Floridians against Exp. Gambling v. Flpf

• Decision Date: 30 November 2006
• Docket Number: No. 1D05-0575.,1D05-0575.
• Citation: 945 So.2d 553
• Parties: FLORIDIANS AGAINST EXPANDED GAMBLING, The Humane Society of the United States, and Grey2k USA, Inc., Appellants, v. FLORIDIANS FOR A LEVEL PLAYING FIELD; Glenda E. Hood, in her official capacity as Secretary of State; The Department of State, Brenda C. Snipes, in her official capacity as the Supervisor of Elections of Broward County; John Stafford, in his official capacity as the Supervisor of Elections of Duval County; Bonnie M. Jones, in her official capacity as the Supervisor of Elections of Escambia County; Peggy Rae Border, in her official capacity as the Supervisor of Elections of Flagler County; Buddy Johnson, in his official capacity as the Supervisor of Elections of Hillsborough County; Ion Sancho, in his official capacity as the Supervisor of Elections of Leon County; Constance Kaplan, in her official capacity as the Supervisor of Elections of Miami-Dade County; Vicki P. Cannon, in her official capacity as the Supervisor of Elections of Nassau County; Patricia Hollarn, in her official capacity as the Supervisor of Elections of Okaloosa County; Bill Cowles, in his official capacity as the Supervisor of Elections of Orange County; Kurt Browning, in his official capacity as the Supervisor of Elections for Pasco County; Theresa Leporte, in her official capacity as the Supervisor of Elections of Palm Beach County; Deborah Clark, in her official capacity as the Supervisor of Elections of Pinellas County; P. Douglas Wilkes, in his official capacity as the Supervisor of Elections of Santa Rosa County; Penny L. Halyburton, in her official capacity as the Supervisor of Elections of St. Johns County; and Deanie Lowe, in her official capacity as the Supervisor of Elections of Volusia County, Appellees.
• Court: Florida District Court of Appeals

945 So.2d 553

FLORIDIANS AGAINST EXPANDED GAMBLING, The Humane Society of the United States, and Grey2k USA, Inc., Appellants, v. FLORIDIANS FOR A LEVEL PLAYING FIELD; Glenda E. Hood, in her official capacity as Secretary of State; The Department of State, Brenda C. Snipes, in her official capacity as the Supervisor of Elections of Broward County; John Stafford, in his official capacity as the Supervisor of Elections of Duval County; Bonnie M. Jones, in her official capacity as the Supervisor of Elections of Escambia County; Peggy Rae Border, in her official capacity as the Supervisor of Elections of Flagler County; Buddy Johnson, in his official capacity as the Supervisor of Elections of Hillsborough County; Ion Sancho, in his official capacity as the Supervisor of Elections of Leon County; Constance Kaplan, in her official capacity as the Supervisor of Elections of Miami-Dade County; Vicki P. Cannon, in her official capacity as the Supervisor of Elections of Nassau County; Patricia Hollarn, in her official capacity as

the Supervisor of Elections of Okaloosa County; Bill Cowles, in his official capacity as the Supervisor of Elections of Orange County; Kurt Browning, in his official capacity as the Supervisor of Elections for Pasco County; Theresa Leporte, in her official capacity as the Supervisor of Elections of Palm Beach County; Deborah Clark, in her official capacity as the Supervisor of Elections of Pinellas County; P. Douglas Wilkes, in his official capacity as the Supervisor of Elections of Santa Rosa County; Penny L. Halyburton, in her official capacity as the Supervisor of Elections of St. Johns County; and Deanie Lowe, in her official capacity as the Supervisor of Elections of Volusia County, Appellees.

No. 1D05-0575.

District Court of Appeal of Florida, First District.

November 30, 2006.

John H. Pelzer of Ruden, McClosky, Smith, Schuster & Russell, P.A., Ft. Lauderdale; Mark Herron, Thomas M. Findley, and Robert J. Telfer, III, of Messer, Caparello & Self, P.A., Tallahassee; and Scott H. Marder, Ft. Lauderdale, for Appellants.

Wilbur E. Brewton and Tana D. Storey of Roetzel & Andress, L.P.A., Tallahassee; Jack M. Skelding, Jr., of Skelding & Cox. P.A., Tallahassee; Ronald L. Book of Ronald L. Book, P.A., Aventura; Marc W. Dunbar of Pennington Moore Wilkinson Bell & Dunbar, P.A., Tallahassee; and Harold F.X. Purnell and Gary R. Rutledge of Rutledge, Ecenia, et al., Tallahassee; Charlie Crist, Attorney General, James A. Peters, Special Counsel, Steven Todd Gold, Deputy Solicitor General, of Office of the Attorney General, Tallahassee, for Appellees.

PER CURIAM.

Appellants challenge the legality of placing on the 2004 ballot the proposed constitutional amendment which "Authorizes Miami-Dade and Broward County Voters to Approve Slot Machines in Parimutuel Facility" (the Slots Initiative). The Slots Initiative was approved in the November 2, 2004, general election. See Art. X, § 23, Fla. Const. Appellants claimed the Slots Initiative petition did not satisfy the requirements of Article XI, section 3 of the Florida Constitution because paid petition gatherers committed fraud to obtain signatures, and the names and addresses of the paid petition gatherers were not included, in violation of section 100.371, Florida Statutes, as amended by Chapter 97-13, section 22, Laws of Florida.

The trial court entered final summary judgment, concluding any improper signature gathering was cured by the general election, and recognizing its earlier partial summary judgment refusing to declare the petitions statutorily invalid because the names and addresses of the paid petition gatherers were not included. The trial court distinguished allegations of fraud on the basis that the acts predated the general election and did not relate to the ballot summary. We affirm the trial court's ruling that Florida law does not mandate the invalidation of signature petition forms which do not include the name and address of the paid petition gatherers. See Dockery v. Hood, 922 So.2d 258 (Fla. 1st DCA 2006). However, we agree with Appellants that final summary judgment was entered in error on the claim that the petitions failed to comply with Article XI, section 3 of the Florida Constitution.

In determining whether the trial court reversibly erred in granting final summary judgment on Florida constitutional grounds, we are confronted with two questions, each of which is based upon Appellants' factual assertions, which are presumed to be true for purposes of final summary judgment.¹ First, is a failure to comply with mandatory constitutional prerequisites automatically cured, as a matter of law, once an election is held, when a lawsuit challenging compliance is brought prior to the election? Second, is a party who seeks to amend the Florida Constitution and those employed by that party exempt, as a matter of law, from actual compliance with mandatory constitutional prerequisites for amending the Constitution if they create the illusion of compliance through fraudulent activities, and the amendment is subsequently approved by the voters?² We answer both questions in the negative.

We reverse on these independent, alternative grounds and remand for a trial to determine whether Appellees failed to obtain the constitutionally required signatures for submission to the voters. If the trial court determines such failure occurred, and no other remaining defenses apply, the trial court should declare the Slots Initiative invalid.

I. BACKGROUND

For citizen initiatives, the Florida Constitution mandates that, prior to placing a proposed constitutional amendment on the ballot, the proponent must obtain signed petitions from registered voters equaling 8% of the total ballots cast in the last presidential election statewide and 8% of the voters in at least half of the congressional districts. Art. XI, § 3, Fla. Const.

Appellants alleged Floridians for a Level Playing Field (FLPF), the party sponsoring the Slots Initiative, employed a political consulting group to gather the constitutionally required signed petitions. The petition gatherers were paid up to $6.50 per signed petition. Instead of obtaining actual signatures, the paid collectors committed fraud by forging signatures and fabricating names on a large number of the initiative petitions. Appellants alleged that thousands of Slots Initiative petitions were procured by fraud. FLPF then used the fraudulently signed petitions to deceive the various Supervisors of Elections, and ultimately, the voters, to create the illusion that it had obtained the constitutionally required number and geographic dispersal of signed petitions.

Approximately 20% of the submitted petitions came from Broward County. To check the authenticity of the signatures on those petitions, Appellants obtained a computerized database of the names and addresses of each voter who purportedly signed a petition for the Slots Initiative from the Broward County Supervisor of Elections. Appellants used this database to conduct statistical analyses, telephone number matching, and follow-up interviews.

The results of Appellants' investigation revealed over one-third of the individuals contacted who were identified as signing a petition unequivocally stated they did not sign a petition for the Slots Initiative. Some of the signatories were deceased at the time they allegedly signed their petitions.

Appellants argue their evidence shows that approximately 57% of the petitions contained the name of fictitious persons or forged signatures of actual voters. From their investigation in Broward County alone, Appellants argued they could show FLPF knowingly failed to collect the constitutionally mandated number and dispersal of valid signatures, and only through fraud was FLPF able to create the illusion that it had complied with the mandatory constitutional prerequisites.

Appellants filed their complaint, and their motion for emergency expedited hearing and permanent injunction before the November 2, 2004, election. On October 11, 2004, the circuit court heard Appellants' motion for emergency expedited hearing and injunctive relief. By order dated October 19, 2004, the circuit court ruled that "the matters presented are serious, warrant discovery and record development, but are not suitable for expedited final hearing before the November 2, 2004, election." A few weeks after the election, on January 6, 2005, the circuit court granted final summary judgment on the basis that the general election cured any failure by Appellees to obtain the constitutionally required number of petition signatures, even though Appellees and their agents engaged in fraudulent conduct. The circuit court also concluded that, absent constitutional infirmities, the doctrine of separation of powers dictated courts should not interfere with the method used by the Supervisors of Elections to verify signatures.³

II. NO CURE BECAUSE LEGAL CHALLENGE PRIOR TO ELECTION

In Pearson v. Taylor, 159 Fla. 775, 32 So.2d 826 (1947), the Florida Supreme Court emphasized that there is a difference between cases where a failure to follow procedures has been challenged before the election and those where the challenge is not brought until after the election:

The aggrieved party cannot await the outcome of the election and then assail preceding deficiencies which he might have complained of to the proper authorities before the election. See Payne v. Hodgson, 34 Utah 269, 97 P. 132. It is possible that the opinion in Tacker v. Board of Com'rs. of Polk County, 126 Fla. 15, 127 Fla. 248, 170 So. 458, persuaded the lower court to its conclusion because there we said, in effect, that the filing of a petition signed by the required numbers of signers was a precedent to any legal election. This statement, like all enunciations of law, must be considered in the light of the factual case before us. There we were dealing with the question raised prior to the election which is...