reply brief of appellant - 4dca.org
TRANSCRIPT
01128121-1
IN THE DISTRICT COURT OF APPEAL
FOR THE FOURTH DISTRICT, STATE OF FLORIDA
CASE NO. 4D18-3319
WENDY S. LINK, in her official capacity as
Supervisor of Elections for Palm Beach County, Florida
Appellant,
v.
RICK SCOTT FOR SENATE,
Appellees.
On Appeal from a Non-Final Order of the Circuit Court of the Fifteenth Judicial
Circuit, Palm Beach County, Florida
Case No. 2018-CA-014075 XXXXMB
REPLY BRIEF OF APPELLANT
JENNIFER R. COWAN
Florida Bar No.0038081
Primary Email: [email protected]
Secondary Email: [email protected]
Secondary Email: [email protected]
Lewis, Longman & Walker, P.A.
100 2nd Avenue South, Suite 501-S
St. Petersburg, FL 33701
Telephone: (727) 245-0820
Filing # 89309482 E-Filed 05/10/2019 11:50:10 AM
RE
CE
IVE
D, 0
5/10
/201
9 11
:54:
59 A
M, C
lerk
, Fou
rth
Dis
tric
t Cou
rt o
f A
ppea
l
01128121-1
ANDREW J. BAUMANN
Florida Bar No. 0070610
Primary Email: [email protected]
Secondary Email: [email protected]
Secondary Email: [email protected]
RACHAEL B. SANTANA
Florida Bar No. 107677
Primary Email: [email protected]
Secondary Email: [email protected]
Lewis, Longman & Walker, P.A.
515 North Flagler Drive, Suite 1500
West Palm Beach, Florida 33401
Telephone: (561) 640-0820
Facsimile: (561) 640-8202
NATALIE A. KATO
Florida Bar No. 87256
Primary email: [email protected]
Secondary email: [email protected]
Lewis, Longman & Walker, P.A.
315 South Calhoun Street, Suite 830
Tallahassee, FL 32202
Telephone: (850) 222-5702
Counsel for Appellant
01128121-1 i
I. TABLE OF CONTENTS
I. TABLE OF CONTENTS .................................................................................... i
II. TABLE OF CITATIONS ................................................................................... ii
III. PREFACE .......................................................................................................... iv
IV. ARGUMENT ....................................................................................................... 1
A. The Circuit Court Erred in Its Interpretation of Section 101.5614(4)(a) of
the Florida Statutes. ................................................................................................ 1
B. The Circuit Court Erred in Issuing a Temporary Injunction Without
Making Any Factual Findings And That Temporary Injunction Should be
Reversed. ................................................................................................................ 3
C. The Circuit Court Erred in Granting a Temporary Injunction Without
Reasonable Notice or Making Sufficient Findings to Articulate the Reasons Why
the Temporary Injunction was Issued Without Notice. .......................................... 7
D. This Appeal Should Not Be Dismissed for Mootness Because It Is A
Matter of Great Public Importance That Is Likely To Recur. ..............................10
V. CONCLUSION ..................................................................................................15
01128121-1 ii
II. TABLE OF CITATIONS
Cases
Baldwin v. Willet, 259 So. 3d. 891 (Fla. 4th DCA 2018) ......................................4, 7
Bellach v. Huggs of Naples, Inc., 704 So. 2d 679 (Fla. 2d DCA 1997) .................... 6
Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975) ...................................................... 6
Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L.Ed.2d 388 (2000) ......................14
Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68 (Fla. 4th
DCA 2014) ............................................................................................................. 5
D. H. v. Polen, 396 So. 2d 1189 (Fla. 4th DCA 1981) ............................................11
Dubner v. Ferraro, 242 So. 3d 444 (Fla. 4th DCA 2018) ................................ 5, 6, 7
Eldon v. Perrin, 78 So. 3d 737 (Fla. 4th DCA 2012) ............................................5, 7
Fla. High Sch. Activities Ass'n, Inc. v. Benitez, 748 So. 2d 358 (Fla. 4th DCA
1999) ....................................................................................................................... 8
Godwin v. State, 593 So. 2d 211 (Fla. 1992) ...........................................................10
Gore v. Harris, 772 So. 2d 1243 (Fla. 2000) ...........................................................14
Gore v. Harris, 773 So. 2d 524 (Fla.2000) ..............................................................14
Miller v. City of Belle Glade Canvassing Bd., 790 So. 2d 511 (Fla. 4th DCA 2001)
....................................................................................................................... 14, 15
Morris Publ'g Grp., LLC v. State, 136 So. 3d 770 (Fla. 1st DCA 2014) ................10
Plante v. Smathers, 372 So. 2d 933 (Fla. 1979) ............................................... 12, 14
Rea v. Sansbury, 504 So. 2d 1315 (Fla. 4th DCA 1987) .........................................11
Reserve at Wedgefield Homeowners' v. Dixon, 948 So. 2d 65 (Fla. 5th DCA 2007)
....................................................................................................................... 6, 8, 9
Richard v. Behavioral Healthcare Options, Inc., 647 So. 2d 976 (Fla. 2d DCA
1994) ....................................................................................................................... 5
01128121-1 iii
Sadowski v. Shevin, 345 So. 2d 330 (Fla. 1977) ............................................... 12, 14
Seashore Club of Atl. City, Inc. v. Tessler, 405 So. 2d 767 (Fla. 4th DCA 1981) .... 5
State v. Beeler, 530 So. 2d 932 (Fla. 1988) ...........................................................8, 9
State v. Causey, 503 So. 2d 321 (Fla. 1987) ............................................................11
State v. Fla. Workers' Advocates, 167 So. 3d 500 (Fla. 3d DCA 2015) ........... 10, 11
Sterling v. Brevard County, 776 So. 2d 281 (Fla. 5th DCA 2000) ................... 12, 13
Tom v. Russ, 752 So. 2d 1250 (Fla. 1st DCA 2000) ..............................................4, 7
Weltman v. Riggs, 141 So. 3d 729 (Fla. 1st DCA 2014) .......................................4, 7
Statutes
Section 101.5614, Florida Statutes ........................................................................1, 3
Section 102.141, Florida Statutes ..........................................................................2, 3
Section 102.168, Florida Statutes .............................................................................. 6
Rules
Rule 9.130, Florida Rule of Appellate Procedure ...................................................... 8
Rule 1.610, Florida Rule of Civil Procedure .................................................... 4, 6, 7
Rule 1S-2.027, Florida Administrative Code ............................................................ 3
01128121-1 iv
III. PREFACE
While the Appellant, Wendy S. Link, is the current Supervisor of Elections
for Palm Beach County, Florida, throughout this brief, Susan Bucher, in her prior
capacity as the Supervisor of Elections for Palm Beach County, Florida, will be
referred to as “Supervisor” as she was the Supervisor of Elections for Palm Beach
County, Florida, at the time this appeal was filed and during all events relevant to
this appeal. The Appellee, Rick Scott for Senate, will be referred to as “Scott.”
The Palm Beach County Canvassing Board will be referred to as the “Canvassing
Board.” The Verified Complaint for Declaratory and Injunctive Relief will be
referred to as the “Verified Complaint.” The Verified Emergency Motion for
Temporary Injunction and Supporting Memorandum of Law will be referred to as
the “Emergency Motion.” Citations to the record in the Appendix that
accompanied the Initial Brief will be referenced by “(A. # p. #.)” Citations to the
Appellee’s Answer Brief will be referenced by “(App. Br. p. #.)”
01128121-1 1
IV. ARGUMENT
A. The Circuit Court Erred in Its Interpretation of Section 101.5614(4)(a)
of the Florida Statutes.
The Circuit Court incorrectly held that Section 101.5614 of the Florida
Statutes requires that the Canvassing Board determine whether or not a duplicate
ballot must be created in every circumstance. In its order, the Circuit Court
explained how the Plaintiff sought relief regarding the way the Supervisor
processed physically damaged, overvoted, and undervoted ballots. Specifically,
Plaintiff further seeks a temporary injunction ordering: (1) the
Supervisor’s staff review the duplicate ballots together with the
original damaged ballot in the presence of the Plaintiff and any other
witnesses, require the objected duplicate ballot in question to be set
aside for immediate review by the Canvassing Board once the review
process is complete of all physically damaged absentee ballots and
duplicate ballots; and (2) to allow the Palm Beach County Canvassing
Board to determine valid votes from ‘overvoted’ and ‘undervoted’
absentee ballots…
(A. 5 p. 2.) Following that explanation, the Circuit Court ordered the Supervisor to
“provide to the Canvassing Board any duplicate ballots and any ‘overvoted’ or
‘undervoted’ ballots that have not yet been provided to the Board for its review no
later than 10:00 a.m. Saturday.” (A. 4 p. 45:15-18 & 46:14-19 & A. 5 p. 2.)
(emphasis added). Despite the plain language of section 101.5614(4)(a) of the
Florida Statutes which does not require the Canvassing Board to make any
determination with damaged ballots, the Circuit Court clearly ordered the
01128121-1 2
Supervisor to give the Canvassing Board any duplicate ballots, including those
made because the ballot was physically damaged.
Scott argues that the Circuit Court’s order is proper because it orders “the
Supervisor to give the Canvassing Board any ‘overvoted’ and ‘undervoted’ ballots
her staff had processed without the Canvassing Board’s input, together with any
duplicates made of those ballots.” (App. Br. p. 14.) This attempt to reword the
Circuit Court’s order conveniently ignores the relief Scott requested related to the
physical damaged ballots and prefatory language of the Court’s order that “any”
duplicate ballots be presented to the Canvassing Board.
Scott also argues that the Canvassing Board is not permitted to use its
clerical help in the manner it did, but should only be able to use it for “menial,
office-related tasks.” (App. Br. p.16-17). The plain language of section
102.141(8) of the Florida Statutes allows “the Canvassing Board … [to] employ
such clerical help to assist with the work of the board as it deems necessary.”
Clearly by the statutory language, the Legislature provided discretion to the
Canvassing Board to use its clerical staff as it deemed appropriate, not as Scott
would demand. Furthermore, and contrary to Scott’s assertion, the trained clerical
help were never used in any circumstance where voter intent was in question.
(App. Br. p. 16) Specifically, there was no question of voter intent with overvotes
because pursuant to the Department of State rules, which were subsequently
01128121-1 3
adopted by the Canvassing Board, overvotes are not counted. Rule 1S-2.027(6) of
the Florida Administrative Code; (A. 9, p. 8:22-24 & 10:23-11:7 & A. 13). As for
undervotes, clerical help only looked at the ballots for consistency in accordance
with the adopted rules and were not used in any circumstance where voter intent
was in question. (A. 4, p. 22:16-21, 37:23-38:2, & 38:12-19.) If there was a
question as to the voter’s intent, then the ballot went to the Canvassing Board to
determine if the vote was valid. (A. 4 p. 22:22-25). Florida Election Code
mandates that valid votes on overvoted or undervoted vote-by-mail ballots be
determined in accordance with the rules adopted by the Department of State. §
101.5614(4)(a), Fla. Stat. (2018). Therefore, in accordance with sections
101.5614(4)(a) and 102.141(8) of the Florida Statutes, it is within the Canvassing
Board’s discretion to allow trained clerical staff to duplicate ballots where voter
intent was not in question so long as the duplication occurred pursuant to the rules
adopted by the Department of State and the Canvassing Board. Hence, the
Supervisor complied with section 101.5614(4)(a) of the Florida Statutes and the
Circuit Court’s ruling is in error.
B. The Circuit Court Erred in Issuing a Temporary Injunction Without
Making Any Factual Findings And That Temporary Injunction Should
be Reversed.
The Circuit Court improperly issued a temporary injunction without making
a single factual finding in its order and Scott concedes this point. (App. Br. p. 17)
01128121-1 4
Despite this concession, Scott argues incredibly that the appropriate remedy
is to uphold the injunction and remand for “the necessary findings.” (App. Br. p.
17.) In support, Scott cites to three case: Baldwin v. Willet, 259 So. 3d. 891 (Fla.
4th DCA 2018), Weltman v. Riggs, 141 So. 3d 729 (Fla. 1st DCA 2014), and Tom
v. Russ, 752 So. 2d 1250 (Fla. 1st DCA 2000). Scott alleges that in each of those
cases the appellate court remanded the matter for the court to enter an order
granting the injunction with the necessary factual findings. (App. Br. p. 18.) In
actuality, in each of those cases the courts reversed the lower court order granting
an injunction and left it to the lower court to determine whether an injunction
should be issued. Baldwin, 259 So. 3d. at 892 (“we reverse and remand for the
trial court to make clear, definite, and unequivocal factual findings on each prong
of the four-part test in determining whether Willet is entitled to relief”) (emphasis
supplied); Weltman, 141 So. 3d at 731 (“requires us to reverse and remand for the
trial court to address this flaw in its order”); Tom, 752 So. 2d at 1251
(“Accordingly, we remand with instructions to the trial court to either enter an
order that satisfies all requirements for entry of a temporary injunction or if
appropriate, an order denying the injunction.”) (emphasis supplied). These cases
cited by Scott support the Supervisor’s position that it is a reversible error for the
Circuit Court to fail to strictly comply with Florida Rule of Civil Procedure
1.610(c) and not make factual finding to support each of the four conclusions
01128121-1 5
necessary to justify a temporary injunction. Id.; Dubner v. Ferraro, 242 So. 3d
444, 447 (Fla. 4th DCA 2018); Eldon v. Perrin, 78 So. 3d 737, 738 (Fla. 4th DCA
2012); Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68, 72
(Fla. 4th DCA 2014) (the appellate court reversed the temporary injunction in its
entirety because the injunction contained no factual findings whatsoever and
lacked the necessary precision of what was being enjoined.); Seashore Club of Atl.
City, Inc. v. Tessler, 405 So. 2d 767, 768 (Fla. 4th DCA 1981) (A trial court cannot
merely accept as true the allegations of the complaint in ordering a temporary
injunction; rather it must make the factual findings sufficient to support the
elements of the relief).
Scott also cites Richard v. Behavioral Healthcare Options, Inc., 647 So. 2d
976 (Fla. 2d DCA 1994) in a misplaced effort to support the Circuit Court’s order.
In Richard, the Second District Court of Appeal found that the record supported
the trial court’s holding, but that the order was flawed because it did not specify
the reasons for entry. Id. at 978. Therefore, the Court remanded the case so the
trial court could delineate the factual findings to support its order granting the
temporary injunction and to hold an evidentiary hearing on the bond amount. Id.
at 978-979. Unlike in Richard, here the record does not support the Circuit
Court’s ruling. Specifically, absent from the hearing is any discussion on the
likelihood of irreparable harm, unavailability of adequate remedy at law,
01128121-1 6
substantial likelihood of success on the merits, or considerations of public interest.
(A. 4 & A. 5.) In fact, the only evidence before the Court related to the four
conclusions necessary to justify entry of a temporary injunction came from the
Supervisor who argued that an injunction was improper because Scott had an
adequate remedy at law; should he lose the election, he could bring an election
contest under section 102.168, Florida Statutes. (A. 9, p. 35:19-39:1.); Boardman
v. Esteva, 323 So. 2d 259, 261 (Fla. 1975).
Moreover, Scott acknowledged the necessity for a hearing on a bond and the
lack thereof in this case. (App. Br. p. 18). Failure of the Circuit Court to hold a
hearing to set a bond makes the injunction defective. Bellach v. Huggs of Naples,
Inc., 704 So. 2d 679 (Fla. 2d DCA 1997); Fla. R. Civ. P. 1.610(b); Dubner, 242 So.
3d at 447-448; (A. 5; A. 10).
Hence, where the Circuit Court’s injunction order fails to order a bond to be
posted and “fails to set forth a factual basis to support each of the elements of a
temporary injunction (i.e., the likelihood of irreparable harm, the unavailability of
an adequate remedy at law, substantial likelihood of success on the merits, and
consideration of the public interest),” the Circuit Court’s injunction order must be
reversed. Reserve at Wedgefield Homeowners' v. Dixon, 948 So. 2d 65, 67 (Fla.
5th DCA 2007). In accordance with the cases cited by Scott, Scott’s concessions
that the Circuit Court failed to hold a hearing on a bond and make any findings of
01128121-1 7
fact required by the Florida Rule of Civil Procedure 1.610, and the record and
argument provided by the Supervisor, the Circuit Court’s order of temporary
injunction should be reversed. Baldwin, 259 So. 3d. at 892; Weltman, 141 So. 3d
at 731; and Tom, 752 So. 2d at 1251; Dubner, 242 So. 3d at 447; Eldon, 78 So. 3d
at 738; (A. 4 & A. 5.).
C. The Circuit Court Erred in Granting a Temporary Injunction Without
Reasonable Notice or Making Sufficient Findings to Articulate the
Reasons Why the Temporary Injunction was Issued Without Notice.
The Circuit Court erred in granting a temporary injunction when the
Supervisor had 45 minutes prior notice of the hearing, and the Circuit Court failed
to make any findings articulating the reasons why it issued the temporary
injunction without notice.
Scott argues that the Supervisor had adequate notice because her counsel
appeared at the hearing and argued against the temporary injunction. (App. Br. p.
19.) The only reason the Supervisor had any legal representation at the hearing is
because her counsel happened to be in the courtroom on another noticed matter
immediately prior to this hearing. (A. 6 p. 1-2.) The Supervisor only received
notice of the hearing 45 minutes prior to the temporary injunction hearing, which
did not provide her with a meaningful opportunity to prepare to present evidence or
to even notify her counsel and secure a record of the proceedings. (A. 6 p. 1-2.);
01128121-1 8
Fla. High Sch. Activities Ass'n, Inc. v. Benitez, 748 So. 2d 358, 359 (Fla. 4th DCA
1999).
Scott then argues that, even if there was not adequate notice for the
November 9th hearing, the issue is moot because the Supervisor had a second
opportunity to be heard. Scott cites three cases to support his contention, however
in each of those cases the opposing party received the benefit of notice and a
meaningful opportunity at a hearing on a motion to dissolve the injunction.
After a trial court issues a temporary injunction, a defendant has two
options. He may question the lack of prior notice by immediately
appealing the injunctive order pursuant to Florida Rule of Appellate
Procedure 9.130(a)(3)(B), or he may file a motion to dissolve with the
trial court.
State v. Beeler, 530 So. 2d 932, 934 (Fla. 1988). When a party subject to a
temporary injunction chooses to file a direct appeal, the scope of the appellate
court is the legal sufficiency of the Circuit Court’s order, the complaint, and any
supporting documents. Dixon, 948 So. 2d at 67. In the instant matter, the
Supervisor filed an appeal, not a motion to dissolve the temporary injunction and
therefore, in accordance with Dixon, the appeal court must determine the legal
sufficiency of the Circuit Court’s order, which the parties agree is clearly deficient.
Id.; (App. Br. p. 17 & 18).
Scott attempts to equate the hearing on the Supervisor’s Emergency Motion
for Reconsideration, Status Conference, and Emergency Stay, to a hearing on a
01128121-1 9
motion to dissolve without citing any legal support for such a contention. (App.
Br. p. 19-20). A motion for reconsideration is clearly not a motion to dissolve.
When a defendant chooses to file a motion to dissolve, “notice becomes irrelevant
because the defendant is present, and the burden would be on the plaintiff to show
that the complaint and supporting affidavits are sufficient to support the
injunction.” State v. Beeler, 530 So. 2d 932, 934 (Fla. 1988). In contrast, at the
hearing on the Supervisor’s Emergency Motion for Reconsideration, Status
Conference, and Emergency Stay, sufficiency of the injunction was not presented;
instead, the argument was whether the timeframe set forth in the temporary
injunction could not be met. (A. 7, p. 5:4-14.) Specifically, that hearing was held
less than 24 hours after the Court entered the temporary injunction, and the Circuit
Court merely denied the stay and granted reconsideration in part by extending the
deadline for compliance by two hours. (A. 10; A. 7, p. 42:20-22.) The Supervisor
appealed the temporary injunction and was never provided a meaningful
presentation on the insufficiency of the injunction, and therefore, the Circuit
Court’s order should be reversed. Dixon, 948 So. 2d at 67; Beeler, 530 So. 2d at
934.
01128121-1 10
D. This Appeal Should Not Be Dismissed for Mootness Because It Is a
Matter of Great Public Importance That Is Likely To Recur.
Scott argues that the appeal is moot and should be dismissed because
election has concluded, but fails to address that this is a matter of great public
importance that is likely to recur.
When the controversy has been so fully resolved that a judicial
determination can have no actual effect, the issue is moot. Godwin v. State, 593
So. 2d 211, 212 (Fla. 1992). In other words a case is moot “when it presents no
actual controversy or when the issues have ceased to exist.” Id. However, there
are at least three instances where an otherwise moot case will not be dismissed: (1)
“when questions raised are of great public importance,” (2) the issue or questions
are likely to recur, or (3) “if collateral legal consequences that affect the rights of a
party flow from the issue to be determined.” Id. The exception for controversies
that are likely to recur applies when “(1) the challenged action was in its duration
too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party will be subjected to the
same action again.” State v. Fla. Workers' Advocates, 167 So. 3d 500, 505 (Fla. 3d
DCA 2015) (citing Morris Publ'g Grp., LLC v. State, 136 So. 3d 770, 776 (Fla. 1st
DCA 2014)).
The instant matter is one of great public importance and it is likely to recur.
While the Supervisor acknowledges that the temporary injunction expired shortly
01128121-1 11
after the Notice of Appeal was filed, and that ten days later the Canvassing Board
certified the official returns for all federal, state and multicounty officers, this only
shows that the challenged action was so short in duration that it would be
impossible to fully litigate the matter prior to its expiration. (A. 10, A.11 & App.
Br. p. 11); Fla. Workers' Advocates, 167 So. 3d at 505. Further, to accept Scott’s
argument that the matter should be dismissed is to improperly allow an important
issue capable of repetition to evade review. Rea v. Sansbury, 504 So. 2d 1315,
1317 (Fla. 4th DCA 1987) (Despite the county ultimately publishing the number of
its electronic system enabling county employees to monitor proceedings of the
commission via telephone, the appellate court affirmed the trial court’s order
retaining jurisdiction to determine whether the number of electronic system was a
public record because of the possibility of the question arising again); State v.
Causey, 503 So. 2d 321, 322 (Fla. 1987) (Despite Causey subsequently pleaded
guilty to the offense of attempted arson, the Court retained jurisdiction to resolve
this still viable issue of great importance.); D. H. v. Polen, 396 So. 2d 1189, 1190
(Fla. 4th DCA 1981). (Despite the juvenile’s release to his mother pending final
hearing on a contempt charge and the case therefore becoming moot, the Court
retained jurisdiction because the petition “raised a recurring question of public
importance which, if not resolved, would evade appellate review.”). The appellate
courts’ recognition of the exceptions of great public importance and capability of
01128121-1 12
repetition while evading review is prevalent in election matters. Sadowski v.
Shevin, 345 So. 2d 330, 331-32 (Fla. 1977) (The Supreme Court found that,
although the questions raised were moot because of the passing of the
qualifications period and election, the question of whether a statute prohibiting a
candidate from spending campaign funds prior to qualification abridged the
candidate’s constitutional right to speak on public issues was a matter of great
importance and of general interest to the public, and therefore answered the
question). Plante v. Smathers, 372 So. 2d 933, 935 (Fla. 1979) (“This case, as it
relates to the 1978 election, has become moot; however, we elect to retain
jurisdiction and to resolve the constitutional issue because it is a matter of great
importance and of general public interest and will probably recur in the next
general election…require[ing] a candidate to make full and public financial
disclosure even though he or she may not qualify prior to July 1 of the election
year.”) Specifically, in Sterling v. Brevard County, 776 So. 2d 281, 284 (Fla. 5th
DCA 2000), the trial court ruled that a challenge to several proposed charter
amendments being placed on the ballot was moot because passage of the general
election. The District Court ruled that the fact that the general election was held
where the six amendments in question were not on the ballot did not moot the issue
or controversy. Id. It reasoned that:
[i]f such were the case, the inherent delays in the judicial process
would prevent any valid issue from ever being heard after an election
01128121-1 13
had been held. This would be an absurd result in our system of
democracy.
Id. The District Court further explained that its opinion should not be construed
merely as an advisory adjudication on the issues presented, but even if it were, “the
courts are always free to address the merits of an action which has been deemed
moot if the action is capable of repetition, yet evading review and presents an
important issue.” Id. at 285.
Here the actions taken by the Supervisor in this election were based on a
statutory interpretation of the Florida Election Code and rules adopted by the
Department of State and the Canvassing Board. Scott attempts to couch this matter
as one former Supervisor of Elections acting in a way that violated the Florida’s
Election Code; however, no court determination that the Supervisor’s actions
violated Florida’s Election Code. Contrary to Scott’s contention, a ruling on the
merits is not confined to the individuals and circumstances of this case because
Supervisors of Elections from other counties have adopted these same standards.
(A. 7, p. 10:22-25.) Hence, unless the Florida Election Code or rules are changed
to address this issue, the Supervisor and well as other Supervisors of Elections are
capable of repeating the actions questioned by Scott.
Additionally, as Scott admits “[i]t goes without saying that properly
processing and counting ballots is of the highest importance to the integrity of an
election.” (App. Br. p. 12.) The integrity of the ballots cast in elections go to the
01128121-1 14
very heart of our democracy and protecting the integrity of the election process to
insure free and fair elections is of great importance and paramount public interest.
(i.e. Sadowski, 345 So. 2d at 330.) Thus, similar to Sterling, Sadowski, and Plante,
this case presents an issue that is not only capable of repetition, but also of great
public importance. Sterling, 775 So. 2d at 284; Sadowski, 345 So. 2d 330; Plante
v. Smathers, 372 So. 2d at 935.
Moreover, if the appellate court were to find this issue to be moot and
dismiss the matter, the court would be allowing Scott to circumvent any process
that would have brought this issue to finality. The Florida Election Code provides
a two-pronged system for challenging vote returns and election procedures:
protests and contests. Miller v. City of Belle Glade Canvassing Bd., 790 So. 2d
511, 512–13 (Fla. 4th DCA 2001) (citing Gore v. Harris, 772 So. 2d 1243 (Fla.
2000), reversed on other grounds, Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148
L.Ed.2d 388 (2000), remanded, Gore v. Harris, 773 So. 2d 524 (Fla.2000)).
Specifically, a “protest proceeding is filed with the County Canvassing Board and
addresses the validity of the vote returns... [and] [t]he relief that may be granted
includes a manual recount.” Id. The protest must be filed with the Canvassing
Board prior to the time the Canvassing Board “certifies the results or within five
days after the date the election is held, whichever is later.” Id. A contest
proceeding is filed in circuit court to addresses the validity of the election itself and
01128121-1 15
it must be filed within ten days after the certification of the election results. Id.
In a contest proceeding, the relief that may be granted is varied and extensive. Id.
Scott chose neither the protest nor contest path to address his concerns over the
validity of the vote returns or the election; either of these paths would have
allowed the issue at hand to be resolved. Instead, Scott chose to bring an action for
temporary injunction against the Supervisor during the critical time of votes being
counted and then, once he was declared the winner, claimed any challenge arising
from his actions was moot.
V. CONCLUSION
The Appellant requests this Appellate Court reverse the Circuit Court’s
Order on the Plaintiff’s Verified Motion for a Temporary Injunction dated
November 9, 2018, and Order on Defendant’s Emergency Motion for
Reconsideration, Status Conference and Emergency Stay, dated November, 10,
2018.
01128121-1 16
Respectfully submitted this 10th day of May, 2019.
JENNIFER R. COWAN
Florida Bar No. 0038081
Primary Email: [email protected]
Secondary Email: [email protected]
Secondary Email: [email protected]
Lewis, Longman & Walker, P.A.
100 2nd Avenue South, Suite 501-S
St. Petersburg, FL 33701
Telephone: (727) 245-0820
ANDREW J. BAUMANN
Florida Bar No. 0070610
Primary Email: [email protected]
Secondary Email: [email protected]
Secondary Email: [email protected]
RACHAEL B. SANTANA
Florida Bar No. 107677
Primary Email: [email protected]
Secondary Email: [email protected]
Lewis, Longman & Walker, P.A.
515 North Flagler Drive, Suite 1500
West Palm Beach, Florida 33401
Telephone: (561) 640-0820
Facsimile: (561) 640-8202
NATALIE A. KATO
Florida Bar No. 87256
Primary email: [email protected]
Secondary email: [email protected]
Lewis, Longman & Walker, P.A.
315 South Calhoun Street, Suite 830
Tallahassee, FL 32202
Telephone: (850) 222-5702
Counsel for Appellant
01128121-1 17
CERTIFICATE OF COMPLIANCE
Counsel for Appellee, WENDY S. LINK, in her capacity as SUPERVISOR
OF ELECTIONS for Palm Beach County, FL, certifies that this pleading has been
prepared in Times New Roman, 14-point font, in compliance with the requirements
set forth in Florida Rule of Appellate Procedure 9.210(a)(2).
/s/ Jennifer R. Cowan
JENNIFER R. COWAN, ESQUIRE
Florida Bar No.: 0038081
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
served via electronic mail to: Aliette D. Rodz, Esq., Shutts & Bowen, LLP, 200 S.
Biscayne Boulevard, Suite 4100, Miami, FL 33131, [email protected], and
Amber Stoner Nunnally, Shutts & Bowen, LLP, 215 South Monroe Street, Suite
804, Tallahassee, FL 32301, [email protected], [email protected],
Attorneys for Appellee, on this 10th day of May, 2019.
/s/ Jennifer R. Cowan
JENNIFER R. COWAN, ESQUIRE
Florida Bar No.: 0038081