Joyner v. Shuman

• Decision Date: 04 December 1959
• Docket Number: No. 1576,1576
• Citation: 116 So.2d 472
• Parties: R. Tom JOYNER, Jr., William G. Cooper, Jr., Clarence O. Fisher and Wendell H. Watson, individually and as members of the City Commission of the City of Lakeland, Florida, Appellants, v. L. R. SHUMAN, as City Clerk of the City of Lakeland, Florida, and Gay Murphy, as Acting City Clerk of the City of Lakeland, Florida, and Roy H. McArthur, Morris Pritchard, T. E. Holcom and John R. Phillips, Appellees.
• Court: Florida District Court of Appeals

Page 472

116 So.2d 472

R. Tom JOYNER, Jr., William G. Cooper, Jr., Clarence O. Fisher and Wendell H. Watson, individually and as members of the City Commission of the City of Lakeland, Florida, Appellants, v. L. R. SHUMAN, as City Clerk of the City of Lakeland, Florida, and Gay Murphy, as Acting City Clerk of the City of Lakeland, Florida, and Roy H. McArthur, Morris Pritchard, T. E. Holcom and John R. Phillips, Appellees.

No. 1576.

District Court of Appeal of Florida, Second District.

Dec. 4, 1959.

Robert T. Miller, City Atty., Lakeland, and T. Paine Kelly, Jr., and Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.

E. Snow Martin, D. B. Kibler, III, and Bryant, Martin & Kibler, Lakeland, for intervenor-appellees.

ALLEN, Chief Judge, and KANNER, Judge.

R. Tom Joyner, Jr., William G. Cooper, Jr., Clarence O. Fisher and Wendell H. Watson, individually and as members of the City Commission of the City of Lakeland, Florida, filed an action to enjoin the holding of a recall election in which the said parties were subject to be recalled as city commissioners of the City of Lakeland. A hearing was held and injunction denied.

A companion case involving the same questions of law was filed by Roy H. McArthur and others to secure a mandamus writ requiring the city commissioners of the City of Lakeland forthwith to do all things necessary to call and hold a recall election pursuant to the city charter of the City of Lakeland on the 17th day of November, 1959, for the purpose of determining whether the above named four city commissioners should be recalled from their office. The first case is carried as this court's case number 1576 and the latter case as case number 1577. The two cases were consolidated in the lower court for argument; and, on the entering of a final decree adverse to the appellants, an appeal was taken to this court in both cases which were consolidated for briefing and oral argument.

Petition for supersedeas was denied by the lower court in each case; and a motion for review was filed in this court immediately, which petition was taken under advisement by this court.

This court, on the 13th day of November, 1959, entered an order reversing the circuit judge and directing that the city commission of the City of Lakeland meet forthwith and cancel the recall election set for November 17th. A per curiam opinion and order was entered in case number 1577 with the statement made therein that due to a lack of time a full opinion was not being written, but subsequently such an opinion would be written and filed in case number 1576.

Section 169 of the charter of the City of Lakeland provides in part:

'Any or all members of the City Commission may be removed from office by the electors by the following procedure: A petition for the recall of commissioners designated, signed by at least twenty per cent of the electors of the city, and containing a statement of not more than two hundred words of the grounds of the recall, shall be filed with the city clerk, who shall forthwith notify the commissioner or commissioners sought to be recalled, and he or they, within five days after such notice, may file with such city clerk, a defensive statement in not exceeding two hundred words.'

Petitions for recall were filed and circulated, pursuant to the city charter of the City of Lakeland, alleging generally that the four commissioners should be recalled for their actions in removing the city manager, city attorney and the assistant city attorney. The city commissioners sought to be recalled contended in the lower court and in this court that the city commission had the legal right to remove each of the officials and, therefore, that no valid grounds were assigned for their recall. The lower court, in its order of the 8th of October, 1959, held that the grounds of the recall were sufficient and issued the peremptory writ hereinabove referred to ordering the recall election. The court, in his final decree, said:

'3. The law governing this matter is as set forth in McQuillin on Municipal Corporations, 3d Edition, 1949 4th Volume, § 12.251 at page 313, which is as follows:

"In theory and in fact municipal government by recall of officers presents purely political issues to the electors. The procedure is neither a judicial, quasi, or semijudicial inquiry. The reasons for recall whether true or false do not affect the proceeding. Their truth or sufficiency is for determination by the electors alone. However, the cause for recall must relate to competency or official conduct in the office. And the validity of the proceedings for recall is a judicial question."

The circuit judge had ample precedent to support his position that the grounds of the recall were sufficient in authorities outside of the State of Florida. For instance, 19 R.C.L.Mun.Corp., § 239, page 939, states:

'Recall of Municipal Officers.--In recent years in many of the states a system has been adopted providing for the removal of municipal officers during the term for which they were elected, by vote of the people at a special election called upon the petition of a specified proportion of the electorate. This system is known as the recall. While it is generally required that the petition for the recall of an officer shall contain a statement of the grounds for which the removal is sought, such a provision does not contemplate and require that a recall petition should be drawn with a due regard for the technical niceties and refinements of the rules of law which pertain to the preparation of pleadings in civil and criminal cases. The purpose of the statutes in providing for a recall election is to give the people of the municipality the right to cut short the official term of every elected officer whose conduct in office is for any cause unsatisfactory or distasteful to the body of the community. The petitioners are only required to state generally their grounds or reasons for demanding the removal of the obnoxious officer, for the obvious and only purpose of furnishing information to the people of the community upon which a political issue rather than an issue at law may be raised and determined. Statutes of the kind now under consideration necessarily impose upon the city clerk or some other appropriate officer the duty of ascertaining whether the recall petition has been signed by the requisite number of qualified voters, and in the absence of fraud or mistake his determination of this question is not open to review by the courts. Upon the certificate of such officer that a sufficient petition has been filed, the duty of the municipal council to call a special election is purely ministerial, and will be enforced by writ of mandamus upon the petition of a candidate for the office or of one or more of the electors. A taxpayer has not such an interest in a suit to enjoin the holding of an election to recall an officer of a municipality in pursuance of the provisions of its charter as will entitle him to prosecute such suit as a complainant. Upon the question whether a provision for the recall of municipal officers is exclusive of other methods of removal the courts are not in agreement, since the conclusion upon this point depends upon the intent of the legislature as manifested by the phraseology of the statute in each case.' (Emphasis added.)

In 28 Am.Jur., Initiative, Referendum and Recall, § 59, page 183, a further elaboration is given citing the above quoted text.

In 62 C.J.S. Municipal Corporations § 516, the following is stated in regard to the sufficiency of the grounds of a recall petition:

'* * * Where the charter requires only that the petition shall contain a general statement of the grounds of dissatisfaction on which the removal is sought, it is sufficient that it appears in general terms that the official conduct of the officer whose recall is sought has been in opposition to the will and preferences of his constituents and obstructive to the best interests of the city. Under such a provision it is the province of the electors, and not of the court, to determine the sufficiency of the grounds relied on for removal. It has been held that such a charter provision does not contemplate a recall of the officer at any time his official conduct is not responsive to the wish or will of the majority of the electors in his precinct or ward, but that the grounds to be stated in the petition must relate to the fitness of such an officer to hold office or his official conduct therein.'

Charles S. Rhyne, in his book on Municipal Law, 1957 Edition, at page 189, states with reference to recall:

' § 8-42 Recall. Where authorized by constitutional, statutory or charter provisions, elective officers may be recalled at an election requested by a petition signed by the required number of qualified voters. Unless the grounds for recall are specified by statute, an officer may generally be recalled for any reason. And the effect of a valid recall election is similar to a judgment of removal by a court. A recall election is mandatory if a petition is signed by the required percentage of voters, and the officer receiving the petition may or may not be permitted to inquire into the peritioners' qualifications. A recall election may generally be enjoined where statutory requirements are not being followed and there is no adequate remedy at law. But it was held that where a valid and an invalid charge were included in the ballot synopsis, and there was no timely challenge to the insufficient charge, an injunction could not be granted. Depending upon statutory provisions the election of a successor may or may not be combined with a recall vote.'

In the case of State ex rel. Hackley v. Edmonds, 1948, 150 Ohio St. 203, 80 N.E.2d 769, 770, an original mandamus proceeding was filed in the Supreme Court to compel the city clerk of the City of Hamilton to issue recall petition forms as provided by the charter of the city. A general demurrer was...