Torres v. Shaw

• Decision Date: 19 August 2022
• Docket Number: 1D22-2423
• Parties: Jerry TORRES, as a candidate for Member of Congress from Florida, District 14, Appellant, v. Sean SHAW; Thomas Hodges; and the Florida Democratic Party, Appellees.
• Court: Florida District Court of Appeals

345 So.3d 970

Jerry TORRES, as a candidate for Member of Congress from Florida, District 14, Appellant,

v.Sean SHAW; Thomas Hodges; and the Florida Democratic Party, Appellees.

No. 1D22-2423

District Court of Appeal of Florida, First District.

August 19, 2022

Michael Beltran, of Beltran Litigation, P.A., Tampa; Samuel J. Salario, Jr., and Joseph T. Eagleton, of Brannock Humphries & Berman, Tampa; Charles B. Kelly, of Charles Kelly Law PLLC, St. Petersburg, for Appellant.

Mark Herron, Patrick Scott O'Bryant, and Douglas M. Smith, of Messer, Caparello, P.A., Tallahassee, for Appellees.

Osterhaus, J.

Jerry Torres appeals a circuit court judgment disqualifying him from running for Congress in Florida's 14th Congressional District because he submitted an improperly verified candidate oath and party affiliation form. We reverse because § 99.061(7)(c), Florida Statutes, requires the Florida Department of State to determine whether items have been "properly verified pursuant to s. 92.525(1)(a)." And no private right of action exists for challengers in Appellees’ shoes to obtain a second-opinion, judicial declaration superseding the Department's decision on the proper verification of paperwork and thereby obtain a candidate's disqualification.

I.

In June 2022, Torres submitted qualifying paperwork to the Florida Department of State to run for Congress. His submission ultimately included all of the items required by § 99.061(7)(a), including two versions of the Federal Candidate Oath/Statement of Party Form (Department Form DS-DE 300A) (Oath-Statement Form) that Torres signed and had verified by different notaries public from Mississippi on the last day of the qualifying period. The Department determined Torres's paperwork to be complete and it qualified him as a congressional candidate.

Twelve days after qualifying ended, two voters and the Florida Democratic Party served a complaint seeking an emergency declaratory and injunctive relief disqualifying Torres as a candidate. They alleged that Torres's Oath-Statement Form hadn't been properly signed, sworn, and subscribed by the notary public in Mississippi because Torres was in Africa on the date the Oath-Statement Form was signed. Torres apparently signed multiple copies of the Oath-Statement Form and left them for his campaign assistants to have notarized and filed. They were later notarized as having been sworn to and subscribed in the physical presence of the notary public while Torres was in Africa. And whereas § 92.525(1)(a) allows for verification by notaries outside of Florida, see § 92.50(2), Fla. Stat., the Complaint alleged that the State of Mississippi would deem Torres's notarization to be null and void.

The Complaint attacked the mechanics of Torres's notarization and whether it was properly done. Conversely, Appellees didn't allege that Torres made false statements as to substantive matters covered by the Oath-Statement Form: that he was qualified under federal law to hold office; that he wished to be nominated; that he held no other public office; that he would support the Constitution of the United States; that he hadn't been a registered member of another political party within the past year; and that he had paid any relevant assessment. Appellees have also acknowledged that Torres's Oath-Statement Form was facially complete. All the right blanks were completed, providing Torres's name; office sought; district; voter registration number; phonetic spelling of his name; party identification; signature; telephone number; email address; address; and a completed public notary section complete with the Mississippi notary public's signature and stamp.¹ The dispute involved only whether the Oath-Statement Form was properly verified by the notary public.

After rejecting Torres's argument that Appellees lacked standing and a private right of action, the circuit court expedited a trial as to how Torres completed the Oath-Statement Form. And it concluded that the form hadn't been properly verified under § 92.525(1) because:

Torres was not under oath, he never spoke to a notary about his form, he signed a blank candidate oath form, and he ... never appeared before a notary in Mississippi ... prior to the end of the qualifying period.

Consequently, the court entered final judgment deeming Torres not qualified as a candidate and ineligible to run in the 2022 election cycle. It then rejected Torres's request to stay the judgment.

Torres appealed and filed an emergency motion seeking review of the denial of a stay with this court. We issued an order staying the final judgment and expediting this appeal. See Lampert-Sacher v. Sacher , 120 So. 3d 667, 668 (Fla. 1st DCA 2013) (allowing the lower tribunal's order to be stayed pending appeal when appellant demonstrates "a likelihood of prevailing on appeal, irreparable harm to movant if the motion is not granted, or a showing that a stay would be in the public interest"); State ex rel. Siegendorf v. Stone , 266 So. 2d 345, 347 (Fla. 1972) (recognizing that "to remove [a candidate] from the people's consideration, and his name from the election ballot, would be irremediable").

II.

A.

Section 99.061, Florida Statutes, governs the "Method of qualifying" for elective office in Florida and sets a deadline by which various items must be filed with the Department of State for a person to qualify. A single Department form incorporates two of the items required to be filed by congressional candidates, the Candidate Oath for Federal Office (see § 99.021(a), Fla. Stat.) and the Statement of Party (see § 99.021(b), Fla. Stat.). See Form DS-DE 300A (Rev. 08/2021), available at https://files.floridados.gov/media/704464/ dsde300a-fed-oath-pty-aff-august-2021-1.pdf. By law the Candidate Oath "must be verified under oath or affirmation pursuant to s. 92.525(1)(a)." § 99.061(7)(a)2, Fla. Stat. Regarding verification mechanics, § 92.525(1)(a) provides that such oaths be verified by an officer authorized under § 92.50 to administer them. Section 92.50 allows an out-of-state notary public to administer the oath so long as they are so authorized under their own state's laws. These parameters focus on the authority of the out-of-state officer to administer oaths and not the physical mechanics of how oaths must be taken (which presumably may vary from state to state, depend upon local conditions, etc.). Id.

Ultimately, a filing officer at the Department must review a candidate's qualifying paperwork and determine "whether each item is complete on its face, including whether items that must be verified have been properly verified pursuant to s. 92.525(1)(a)." § 99.061(7)(c), Fla. Stat. Section 99.061(7)(c) describes the Department's work as a ministerial function and forbids review of "whether the contents of the qualifying papers are accurate." § 99.061(7)(c), Fla. Stat. Unlike most consequential agency decisions, the Department's qualification decisions are explicitly exempt from challenge through typical review processes. § 99.061(11), Fla. Stat. ("The decision of the filing officer concerning whether a candidate is qualified is exempt from the provisions of chapter 120.").

B.

Torres argues that Appellees lacked a private right of action under § 99.061(7) to seek a competing circuit court declaration on whether his Oath-Statement Form was properly verified and to obtain his disqualification. We see his point.

Legal standing is required to challenge the conduct of another person and have penalties imposed for violations of law. This generally requires that plaintiffs "must have a ‘legitimate or sufficient interest at stake in the controversy that will be affected by the outcome of the litigation.’ " DeSantis v. Fla. Educ. Ass'n , 306 So. 3d 1202, 1213 (Fla. 1st DCA 2020) (quoting Equity Res., Inc. v. County of Leon , 643 So. 2d 1112, 1117 (Fla. 1st DCA 1994) ). In the absence of a personal stake—the Complaint didn't allege and the Final Judgment didn't identify how a declaration particularly affects Appellees—standing may be established via a statute authorizing litigation. Cf. Friends of the Everglades, Inc. v. Bd. of Trs. of the Internal Improvement Trust Fund , 595 So. 2d 186, 189 (Fla. 1st DCA 1992) ("Standing under chapter 120 ... is established by statute."). Courts have little room to imply such rights to bring a civil action; rather, statute-based private rights of action must be legislatively created and show textual support. QBE Ins. Corp. v. Chalfonte Condo. Apartment Asso., Inc. , 94 So. 3d 541, 551 (Fla. 2012) (explaining that whether a statutory cause of action should be judicially implied depends on the "actual language used in the statute" and "the context in which the language lies").

Some Title IX, election-related statutes broadly provide private rights of action. See, e.g., § 102.168, Fla. Stat. (providing rights to contest an election to "any unsuccessful candidate ... any elector qualified to vote ..., [or] any taxpayer," to challenge a candidacy on various grounds, including "[i]neligibility of the successful candidate for the nomination or office in dispute"); see also §§ 97.023(3), 99.097(5), 101.161(3)(c)(2), Fla. Stat. (contemplating private rights of action). And in Chalifoux v. Sanchez , 991 So. 2d 432, 433 (Fla. 1st DCA 2008), for example, we approved the standing of an elector to challenge a candidate's noncompliance with a qualifying law expressly because the law "places the responsibility for enforcing the Resign–to–Run Law on an elector." See § 99.012(5), Fla. Stat. (2007) ("The name of any person who does not comply with this section may be removed from every ballot on which it appears when ordered by a circuit court upon the petition of an elector or the Department of State.") (emphasis added).

But other election-related statutes do not provide private rights of action. See, e.g., Schurr v. Sanchez-Gronlier , 937 So. 2d 1166 (Fla. 3d DCA 2006) (finding no private right of action to challenge whether a check had been ...