Judge denies injunction for recall ballot

A 12th Judicial Circuit Court judge denied May 5 a temporary injunction requested by a Bradenton Beach resident seeking to keep Jack Clarke’s name off the city ballot before the May 19 election.

John Metz, a retired attorney, had asked Judge Gilbert Smith to grant the injunction because, he said, Clarke who holds the Ward 1 commission seat and serves as vice mayor, failed to properly follow the state’s resign-to-run law.

Metz said in a May 6 email he had dropped the lawsuit “because the denial of the injunction has let the horse out of the barn, despite no ruling on the merits.” He wrote, “The election may make the suit moot or, if Clarke wins, it could create a giant quagmire for the city.”

After a 90-minute hearing in a Manatee County Judicial Center courtroom at 1051 Manatee Ave. W., Bradenton, Smith ruled Metz had “not met his burden.”

The Manatee County Supervisor of Elections office already had received more than 180 vote-by-mail ballots at the time the trial began.

Had he not dropped the lawsuit, it still would have been viable in court, likely even after the recall election, Metz said.

Clarke said May 6 he is pleased with the decision.

Chief Judge Andrew Owens signed an order April 9 setting the election for May 19 and the qualifying period for April 14-17. Clarke resigned April 9. Metz argued that, by statute, Clarke would have had to resign on or before April 4 — 10 days before the qualifying period began — which was impossible based on when Owens signed the order.

Metz said May 6 Bradenton Beach city attorney Ricinda Perry prepared the order that set the dates. Owens merely signed it.

Metz said Clarke had two recourses to resign and took neither. Clarke testified that he asked Perry about how to qualify after Owens set the election date.

However, Perry apparently did not inform Clarke of the two proper remedies, Metz said May 6. Clarke could have resigned immediately after determining there was a problem with the 10 days, or he could have resigned before qualifying.

Sarasota attorney Andrea Flynn Mogensen defended Clarke. Her fees are being paid by the city of Bradenton Beach. Mogensen argued Clarke met “substantial compliance” with the resign-to-run law.

Smith heard testimony from Bradenton Beach city attorney Ricinda Perry plus two defendants in the case, Clarke and Manatee County Supervisor of Elections Michael Bennett.

After the hearing Metz said he was “obviously disappointed” the election is going to take place with Mr. Clarke’s name on the ballot. I think that the way the court ruled “doesn’t mean we could not win the case on the merits.”

“The court found that the petitioner did not meet the heavy burden of interfering with the electoral process,” Mogensen said.

“The city of Bradenton Beach is going to have their election,” she said.

Metz said he pursued the lawsuit last month of his own volition — not on encouragement from Bradenton Beach Mayor Bill Shearon, Clarke’s opponent in the election to fill Shearon’s term if Shearon is recalled.

In the email, Metz said Shearon persuaded him “it would be in the best interest of the city to let the election proceed without the shadow of Clarke’s challenged eligibility.”

Shearon never supported the lawsuit, Metz said. The mayor preferred to have the election go forward.

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