Third District Court of Appeal
State of Florida
Opinion filed April 28, 2015.
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No. 3D15-0905
Lower Tribunal No. 15-7661
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Jose M. Diaz,
Appellant,
vs.
Orlando Lopez, et al.,
Appellees.
Appeal from the Circuit Court for Miami-Dade County, Barbara Areces,
Judge.
Kurkin Brandes LLP, and Juan-Carlos Planas, for appellant.
R.A. Cuevas, Jr., Miami-Dade County Attorney, and Oren Rosenthal and
Michael B. Valdes, Assistant County Attorney, for appellee Penelope Townsley;
Jose M. Herrera; Denise V. Powers, for appellee Orlando Lopez; Rafael Ventura,
City Attorney, for appellees City of Sweetwater and Marie O. Schmidt.
Before SALTER, FERNANDEZ and SCALES, JJ.
SCALES, J.
Appellant Jose Diaz (“Diaz”), a defendant below, appeals a final judgment
in favor of Appellee and plaintiff, Orlando Lopez (“Lopez”). The final judgment
disqualifies Diaz as a candidate for the office of mayor of the City of Sweetwater.
Because Florida’s resign-to-run law required Diaz to resign his interest in his
Sweetwater city commission seat (an interest Diaz retained when he became
Sweetwater’s mayor), we affirm the trial court’s judgment.
I. Facts
Manuel Maroño was elected to a two-year term as Sweetwater mayor in
May of 2013. That term ends on May 12, 2015. After Maroño was indicted on
federal corruption charges, the Governor suspended him from office on August 6,
2013, pursuant to section 112.51(2) of the Florida Statutes.1
Subsequently, on January 24, 2014, after Maroño pled guilty to the charges,
the Governor removed Maroño from office pursuant to section 112.51(5).2
1 Section 112.51(2) reads, in its entirety, as follows: “Whenever any elected or
appointed municipal official is arrested for a felony or for a misdemeanor related to
the duties of office or is indicted or informed against for the commission of a
federal felony or misdemeanor or state felony or misdemeanor, the Governor has
the power to suspend such municipal official from office.”
§112.51(2), Fla. Stat. (2013).
2 Section 112.51(5) reads, in pertinent part, as follows: “If the municipal official is
convicted of any of the charges contained in the indictment or information by
reason of which he or she was suspended under the provisions of this section, the
Governor shall remove such municipal official from office. . . . For the purposes of
this section, any person who pleads guilty or nolo contendere or who is found
guilty shall be deemed to have been convicted, notwithstanding a suspension of
sentence or a withholding of adjudication.”
2
The Sweetwater Charter establishes a set of procedures for filling a vacancy
in the mayor’s office. Section 4.07 of the Charter provides that, when the office of
mayor becomes vacant, the president of the city commission, at his or her option,
assumes the office of mayor.3
Shortly after the Governor suspended Maroño in 2013, Diaz, then the
president of the Sweetwater city commission, opted to fill the vacancy created by
Maroño’s suspension, pursuant to the terms of Charter section 4.07. Then, upon
§112.51(5). Fla. Stat. (2014).
3 In its entirety, Charter section 4.07, titled “Vacancy in office of mayor,” states:
“If as a result of the death, disability, resignation or forfeiture the office of mayor
becomes vacant, the president of the city commission shall assume the office of
mayor and the vice-president of the commission shall assume the commission
presidency. If the commission president determines he does not wish to assume the
office of mayor, then the commission shall choose from among its members the
mayor. The person filling the vacancy shall serve until the next municipal election.
In the event there is a vacancy in the office of the mayor and there exist
extraordinary vacancies as set forth in section 3.07(d) of the Charter then a special
election shall be held to fill the vacancy in the mayor’s office, as provided in
section 3.07(4) [sic] of the Charter. However, if the president of the commission is
not one of the extraordinary vacancies, then the president of the commission shall
become the mayor and serve as provided by this section. The commission vacancy
created by the ascension of the president of the commission to the office of mayor
shall be filled in accordance with section 3.07(4) [sic] of the Charter. The person
who fills the commission vacancy created by the ascension of the president of the
commission to the office of the mayor shall serve until the mayor is reinstated or
the term expires whichever comes first. The president of the commission who
filled the vacancy of the mayor, shall be entitled to return to his former
commission seat upon the reinstatement or expiration of the term of mayor.”
3
Maroño’s removal from office in January of 2014, Diaz was entitled to complete
the remainder of Maroño’s unexpired term (i.e. through and until May 12, 2015).
Once Diaz became mayor, the city commission’s vice-president became city
commission president, and Diaz’s seat on the city commission had to be filled.
Pursuant to sections 3.07 and 4.07 of the Sweetwater Charter, a majority of the
remaining commissioners appointed Catalino Rodriguez to fill Diaz’s commission
seat.4
Under this succession scheme, Rodriguez’s term on the city commission
paralleled Diaz’s term as mayor. Upon the May 12, 2015 expiration date of the
mayor’s term, Diaz is entitled to return to his city commission seat (the term of
which expires in May of 2017) and resume as president of the city commission,
and the city commission term of Rodriguez will end.
On March 18, 2015, Diaz filed paperwork with the Sweetwater City Clerk to
qualify to run in the May 12, 2015 election for Diaz’s own term as mayor.
This paperwork included a sworn “Affidavit of Candidate” eliciting
information about the candidate’s qualifications. In paragraph 12 of the
4 In pertinent part, Charter section 3.07(c)(4) states: “If the vacancy is created by
reason of suspension a majority of the commissioners shall within ninety (90) days
of the vacancy fill the vacancy with an eligible elector who meets all the
requirements under the City Charter. If the commissioners are unable to fill the
vacancy, then a special election shall be held to fill the vacancy. Whether the
vacancy is filled by special election or by appointment, the individual filling the
vacancy shall serve until the incumbent is reinstated or the term expires, whichever
comes first.”
4
Affidavit, the candidate is asked whether he or she currently holds “another
elective or appointive office.” Diaz did not complete this section of the Affidavit.
Diaz did not resign his interest in his city commission seat prior to, or
contemporaneously with, submitting his qualifying paperwork.
Appellee Lopez is also a candidate for mayor in the May 12, 2015 election.
On April 1, 2015, Lopez filed a petition5 for declaratory and injunctive relief,
essentially seeking to have Diaz disqualified as a candidate for Sweetwater mayor.
Lopez alleged that, pursuant to Florida’s resign-to-run law,6 Diaz was required to
resign Diaz’s interest in his city commission seat (the term of which expires in
May of 2017) in order to qualify to run for the mayoral term beginning on or about
May 13, 2015.7
To expedite this elections case, the trial court set a hearing for April 20,
2015. Prior to that date, the trial court received the responsive pleadings of the
5The trial court amended the petition by interlineation to replace “Petition” with
“Complaint,” and “Petitioner” and “Respondents” with “Plaintiff” and
“Defendants,” respectively.
6 In pertinent part, Florida’s resign-to-run law provides: “No officer may qualify as
a candidate for another state, district, county, or municipal public office if the
terms or any part thereof run concurrently with each other without resigning from
the office he or she presently holds.”
§ 99.012(3)(a), Fla. Stat. (2015).
7 In addition to Diaz, Lopez named as Respondents Marie O. Schmidt, the
Sweetwater City Clerk, and Penelope Townsley, the Miami-Dade County
Supervisor of Elections, due to their ministerial duties in conducting the mayoral
election.
5
parties, including Diaz’s motion for summary judgment. At the start of the April
20th hearing, the trial court advised the parties that the trial court was prepared to
issue a final order based on the submissions it had received. The trial court asked
whether any of the parties had additional information the trial court should
consider. None of the parties proffered additional documents or testimony. On
April 20, 2015, the trial court rendered its final order granting Lopez’s complaint
for declaratory and injunctive relief.
The order held that Florida’s resign-to-run law applied to Diaz and required
that Diaz resign his interest in his Sweetwater city commission seat in order to
qualify to run for Sweetwater mayor. The trial court reasoned that, by virtue of
section 4.07 of the Sweetwater Charter, Diaz was entitled to return to his city
commission seat upon the expiration of the current mayoral term. Because the term
of Diaz’s city commission seat runs concurrently with the term of the office of
mayor that Diaz was seeking, Florida’s resign-to-run law required Diaz to resign in
a timely fashion from his city commission seat, which Diaz did not do.
Consistent with state guidelines concerning candidates disqualified after
ballots are printed, the trial court ordered the Supervisor of Elections to include in
absentee ballot mailings a notice that Diaz had been disqualified. In order to allow
Diaz the opportunity to appeal and seek a stay pending appellate review, the trial
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court stayed its order until April 21, 2015, which had the effect of delaying the
mailing of absentee ballots.
Diaz immediately appealed the trial court’s final order. We granted an
emergency temporary stay of the trial court’s order, and, given the urgency of the
Supervisor of Elections having to mail absentee ballots as soon as possible (so as
to be received, voted, and returned prior to counting on May 12, 2015), we entered
orders accelerating briefing and oral argument.
II. Standard of Review
In this case we are called upon to reconcile section 4.07 of the Sweetwater
Charter with Article II, Section 5(a) of the Florida Constitution8 and section 99.012
of the Florida Statutes. As our analysis is based purely on the legal interpretation of
the relevant provisions, the trial court’s conclusions are subject to de novo review.
West Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla. 2012). We affirm,
without further elaboration, the expedited procedures employed by trial court in
adjudicating the case.
III. Analysis
A. Florida’s Resign-To-Run Law
8 The relevant provision of Florida’s prohibition on dual office-holding reads as
follows: “No person shall hold at the same time more than one office under the
government of the state and the counties and the municipalities therein[.]” Art. II, §
5(a), Fla. Const.
7
The purpose of Florida’s resign-to-run law is to prevent persons who are
running for a position to have the “safe haven” of a current position to which the
candidate can retreat in the event the candidate is unsuccessful. Ruiz v. Farias, 43
So. 3d 124, 127 (Fla. 3d DCA 2010).
Florida’s resign-to-run law states, in relevant part, that “[n]o officer may
qualify as a candidate for another . . . municipal office if the terms or any part
thereof run concurrently with each other without resigning from the office he or
she presently holds.” § 99.012(3)(a), Fla. Stat. (2015).9 Sweetwater Charter
section 6.09 expressly incorporates the resign-to-run law.
While Sweetwater’s upcoming mayoral term obviously does not run
concurrently with Maroño’s term, the new mayoral term does run concurrently
with the remaining two years of Diaz’s term on the city commission.
Hence, the issue before this Court is whether Diaz’s interest in his city
commission seat, as established in section 4.07 of the Sweetwater Charter,
constitutes “an office [Diaz] presently holds” so as to implicate, and require Diaz
to comply with, Florida’s resign to run law.
B. Diaz’s Argument
9 Florida’s resign-to-run law includes a specific remedial provision: the name of
any person not complying with the law may not appear on the ballot. § 99.012(5),
Fla. Stat. (2015).
8
Diaz alleges that Florida’s resign-to-run law is not applicable to his
situation. Diaz argues that the term of the office he “presently holds” (i.e.
Sweetwater mayor) does not “run concurrently” with the term of the office he is
seeking (i.e. retention as Sweetwater’s mayor).
Diaz argues that, in analyzing whether Florida’s resign-to-run law applies to
his position as Sweetwater mayor, we should consider that section 4.07 of
Sweetwater’s Charter (which enables Diaz to return to his city commission seat
upon the expiration of his term as Sweetwater’s mayor) is unconstitutional as
applied to the facts of this case. Diaz suggests that, notwithstanding this express
provision of Sweetwater’s Charter, the Florida Constitution’s prohibition on dual
office-holding precludes Diaz from returning to his city commission seat upon the
conclusion of his mayoral term.
Diaz also suggests that, pursuant to Florida’s dual office-holding prohibition,
once Diaz was sworn in as Sweetwater’s mayor, as a matter of law, Diaz
renounced any interest in his prior city commission seat and, therefore, Diaz did
not need to resign his interest in that office, as contemplated by Florida’s resign-to-
run law.
C. Lopez’s Argument
To the contrary, Lopez argues that, consistent with the trial court’s ruling,
and pursuant to the plain and unambiguous provisions of the Sweetwater Charter,
9
Diaz is entitled to return to his former city commission seat upon the expiration
Maroño’s original term of mayor.
Therefore, while Diaz technically could not, and did not, function in both
offices at the same time, Diaz most certainly held an entitlement in his city
commission seat for two additional years. Because a significant portion of the term
of Diaz’s city commission seat runs concurrently with the term of the mayor’s seat
Diaz was seeking in the election, Florida’s resign-to-run law required Diaz to
resign affirmatively his city commission seat in order to qualify to run for his own
mayoral term.
Lopez further argues that such a statutory construction is consistent with the
purpose and intent of Florida’s resign-to-run law, does not run afoul of Florida’s
prohibition on dual office-holding, and does not render section 4.07 of the
Sweetwater Charter unconstitutional.
D. Our Holding
We concur with the rationale of the trial court and affirm the trial court’s
well-reasoned final order.
When we are called upon, as we are here, to harmonize legal authorities,
such as municipal charters and statutes, we are required to construe such
authorities in such a way as to give reasonable meaning to each. City of Hollywood
v. Mulligan, 934 So. 2d 1238, 1244-45 (Fla. 2006). Further, we are required to
10
construe statutes and charter provisions consistent with constitutional provisions
and, where possible, avoid declaring such provisions unconstitutional. Vildibill v.
Johnson, 492 So. 2d 1047, 1050 (Fla. 1986) (citation omitted).
The trial court harmoniously construed the relevant provisions, giving
meaning to each without judicially rewriting the City of Sweetwater’s elected
official succession scheme. Like the trial court, we construe the relevant provisions
so not to offend either Florida’s resign-to-run law or Florida’s constitutional ban
on dual office-holding, while at the same time preserving Sweetwater’s succession
scheme.10
When Diaz accepted the position of mayor, it was unknown whether Maroño
would return to office. Indeed, had Maroño been acquitted during Maroño’s
mayoral term, Maroño would have been entitled to reclaim his seat as mayor11 and
Diaz would have reclaimed his city commission seat, as expressly outlined in
section 4.07 of Sweetwater’s Charter.
10It bears noting that we are called upon in this case to adjudicate whether the trial
court appropriately harmonized the Sweetwater Charter’s vacancy in office
provision, Florida’s resign-to-run law, and the Florida Constitution’s dual office-
holding provision. The constitutionality of Charter section 4.07 that permits the
president of the city commission to return to his or her commission seat after
becoming the mayor is not before us. The Florida Rules of Civil Procedure contain
specific requisites for constitutional challenges, which were not invoked below.
Fla. R. Civ. P. 1.071.
11Mayor Wayne Slaton & Town of Miami Lakes v. Pizzi, -- So. 3d – 2015 WL
1874593 (Fla. 3d DCA April 24, 2015).
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The requirement that candidate Diaz resign his continuing interest in his city
commission seat prevents Diaz from having precisely the safe haven for
unsuccessful candidates that Florida’s resign-to-run law is designed to prevent.
Under the unique facts of this case, we can harmonize the implicated
provisions by construing the resign-to-run law’s term, “office he or she presently
holds,” to include Diaz’s retained interest in his city commission seat. This
retained interest arises from the clear and express provisions of the Sweetwater
Charter, which guarantees Diaz the right to return to his city commission seat upon
the expiration of his current mayoral term.
Put another way, Diaz’ express entitlement to return to his city commission
seat upon Diaz’s completion of Maroño’s term – an entitlement guaranteed by the
Sweetwater Charter – constitutes an “office [Diaz] presently holds” so as to
implicate Florida’s resign-to-run law; and, because the term of that office runs
concurrently with an office Diaz seeks, Diaz was required to comply timely with
Florida’s resign-to-run law.
IV. Conclusion
Because Diaz did not comply with Florida’s resign-to-run law by resigning
his city commission seat prior to qualifying for the Sweetwater mayoral election,
we affirm the trial court’s final order disqualifying Diaz as a candidate for the
Sweetwater mayoral election.
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This Opinion shall take effect immediately, notwithstanding the filing of any
motion for rehearing. This Court’s stay of the order of the trial court is lifted,
effective immediately.
Affirmed.
13