LTC 210-2018 Kristen Rosen Gonzalez vs. State of Florida , GoverEA
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OFFICE OF THE CITY ATTORNEY
LTC No. 210-2018
LETTER TO COMMISSION
TO: Mayor Dan Gelber and Members of the City Commission
FROM: Raul J. Aguila, City AttorneyA4j
DATE: April 20, 2018
SUBJECT: Kristen Rosen Gonzalez vs. State of Florida, Governor Rick Scott, Florida
Secretary of State Ken Detzner and City Clerk Rafael Granado, 11th
Judicial Circuit Court Case No. 2018-11088 CA 24.
On April 10, 2018, City Commissioner Kristen Rosen Gonzalez filed a suit for
declaratory and injunctive relief against the above-named Defendants, seeking to enjoin
enforcement and challenging the constitutionality of Section 99.012, Florida Statutes
(otherwise known as the "Resign -to -Run Law"). A copy of the complaint is attached
hereto as Exhibit "A". Commissioner Rosen Gonzalez's suit claims that Section 99.012,
as recently amended, has the effect of violating her constitutional rights to maintain her
property interest in her elected position as a member of the Miami Beach City
Commission.
Pursuant to objections raised by the State Defendants with regard to proper venue (i.e.,
the judicial circuit in the State of Florida which should hear this case), a court hearing
was held on Tuesday, April 17, 2018. Following the hearing, the Court entered an Order
transferring the case from Miami -Dade County to Leon County (where the State
Defendants maintain their principal headquarters).1 As a result of this transfer, the case
will be assigned to a judge in the Second Judicial Circuit Court in Leon County.
In light of the potential impact of future Court rulings on the duties and obligations of the
City Commission, I will continue to keep you advised of this matter. Please do not
hesitate to contact me if you have any questions.
RJA/jo/nk:mmm
F:WTTO\AGUR\CITY ATTORNEY\LTC\2018\LTC - KRG Lawsuit.docx
1 Other than this Order of Transfer, no other orders have been entered in this case to -date.
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
KRISTEN ROSEN GONZALEZ, CASE NO.: 18 -11088 -CA -24
an Individual.
Plaintiff,
vs.
STATE OF FLORIDA, RICK SCOTT, in his
official capacity as Governor of the State of
Florida, KEN DETZNER, in his official
capacity as Secretary of State of the State of
Florida, and RAFAEL E. GRANADO, in his
official capacity as the City Clerk of the City of
Miami Beach, Florida.
Defendants.
VERIFIED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff, KRISTEN ROSEN GONZALEZ ("Rosen Gonzalez"), by and through
undersigned counsel, hereby sues the Defendants, STATE OF FLORIDA ("State of Florida").
RICK SCOTT ("Governor Scott"), sued in his official capacity as Governor of the State of
Florida, KEN DETZNER ("Detzner"), sued in his official capacity as Secretary of State of the
State of Florida, and RAFAEL E. GRANADO ("Granado"), sued in his official capacity as the
City Clerk of the City of Miami Beach, Florida and, in support thereof, states as follows:
PARTIES
1. Plaintiff Kristen Rosen Gonzalez is a candidate for the Democratic nomination for
the 27th Congressional District of Florida. She has filed paperwork with the Federal Elections
Commission regarding her candidacy in April, 2017. She is a sitting Commissioner of the Miami
Beach City Commission, with a four year term of office set to expire in November 2019. She is
also a resident of Miami -Dade County, Florida, and is sui juris.
2. Defendant the State of Florida is a sovereign authorized by the people of Florida
to pass statutes through its legislature and to enforce those statutes in accordance with the rulings
of its courts.
3 Defendant Rick Scott is the Governor of the State of Florida and is sued in his
official capacity only. As Governor, he is the chief administrative officer of the State of Florida.
He is a resident of and domiciled in the State of Florida.
4. Defendant Ken Detzner is sued in his official capacity as Secretary of State of
Florida only. As Secretary of State, he is the chief elections officer of the State of Florida. He is a
resident of and domiciled in the State of Florida.
5. Defendant Rafael E. Granado is sued in his official capacity as the City Clerk of
the City of Miami Beach, Florida. As City Clerk, he is the chief elections officer of the City of
Miami Beach and the person with whom candidates must file paperwork to qualify to run for
City Commission or City Mayor. He is a resident of and domiciled in Miami -Dade County in
the State of Florida.
JURISDICTION AND VENUE
6. This action is subject to the jurisdiction of this Court as it involves an action for
equitable relief, to wit: Declaratory and Injunctive Relief
7. Venue is proper in this Circuit pursuant to Florida Statute §47.021.
FACTS APPLICABLE TO ALL COUNTS
8. Qualifying for placement on the Florida ballot for a federal office in the State of
Florida commences on Noon, April 30, 2018 to Noon, May 4, 2018.
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9. Senate Bill 186 ("SB 186") was adopted by the Florida Legislature on or about
March 7, 2018. A copy of SB 186 as adopted by the Florida Legislature and engrossed and
enrolled is attached hereto as Exhibit A.
10. SB 186 was transmitted by the officers of the Florida House and Senate on March
16, 2018.
11. SB 186 was signed by Governor Scott on or about March 30, 2018.
12. Under the terms of SB 186, the bill became law immediately upon signing by
Governor Scott. Exhibit A at 4, line 89.
13. The law provides that candidates for federal office who hold a state, county, or
municipal office "must resign from the office he or she presently holds if the terms, or any part
thereof, run concurrently with each other." Exhibit A at 1, lines 24-25.
14. The law also provides that the resignation is irrevocable. Exhibit A at 1, line 26.
15. The law provided that a candidate is required to submit his or her resignation "at
least 10 days before the first day of qualifying for the office he or she intends to seek." Exhibit A
at lines 27 to 29.
16. The law provides that the written resignation must be effective on the earlier of
the date the officer would take office, if elected; or the date the officer's successor is required to
take office. Exhibit A at 2, lines 30-33.
17. The law provides that an elected official is required to submit his or her
resignation letter "to the officer before whom he or she qualified for the office he or she holds,
with a copy to the Governor and the Department of State." Exhibit A at 2, lines 36-38.
18. Prior to the enactment of SB 186, candidates for federal office who held an
elected office with the government of the State of Florida, any of Florida's counties, or any of
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Florida's municipalities were not required by state law to tender a resignation from their elected
offices.
19. When Plaintiff ran for the Miami Beach City Commission in 2015, she qualified
by submitting her paperwork to Defendant Granado as the Clerk of the City of Miami Beach.
20. Should SB 186 be deemed applicable to the Plaintiff, it is to Defendant Granado
that Plaintiff must direct a letter of resignation under SB 186, on or before April 20, 2018
21. Under SB 186, should that law be deemed applicable to Plaintiff, Plaintiff is also
directed to serve a copy of her resignation letter to Defendant Governor Scott and Defendant
Detzner. Exhibit A at 2, lines 37-38.
22. Under SB 186, should that law be deemed applicable to the Plaintiff, and should
Plaintiff fail to timely submit a letter of resignation, that is by April 20, 2018, to the Clerk of the
City of Miami Beach, then immediately upon her qualification for the federal office she will be
deemed to have automatically, irrevocably, and immediately to have resigned from her office as
Commissioner as a matter of law. Exhibit A at 2, lines 45-49.
23. Defendants State of Florida, Governor Scott, Detzner, and Granado, under the
terns and conditions of SB 186 will be operating under color of state law for the State of Florida.
24. All conditions precedent and statutory prerequisites under Florida law have
occurred, been waived, or excused.
COUNT I: DECLARATORY RELIEF
25. Plaintiff realleges paragraphs 1-24.
26. As an elected official, Plaintiff has a recognized property right to her office.
Landis v. Tedder, 143 So. 148 (Fla. 1932); Gilbert v Morrow, 277 So.2d 812, 813-814 (Fla. 1st
DCA 1973).
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27. Plaintiff is entitled to occupy her office for its natural term of four years. In
Plaintiff's case, that is until November 2019 and upon the election of her successor. The Miami
Beach City Charter does not prohibit Plaintiff from running for a second term of office if she so
desires.
28. A member of the City of Miami Beach City Commission such as Plaintiff may
voluntarily terminate his or her term of office by submitting a resignation.
29. Under the Miami Beach City Charter, §2.08, "[title Mayor and any City
Commissioner, in addition to being removed by recall pursuant to State law, may be removed
from office pursuant to the Miami Beach City Code."
30. Under Florida law, a municipal office such as Plaintiff may be suspended from
office upon the indictment or charge of a felony. A municipal office may thereafter be removed
from office permanently upon conviction of a felony.
31. Prior to the enactment of SB 186, there was no Florida state law provision which
required an office holder to resign prior to filing qualification papers for federal office with the
Florida Department of State nor any provision that deemed the failure to file a resignation letter
to be an immediate resignation from current office upon filing qualification papers for federal
office.
32. Plaintiff and the voters who elected her in November 2015 had the reasonable
expectation that she would be able to finish the natural term of her office unless Plaintiff
voluntarily resigned or was removed from office pursuant to then existing state law.
33. Application of SB 186 to an office holder such as Plaintiff, who was elected and
whose term began prior to the enactment of SB 186, violates her rights under the Due Process
Clause of the Florida Constitution.
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34. There is no mechanism for the application of due process to office holders.
35. Retrospective application of the resignation requirements of SB 186 to current
office holders also violates the Plaintiff's due process rights under the Florida Constitution
because it creates legal obligations which infringe upon and impair her vested property right in
her elected public office. Only a prospective application to office holder elected after the
effective date of SB 186 would allow both candidates and voters to understand that the
successful candidates running for state, county or municipal public office may be required to
resign if they sought election to a federal office.
36. There is a bona fide, actual, present practical need for the declaration.
37. The declaration is dealing with a present, ascertained or ascertainable state of
facts or present controversy as to a state of facts.
38. The immunity, power, privilege or right of the Plaintiff to her office is dependent
upon the facts or the law applicable to the facts.
39. One or more of the Defendants have, or reasonably may have an actual, present,
adverse and antagonist interest in the subject matter, either in fact or law.
40. All antagonistic and adverse interests are all before this court by proper process.
41. The relief sought is not merely the giving of legal advice by the courts or the
answer to questions propounded from curiosity, but an actual controversy.
COUNT II: INJUNCTIVE RELIEF
42. Plaintiff realleges paragraphs 1-35.
43. Unless the Court enjoins the Defendants from enforcing the provisions of SB
186, Plaintiff Rosen Gonzalez will suffer irreparable harm in that SB 186 forces upon current
officer holders an irrevocable resignation of her elected Miami Beach Commission office by
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April 20, 2018 or, alternatively, the automatic stripping of that office as Miami Beach
Commissioner from her upon her qualification for federal office during the April 30, 2018 to
May 4, 2018 period to qualify.
44. SB 186 provides for no hearing or any other avenue for an affected elected
official to contest the validity and the constitutionality, as it applies specifically to Plaintiff
Rosen Gonzalez. As such, there is no adequate remedy at law.
45. Because the case law is clear that unless a statute explicitly states its intent to be
retrospectively applied, it is to be applied only prospectively, there is a substantial likelihood of
success on the merits.
46. The granting of injunctive relief will serve the public interest because the electors
who elected the Plaintiff as Commissioner will continue to be represented by the Plaintiff unless
Plaintiff is successful in her election to Congress where she would represent that electorate as
well as others in Congress.
WHEREFORE, Plaintiff, KRISTEN ROSEN GONZALEZ, respectfully requests that
the Court:
a. Enter a judgment of injunctive relief and enjoin Defendants RICK SCOTT, KEN
DETZNER, and RAFAEL E. GRANADO, under the terms and conditions of SB 186,
operating under color of state law for THE STATE OF FLORIDA from forcing the
irrevocable resignation of the Plaintiff, KRISTEN ROSEN GONZALEZ;
b. Enter an Order requiring declaring that SB 186 either is applicable prospectively only
or that it violates the Plaintiff's due process rights, as a current elected official, under
the Florida Constitution;
c. Retain jurisdiction to enforce the Court's injunction; and
d. Any other such relief as this Court may deem just and proper.
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Respectfully Submitted,
THE LAW OFFICES OF
KENT HARRISON ROBBINS, P.A.
Attorney for Plaintiffs
242 Northeast 27th Street
Miami, Florida 33137
Telephone: (305) 532-0500
Facsimile: 05) 531-0150
By:
KENT HARRISON ROBBINS
Florida Bar No. 275484
Primary: khr@khrlawoffices.com
Secondary: ereves@khrlawoffices.com
Tertiary: assistant@khrlawoffices.com
and
LAW OFFICE OF RICK YABOR, P.A.
10689 North Kendall Drive
Suite 321
Miami, FL 33176
Office (786) 773-3105
Email: rick.yabor@yaborlaw.com
By: /s/ Rick Yabor
RICK L. YABOR
Florida Bar No: 191019
Primary: rick.vabor@vaborlaw.com
VERIFICATION
Under penalty of perjury, the undersigned swears that the facts contained in the foregoing
Complaint for Declaratory and Injunctive Relief are true.
Dated the day of April 2018.
Kristen Rosen Gonzalez
EXHIBIT A
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2
3
4
ENROLLED
2018 Legislature SB 186, 1st Engrossed
2018186er
An act relating to the resign -to -run law; amending s.
99.012, F.S.; requiring an officer who qualifies for
federal public office to resign from the office he or
5 she presently holds if the terms, or any part thereof,
6 run concurrently; prescribing requirements for the
7 written resignation; providing for an automatic
8 irrevocable resignation in the event of noncompliance;
9 specifying that a resignation creates a vacancy in
10 office; revising an exception to the resign -to -run
11 law; amending s. 121.121, F.S.; conforming a cross -
12 reference; providing an effective date.
13
14. Be It Enacted by the Legislature of the State of Florida:
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16 Section 1. Present subsections (4) through (7) of section
17 99.012, Florida Statutes, are renumbered as subsections (5)
18. through (8), respectively, a new subsection (4) is added to that
19 section, and present subsection (7) of that section is amended,
20 to read:
21 99.012 Restrictions on individuals qualifying for public
22 office. -
23 (4)(a) Any officer who qualifies for federal public office
24 must resign from the office he or she presently holds if the
25 terms, or any part thereof, run concurrently with each other.
26 (b) The resignation is irrevocable.
27 (c) The resignation must be submitted at least 10 days
28 before the first day of qualifying for the office he or she
29 intends to seek.
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30 (d) The written resignation must be effective no later than
31 the earlier of the following dates:
32 1. The date the officer would take office, if elected; or
33. 2. The date the officer's successor is required to take
34 office.
35 (e)1. An elected district, county, or municipal officer
36 shall submit his or her resignation to the officer before whom
37. he or she qualified for the office he or she holds, with a copy
38to the Governor and the Department of State.
39: 2. An appointed district, county, or municipal officer
40 shall submit his or her resignation to the officer or authority
41 which appointed him or her to the office he or she holds, with a
42 copy to the Governor and the Department of State.
43: 3. All other officers shall submit their resignations to
44 the Governor with a copy to the Department of State.
45 (f)1. The failure of an officer who qualifies for federal
46 public office to submit a resignation pursuant to this
47 subsection constitutes an automatic irrevocable resignation,
48. effective immediately, from the office he or she presently
49 holds.
50 2. The Department of State shall send a notice of the
51 automatic resignation to the Governor, and in the case of a
52' district, county, or municipal officer, a copy to:
53 a. The officer before whom he or she qualified if the
54 officer held an elective office; or
55 b. The officer or authority who appointed him or her if the
56 officer held an appointive office.
57 (g) Notwithstanding the provisions of any special act to
58 the contrary, with regard to an elective office, the resignation
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ENROLLED
2018 Legislature SB 186, 1st Engrossed
2018186er
59 creates a vacancy in office to be filled by election, thereby
60 authorizing persons to qualify as candidates for nomination and
61 election as if the officer's term were otherwise scheduled to
62. expire. With regard to an elective charter county office or
63 elective municipal office, the vacancy created by the officer's
64 resignation may be filled for that portion of the officer's
65 unexpired term in a manner provided by the respective charter.
66. The office is deemed vacant upon the effective date of the
67 resignation submitted by the official in his or her letterof
68 resignation.
69 (8)(7) Subsections N\othing contained in subseation (3) and
70 (4) do not apply ,r\olatec to persons holding any federal office
71 r sockin4 thc fficc of President r Vice President. Subsection
72 (4) does not apply to an elected officer if the term of the
73office that he or she presently holds is scheduled to expire and
74. be filled by election in the same primary and general election
75 period as the federal office he or she is seeking.
76 Section 2. Subsection (2) of section 121.121, Florida
77 Statutes, is amended to read:
78 121.121 Authorized leaves of absence. -
79 (2) A member who is required to resign his or her office as
80 a subordinate officer, deputy sheriff, or police officer because
81 he or she is a candidate for a public office which is currently
82 held by his or her superior officer who is also a candidate for
83 reelection to the same office, in accordance with s. 99.012(5)
84 c. 99.012(^.4-, shall, upon return to covered employment, be
85 eligible to purchase retirement credit for the period between
86 his or her date of resignation and the beginning of the term of
87 office for which he or she was a candidate as a leave of absence
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ENROLLED
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2018186er
88 without pay, as provided in subsection (1).
89 Section 3. This act shall take effect upon becoming a law.
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