Court has explained the parameters of the “reckless
disregard” portion of the definition of “actual malice.” In
Garrison v. Louisiana, 379 U.S. 64, 74 (1964),5 the Court held
that “only those false statements made with the high degree of
awareness of their probable falsity ...may be the subject of
either civil or criminal sanctions.” The Court warned that
“calculated falsehoods” do not enjoy constitutional protection.
Id. In St. Amant v. Thompson, 88 S. Ct. 1323, 1325 (1968),® the
* In Garrison, the New Orleans’ district attorney was convicted
pursuant to Louisiana’s criminal defamation statute, based on his
criticism of the local judiciary at a press conference.
* In St. Amant, a deputy sheriff sued a candidate for public
office, claiming that the candidate's remarks about him in a televised
App. 27
Supreme Court held that reckless disregard also means that
“{t]here must be sufficient evidence to permit the conclusion
that the defendant in fact entertained serious doubts as to the
truth of his publication. Publishing with such doubts shows
reckless disregard for truth or falsity and demonstrates actual
malice.”
27. Finding “actual malice” requires proof of the speaker’s
state of mind at the time that she circulated the false statement,
Bose Corp. v. Consumers Union, 466 U.S. 485, 498, (1984).
The speaker’s state of mind may be proved either through direct
evidence or circumstantial evidence. St. Amant, supra. Simple
professions of good faith by the speaker are unpersuasive.
Id. In determining whether the speaker had a high degree of
awareness of the probable falsity of that statements contained
in the political advertisement or whether she entertained serious
doubts as to their truth, it is appropriate to look at the
information the speaker had available to her at the time she
spoke. McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501
(D.C. Cir 1996).
28. Although Ms. Fischer testified at hearing that she did
not know the difference between the NAACP and the Voter’s
League of Lake County when she aired the radio advertisement,
the evidence shows that her statement is not credible. Ms.
Fischer is a successful and actively involved candidate in Lake
County politics and has been for over 15 years. For virtually
the same time period, beginning in 1978, the League also has
been actively involved in Lake County, endorsing candidates
and distributing sample ballots to the minority community.
speech imputed gross misconduct to him.
App. 28
29. In addition, Ms. Fischer was involved with the Tri-City
Branch of the NAACP, at least to the extent of attending its
annual Pass the Torch Banquet. In contrast to the League, the
NAACP has never endorsed a candidate. In fact, it is prohibited
by the NAACP constitution from doing so. Mr. Poole testified
that Ms. Fischer’s advertisement was the first time any
candidate in Lake County has said that the NAACP endorses
candidates.
30. Ms. Green, with less pclitical experience than Ms.
Fischer, knew that it was the League and not the NAACP that
endorsed candidates. Ms. Green testified to those facts at the
hearing, but she also made the same statement when she called
WKiQ the Monday before the election challenging the
truthfulness of the radio advertisement. Ms. Green told the
commentator, Bob Green, that she knew it was not the policy of
the NAACP to endorse candidates. She also said that a letter
had gone out from the League indicating that it endorsed
Ms. Fischer in the primary election.
31. Considering these facts, the Commission concludes that
Ms. Fischer would have had obvious reasons to doubt any
report from Ron Phillips, even if it had occurred, that the
NAACP had endorsed a candidate in the Lake County School
Board race. In addition, Ms. Fischer would have had obvious
reasons to doubt that Ms. Green was the candidate endorsed.
32. As indicated above, during her political career, Ms.
Fischer had enjoyed the consistent support of the Voter’s
League of Lake County. The League endorsed her for the first
time in her 1982 race for the school board. The League also
endorsed her in both primary elections in the 1994 race and Ms.
Fischer knew that she had been endorsed by the League in the
primaries. Ms. Fischer acknowledged that on many occasions
App. 29
during the campaign that she was told by Ms. Green that the
Voter’s League endorsed her. One occasion in mid-October
1994, Ms. Fischer even stated her appreciation for the
endorsement.
33. Another important factor in determining whether Ms.
Fischer entertained serious doubts about whether the NAACP
had endorsed Ms. Green, is the candidates’ positions on the fate
of the Eustis Middle School. Both candidates knew that the
endorsement of the Voter’s League of Lake County was going
to be based on the single, most important issue in the campaign
— whether to relocate or repair the Eustis Middle School. Ms.
Fischer’s position was much closer to the position of the
League than was Ms. Green’s. While Ms. Green voted at a
school board meeting to build a new Eustis Middle School at a
different site, Ms. Fischer never took a firm position on that
issue during the campaign, and in October of 1994, she
communicated this fact to Mr. Poole.
34. The evidence also shows that Ms. Fischer actively
solicited the endorsement and support of the Voter’s League of
Lake County, while Ms. Green testified that she recognized the
futility of seeking the endorsement and, therefore, made no
effort to do so. As the president of the League, Mr. Poole’s
testimony on this question is persuasive. He said that Ms.
Green was, as he put it, “deadly opposed” to keeping the Eustis
Middle School at its present location; she was “solid” on the
issue. Mr. Poole also said that the community viewed Ms.
Fischer as the swing vote on this issue while Ms. Green had
already taken a position publicly by her vote on the school
board.
35. In further support of the Commission’s conclusion that
Ms. Fischer doubted the truth of the news that the NAACP was
App. 30
endorsing Sandra Green was her reaction when she stated that
she became “aware” of this “fact.” Although both Ms. Fischer
and Mr. Zhillips seriously doubted the truth of the
“endorsement”-and were “shocked” that it had occurred, Ms.
Fischer did not take any steps to verify the accuracy of Mr.
Phillip’s report.’
36. Ms. Fischer never explained upon what facts she based
her statement made in the radio advertisement concerning
Sandra Green being involved in “political deals.” Ms. Fischer
testified that Mr. Phillips never mentioned anything to her about
a political deal. He never mentioned it when they had their
telephone conversation shortly after Mr. Phillips’ conversation
with Mr. Poole; he never mentioned it when Ms. Fischer met
him later at the radio station to edit and record the
advertisement. The Commission, therefore, finds Ms. Fischer’s
statement in her radio advertisement that Green was making
deals in return for the supposed NAACP endorsement, is either
a fabrication without any basis in fact, or that it was so
inherently improbable as to make its dissemination reckless.
See St. Amant, supra.8
” Although the failure to investigate before publishing not
sufficient to establish reckless disregard, purposeful avoidance of the
truth may be. Harte-Hanks Communication, Inc. v. Connaughton, 491
U.S. 657 (1989).
* The Supreme Court in St. Amant identified three types of
circumstantial evidence that would likely support a finding of actual
malice: They are evidence establishing (1) “where the story was
fabricated,” (2) “when the publisher’s allegations are so inherently
improbable that only a reckless man would put [it] in circulation,” or (3)
“where there are obviously reasons to doubt the veracity of the informant
or the accuracy of his reports.” St. Amant v. Thompson, 390 U.S. at 732.
App. 31
37. The stated or implied factual premise for the defamatory
allegation that Ms. Green had made “political deals” was that
such had been made in return for the endorsement of the
NAACP. Since that “fact” was untrue and Ms. Fischer was
aware of the great likelihood of its untruthfulness, then it is
apparent that the act of disseminating the radio advertisement,
accusing Ms. Green of entering into a non-existent political deal
in return for a non-existent endorsement, occurred with actual
malice.
CONCLUSION
Based upon the foregoing facts and conclusions of law, the
Florida Elections Commission finds that the Respondent
violated Section 104.271(2), Florida Statutes, on two occasions
by disseminating false statements about an opposing candidate
with actual malice. Therefore, it is
ORDERED that the Respondent shall remit a civil penalty
in the amount of $5500 based upon a fine of $2500 for the
improper flyer and $3000 for the radio advertisement. The civil
penalty shall be paid to the Florida Elections Commission,
Room 2002, The Capitol. Tallahassee, Florida 32399-0250,
within 30 days of the date this Final Order is received by the
Respondent.
DONE AND ENTERED by the Florida Elections
Commission and filed with the Clerk of the Commission on
January 3, 1997, in Tallahassee, Florida.
/S/
Carlso Alvarez, Chairman
Florida Elections Commission
Room 2002, The Capitol
Tallahassee, Florida 32399-0250
App. 32
Copies furnished to:
John Rimes, Assistant Attorney General
Barbara M. Linthicum, Assistant General Counsel
Sandra T. Green, Complainant
Chris Haughee, Attorney for Respondent
Kyleen Fischer, Respondent (certified mail)
Emogene W. Stegall, Filing Officer
App. 33
STATE OF FLORIDA
FLORIDA ELECTIONS COMMISSION
DIVISION OF ELECTIONS,
Petitioner/Appellee,
VS. Case No. FEC 94-122
F.O. No. DOSFEC 96-88
KYLEEN FISCHER,
Respondent/Appellant.
/
NOTICE OF APPEAL
Notice is given that KYLEEN FISCHER,
Appellant/Respondent, appeals to the First District Court of
Appeal, the order of the State of Florida Elections Commission
rendered on January 3, 1997. The nature of the order is a Final
Order of the Florida Elections Commission finding that Kyleen
Fischer violated Section 104.271(2), Florida Statutes, on two
occasions by disseminating false statements about an opposing
candidate with actual malice. -
A conformed copy of the Final Order is attached to this
Notice of Appeal.
Respectfully submitted this 3rd day of February, 1997,
/S/
CHRIS HAUGHEE
Florida Bar #242985
MARK HERRON
Florida Bar #199737
App. 34 —
Akerman, Senterfitt & Eidson, P.A.
216 South Monroe Street, Suite 200
Post Office Box 10555
Tallahassee, Florida 32302-2555
(904) 222-3471
Counsel for Respondent
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by hand delivery to Barbara
Linthicum, Assistant General Counsel, Division of Elections,
Room 2002, The Capitol, Tallahassee, Florida 32399-0250, this
3rd day of February, 1997.
/S/
CHRIS HAUGHEE
App. 35
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIMES EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED.
KYLEEN FISCHER
Appellant,
Vv. CASE NO.: 97-435
DIVISION OF ELECTIONS,
Appellee.
/
Opinion filed January 23, 1998.
An appeal from an order of the Florida Elections Commission.
Christopher R. Haughee and Mark Herron of Akerman,
Senterfitt & Eidson, P.A., Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; John J. Rimes, III,
Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM
AFFIRMED.
BENTON, VAN NORTWICK AND PADOVANO, JJ.,
CONCUR.
App. 36
CORRECTED COPY 2/27/98
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIMES EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED.
KYLEEN FISCHER,
Appellant,
V. CASE NO.: 97-435
DIVISION OF ELECTIONS,
Appellee.
/
Opinion filed January 23, 1998.
An appeal from an order of the Florida Elections Commission.
Christopher R. Haughee and Mark Herron on Akerman,
Senterfitt & Eidson, P.A., Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; John J. Rimes, III,
Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM
AFFIRMED.
VAN NORTWICK AND PADOVANO, JJ., CONCUR AND
BENTON, J., DISSENTS without opinion.
MEELIS EOE T BORE Reh,
App. 37
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
KYLEEN FISCHER,
Appellant,
v. CASE NO.: 97-435
DIVISION OF ELECTION,
Appellee.
/
MOTION FOR REHEARING OR CLARIFICATION
This Motion for Rehearing or Clarification is submitted
pursuant to Rule 9.330, Florida Rules of Civil Procedure.
Rule 9.330(a), Florida Rules of Civil Procedure, requires
that “a motion for rehearing or clarification shall state with
particularity the points of law or fact that the court has
overlooked or misapprehended.” Because of the Court’s “per
curium affirmed” order, this is a practical impossibility without
running afoul of the Rule’s requirement that “[t]he motion shall
not re-argue the merits of the court’s order.” Rule 9.330(a),
Florida Rules of Civil Procedure.
The challenge to Section 104.271(1), Fla. Stat., raised by
Appellant’s appeal is a question of first impression and raises
significant First Amendment issues. “A brief opinion in such
cases, while understandably of little consolation to the
unsuccessful appellant, would at least assuage the thought that
the point had been overlooked.” Brastrom v. Grider, 215 So. 2d
501 (Fla. 1968).
App. 38
In Williams v. State, 627 So. 2d 524 (Fla. Ist DCA 1993),
this Court granted a motion for clarification as to the basis of a
“per curium affirmed” decision, apparently concluding that a
Statement of its basis was significant in that case.
Determination of First Amendment rights can be no less
significant.
Dated this 9th day of February, 1998.
Respectfully submitted,
/S/
MARK HERRON, Esquire
MARK HERRON, P.A.
216 South Monroe Street Suite 200
Tallahassee, FL 32301
Florida Bar No. 199737
(850) 567-4828
and
CHRISTOPHER R. HAUGHEE
Florida Bar No. 242985
AKERMAN, SENTERFITT &
EIDSON, P.A.
216 South Monroe Street, Suite 200
Post Office Box 10555
Tallahassee, Florida 32302-2555
Telephone: 850-222-3471
Facsimile: 850-222-8628
Counsel for Appellant
KYLEEN FISCHER
App. 39
CERTIFICATE OF SERVICE
E I HEREBY CERTIFY that a true and correct copy of the
foregoing was furnished by United States mail to BARBARA
LINTHICUM, Esquire, Executive Director, Florida Elections
‘ Commission, Room 2002, The Capitol, Tallahassee, FL
32399-0250; and ROBERT A. BUTTERWORTH, Attorney
: General, and JOHN H. RIMES, III, Assistant Attorney General,
1 Office of the Attorney General, PL-01, The Capitol,
Tallahassee, FL 32399-1050 _ this 9th day of February, 1998.
| /S/
; MARK HERRON
App. 40
DISTRICT COURT OF APPEAL, FIRST DISTRICT
Tallahassee, Florida 32399
Telephone No. (90)488-6151
March 3, 1998
CASE NO. 97-00435
L.T. CASE NO. FEC 94-122
Kyleen Fischer _ v. Division of Elections
Appellants(s), Appellee(s).
BY ORDER OF THE COURT:
Motion for rehearing or clarification, filed February 9, 1998,
is DENIED.
VAN NORTWICK AND PODAVANO, JJ., concur.
BENTON, J., dissents.
| HEREBY CERTIFY that the foregoing is (a true copy of) the
original court order,
Jon S. Wheeler, Clerk
By: /S/
Deputy Clerk
Copies:
Christopher R. Haughee Mark Herron
Barbara Linthicum John R. Rimes, III
App. 41
CONSTITUTION OF THE STATE OF FLORIDA
Article V
SECTION 3. a State statute or a provision
Supreme court.— of the state constitution.
(a) ORGANIZATION.—
The supreme court shall
consist of seven justices,
each appellate district shall
have at least one justice
elected or appointed from
the district to the supreme
court who is a resident of the
district at the time of his
original appointment or
election. Five justices shall
constitute a quorum. the
concurrence of four justices
shall be necessary to a
decision. When recusals for
cause would prohibit the
court from convening
because of the requirements
of this section, judges
assigned to temporary duty
may be substituted for
justices.
(b) JURISDICTION.—
The supreme court:
(1) Shall hear appeals
from final judgments of
trial courts imposing the
death penalty and from
decisions of district courts
of appeal declaring invalid
(2) When provided by
general law, shall hear
appeals from final
judgments entered in
proceedings for the
validation of bonds or
certificates of indebted ness
and shall review action of
Statewide agencies relating
to rates or service of
utilities providing electric,
gas, or telephone service.
(3) May review any
decision of a district court
of appeal that expressly
declares valid a state
Statute, or that expressly
construes a provision of the
state or federal constitution,
or that expressly affects a
class of constitutional or
state officers, or that
expressly and directly
conflicts with a decision of
another district court of
appeal or of the supreme
court on the same question
of law.
(4) May review any
decision of a district court
aaa aaaaa aaa aaa aaa iil 6
App. 42
of appeal that passes upon a
question certified by it to be
of great public importance,
or that is certified by it to
be in direct conflict with a
decision of another district
court of appeal.
(5) May review any order
or judgement of a trial court
certified by the district
court of appeal in which an
appeal is pending to be of
great public importance, or
to have a great effect on the
proper administration of
justice throughout the state,
and certified to require
immediate resolution by the
supreme court.
(6) May review a question
of law certified by the
Supreme Court of the
United States or a United
States Court of Appeals
which is determinative of
the cause and for which
there is no controlling
precedent of the supreme
court of Florida.
(7) May issue writs of
prohibition to courts and all
writs necessary to the
complete exercise of its
jurisdiction.
(8) May issue writs of
mandamus and quo
warranto to state officers
and state agencies.
(9) May, or any justice
may, issue writs of habeas
corpus returnable before the
supreme court or any
justice, a district court of
appeal or any judge thereof,
or any circuit judge.
(10) Shall, when requested
by the attorney general
pursuant to the provisions of
Section 10 of Article IV,
render an advisory opinion
of the justices, addressing
issues as provided by
general law.
(c) CLERK AND
MARSHAL.— The
supreme court shall appoint
a clerk and a marshal who
shall hold office during the
pleasure of the court and
perform such duties as the
court directs. Their
compensation shall be fixed
by general law. the marshal
shall have the power to
execute the process of the
court throughout the state,
and in any county may
deputize the sheriff or a
eT:
(0b CARIES SOD ep BET PP RENE I AEE 8 AS LENE RA A tt
App. 43
deputy sheriff for such-
purpose.
History.—SJ.R 52-D. 1971. adopted
1972: Am. CS for SJ.R's 49. 81. 1976.
adopted 1976. Am. SJ.R 20-C. 1979.
adopted 1980. Am HJ.R. 71. 1986.
adopted 1986.
App. 44
STATE OF FLORIDA
FLORIDA ELECTIONS COMMISSION
DIVISION OF ELECTIONS,
Petitioner,
VS.
CASE NO. FEC 94-122
K YLEEN FISCHER,
Respondent.
/
RESPONDENT’ P D FI
Pursuant to notice, the above matter was heard before the
Florida Elections Commission in Tallahassee, Florida on June
6, 1996 and in Orlando, Florida on August 2, 1996.
APPEARANCES
For Petitioner: Barbara Linthicum, Esquire
Florida Elections Commission
The Capitol, Room 2002
Tallahassee, Florida 32399-1007
For Respondent: Christopher R. Haughee, Esquire
Akerman, Senterfitt & Eidson, P.A.
216 South Monroe Street, Suite 200
Tallahassee, Florida 32301
App. 45
STATEMENT OF THE ISSUE
The issue to be resolved in this proceeding is whether Kyleen
Fischer violated Section 104.271(2), FS., as alleged in the Order
of Probable Cause issued by the Florida Elections Commission
on February 9, 1996.
PRELIMINARY STATEMENT
This action arose upon the filing of a sworn complaint
against the Respondent with the Division of Elections. The
Division of Elections conducted an investigation and found no
probable cause existed to believe Ms. Fischer had violated
Section 104.271(2), F.S. The Complainant timely appealed the
Division’s finding to the Florida Elections Commission. The
Commission after a hearing and consideration of the Division’s
Statement of Findings, documents submitted by the
Complainant, video and audio tapes and the arguments of the
Division and the Complainant, found there was probable cause
to believe that Ms. Fischer had violated Section 104.271(2),
F.S., in relation to two separate campaign advertisements. The
Commission issued an Order of Probable Cause on February 9,
1996 informing Respondent of her right to a hearing.
Respondent timely requested a formal hearing and further
requested that the matter be referred to the Division of
Administrative Hearings for hearing. After the filing of a
motion and hearing, the request to refer the matter to the Division
of Administrative Hearings was denied. Thereafter the matter
was set for formal hearing before the full Commission.
The cause came on for hearing as noticed. Petitioner
presented the testimony of David S. Bradford, T. H. “Tom”
Poole, Sr., Sandra T. Green, and Kyleen Fischer.
- App. 46
The Respondent presented the testimony of Ron Phillips.
The Petitioner offered exhibits 1-17, 20, 22-24 which were
admitted into evidence without objection. Petitioner offered
exhibit 25, a composite exhibit, which was admitted into
evidence over objection. One exhibit was offered on behalf of
Respondent. :
The parties presented a Stipulation related to one of the
campaign advertisements which was accepted by the
Commission.
Two separately numbered transcripts, one from each hearing
site, were issued. References to the transcript(s) will be
identified as I-T {indicating the transcript from the
Tallahassee hearing} and II-T_____ [indicating the transcript
from the Orlando hearing] followed by the appropriate page
number(s). References to the Petitioner’s exhibits will be
identified as P. Ex. followed by the appropriate number.
References to the Respondent’s exhibit will be identified as R.
Ex. |. References to the joint stipulation will be identified as
Stipulation.
FINDINGS OF FACT
GENERAL
1. Kyleen Fischer was the Republican candidate for the Lake
County School Board, District 5 seat, in the 1994 general
election. She had primary opponents in the first and second
primaries. (II-T32-34) Ms. Fischer previously served as a
School Board member from 1982 to 1986. She was defeated
for reelection in 1986. (II-T104)
App. 47
2. Sandra Green was the Democratic candidate for the Lake
County School Board, District 5 seat, in the 1994 general
election. Ms. Green was the incumbent, having been initially
elected to the Board in 1990, when she ran as a Republican
(Exhibit 15). She had no primary opponents in 1994. (II-T31)
3. The Fischer campaign was run informally from Ms.
Fischer’s house with a volunteer staff consisting of her daughter
Leah; a friend, Judy Susie Farley, who served as campaign
manager; Ron Phillips, a family friend who served as
adviser/consultant; and other family members and friends
assisting. (II-T112, 142-143, 168)
4. During the campaign, Ms. Fischer developed a written
Ten Point Education Platform to provide a definitive statement
of her position on various issues. No other candidate had such
a written platform, and Ms. Fischer’s platform served to
distinguish her from other candidates. (II-T143, 233) The
platform was distributed by mail and as a handout during the
general election campaign. (II-T143-144; P. Ex. 11, 12)
THE FLIER
5. During the 1994 general election campaign, the Kyleen
Fischer campaign produced a political advertisement in a
mailing flier format (hereinafter referred to as “the flier”).
Kyleen Fischer reviewed and approved the flier prior to it being
circulated. (II-T76-77; P. Ex. 13)
6. The flier dealt with the issue of the possible consolidation
of Eustis High School and Umatilla High School, and was
mailed to residents in Umatilla, a community of approximately
2,200 people. (II-T145, 149, 153; P. Ex. 13)
ia i Fi ia aa
App. 48
7. The consolidation issue had been brought to the attention
of the campaign by Holly Newby, editor of The North Lake
Outpost, a weekly newspaper circulated in the Umatilla area,
as an issue of current concern to the residents of Umatilla. Local
resident, Paul Bryan, a neighbor of Ms. Fischer, also shared that
concern with the campaign. Leah Fischer and Holly Newby
researched past issues of The North Lake Outpost and found the
only article on the issue in the November 26, 1992 edition.
(11-T77, 230; P. Ex. 23; Stipulation)
8. Based on the November 26, 1992 article, Leah Fischer,
Ron Phillips and Kyleen Fischer participated in the preparation
of the design, layout and copy of the flier. (II-T78, 169;
Stipulation)
9. The flier production, printing and postage was paid for
by the Fischer campaign. (Stipulation; P. Ex. 6)
10. The following statements contained in the flier are
alleged to be violations of §104.271(2), FS.:
a. One school board candidate wants to close Umatilla
High School. (II-T19-20; P. Ex. 13)
b. A group of parents and teachers from Eustis and
Umatilla, under the guidance of school board
member Sandra Green are examining the possibility
of consolidating Umatilla and Eustis High Schools.
(II-T23-24; P. Ex. 13)
“ “Green said ... she personally favored consolidation
for Eustis and Umatilla.” (II-T24-25; P. Ex. 13)
11. The flier consisted of a 8 1/2" x 11" piece of paper
App. 49
folded in half. The front mailing label side contains the
statement noted in paragraph 10.a. above. The top half of the
inside flap consists primarily of excerpts from the article in The
North Lake Outpost on November 26, 1992. The masthead of
the newspaper and the date of the article are clearly displayed.
The statements noted in paragraphs 10.b. and 10.c. above are
set forth below the masthead. The statement noted in paragraph
10.c. above is contained in a box and the statement is clearly
attributed to “The North Lake Outpost.” Below the box is a line
of stars serving as a definition break. Below the stars, on the
bottom half of the inside of the flier and continuing on the back
flap, the flier contains election campaign language regarding
Kyleen Fischer’s position against consolidating Umatilla High
School. (II-T80-81, 169-170; P. Ex. 13)
12. The suggestion to consolidate the two schools was first
made by Sandra Green at a 1992 school board budget workshop
on facilities’ needs. No other board members expressed support
for the suggestion at the workshop. (II-T 14-16, 58; Stipulation)
13. Subsequent to the 1992 workshop, Sandra Green held a
meeting to which she invited parents, teachers, former students
of hers who were residents of the communities affected, as well
as representatives from a recently consolidated school in south
Lake County. The meeting was held in late October or early
November 1992 and was attended by approximately 12-15
persons. (II-T15-16, 65; Stipulation)
14, Umatilla residents at the meeting expressed opposition
to consolidation. Sandra Green agreed to arrange a visit to
Lyman High School, another consolidated school in the area.
Prior to scheduling the visit to Lyman High School, Sandra
Green learned that some Umatilla residents had met to organize
opposition to consolidation. Sandra Green never scheduled the
App. 50
visit to Lyman High School and did not pursue the issue of
consolidation thereafter. Ms. Green did not communicate to
anyone that she had dropped the issue and did not have any
other contact with the opponents to convey that she had
abandoned the issue. (II-T17, 26-27, 57-60).
15. The newspaper article was published several weeks after
the meeting. Though Sandra Green spoke to the reporter who
was writing the article, she did not receive or otherwise obtain
a copy of the article until the flier was circulated during the
1994 general election campaign. The article accurately quoted
Sandra Green. (II-T18, 54-57; P. Ex. 23).
16. Leah Fischer and Ron Phillips researched the
consolidation issue in conjunction with the production of the
flier. They found no other newspaper articles or other public
statements by Sandra Green on the issue. Ms. Green was not
aware of any other published articles on the issue. (II-T57, 77-
78, 169-170; Stipulation).
17. Ms. Green was serving her first term on the school
board. The consolidation issue arose late in 1992, about
midway through her term. (Stipulation)
18. Ron Phillips testified that, based on his extensive
experience in campaigns, an incumbent’s entire record,
especially that developed during the current term, is relevant
and subject to scrutiny and comment during an election
campaign. The 2 year difference here was not significant.
(I1-T 172-173)
19. The boxed quote noted in paragraph 10.c. above is a
portion of a longer statement contained in The North Lake
Outpost article. The complete statement in the article reads,
App. 51
“Green said while she personally favored consolidation for
Eustis and Umatilla, and the expanded curriculum it would
bring, that it would ultimately be up to the parents to decide
whether to proceed with the concept or not.” (Stipulation; P Ex.
23) Ron Phillips testified that the boxed quote in the flier
should have ended with elipses (3 dots) but that the printer
failed to show that. (II-T171) Neither Kyleen Fischer nor Ron
Phillips thought that the conditional or qualifying language
affected Ms. Green’s personal position. (II-T149, 171)
20. Neither Kyleen Fischer nor Ron Phillips had any
concerns that the flier was inaccurate or misleading. The
relevant statements in the flier were extracted from a published
newspaper article, the source and date of the article are clearly
noted in the flier, and research failed to reveal any contrary or
conflicting information. It was considered an appropriate issue
for comment and the campaign received no complaints about
the flier during the campaign. (II-T144-145, 170; Stipulation;
P. Ex. 13)
21. In May 1996, Ms. Green stated that she still personally
considered consolidation of the two schools a good idea.
(Stipulation). In her hearing testimony, Sandra Green did not
deny that she still personally supported consolidation, but
distinguished her personal and professional opinions from any
action she took as a school board member. (II-T 25, 27). That
same distinction is evident in her statement contained in the
newspaper article. (Stipulation; P. Ex. 23). Even Ms. Green
concedes that it is a matter of semantics and the flier statement
is simply taken out of context. (II-T24-25). That distinction
does not affect the veracity of the statement contained in the
flier; it is not a false statement. ©
22. Ms. Green’s consolidation proposal contemplated Eustis
App. 52
Middle School moving to Eustis High School and Umatilla
Middle School nvoving to Umatilla High School, and the
construction of a new consolidated high school to replace both
existing high schools. (II-T15) This would effectively close
Umatilla High School. Accordingly, the statement located on
the front flap of the flier is not false.
23. The statement on the inside flap referred to in paragraph
10.b. is an accurate reproduction of the original newspaper
article. The flier plainly displays the date and source of the
_ Statement. The use of the present verb tense is consistent with
the attribution source and date. (Stipulation; P. Ex. 13) The
statement is no? false.
RADIO ADVERTISEMENT
24. During the last week of the general election campaign,
the Kyleen Fischer campaign produced a radio advertisement
(“the ad”) which stated, in part, “The NAACP has endorsed her
opponent, Sandra T. Green.” (P. Ex. 14). The ad aired three
times, twice on the Saturday immediately prior to the election
and once on Monday morning, the day before the election. The
air time was paid for by the Fischer campaign. (II-T119, 121,
150, 186)
25. The ad was produced, including the drafting of the
script, by Ron Phillips. Kyleen Fischer reviewed and approved
of the ad prior to its airing. (II-T84, 125, 150, 160, 175-176)
26. The statement in the ad that the NAACP had endorsed
Sandra Green is admittedly false. (II-T84)
27. The statement in the ad that the NAACP had endorsed
App. 53
Sandra Green was based on information supplied by Tom Poole
to Ron Phillips on Thursday or Friday prior to the election when
Mr. Phillips encountered Mr. Poole at the offices of the Lake
Sentinel, a local newspaper. (II T176)
28. In 1994, Tom Poole was the President of the Tri-City
Branch of the NAACP. He had served as the President since
1968. He was also serving as state President of the NAACP,
Chairman of the Fifth Region of the NAACP (which includes 7
southeastern states), and a member of the National Board of
the NAACP. (I-T150-152, 187-188: P. Ex. 24). Tom Poole
was one of only 3 persons in the United States to serve as a
local, state, and national officer of the NAACP. (P. Ex. 24).
Mr. Poole’s affiliation with the NAACP is well known in the
community. (Ii-T185, 232-233)
29. The Constitution and By-Laws for branches of the
NAACP provide for a political action committee to increase
registration and voting and to work for a favorable legal and
legislative environment. The committee is directed to be
nonpartisan and is prohibited from endorsing candidates. This
applies to all levels of the NAACP. (I-T152-153:; P. Ex. 1),
30. In 1994, Tom Poole was also serving as President of the
Lake County Voters League, a position he had held since he
founded the organization in 1978. The Voters League was
founded to provide and promote voter education, voter
participation and voter registration. It also offers guidance,
through endorsements of candidates, to the minority community
regarding candidates who may be amenable to help solve
problems in the minority community. (I-T153, 166).
31. Tom Poole taught in the public schools of Lake and
Orange Counties for 39 years, primarily as a science and
App. 54
physical education teacher and coach. He was active in the
Lake County Education Association, serving as an officer and
labor negotiator. Mr. Poole was actively involved in the civil
rights movement. In 1978, he was appointed by Governor
~Askew to serve on the Florida Human Relations Commission.
Mr. Poole was, and is, a recognized and respected leader in
Lake County and is a spokesman for the minority community.
(I-T150-152, 176; Il-T61; P. Ex. 24).
32. The Voter’s League is currently organized as a registered
political committee. It has previously operated as a registered
committee of continuous existence, though this registration
lapsed for a period of time in the 1980s. (I-T192; R. Ex. 1).
Membership dues are minimal, meetings are infrequent. The
number of members is not readily known. (I-T154) The Voter’s
League relies on area directors as resource people. Area
directors represent the various communities in Lake County.
(I-T159).
33. Unlike the NAACP, the Voters League is not a high
profile organization. The Voters League does not hold banquets,
fund raisers or other high profile events. (I-T216).
34. The endorsement process used by the Voter’s League in
1994 was informal, replacing a more formal process which
previously included candidate forums and interviews with
candidates. The Voters League Constitution does not contain
any reference to endorsements. (I-T212; P. Ex.7) Under the
informal process, the executive committee_comprised of the
officers and the area directors (approximately 17-18 people),
meets to discuss candidates and issues, focusing on races and
issues of importance to the minority community.
Responsibilities are delegated to members to obtain pertinent
information pe candidates and to attend campaign events,
App. 55
listening and monitoring issues and positions. Approximately
a week prior to the election, the executive committee meets
again to decide which candidates to endorse. A sample ballot
is utilized to designate endorsed candidates. These ballots are
then distributed by area directors in their communities using the
mail as well as hand distribution. Generally, the endorsements
are distributed as late as possible, on or after the Thursday
immediately prior to the election. (I-T159-165, 192-193).
35. There is no formal notification of endorsed candidates
by the Voter’s League. Normally, the candidate will be mailed
a sample ballot by the Secretary of the Voter’s League.
However, because there was a new Secretary in 1994, Mr. Poole
could not confirm that endorsed candidates were sent a mailed
ballot. (I-T164, 209-210). Tom Poole did not notify either Ms.
Fischer or Ms. Green of endorsements in 1994. (I-T210-211)
Even if a mailing had been made to a candidate in 1994, the
sample ballots did not have any identification of the Voters
League on them. Thus, it would not have been clear who was
making the endorsement(s). (I-T211; P. Ex. 8, 16)
36. The Voters League does not file statements relating to
its endorsements with the Supervisor of Elections or the
Division of Elections as required by Section 106.144, FS. (I-
T208)
37. In the 1994 District 5 school board race, the Voter’s
League executive committee could not decide who to endorse.
The decision was delegated to the President, Tom Poole, in
consultation with the other officers. (I-T223). In order to get
the endorsement included on the sample ballot, the decision had
to be made by Thursday or Friday at the latest. Tom Poole
ultimately made the decision. (I-T230)
App. 56
38. The difficulty of the executive committee in making an
endorsement in the school board race stemmed from the
candidates’ positions on the Eustis Middle School (EMS) issue.
The EMS issue was the single most important issue in the black
community for the school board race. (I-T158, 170).
39. The existing EMS had historically served as a black
educational facility. It was an historic building recommended
for inclusion on the registry of historic buildings. (I-T168;
II-T15).
40. There was a need to build a new middle school and the
question was whether to build on the existing site or at a new
location. The black community wanted the new school built at
the same location. The school board had voted to build on the
existing site, but the vote was 3-2 and efforts to move the
school continued. Sandra Green had voted to move the school
and continved to support building it in a new location.
(I-T 169-170; II-T41-42; P. Ex. 25). Her position was solid.
(I-T 170-173).
41. There were three seats on the school board up for
election in 1994, and the previous vote of the board was subject
to reconsideration if anew majority favored moving the school.
The Green-Fischer race was viewed by Tom Poole as providing
the crucial swing vote on the board. (I-T169-171, 233).
42. Kyleen Fischer favored moving the new school from the
existing location and using the current facility as a vocational
high school. Ms. Fischer’s written Ten Point Platform for the
general election clearly laid out her position in points 2 and 3.
(II-T109-111, 143; P. Ex. 12).
43. Tom Poole was aware that Ms. Fischer favored a new
App. 57
school—so did he—but he was not satisfied that she wanted
the new school built at a new site. In his limited discussions with
her, he sensed some flexibility on the issue. She had not had an
Opportunity to vote on the matter, and Mr. Poole held out hope
that Ms. Fischer would keep an open mind. (I-T172-174,
199-202, 204, 206-207)
44. When Ron Phillips encountered Tom Poole at the Lake
Sentinel office, Mr. Poole knew he had to make a decision on
endorsing a candidate in the Green-Fischer race, though Mr.
Phillips was not aware of that. (I-T222-224) Mr. Phillips had
similar concerns at that meeting. He wanted to know what
endorsements had or would be made in various races.
(I1I1-T 177-179)
45. Ron Phillips was a volunteer advisor and consultant to
the Kyleen Fischer campaign. He had known Ms. Fischer and
her family for many years. His mother served on the school
board with Ms. Fischer in the early 1980s. (II-T168)
46. Ron Phillips, who was born and raised in Lake County,
had worked in politics and campaigns since adolescence. He
had worked in campaigns from the local level to the national
level, from grassroots volunteer to finance director to campaign
manager. In addition to his volunteer work on the Fischer
campaign in 1994, he also served as the campaign manager for
Catherine Hanson, a county commissioner candidate. (1I-T 167)
47. Ron Phillips had known Tom Poole for well over 10
years. Mr. Poole had been Ron Phillips’ physical education
teacher in middle school. Mr. Phillips knew of Tom Poole’s
long and distinguished service with the NAACP. Mr. Phillips
respected Mr. Poole as an educator and community leader and
he trusted him. (I-T176; I]-T177, 232)
App. 58
48. Ron Phillips had actively sought Tom Poole’s support
during the campaign. (II-T194-195). However, when he
encountered Tom Poole at the Lake Sentinel office late in the
campaign, he had not heard from Mr. Poole or anyone else
regarding that support. He was concerned that a late
development could take the campaign by surprise.
(11-T 177-179)
49. Though both men had complementary needs and
purposes, the encounter did not help either man satisfy his
concern. When Ron Phillips asked Tom Poole“who he was
going to endorse, Mr. Poole responded by asking Mr. Phillips
what Kyleen Fischer’s position was on the EMS issue. Mr.
Phillips’ answer didn’t give Mr. Poole any more comfor* or any
better information than he already had. In additici., Mu. 2oole
was not sure Mr. Phillips could officially represent Ms.
Fischer’s position. As a result, Mr. Poole did not push hard for
a more definitive answer. He was not in a position where he
could rely on the answer Mr. Phillips gave him. Tom Poole
also recognized that Ms. Fischer offered only a glimmer of hope
on the issue, given her previously stated position. (I-T177-180,
222-224, 233).
50. Tom Poole knew Ron Phillips was interested in learning
about the endorsements, especially for Kyleen Fischer's race.
It was a question Mr. Poole knew he could not answer for two
reasons. First, the endorsement decision had not been made.
The executive committee had deferred the issue, and it was up
to Mr. Poole and the other officers to decide. Secondly, the
Voter’s League does not routinely advise people about their
endorsements. (I-T226). The endorsements are primarily
targeted to Voter’s League members and others in the minority
community. (I-T166, 226, 232; P. Ex. 15).
App. 59
51. So, when Ron Phillips asked about the endorsement,
Tom Poole did not give him the satisfaction he sought. Mr.
Poole described his response on a radio talk show on the
Monday just prior to election day, only a couple of days after
the encounter.
And my answer was of a professional politician
of long-standing. I gave him an answer that said
nothing to him. It indicated to him that I did not
endorse his candidate because a decision had not
been made. So in taking that answer I gave him,
I don’t even remember how I said it...
(emphasis added) (I-T225; P. Ex. 15).
52. Though neither Tom Poole nor Ron Phillips can recall
exactly what was said, it is clear Mr. Poole did not give Mr.
Phillips a direct answer. He did not tell him the truth, that no
endorsement had yet been made, that, even if it had been made,
he could not tell Mr. Phillips because it was contrary to
established policy. Instead, he chose to confuse him with
political double-talk. (1-T177-179, 232).
53. Tom Poole considers himself an “average country
politician.” He does not use the direct approach to obtain
information. Even when he spoke to Ms. Fischer during the
last month of the campaign, he did not ask her directly about
her position on the EMS issue. (I-T202-203).
54. Ron Phillips testified that Tom Poole told him that “we
are going to go with the other lady.” (II-T177, 208) Mr.
Phillips was surprised and shocked at this endorsement. He
knew Sandra Green’s position was diametrically opposed to
Mr. Poole’s. (II-T178, 215-216). Mr. Phillips then asked about
another important race—the county commission race between
App. 60
Hope Lamb and Bill Good. Mr. Poole quickly and directly told
him that Bill Good had that endorsement. (I-T179-180,
226-227; II-T178). Mr. Phillips then returned to the
endorsement in the Green-Fischer race and asked Mr. Poole to
explain. Mr. Poole’s response was evasive, hemming and
hawing, with a lot of body language. (II-T177-178). Mr. Phillips
told Mr. Poole he had made a terrible mistake with his
endorsement, to which Mr. Poole did not respond. (I-T182,
236-238).
55. Despite his campaign experience, Ron Phillips was not
aware of the existence of the Voter’s League. He had never
seen a sample ballot endorsement or heard of Voters League
endorsements. (I-T229;II-T 189-192, 196) Neither had Ky!een
Fischer. (I-T231; II-T146, 151-152) To Ron Phillips, Tom
Poole personified the NAACP; they were alter egos in Lake
County. (II-T185, 232-233). Ron Phillips was not aware that
the NAACP could not endorse or give support to candidates.
(II-T 184-185, 188)
56. Tom Poole is aware of his high profile with the
NAACP. (I-T187-188; 229). When people refer to him or the
NAACP in an election or campaign context about support for
candidates, he assumes they mean the Voter’s League.
(I-T 178-179). He assumes that astute politicians know the
Lake County Voter’s League exists. He expects to be approached
by candidates because of his long political activity. (I-T 168,
195-196, 248).
57. Based on his conversation with Tom Poole, Ron Phillips
assumed that the endorsement of Sandra Green was by the
NAACP, though Mr. Poole had not so specified. (I-T 177, 189,
208, 236). He called Kyleen Fischer to tell her what he had
learned. (II-111, 180, 199)
App. 61
58. Kyleen Fischer was also shocked at this news. It came
as a surprise to her since Sandra Green had been saying
throughout the campaign that Ms. Fischer had Tom Poole’s
endorsement. Ms. Green had also stated during the campaign
that it was her belief that a candidate could not get Mr. Poole’s
endorsement unless they were with him on the EMS issue.
(I1-T74, 117-118, 161-162, 215; P. Ex. 11)
59. Ron Phillips recommended an advertisement in response
because he was concerned that the endorsement would be used
by the Democratic Party against Ms. Fischer. (II-T176,
179,-180, 206, 235). He was afraid the Fischer campaign would
get sandbagged by the late endorsement without the opportunity
to react and respond. (II-T176, 179, 219).
60. The ad was intended to reemphasize Kyleen Fischer’s
principled stand on issues, especially EMS. (II-T180) It was
designed to champion a candidate who stood by her positions
on the issues regardless of the consequences. (II-T85-104, 164,
180, 184, 233, 237)
61. The ad was also intended to correct Sandra Green’s
allegations during the campaign that Kyleen Fischer had Tom
_ Poole’s support. (II-T74, 121, 158, 163; P. Ex. 11)
62. It was not a negative ad aimed at either Sandra Green or
the NAACP. The ad does not attack anyone or any group. It
was not racially motivated or intended to create a backlash
against the NAACP endorsement. (II-T218-219, 237-239)
Neither Tom Poole nor Sandra Green considered the ad to be
racially motivated. (I-T228-230, 242, 250-251; II-T71) The
reference to the NAACP endorsement of Sandra Green was
worked into the ad to head off any late breaking attack by the
Democratic Party. (II-T219)
App. 62
63. The ad was designed to describe the charged political
atmosphere and tone of the campaign and the context of the
community which had been adversely affected by the politics of
the religious right/Christian Coalition and other events. This
kind of campaign was new for Lake County. Republicans
supporting Democrats. Union support in the primaries which
was withheld in the general election. Unprecedented
involvement of the school board administration in the political
process. The ad refers to “political deals” generally, without
specifically identifying any deals. (II-T84-104) It doesn’t say
the NAACP made a deal; it doesn’t say Sandra Green made a
deal. (P. Ex.14)
64. Ron Phillips suspected a deal or some political
posturing. (I-T246-246; II-T98-104, 180-181, 208-209, 234-
235) Kyleen Fischer assumed Ms. Green had changed her
position on the EMS issue. (II-T113, 164) In spite of these
suspicions and assumptions, the ad does not voice them. (P.
Ex. 14)
65. Kyleen Fischer admits the statement—that the NAACP
has endorsed Sandra Green—is false. (II-T84) The statement is
false not just because it refers to the NAACP. The statement is
false because there was no endorsement of Sandra Green, by
any organization associated with Tom Poole. The statement
would be false even if it had referred to the Voter’s League,
instead of the NAACP.
66. Initially, both Ron Phillips and Kyleen Fischer thought
their error was citing the NAACP as the endorsing group.
(11-T187-188; P. Ex. 15). Both publicly apologized to the
NAACP and immediately pulled the ad from the air. (II-T146,
188; P. Ex. 15)
sae
a,
App. 63
67. There was no ill-will between Ms. Green and Ms.
Fischer. There was no evidence that the campaign had been
marked by personal attacks or negative ads. The campaign was
conducted in a friendly, civil manner, on the issues. This is
clear from the televised forum which aired on cable television.
(II-T64; P. Ex. 11).
68. Though Ms. Fischer had received the Voter’s League
endorsement in her 1982 campaign and in the 1994 primaries,
Ms. Fischer, herself, was not aware of those endorsements.
(II-T52, 104-108, 155; P. Ex. 11). During the 1994 general
election campaign, Sandra Green repeatedly stated that Kyleen
Fischer has Tom Poole’s endorsement. In the televised forum
which was admitted as Petitioner’s Exhibit 11, Ms. Green does
not refer to the Voter’s League or the NAACP during her
statement ab, at such an endorsement. (II-T47-48, 107-108; P.
Ex. 11). Ms. Green offered no support for her statement, and
none was provided to Ms. Fischer from any source. (II-T52,
104-108)
69. Because of the EMS issue, any such support or
endorsement would have been an indication-ef the candidate’s
stand on the new school. (II-T74, 181, 223; P Ex. 1!) Since
Kyleen Fischer’s position was nearly identical to Sandra
Green’s, Ms. Fischer viewed any allegation by Ms. Green of
such support or endorsement as an attempt to mischaracterize
her position and hurt her with voters. (II-T73-74, 111, 159)
70. The 1994 Voter’s League sample ballot endorsements
do not contain any identification of the Voter’s League. (I-T211;
P. Ex. 8, 16). The sample ballot endorsement for the second
primary, which was received as Petitioner’s Exhibit 8, has
handwritten comments on it. It was not distributed with those
comments. The general election sample ballot, which is
4
App. 64
Petitioner’s Exhibit 16, does note Tom Poole as President and
Sannye G. Jones as Secretary/Treasurer, but no organization is
listed. Likewise, there is an address at the top, and at the
bottom of the ballot there is a boxed group of phone numbers to
call for more information in various communities. But the
sample ballot fails to identify any organization. Thus, even if
Ms. Fischer had received a copy of the sample ballots, it would
not have been obvious from whom they were sent. (P. Ex. 8,
16).
71. Neither Ron Phillips or Kyleen Fischer made any
attempt to verify the information about the NAACP
endorsement of Sandra Green. (II-T118, 185-186)
72. Ron Phillips and Kyleen Fischer knew, respected and
trusted Tom Poole and had no reason to doubt what Tom Poole
said. (II-T118, 145, 232)
73. Kyleen Fischer knew and trusted Ron Phillips. He was
a long time family friend and loyal advisor. She had no doubts
about the information he provided to her. (II-T!12, 118, 146,
148, 156; P. Ex. 15)
74. Neither Kyleen Fischer nor Ron Phillips knew with
whom to verify the endorsement other than with Tom Poole.
The information came from the most knowledgeable person that
they knew would have such information. (II-T147, 185-186,
232-233).
75. Even if Ms. Fischer and/or Ron Phillips had sought to
verify the endorsement, the effort would have led back to Tom
Poole. The Voter’s League executive committee had deferred
the decision to-him and the other officers. The decision was
ultimately made by Tom Poole. (I-T223-224, 231)
es
App. 65
76. Both Kyleen Fischer and Ron Phillips had made efforts
to contact Tom Poole during the campaign regarding his
support and endorsement Those efforts were largely
unsuccessful, resulting in “phone tag.” No meaningful
discussions occurred. (II-123, 126, 133-135, 210, 214)
77. It is unclear whether anyone else would have been in a
position to timely verify the endorsement. The ad was drafted
on the Friday prior to the election and aired twice on Saturday
and once on Monday morning. (II-T125, 186) Tom Poole
testified that his decision was made after his conversation with
Ron Phillips. There is no evidence of how and to whom he
communicated his decision. Tom Poole testified that the
sample ballot endorsements are given to area directors for
mailing or hand distribution for delivery on the weekend prior
to the election or Monday at the latest. (I-T159, 163, 165-166)
78. Kyleen Fischer did not have a minority voters
coordinator in her campaign nor were any African-American
supporters active in her campaign. (II-T118, 146).
CONCLUSIONS OF LAW
1. The Florida Elections Commission has jurisdiction over
the parties and the subject matter of this proceeding pursuant to
Sections 104.271(2), and 106.26, FS.
2. The burden of proof in an administrative proceeding is on
the party asserting the affirmative of the issue. See, Department
of Transportation v. J.W.C. Company, Inc., 396 So.2d 778,
(Fla. Ist DCA 1981). Accordingly, here the Division of
Elections, as the Petitioner, has the burden of presenting
proving that Respondent has violated Section 104.271(2). ES.
App. 66
3. Section 104.271(2), FS., provides:
104.271 False or malicious charges against,
or false statements about, opposing
candidates; penalty.
(2) Any candidate who, in a primary election or
other election, with actual malice makes or
causes to be made any statement about an
opposing candidate which is false is guilty of a
violation of this code. An aggrieved candidate
may file a complaint with the Division of
Elections pursuant to s. 106.25. The division
shall adopt rules to provide an expedited hearing
before the Florida Elections Commission of
complaints filed under this subsection.
Notwithstanding any other provision of law, the
Florida Elections Commission shall assess a
civil penalty of up to $5,000 against any
candidate found in violation of this subsection, —
which shall be deposited to the account of the
General Revenue Fund of this state.
4. There are three essential elements necessary for a
violation of the statute:
(a) a false statement;
(b) about an opposing candidate;
(c) made or caused to be made with actual malice.
5. A violation of Section 104.271(2), F.S., subjects the
offender to a civil penalty of up to $5,000. This fine is punitive
in nature. As a result, the Division must prove a violation of the
statute by clear and convincing evidence. Ferris v. Turlington,
App. 67
510 So.2d 292 (Fla. 1987);
Stern and Co., 670 So.2d 932 (Fla. 1996). This is a higher and
more demanding standard than the ordinary evidentiary burden
in civil cases — preponderance of the evidence or the greater
weight of the evidence. The Division has failed to carry this
burden.
THE FLIER
6. There is no competent substantial evidence that the
statements contained in the flier are false.
7. Two statements are alleged to be false because they are
phrased in the present tense. Despite the fact that the
consolidation issue had arisen two years prior to the 1994
election, it was a viable issue, capable of springing to active
Status at the initiative of Ms. Green or anyone else. A two year
difference does not make the issue inappropriate for comment
and discussion in the present tense, especially under the
circumstances presented in this case. =
8. The context of the issue is clea~'y indicated in the flier.
The background information source, The North Lake Outpost,
and the date the source article was published, are plainly
displayed in the flier. Ms. Green conceded that the newspaper
story was accurate. There were no subscquent public
Statements to the contrary. The use of the present tense
represents fair comment under these circumstances. Those
Statements are not false.
9. There is no competent, substantial evidence that the
statement on the front cover of the flier is false. While Sandra
Green may not have ever said she wanted to close Umatilla
High School, the result of her consolidation proposal would
es > belie eat
App. 68
have that effect. It is unlikely, and unreasonable to conclude,
that any newly consolidated school would be named Umatilla
High School given the relative sizes of the existing
communities and schools. In addition, Ms. Green’s
consolidation concept included Umatilla Middle School moving
into the current Umatilla High School facility which would
require a name change for the existing school.
10. The boxed quote that Ms. Green “personally” favors
consolidation is not false. Ms. Green concedes as much. She
believes consolidation is an economical approach to address
facility needs. That is why she proposed the concept in 1992.
Her position is unchanged.
11. The Division, and Ms. Green, base the falsity of the
statement on the fact that the statement is taken out of context
and is incomplete. However, neither the complete statement
nor the context change the truth of the statement. The complete
statement in context clarifies and distinguishes Ms. Green’s
position as aschool board member on the issue. Ms. Green has
two positions—a personal position and a position as a public
officer on a potential public agenda item. Her personal position
regarding consolidation is unaffected by her public officer
position, a point Ms. Green made abundantly clear in her
hearing testimony.
THE RADIO AD
12. Only one statement in the radio advertisement is about
Sandra Green. The remainder of the ad comments on the tone
and context of the 1994 election campaign and on Kyleen
Fischer’s principled and unwavering position on the Eustice
Middle School issue. Section 104.271(2), FS., prohibits false
statements about an opposing candidate. It does not punish any
App. 69 “
other type of false statement, and it does not prohibit
suggestions, implications, or innuendo contained in political
advertisements. We cannot read between the lines and create a
statement where none exists. We refuse to read what is not
written or hear what is not spoken.
13. There is no dispute that the statement is false. Both
Kyleen Fischer and Ron Phillips agree. Having satisfied the
first two e!ements of the statute, we must now consider the
issue of malice.
MALICE
14. Section 104.271(2), F.S., requires that the false
statement about an opposing candidate be made with “actual
malice.” This is not a “reasonable person” standard; it is an
objective test. Therefore, to be a violation, we must determine
that Kyleen Fischer knew that the statement was false, or that
she acted with reckless disregard of its truth or falsity.
15. The consideration of malice necessarily takes place in
the arena framed by the constitutional guarantees of free speech
contained in the First Amendment to the United States
Constitution and in Article I, Section 4 of the Florida
Constitution. That arena is also shaped by the seminal case of
New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct.
710, 11 L.Bd.2d 686 (1964). That case, and its progeny, give
protection to those who criticize public officials, allowing
damages for defamatory falsehoods only when the statement
was made with actual malice; i.e., with knowledge that it was
false or with reckless disregard of its truth or falsity. This is the
same standard—actual malice—required by Section 104.271(2),
F.S., and these cases provide guidance for our examination of
the issue.
App. 70
16. In Seropian v. Forman, 652 So.2d 490 (Fla. 4th DCA
1995), the Fourth District Court of Appeal sets forth a pertinent
summary:
So great is the protection given to writers and
speakers under the First Amendment that the
Supreme Court has held that a public official ...
can make out a good claim of damages for
defamatory falsehood only where the official can
show that the writer published a defamatory
falsehood with knowledge that it was false, or
with reckless disregard as to whether it was true
or false. New York Times Co. v. Sullivan, 376
U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
Stated differently, the burden is to show that the
writer deliberately lied and falsified something
or, as an alternative to a knowing lie, that the
writer of a defamatory falsehood “in fact
entertained serious doubts as to the truth of his
publications.” St. Amant v. Thompson, 390 U.S.
727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), or
that he acted with a “high degree of awareness
of * * * probable falsity,” Garrison v.
Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13
L.Ed.2d 125 (1964). Moreover, the official
must prove the essential fact, not with the
ordinary evidentiary burden of most civil cases,
called the “greater weight” of the evidence in
Florida, but instead with a higher, more
demanding, burden called “clear and
convincing” evidence. Jd.
(emphasis original) Seropian, supra., at 493-494.
17. Elections-reiated and campaign-related statements are
App. 71
given even greater deference by Florida courts.
Finally, we recognize that a libel action growing
out of a political campaign must be considered
“against the background of a profound national
commitment to the principle that debate on
public issues should be uninhibited, robust, and
wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly
sharp attacks” upon candidates for public office.
New York Times Co. v. Sullivan, 376 U.S. at 270,
84 S.Ct. at 720.
Cronley v. Pensacola News-Journal, Inc., 561 So.2d 402, 405
(Fla. Ist DCA 1990),
It has also been held that in cases of this nature,
which involve the First Amendment area and
where the issue is recklessness employed in the
publication of allegedly false and libelous
information, that summary judgments should be
more liberally granted. (citation omitted)
Menendez v. Key West Newspaper Corporation, 293 So.2d 751,
752 (Fla. 3rd DCA 1974).
18. It is clear that the courts tread lightly in this arena.
Although this case does not involve a claim for libel or
defamation, the standard(s) and analytical process are the same.
19. There is no competent, substantial evidence that Kyleen
Fischer knew the statement to be false. She had no direct
information about the endorsement. Despite efforts by Tom
Poole and her to discuss issues of mutual concern during the
campaign, no meaningful conversation had occurred. Tom
Poole would not have been in a position to discuss an
App. 72
endorsement until the last week of the general election, and it
is unlikely he would have told Ms. Fischer of any endorsement
even if there had been substantive discussions.
20. It is also clear that Kyleen Fischer was unaware of the
Voter’s League endorsement of her in the 1994 primaries.
There was no testimony or other evidence that such an
endorsement was ever communicated to Ms. Fischer. The only
evidence presented on this matter was the videotape of the
candidate forum in early October 1994. In that forum, Sandra
Green tells Ms. Fischer that Ms. Fischer has Tom Poole’s
endorsement. There is no mention of the Voter’s League or the
NAACP. Ms. Fischer denied any knowledge of the
endorsement at the forum. No other evidence or support for
the endorsement was provided by Ms. Green.
21. There was no exhibit offered of a sample ballot
endorsement for the first primary election in 1994, The sample
ballot endorsement for the second primary which was received
in evidence has no identifying markings to indicate it was from
the Lake County Voter’s League. It does, however, have
writing on it extraneous to the sample ballot form, which
suggests that the ballot was not sent out with that extraneous
writing. Finally, there is no competent, substantial evidence
that Kyleen Fischer ever received a copy of the second primary
sample ballot endorsement.
22. Since Kyleen Fischer did not have actual knowledge that
the statement was false, actual malice rests on whether Kyleen
Fischer acted with reckless disregard about the truth or falsity
of the statement.
23. Ms. Fischer knew and trusted Ron Phillips. She had no
reason to doubt what he told her. Likewise, she respected Tom
App. 73
Poole. He was the most knowledgeable person she knew who
could provide the information about such an endorsement. She
had no cause to believe Tom Poole would deliberately deceive
or mislead her or Ron Phillips. She believed the information
she received was reliable.
24. There was no competent, substantial evidence that
Kyleen Fischer harbored serious doubts about the truth of the
statement. The fact that she and Ron Phillips were surprised or
even shocked about the endorsement is insufficient to support
the finding of actual malice. Politics and campaigns regularly
offer surprises depending on one’s knowledge and involvement
in the process. The Lake County political environment had
undergone a transformation, due primarily to the emergence of ©
conservative, religious elements. The county had been thrust
into the national spotlight as a result of new policies and
programs. New alliances and allegiances (“strange
bedfellows”) developed which were unprecedented. The
existence of another surprising development, without more
evidentiary support to suggest that Kyleen Fischer had serious
doubts regarding the veracity of the information, does not
provide the necessary foundation for a finding of malice under
these circumstances.
25. There is no clear, direct evidence of malice in this case.
Under the high evidentiary standard requiring proof by clear
and convincing evidence, malice cannot be inferred under the
circumstances presented here.
Circumstantial evidence is often used to prove
intent and is often the only available evidence
of a person’s mental state. However, in order to
be legally sufficient evidence of [a statutory
violation], circumstantial evidence must be
App. 74
inconsistent with any reasonable hypothesis of
innocence. (footnote omitted)
The Florida Bar v. Marable, 645 So.2d 438, 443 (Fla. 1994).
26. Ms. Fischer’s actions in publishing the statements at
issue in this case were not unreasonable or reckless. Her actions
may be subject to criticism by some, but they fall far short of
malice required under the statute.
CONCLUSION
Based on the foregoing Findings of Fact, Conclusions of
Law, the evidence of record, the candor and demeanor of the
witnesses and the pleadings and argument of the parties, it is
ORDERED that the complaint filed against Respondent,
Kyleen Fischer, is DISMISSED.
Carlos Alvarez, Chairman
Florida Ethics Commission
App. 75
Respectfully submitted this 20th day of September, 1996.
/S/
Mark Herron
Florida Bar # 199737
Chris Haughee
Florida Bar # 242985
Akerman, Senterfitt & Eidson, P.A.
216 South Monroe Street, Ste. 200
Post Office Box 10555
Tallahassee, Florida 32302-2555
(904) 222-3471
Counsel for Respondent
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by U.S. mail to Barbara
Linthicum, Assistant General Counsel, Division of Elections,
Room 2002, The Capitol, Tallahassee, Florida 32399-0250, this
20th day of September, 1996.
/S/
CHRIS HAUGHEE
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.