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Stoltzfus seeks appeal court review

By Rick Catlin, Islander Reporter

Former Anna Maria Commissioner Harry Stoltzfus replied to the 2nd District Court of Appeal with an Oct. 6 response with a number of legal reasons as to why his recall should not be dismissed as moot.

Stoltzfus attorney Richard Harrison said the fact that the recall election was held and the results certified “does not render moot the issues involving the legal sufficiency of the recall petition and the constitutionality of the recall statute.”

Stoltzfus was recalled 362-331 Sept. 7, and, on the same ballot, Gene Aubry was elected 363-333 to serve the remaining 14 months of Stoltzfus’ term. Aubry’s win was certified by the city’s canvassing board Sept. 20, and he was sworn in Sept. 22 as a commissioner.

Although the results were announced Sept. 10, certification was withheld due to a 12th Circuit Court Judicial order that stayed certification until Sept. 24.

But attorney Andrea Flynn Mogensen of Citizens for Sunshine Inc. filed a brief with the DCA Sept. 14, noting that the Florida election statute required certification of the election before 5 p.m. by on 12th day after the election. Otherwise, the results would become moot, she pointed out to the court.

The court agreed and lifted its stay order Sept. 15. However, it gave Stoltzfus 20 days from Sept. 16 to file a response.

Harrison cited a number of cases to support his argument that Stoltzfus was denied due process. He also noted that the case is unique.

A public official facing a recall effort should be afforded “fair notice of the charges against him and a meaningful opportunity to respond on his own behalf,” Harrison wrote, citing a 2008 Florida case.

But the state’s recall statute only allows the public official a 200-word defense that accompanies the second recall petition. Harrison argued this also denied his client due process.

Further, wrote Harrison, “a public official is entitled to judicial relief.” The Florida recall statute does not provide any immediate judicial relief for the official being recalled, he said, yet local election laws often require immediate certification of those results.

Harrison said Stoltzfus sought quick judicial review by requesting an injunction against the recall from the circuit court on May 24, three days after the first recall petition was certified.

Stoltzfus also filed a motion for an accelerated hearing for an “immediate review of the legal sufficiency” of the recall petition, but the state recall statute gave him only five days to prepare his 200-word defense.

On Aug. 24, the trial court dismissed Stoltzfus’ claim that the recall was legally insufficient. Stoltzfus immediately appealed to the DCA, but the DCA returned the appeal, noting it was not a final order from the trial court.

The trial court’s Sept. 3 order provided that the recall election should proceed on Sept. 7 as ordered by the chief judge of the 12th Circuit Court, but the ballots would be sealed and certification stayed until Sept. 24.

The trial court said the harm done to Stoltzfus if he were “removed from office and replaced by a commissioner” and trial court’s Aug. 24 order is later reversed would be “irreparable.”

But Mogensen pointed out to the DCA that the city was required by its charter to certify the election immediately, and the state statute required election certification on or before the 12th day following the election. Otherwise, the election would become moot, according to state law, she told the DCA.

Harrison argued that allowing the results to be certified because of the city election ordinance resulted in Stoltzfus’ removal from office before the DCA could review the proceedings. That did not give his client due process.

He claimed the Florida recall statute does not provide “meaningful appellate review” and the situation will happen again to other elected officials facing a recall unless there is immediate “judicial intervention” in such recall cases.

“Commissioner Stoltzfus submits that the (court) should retain and exercise jurisdiction over this matter and decide important constitutional and other issues presented by this case,” Harrison wrote.

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