City of Hialeah v. Martinez

• Citation: 402 So.2d 602
• Decision Date: 27 August 1981
• Docket Number: No. 81-944,81-944
• Parties: The CITY OF HIALEAH, a municipality, Appellant, v. Raul MARTINEZ, Councilman for the City of Hialeah, Appellee.
• Court: Court of Appeal of Florida (US)

Page 602

402 So.2d 602

The CITY OF HIALEAH, a municipality, Appellant, v. Raul MARTINEZ, Councilman for the City of Hialeah, Appellee.

No. 81-944.

District Court of Appeal of Florida, Third District.

Aug. 27, 1981.

Ralph Miles, City Atty., for appellant.

McDermott, Will & Emery and Byron B. Mathews, Jr., Miami, for appellee.

Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

Raul Martinez is a City of Hialeah councilman whose term of office is due to expire on November 13, 1981. He wants to run in the general election to be held on November 10, 1981, for the position of Mayor of the City of Hialeah for the term beginning November 13, 1981. Section 44.01 of the Charter of the City of Hialeah provides:

"Any elected official ... of the City of Hialeah shall resign from his city office before he may seek, accept appointment to, or hold any other position under the city government for the City of Hialeah."

Faced with the City's assertion that its charter required Martinez to resign effective no later than September 11, 1981, the last day upon which one could qualify to run for the office of Mayor, Martinez sued in the Dade County Circuit Court for a judgment declaring that pursuant to Section 99.012(2), Florida Statutes (1981), ¹ he could run for the office of Mayor without first resigning his councilman's position or, alternatively, if resignation were required, it could be made effective "not later than the date upon which he would assume office, if elected to the office to which he seeks to qualify, the expiration date of the term of the office which he presently holds, or the general election day at which his successor is elected, whichever occurs earliest," ² as provided in Section 99.012(2), Florida Statutes (1981). The trial court granted Martinez's motion for summary judgment, ³ holding, in pertinent part, that:

....

"2. This Court construes Section 44.01 of the City Charter of Hialeah to require the resignation of the Petitioner to be made effective no later than the date upon which Petitioner would assume the office of Mayor, if he were to be elected to said office, the expiration date of the office which he presently holds, or the general election date at which his successor is elected, whichever of said dates occurs earliest.

"3. This Court further construes Section 44.01 of the City Charter of Hialeah to require the Petitioner to resign as stated in Paragraph 2 of this Order the moment he qualifies to run for the office of Mayor in the City of Hialeah, in the manner in which the City of Hialeah determines said candidate to be qualified. The term qualify is interpreted as doing the last act required by the City for any candidate to qualify for election to said office."

Both the City and Martinez appeal. ⁴

We agree with the trial court insofar as it rejected the City's position that Martinez was required to resign effective when he sought the office of Mayor. ⁵ However, we disagree with the trial court's holding that Martinez was required to resign at all. We therefore reverse the trial court's order and remand the cause for the entry of an order, in accordance with this opinion, which provides that Martinez need not resign his office to run for the office of Mayor.

Section 99.012(2) provides, in pertinent part:

"No individual may qualify as a candidate for public office who holds another elective or appointive office, whether state, county or municipal, the term of which or any part thereof runs concurrently with the term of office for which he seeks to qualify without resigning from such office not less than 10 days prior to the first day of qualifying for the office he intends to seek. Said resignation shall be effective not later than the date upon which he would assume office, if elected to the office to which he seeks to qualify, the expiration date of the term of the office which he presently holds, or the general election day at which his successor is elected, whichever occurs earliest...."

The trial court was of the view that the resign to run provision of the City's Charter and the resign to run statute can peacefully coexist. The Charter provides that any City office holder seeking another office must resign before he may run. ⁶ Attempting to harmonize the Charter with the statute, the trial court seized upon the fact that since the Charter provides only for resignation and is silent on the effective date of the resignation, the effective date provisions of Section 99.012(2), Florida Statutes (1981), can be read into the Charter. While this solution is undoubtedly favorable to Martinez under the trial court's ruling, he can retain his councilman's position until the date of the general election, November 10, 1981 it is not the judgment to which Martinez is entitled. In our view, the provision of the City Charter which requires resignation whether or not the term of the office holder runs concurrently with the term of office for which he seeks to qualify conflicts with the provision of the statute which requires resignation only when there is an overlap of terms. ⁷ , ⁸ Where there is such a conflict, the general law of the state prevails over the charter of a Dade County municipality such as Hialeah.

Article VIII, Section 6(e), Florida Constitution (1968), to which the City's Charter owes its existence, specifically re-enacts the Dade County Home Rule Charter, Article VIII, Section 11, Florida Constitution (1885), and provides that the Legislature shall have no power to amend or repeal the charter of any municipal corporation in Dade County, but provides further:

"Nothing in this section shall be construed to limit or restrict the power of the Legislature to enact general laws which shall relate to Dade County and any other one or more counties of the State of Florida or to any municipality in Dade County and any other one or more municipalities of the State of Florida relating to county or municipal affairs and all such general laws shall apply to Dade County and to all municipalities therein to the same extent as if this section had not been adopted and such general laws shall supersede any part or portion of the home rule charter provided for herein in conflict therewith and shall supersede any provision of any ordinance enacted pursuant to said charter and in conflict therewith, and shall supersede any provision of any charter of any municipality in Dade County in conflict therewith."

Since the general law of the state, Section 99.012, Florida Statutes (1981), permits Martinez, whose term as a councilman is not concurrent...