Loading...
HomeMy WebLinkAboutM-98-0228CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM Honorable Vice -Chairman and DATE March 4, 1998 FILE Members of the City Commission SUBJECT_ Mayor's Seat FROM Humberto Herna Z REFERENCES. Chairman Ir ENCLOSURES: Pursuant to the Final Judgement rendered by The Honorable Circuit Court Judge Thomas S. Wilson Jr. the Mayor's seat is now considered vacant. Based on the Charter of the City of Miami and Florida Statutes, the City Commission has 10 days to fill said seat. Therefore, I am calling a Special City Commission Meeting for Thursday, March 5, 1998 at 3:OOPM in the Chambers, City Hail. cc: Jose Garcia -Pedrosa, City Manager Joel Maxwell, City Attorney Walter Foeman, City Clerk 98- 228 COFFEY, DiAZ & O'NAGHTEN, L.L.P SUITE 1100 GRAND BAY PLAZA 2665 SOUTH BAYSHORE DRIVE MIAMI, FLORIDA 33133 KENDALL COFFEY March 5, 1998 The Honorable Joel Maxwell City Attorney City of Miami Miami Riverside Center 444 SW 2"d Avenue Miami, FL 33130 TELEPHONE (305) 285-0800, EXT.: 101 TELECOPIER (305) 285-0837 E-MAIL: kc®abogadosfla.com RE: Circuit Court Final Judgment ordering a new election for the office of Mayor Dear Joel: As you know, I represent Mayor Joe Carollo as well as the petitioners in the election voter fraud litigation. I have just received a copy of your legal opinion regarding the effect of the Final Judgment rendered in this case yesterday and am writing in response to that opinion letter. With all due respect, we believe your letter is mistaken for at least two critical reasons. Fundamentally, it discards the well -settled principle that office holders serve until the lawful successor is duly elected and qualified. This premise, which is embodied in Miami's charter, makes it clear that there is no vacancy prior to the event of lawful succession through a lawful election. As a result, the officer, in this case Mayor Joe Carollo, maintains his right to the office. Indeed, with Judge Wilson's declaration that the November 4' election is void, that election has, for purposes of law, no force, effect or existence of any kind. As has long been the rule in Florida: 98- 208 COFFEY, DIAz & O'NAGHTEN, L.L.P. The Honorable Joel Maxwell March 5, 1998 Page 2 It is settled law that an office is not vacant so long as it has an incumbent who has a lawful right or statutory authority to continue therein, either for a fixed term or until the happening of a future event. Therefore, there was no vacancy to be filled in the office ...until his successor was duly elected and qualified. State ex rel. Landis v. Baxter, 122 Fla. 312, 314, 165 So. 2d 271 (1936) (emphasis added). Under Section Four of the Charter, Mayor Carollo's term of office continues until a future event, that is, until the lawful election and qualification of the successor. Accordingly, his term has not ended and no vacancy exists. Also misplaced was your reliance on Section 114.01(1). This, by its terms, does not apply if a non -incumbent , such as Xavier Suarez, was "elected" through an illegal and void election. When, on the other hand, as occurred here, a non -incumbent (Xavier Suarez) obtains office through a void election, the previous and lawfully constituted office holder, here, Mayor Joe Carollo - continues to hold the right to office. This follows because Mayor Carollo's term was never concluded since the event of a lawful election and qualification of a lawful successor never occurred. Therefore, under Florida law the incumbent cannot be displaced by the unlawful election of a non -incumbent, and the term continues: As a general rule, on the expiration of an officer's term, the officer holds over until a successor is duly qualified . During the period in which the officer holds over after the expiration of the term, there is no vacancy in office which may be filled by an interim appointment. 98.- 228 COFFEY, DIAz & O'NAGHTEN, L.L.P. The Honorable Joel Makwell March 5, 1998 Page 3 All state, county, and municipal officers continue in office after the expiration of their official terms until their successors are duly qualified. The requirement that an officer hold over until a successor has been duly qualified requires more than the giving of a bond or taking of the oath of office. In addition, there must be a legal appointment or a legal election to give title to the office before a successor can be "duly qualified" to assume the office. 9 Fla. Jur. 2d, §59, at 453, §65, at 459, §566, at 460. See also §68, at 461 ("The incumbent of an office the term of which is for a specified period, is entitled to retain the office after the lapse of the specified period, in the event of the election of a successor who is ineligible...") In addition to your written opinion, we are also aware of the reported plans of the Miami Commission to name an acting mayor, from applicants who ironically include Xavier Suarez. We are writing to advise you of our intention to proceed tomorrow with an emergency appeal asking the Third District Court of Appeals to declare the immediate right of Joe Carollo to resume his duties as Mayor of Miami. See also Bolden v. Potter, 452 So. 2d 564 (Fla. 1984). The trial judge has already spoken powerfully and unmistakably about the overwhelming evidence of voter fraud. With respect to any remaining legal questions, these are purely issues of the legal interpretation of statutes and court decisions, which can generally be determined expeditiously. For many reasons, we believe the promptest possible resolution is needed for the City and people of Miami. Further uncertainty can serve no one. We will therefore request that the appellate 98- 4q28 COFFEY, DIAZ & O'NAGHTEN, L.L.P. The Honorable Joel Maxwell March 5, 1998 Page 4 briefing and oral argument be concluded within seven days and will deliver courtesy copies of the papers we file and keep you informed of developments. For the reasons stated in this letter, we respectfully request that your reconsider your legal opinion. We further request that the Commission consider, with respect to present circumstances and any contemplated action, the prospect of prompt appellate action that may bring diflucult and important issues to a much needed resolution. Cordially, �y4d-o& 6# KENDALL COFFEY KC/idh cc: Members, City of Miami Commission Joseph Portuondo, Esq. 98- 228 )P�LIBERTAD, JUSTICIA Y HONRADEZ ACCION CUBANKRECEI1r1. 1100 EAST 10th AVENUE - HIALEAH, FLORIDA 330V8 MAR -5 P 2 •24 ALTER ).•rOEMAN CITY CLERK CITY OF FJJAMI, FLA DEPT OF CITY CLERK MY -NAME IS GILBERT CASANOVA AN AMERICAN CITIZEN. MY VOTE IN AN ELECTION IN MIAMI, FLORIDA I, GILBERT CASANOVA INSPIRATION IS TO OCCUPY THE MAYOR OF THE CITY OF MIAMI, FLORIDA FOR 60 DAYS PROPOSED HONORABLE JUDGE DR. WILSON CONVOCATE NEW ELECTION FOR 60 DAYS MY-CHARGE,WILL BE WITHOUT PAY GILB T OK 98- 228 CITY ;F N l.AMI _oPiDA INTER -OFFICE MEMORANDUM Honorable Wifredo Gort City Commissioner // ( ��- f J 1 Edward Maxwe it City Attorney March 5, 1998 Request for Legal Opinion ML%m ?Ec=PE'IC"c_ Circuit Court Final Judgment _,,C"`URES ordering a new election for the office of Mayor. You have requested a legal opinion on substantially the following: WHAT IS THE EFFECT OF THE FINAL JUDGMENT RENDERED ON MARCH 4, 1998, IN THE CASE OF IN RE: THE MATTER OF THE PROTEST OF ELECTION RETURNS AND ABSENTEE BALLOTS IN THE NOVEMBER 4, 1997, ELECTIONS FOR THE CITY OF MIAMI. DADE COUNTY,_ FLORIDA, CASE NO.97-25596 CA 09. The Court in the above -mentioned case has ordered and adjudged that the November 4, 1997, City of Miami election for mayor is void, and that a new election shall be held 60 days from the date of the Final Judgment. The date of the Final Judgment, a copy of which is attached hereto, is the date of rendition, which is March 4, 1998. Rule 9.020(h), Fla. R. App. P. Sixty days hence is Sunday, May 3, 1998. As'a result of this Final Judgment, a vacancy has been created in the office of mayor. Section 114.01(1), Fla. Stat. (1997), states that a vacancy in office shall occur upon the rendition of a final judgment of a circuit court of this state declaring void the election or appointment of the incumbent to office. The filling of a vacancy in the office of mayor is addressed in sections 4(b) and 12 of the Charter of the City of Miami ("Charter"). Section 4(b) of the Charter recognizes the general principle that the mayor holds office until his or her successor is elected and qualified. The same section specifically states that "vacancies shall be filled as provided in section 12 oj*the charter of the City of Miami." (Emphasis added). 98- 228 Honorable Wifredo r -t City Commissioner March 5, 1998 Legal Opinion MIA-980007 Re: Court Judgment Ordering New Election for Office of Mayor Page 2 Section 12 of the Charter provides that se *fVr shad be filled ekhaf, , by ws L- .. .d@W7. s -sock � vacamy occurs; os tu"" te4 I by a, special- called, 001 M. Such appointment, if made, should occur on or before Saturday, March 14, 1998. In the event the appointment is not made within the 10 day period, the charter provides for the commission to call a special election. A special election called pursuant to this charter section must be held not less than 30 nor more than 45 days from the expiration of the 10-day appointment period. Please note, said appointment or election would only fill the vacancy until the conclusion of the court -ordered election process. Absent commission action to either make an appointment or call a special election, a court may enforce compliance with Section 12. Although the commission is empowered to call a special election, such action could well result in voter confusion and great expense because of the proximity of the subject court - ordered election. Further, such special election would result, at best, in a 5 to 20-day mayoral term. The commission may appoint any qualified person to the position of mayor. However, the appointment of a sitting commissioner would create a vacancy in that district commissioner's seat. The term of the person appointed or elected to the position of mayor shall be until a successor is elected and sworn in following the conclusion of the court -ordered election. Notwithstanding the foregoing, the commission should be cognizant of the fact that the filing of a notice of appeal and the granting of a motion for stay pending appeal could affect the finality of the judgment and subsequent commission action. Inasmuch as the city was not a party to the lawsuit, we are requesting that legal counsel for both parties to the litigation immediately provide this office with courtesy copies of any future pleadings filed in this case, or orders entered. We will keep you apprised of any such proceedings and advise you as necessary. CONCLUSION As a result of the Court's rendition of a Final Judgment in the case of In Re: The Matter of the Protest of Election Returns and Absentee Ballots in the November 4, 1997, JunVyn,uw343 98- 228 Honorable Wifredo " rt City Commissioner March 5, 1998 Legal Opinion MIA-980007 Re: Court Judgment Ordering New Election for Office of Mayor Page 3 Elections for the City of Miami, Dade County, Florida, Case No. 97-25596 CA 09, a vacancy has been created in the office of mayor and the court has ordered an election to fill said vacancy. In light of the foregoing, the commission may temporarily fill the vacancy as provided for in Section 12 of the City Charter, by appointment on or before Saturday, March 14, 1998, or by special election. Absent action by the commission, a court may enforce compliance with Section 12. Prepared By: Albertine B. Smith Chief Assistant City Attorney Yamile Marrero Trehy Interim Chief Assistant City Attorney Warren Bittner Assistant City Attorney Myrna D. Bricker Assistant City Attorney Attachment cV Honorable Chairman and Members of the City Commission Jose Garcia -Pedrosa, City Manager Walter J. Foeman, City Clerk Reviewed and Approved By: Ra ael O. Diaz Deputy City Atto y Jcm/ymuw343 98- 228 IN THE CIRCUIT COURT. OF THE I ITH JUDICIAL CIRCUIT OF FLORID rN AND FOR MIAMI-DADE COUNTY GENERAL JURISDICTION DIVISION CASE NO. 97-25596 CA 09 IN RE: THE MATTER OF THE PROTEST OF ELECTION RETURNS AND ABSENTEE BALLOTS IN THE NOVELNMER 4, 1997, ELECTIONS FOR THE CITY OF MIAMI, DADE COUNTY, FLORIDA FINAL JUDGMENT THIS CAUSE having come on for a non jury trial commencing on February 9, 1998, an concluding on February 25, 1998, and the Court having considered the testimony of 60 live witnesse: having considered their demeanor, their candor and their frankness or lack thereof, having read th deposition testimony of 21 witnesses, having reviewed and studied the 195 exhibits, having honored th assertion by 27' witnesses of their right to remain silent as guaranteed to them by the Fifth Amendment t the Constitution of the United States, having heard argument of counsel, having read the variou memoranda of law provided by the parties, and being otherwise fully apprised in the premises, the Cour -makes the following findings of fact and conclusions of law: The leading case in Florida on absentee ballot election contests is Boardman v. Esteva, 323 Sc 2d 259 (Fla.1975), cert. denied, 425 U.S. 967 (1976). Chief Justice James Adkins speaking for the Cour 'Although an adverse inference may be drawn from a non-party's invocation of the Fifth Amendment, this Court did not find it necessary to use the inference in reaching its decision. See, B. Jones Commentaries on the Law of Evidence in Civil Cases (The Blue Book of Evidence) section 8866. at 342 (1942); Rad Services. Inc. Y. Aetna Casualty and Surety Co., 808 F.2d 271 Od Cir. 1986); Brink's Inc. v. City of New York 717 F.2d 700 (2d Cir. 1983) and C. Radon. Evening the Odds in Civil Litigation: A Proposed Methodology For Using Adverse Inferences When Non -Party Witnesses Invoke The Fifth Amendment, 42 Vand. L. Rev. 507 (1989) 98- 228 said We first take note that the real parties in interest here, not in the legal sense but in realistic terms, are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration. ... Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice. Boardman, at 263 (emphasis added). He then enunciated the three major factors that a court sitting on an absentee ballot election cas must consider: In determining the effect of irregularities on the validity of absentee ballots cast, the following factors shall be considered: (a) the presence or absence of fraud, gross negligence, or intentional wrongdoing; (b) whether there has been substantial compliance with the essential requirements .of the absentee voting law; and. c).. whether the - irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election. Id. at 269. If the party challenging the election presents clear and convincing evidence of each of the abov, criteria, the will of the people is frustrated and the election cannot stand and must be declared void. The evidence presented in the case sub ju&ce clearly demonstrated fraud and abuse of the absentee ballot laws. Witness after witness testified, without contradiction, that they either 1) did not vote,= 2) dic not sign the ballots in question, 3) did not live in the district in which their ballot was cast,' 4) did not liv( in the City of Miami,' 5) did not know the person who "witnessed" their signature or said someone othe 'See also the testimony of Linda Hart as it relates to items 1, 2 and 5. 'See also the testimony of Hugh Cochran as it relates to items 3, 4 and 6 'It is axiomatic that a vote cast by a person not a citizen of the city is invalid. The same is true of a vote cast by a citizen in a district or precinct not his own. Illustrative of this is the unwitting testimony of the lady who chose to testify after first taking the Fifth Amendment. She substantiated Mr. Cochran's opinion that the votes of her two sisters and her brother-in-law were invalid since they resided outside the city 98- 228 than the named witness actually "witnessed" their vote. 6) did not live at the address that was given on tl request for the absentee ballot, 7) did not request an absentee ballot and/or 8) did not qualify as "unable i vote".' These were not isolated incidents. This conduct represented the rule, not the exception to the rule Additionally, Mr. Lamar Miller, an expert in the field of document examination, testified that he was ab-1 to examine a very small sampling of actual absentee ballots before they were confiscated by the Florid Department of Law Enforcemtnt. Of those ballots, he found evidence that several ballots were doctorec Someone had tried to physically alter the ballots from votes for Mr.Carollo to votes for Mr. Suarez. Viewed in its entirety, the evidence shows a pattern of fraudulent, intentional and criminal conduc that resulted in such an extensive abuse of the absentee ballot laws that it can fairly be said that the inten of these laws was totally frustrated. A cornerstone of American democracy is that each citizen's vote ha. equal value. In the November 4, 1997 election, the value of every honest vote was greatly diminished of devalued by this fraud. When this evidence is viewed in combination with the evidence presented by Professor Hill in his analysis of the returns of the November 4, 1997' election, two things become crystal clear. First, Commission District 3 was the center of a massive, well conceived and well orchestrated absentee ballot voter fraud scheme. Second and most importantly, this scheme to defraud, literally and figuratively, stole .r' 'Every citizen has a right to vote. Voting by absentee ballot is a privilege,* not a right. Anderson v. Canvassing and Election Board of Gadsden Co., 399 So. 2d 1021, 1023 (Fla. 3d DCA 1981) citing State ex rel Whitley v. Rhinehart, 140 Fla. 645, 192 So. 819, 823 (1939). This court has not been able to find any cases that hold that mere inconvenience constitutes "unable to vote". The legislature may wish to provide a definition of this term so that the Department of Elections can make a reasoned determination of whether or not an application for an absentee ballot should be honored. "These abuses were not limited just to the ballots witnessed by the "vote brokers", but the irregularities and abuses predominated in those ballots. 'Mr. Carollo received 508 absentee votes in District 3 (27.18%) to Mr. Suarez's 1.337 absentee votes (71 54%). Professor Hill said that the odds of this happening, absent fraud, were 5.000 to 1. 98- 228 the ballot from the hands of every honest voter in the City of Miami. As a result, the integrity of th election was adversely affected: This Court is very mindful that no evidence was presented that Mr. Suarez knew about e participated in this fraud. He and his family campaigned hard for the absentee vote, but that is the right c any candidate who aspires to win an election. This Court,- therefore, does not think it is appropriate, unde these circumstances, to disenfranchise the honest absentee voters, by invalidating all of the absentee vote and declaring Mr. Carollo the winner. The only appropriate remedy under the circumstances of this cast is a new election. Based upon the above, it is hereby ORDERED AND ADJUDGED that the November 4, 1997, City of Miami election for Mayor is hereby declared void. A new election shall be held 60 days from the date of this order.' DONE AND ORDERED in chambers at Miami, Miami -Dade County, Florida this -3rd day of March, 1998. Thomas S. Wilson, Jr., Circuit Court Judge cc Kendall Coffey, Esquire Joseph J. Portuondo, Esquire 'The new election shall be limited to the 5 people who had qualified to run for mayor in the November 4, 1997 election. 98- 228