Third District Court of Appeal
State of Florida
Opinion filed August 17, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1804
Lower Tribunal No. 16-16248
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James Barry Wright,
Appellant,
vs.
City of Miami Gardens, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Bronwyn C.
Miller, Judge.
SMSǀJones Law, PLLC and Sorraya M. Solages-Jones, (Wellington);
Murray Law, P.A., and Jason M. Murray and Rashad M. Collins, for appellant.
Abigail Price-Williams, Miami-Dade County Attorney, and Oren Rosenthal
and Michael B. Valdes, Assistant County Attorneys; KYMP LLP and Juan-Carlos
Planas, for appellees.
Before SUAREZ, C.J., and FERNANDEZ and SCALES, JJ.
SCALES, J.
Appellant, plaintiff below, James Barry Wright, appeals the trial court’s
non-final order denying Wright’s motion that sought emergency injunctive and
mandamus relief, to wit, requiring the Miami Gardens City Clerk and the Dade
County Supervisor of Elections to place Wright on the list of qualified candidates
for the August 30, 2016 City of Miami Gardens Mayoral Election. Because the
relevant statute governing qualifying fees clearly and unambiguously required
Wright’s disqualification, we are compelled to affirm. However, we certify the
issue, as framed below, to the Florida Supreme Court as one of great public
importance.
I. Facts
Seeking to run for mayor of Miami Gardens in the City’s August 30, 2016
mayoral election, Wright opened a campaign account with Wells Fargo Bank in
February of 2016. As is typical with new accounts, Wells Fargo issued Wright a
number of “starter checks.” The qualifying period, during which candidates must
submit the required paperwork, including, inter alia, the qualifying fee, ran from
May 26, 2016 through June 2, 2016.
Using one of his “starter checks,” Wright paid the $620.00 qualifying fee to
the city clerk on June 1, 2016. On June 16, 2016, the city clerk was notified by the
City’s finance department that Wright’s check had been returned to the City
“because the account number on the check could not be located.”1 Four days later,
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on June 20, 2016, Wright was informed by the city clerk that his qualifying check
had been returned to the City by the City’s bank.2 While the city clerk initially told
Wright he could pay the filing fee (and the $45.00 returned check fee that Wells
Fargo had charged the City) with a cashier’s check, Wright was later sent an email
from the city clerk stating that Wright had been disqualified as a mayoral
candidate. The city clerk then refused Wright’s tender of a cashier’s check. It is
undisputed that Wright’s account had ample funds, and the check, had it ever been
presented for payment, would have been honored. It is also undisputed that Wells
Fargo processed and honored some of Wright’s other “starter checks” used to pay
campaign expenses.
On June 30, 2016, Wright filed the instant action. Wright sought declaratory
and mandamus relief against the City, the city clerk, and the Miami-Dade County
Supervisor of Elections. On July 27, 2016, the trial court conducted a hearing on
Wright’s amended motion for temporary injunction and emergency writ of
mandamus – that sought to require the defendants to recognize Wright as a
qualified candidate for the August 30th mayoral election – and on that date,
1 The face of the check contains the following printed notation: “UN LOCATE
ACCT.” Beneath that, the following appears: “Do Not Re-deposit.” To the left of
the check contained in the record, the following notation appears: “RETURN
REASON – UNABLE TO LOCATE ACCOUNT.”
2 The City also banked at Wells Fargo, albeit at a different branch than Wright’s.
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entered the order on appeal denying Wright relief. We granted Wright’s motion
seeking expedited review.
II. Analysis3
Section 99.061(7) of the Florida Statutes governs the process of qualifying
for election to office. Section 99.061(7)(a)1. provides as follows:
(7)(a) In order for a candidate to be qualified, the following items
must be received by the filing officer by the end of the qualifying
period:
1. A properly executed check drawn upon the candidate’s campaign
account payable to the person or entity as prescribed by the filing
officer in an amount not less than the fee required by s. 99.092, unless
the candidate obtained the required number of signatures on petitions
pursuant to s. 99.095. The filing fee for a special district candidate is
not required to be drawn upon the candidate’s campaign account. If a
candidate’s check is returned by the bank for any reason, the filing
officer shall immediately notify the candidate and the candidate shall
have until the end of qualifying to pay the fee with a cashier’s check
purchased from funds of the campaign account. Failure to pay the fee
as provided in this subparagraph shall disqualify the candidate.
(emphasis added).
Appellees argue, and we agree, that the plain and unambiguous provisions of
the controlling statute require affirmance. When a candidate’s qualification fee has
been returned by the bank for any reason, the statute rather plainly provides a
mechanism for a candidate to pay the qualifying fee only within the qualifying
3 While normally the denial of an injunction is reviewed under an abuse of
discretion standard, when, as here, the trial court’s decision is based purely on a
question of law, our review is de novo. Rangel v. Torres, 77 So. 3d 708, 709 (Fla.
3d DCA 2011).
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period. We recognize the statute produces a harsh result in this case. When an
unambiguous statute plainly requires a particular result, though, courts are
powerless to fashion a different result under the auspices of fairness. Corfan Banco
Asuncion Paraguay v. Ocean Bank, 715 So. 2d 967, 970 (Fla. 3d DCA 1998).
In denying Wright’s emergency motion, the trial court cited, and was bound
to follow, Levey v. Detzner, 146 So. 3d 1224 (Fla. 1st DCA 2014), rehearing en
banc denied, Sept. 22, 2014, review denied, 153 So. 3d 906 (Fla. 2014).4 As in this
case, in Levey, the candidate’s qualifying fee check was returned because of a
bank mistake, i.e., for reasons totally outside of the candidate’s control. 146 So. 3d
at 1225. Relying on the clear and unambiguous language of the controlling statute,
the Levey court held that the statute’s use of the term “returned by the bank for any
reason” rendered irrelevant any consideration of whether the candidate bore
responsibility for the check being returned.5 Id. at 1226.
We agree with the Levey court’s rationale, and the statutory analysis
contained therein. Despite our tremendous distaste for the result, we are compelled
4Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985) (stating that in the absence
of inter-district conflict, district court decisions bind all Florida trial courts).
5 As in Levey, we note that, prior to the Legislature amending section 99.061(7)(a)
in 2011, candidates had 48 hours from notification of a returned check to pay the
qualification fee with a cashier’s check, “the end of qualifying notwithstanding.” §
99.061(7)(a)1., Fla. Stat. (2010). Candidates for judicial office and school board
still enjoy this remedy. § 105.031(5)(a)1., Fla. Stat. (2014).
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by the plain language of the relevant statute to affirm the trial court’s denial of
Wright’s emergency motion.
III. Certification of Question of Great Public Importance
Notwithstanding a compelling dissent by Judge Makar, in Levey, the First
District denied rehearing en banc on September 22, 2014 and the Supreme Court
denied review. 153 So. 3d 906 (Fla. 2014). In addition to providing an alternate
construction of the statute that would have avoided Levey’s disqualification,6
Judge Makar alluded to the potential for “political shenanigans” resulting from a
rule of law that allows – actually requires – a banking error to disqualify an
otherwise qualified candidate for public office. Levey, 146 So. 3d at 1233. We
share Judge Makar’s concern that a bank error, over which the candidate has no
control, discovered after the end of the qualifying period, requires disqualification
of a candidate and leaves a candidate with no remedy. We note this issue’s
recurrence has moved the matter from the “mere anecdotal” column to the “likely
to recur” column.
We, therefore, certify the following question as one of great public
importance:
Does section 99.061(7)(a)1. require a candidate’s disqualification
when the candidate’s qualifying fee check is returned by the bank
6 Judge Makar suggested that 99.061(7)(a)1. is a remedial statute addressing only
those checks returned by the bank prior to the end of the qualification period.
Levey, 146 So. 3d at 1232.
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after the expiration of the qualifying period due to a banking error
over which the candidate has no control?
IV. Conclusion
Affirmed. Question certified as one of great public importance.
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