Bloch v. Del Rey

• Decision Date: 26 October 2016
• Docket Number: No. 3D16–2004.,3D16–2004.
• Citation: 208 So.3d 189
• Parties: Jason BLOCH, Appellant, v. Marcia DEL REY, et al., Appellees.
• Court: Florida District Court of Appeals

208 So.3d 189

Jason BLOCH, Appellant,

v.Marcia DEL REY, et al., Appellees.

No. 3D16–2004.

District Court of Appeal of Florida, Third District.

Oct. 26, 2016.

Greenspoon Marder, and Joseph S. Geller, Fort Lauderdale; Benedict Kuehne; Kozyak, Tropin & Throckmorton and Thomas A. Tucker Ronzetti, for appellant.

Zumpano Castro and Robert H. Fernandez ; Gunster and Angel A. Cortiñas and Jonathan H. Kaskel, for appellees.

Before SALTER, EMAS and FERNANDEZ, JJ.

EMAS, J.

INTRODUCTION

Jason Bloch appeals from an order granting Marcia Del Rey's motion to dismiss Bloch's claims for declaratory and injunctive relief, as well as an order granting judgment on the pleadings in favor of Stand Up to Violence and Jorge Alberto Balleste on Bloch's claim for injunctive relief. For the reasons that follow, we affirm in part and dismiss in part.

FACTS

Jason Bloch is an incumbent circuit court judge and was a retention candidate for the Circuit Court, Eleventh Judicial Circuit, Group 9 judicial election held on August 30, 2016.¹ Marcia Del Rey sought to challenge Bloch for that seat, and Del Rey filed the required paperwork and paid the required filing fee prior to the qualifying date of May 6, 2016. The Florida Division of Elections certified Del Rey as a qualified candidate for the Group 9 seat.

On August 10, 2016, more than three months after the qualifying date, only twenty days before election day, and only five days before the commencement of early voting in Miami–Dade County,² Bloch filed an action for declaratory and injunctive relief against Del Rey, asserting Del Rey was not constitutionally qualified to be a candidate for judicial office because she had "refused and failed to accurately provide the mandatory full and public disclosure" of financial interests by failing to accurately report her income from 2015 and had failed to disclose each source of her income. In addition, Bloch alleged that Del Rey made material misrepresentations and omissions in political advertisements and was the beneficiary of express advocacy by Stand Up to Violence, an electioneering communications organization, whose chairperson is Jorge Alberto Balleste. Stand Up to Violence and Balleste were also named as defendants, together with the Miami–Dade County Supervisor of Elections and Secretary of State.³

The three-count complaint sought (I) a declaration from the court that Del Rey was not constitutionally qualified to be a candidate for the office she was seeking; (II) an injunction removing Del Rey from the ballot for her failure to comply with the financial disclosure requirement and requiring the Secretary of State to declare Del Rey not qualified to be a candidate for circuit court judge and to notify voters of same, and to direct the Supervisor of Elections not to count any votes cast for her; and (III) an injunction prohibiting Stand Up to Violence and Balleste from continuing to expend funds by engaging in express advocacy in support of Del Rey.

On August 15, 2016, Bloch served the summons and complaint upon Del Rey, Stand Up to Violence and Balleste.⁴ Del Rey filed a motion to dismiss Counts I (declaratory relief) and II (injunctive relief) for failure to state a cause of action, asserting she had met all constitutional eligibility requirements established by the Florida Constitution, and had complied with all statutory requirements to qualify as a judicial candidate. Del Rey further argued that the trial court was without authority to remove her from the ballot based solely on alleged irregularities in the qualifying papers she had filed, and further, that any such "irregularities" had been cured by her filing an amendment to her financial disclosure on August 18, 2016.

Stand Up to Violence and Balleste filed a motion for judgment on the pleadings as to Count III (injunctive relief), asserting that Stand Up to Violence was organized as a political committee, not an electioneering communications organization,⁵ and therefore, it was allowed to engage in political advertising containing express advocacy, and to make direct contributions to candidates. They also contended that the communications from Stand Up to Violence (attached as exhibits to the complaint) did not contain any express advocacy and that one of the exhibits (which does appear on its face to contain express advocacy) was not reviewed and approved prior to final publication. Finally, Stand Up to Violence asserted that the Florida Elections Commission, and not the court, has jurisdiction over alleged violations of chapter 106, Florida Statutes.

The trial court held a hearing on August 25 and 26, and thereafter, granted both motions. As to the motion to dismiss, the court determined that Bloch should have exhausted his administrative remedies with the Florida Commission on Ethics before seeking relief in the court and that he offered no valid reason for the extraordinary relief he sought in the court. The court further found that Del Ray had substantially complied with the financial disclosure requirements. As to the motion for judgment on the pleadings filed by Stand Up to Violence and Balleste, the court found that Bloch had failed to exhaust his administrative remedies against those parties by not filing a complaint with the Florida Elections Commission.

This appeal followed and this court has granted Bloch's motion for expedited consideration.⁶

ANALYSIS

We review de novo the trial court's orders on Bloch's claims for injunctive relief against Del Rey, Stand Up to Violence and Balleste. See Walker v. Figarola, 59 So.3d 188, 190 (Fla. 3d DCA 2011) ; Thompson v. Napotnik, 923 So.2d 537 (Fla. 5th DCA 2006). As to the declaratory action, we ordinarily review an order dismissing such a claim under an abuse of discretion standard. See Acad. Express, LLC v. Broward Cty., 53 So.3d 1188 (Fla. 4th DCA 2011) ; Basik Exports & Imports, Inc. v. Preferred Nat. Ins. Co., 911 So.2d 291 (Fla. 4th DCA 2005) ; Palumbo v. Moore, 777 So.2d 1177 (Fla. 5th DCA 2001). However, to the extent that the dismissal is based upon a legal determination, our review is de novo. See, e.g., Angelo's Aggregate Materials, Ltd. v. Pasco Cnty., 118 So.3d 971 (Fla. 2d DCA 2013).

We first address the order which entered judgment on the pleadings as to Count III in favor of Stand Up to Violence and Balleste. In that count, Bloch sought injunctive relief against Stand Up to Violence and Balleste, enjoining them from engaging in express advocacy in support of Del Rey and her campaign for circuit court judge. Given that the campaign has concluded and the election has already been held, the grounds upon which injunctive relief was sought are now moot. Even if we were to conclude that the trial court erred in granting judgment on the pleadings on Count III, a reversal and remand would be futile under these circumstances. See Solares v. City of Miami, 23 So.3d 227 (Fla. 3d DCA 2009) ; Rubin v. Addison Reserve Country Club, Inc., 126 So.3d 1189 (Fla. 4th DCA 2012). We therefore decline to reach the merits of this claim and dismiss this portion of the appeal.⁷

Turning to the declaratory and injunctive relief claims filed by Bloch against Del Rey, we affirm the trial court's dismissal order and find Bloch's arguments are without merit, as Del Rey substantially complied with the statutory qualifying requirements set forth in section 105.031, Florida Statutes (2016).

As a preliminary matter, the issue before us involves compliance with the statutory requirements to qualify as a candidate for judicial office, rather than the constitutional requirements of eligibility to hold judicial office.See Burns v. Tondreau, 139 So.3d 481 (Fla. 3d DCA 2014) (discussing the separate and distinct differences between a candidate's constitutional eligibility for office and the statutory requirements to qualify to run for office). See also Norman v. Ambler, 46 So.3d 178 (Fla. 1st DCA 2010) (same). And while the qualifying paperwork at issue in this case ("Form 6, Full and Public Disclosure of Financial Interests") was created by the Florida Commission on Ethics to implement the provisions of Art. 2, Section 8 of the Florida Constitution ("Ethics in Government")⁸ , the precise issue before us is whether Del Rey complied with the requirements as set forth in section 105.031, such that she qualified to run as a candidate for judicial office.

Section 105.031 establishes the statutory requirements and deadlines for an individual to qualify as a candidate for judicial office. The statute mandates, inter alia, payment of a qualifying fee (or submission of a petition), and execution and submission of certain oaths and documents. For our purposes, the relevant provisions are found in subsections (5)(a)5, (5)(b), and (6) which provide:

105.031. Qualification; filing fee; candidate's oath; items required to be filed

(5) Items required to be filed. —

(a) In order for a candidate for judicial office or the office of school board member to be qualified, the following items must be received by the filing officer by the end of the qualifying period:

....

5. The full and public disclosure of financial interests required by s. 8, Art. II of the State Constitution or the statement of financial interests required by s. 112.3145, whichever is applicable. A public officer who has filed the full and public disclosure or statement of financial interests with the Commission on Ethics or the supervisor of elections prior to qualifying for office may file a copy of that disclosure at the time of qualifying.

(b) If the filing officer receives qualifying papers that do not include all items as required by paragraph (a) prior to the last day of qualifying, the filing officer shall make a reasonable effort to notify the candidate of the missing or incomplete items and shall inform the candidate that all required items must be received by the close of qualifying. A candidate's name as it is to appear on the ballot may not be changed after the end of qualifying.

(6) Notwithstanding the

...