Treiman v. Malmquist
| Decision Date | 17 February 1977 |
| Docket Number | Nos. 50692,50731,50854 and 50855,s. 50692 |
| Citation | 342 So.2d 972 |
| Parties | Monroe W. TREIMAN, Appellant, v. Edwin W. MALMQUIST et al., Appellees. Bruce A. SMATHERS et al., Appellants, v. Monroe W. TREIMAN, Appellee. STATE of Florida ex rel. Edwin W. MALMQUIST, Petitioner, v. Monroe W. TREIMAN, Respondent. STATE of Florida ex rel. Monroe W. TREIMAN et al., Relators, v. Honorable L. R. HUFFSTETLER, Jr., etc., Respondent. |
| Court | Florida Supreme Court |
Joseph C. Jacobs and Robert J. Angerer, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for Monroe W. Treiman.
Frank McClung, Brooksville, Robert L. Shevin, Atty. Gen., and Joseph W. Lawrence, II and Mary Jo Carpenter, Asst. Attys. Gen., for Edwin W. Malmquist and Bruce A. Smathers, appellees-appellants.
Frank McClung, Brooksville, for State of Florida ex rel. Edwin W. Malmquist, Petitioner.
Joseph C. Jacobs and Robert J. Angerer, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, Robert L. Shevin, Atty. Gen., and Joseph W. Lawrence, II and Mary Jo Carpenter, Asst. Attys. Gen., for State of Florida ex rel. Monroe W. Treiman, relators.
L. R. Huffstetler, Jr., in pro. per.
This cause comes before us on consolidated appeals from the order of the Circuit Court of the Second Judicial Circuit finding Section 105.031(4)(a), Florida Statutes, unconstitutional, original petition for writ of prohibition brought by Treiman, Bruce Smathers as Secretary of State, and the Elections Canvassing Commission, and an original petition for quo warranto filed by Malmquist. We have jurisdiction pursuant to Article V, Section 3(b)(1), (b) (4), (b)(5), Florida Constitution.
The controversy sub judice arises from an election contest for the office of county judge of Hernando County, wherein Edwin Malmquist defeated Monroe Treiman, the incumbent, by six votes. Malmquist qualified to run for office on July 12, 1976, at which time he took the oath prescribed by Section 105.031(4), Florida Statutes, which requires the candidate to have been registered to vote in Florida in the last preceding general election. However, the last general election had been held November 5, 1974, and Malmquist had not registered to vote in Florida until November 14, 1974.
Treiman filed a complaint against Malmquist, the Hernando County Canvassing Board, the Secretary of State and the State Elections Canvassing Commission to contest the certification of election as provided by Section 102.161, Florida Statutes (1975), contending that Malmquist knowingly falsely represented to the Secretary of State that he was registered to vote in this state in the last preceding general election as required by Section 105.031(4)(a), Florida Statutes, and falsely signed the oath required of candidates for judicial office. Treiman requested the circuit court to adjudicate Malmquist not duly qualified to appear as a candidate for the office of county judge on the first primary ballot because of his failure to comply with the mandatory requirements of the statutes and his lack of qualifications. Treiman further prayed that the Hernando County Canvassing Board and the Elections Canvassing Commission be enjoined temporarily and permanently from certifying that Malmquist was elected county judge of Hernando County and prayed that the circuit court order the Secretary of State to certify Treiman as the duly qualified county judge.
Malmquist filed a motion to dismiss on the basis that he has violated no statute or constitutional provision which would expressly disqualify him from holding the office of county judge to which he was duly elected. The trial court dismissed the complaint with prejudice and held, to the extent Section 105.031(4) requires a candidate to be an elector of the state in the last preceding general election, it places a greater restriction than that imposed by Article V, Section 8, Florida Constitution, and, to such extent, is unconstitutional. Although dismissing the complaint filed by Treiman and, thereby, finding that Malmquist was entitled to the office to which he was duly elected by the people, the trial judge expressed grave concern over the conduct of Malmquist in knowingly making a false statement when taking the oath for judicial office.
Upon motion by Treiman, the trial court granted supersedeas allowing Treiman to remain in office until the appeal is concluded and the decision of the trial court becomes final.
Malmquist then filed a petition for writ of quo warranto in the Circuit Court in and for Hernando County to oust Treiman from the office of county judge which Malmquist contended Treiman was illegally and unlawfully holding. The State of Florida, on the relation of Treiman, the Secretary of State and the Elections Canvassing Commission, filed a petition for writ of prohibition seeking to prohibit Judge Huffstetler, of the Fifth Judicial Circuit, from proceeding further on Malmquist's petition for writ of quo warranto. This court issued a rule nisi in prohibition directing Judge Huffstetler to refrain from exercising any further jurisdiction in the quo warranto proceeding or to show cause why the suggestion should not be granted.
Malmquist has now filed in this court a petition for writ of quo warranto to oust Treiman from the office of County Judge of Hernando County.
Section 105.031(4), Florida Statutes, provides:
'Oath of office.--All candidates for judicial office shall subscribe to an oath or affirmation in writing to be filed with the division of elections upon qualifying and in which he shall state:
(a) That he was registered to vote in this state in the last preceding general election;
(b) The title of the office for which he is a candidate;
(c) That he is a qualified elector of the state and of the territorial jurisdiction of the court to which election is sought;
(d) The name of the county of his legal residence;
(e) That he is qualified under the laws of this state to hold the judicial office to which he desires to be elected;
(f) That he has not violated any of the laws of the state relating to elections or registration of electors;
(g) That he has taken the oath as required by §§ 876.05--876.10;
(h) That he has qualified for no other public office in the state, the term of which office or any part thereof runs concurrent to the office he seeks; and
(i) That he has filed with the division a sworn statement of contributions and expenditures incurred prior to the time of qualifying and since the last preceding general election.'
We agree with the trial court that the subject statutory provision is unconstitutional but not on the basis that it constitutes an unconstitutional extension of constitutional requirements for qualification to judicial office. Rather, we find the statute unconstitutional for the reason that it is an arbitrary and unreasonable restraint on the election process in this state.
Although the Legislature is charged with the authority and responsibility of regulating the election process so as to protect the political rights of the people and the integrity of the political process, these regulations must be reasonable and necessary restraints on the elective process and not inconsistent with the constitution of this state. In order to assure orderly and effective elections, the state may impose reasonable controls. In Bodner v. Gray, 129 So.2d 419 (Fla.1961), this court explained:
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