Third District Court of Appeal

State of Florida

Opinion filed May 27, 2020.

Not final until disposition of timely filed motion for rehearing.

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Nos. 3D20-464 & 3D20-466

Lower Tribunal No. 20-4799
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City of Miami, et al.,

Appellants,

vs.

Robert F. Piper, III, etc.,

Appellee.

Appeals from the Circuit Court for Miami-Dade County, Alan S. Fine, Judge.

Victoria Mendez, City Attorney, and Kerri L. McNulty, Sr. Appellate Counsel
for City of Miami & Todd Hannon; Kuehne Davis Law, P.A., and Benedict P.
Kuehne and Michael T. Davis, for Commissioner Joe Carollo.

Law Firm of Juan-Carlos Planas, P.A., and Juan-Carlos Planas; David J.

Winker, P.A., and David J. Winker, for appellee.

Before LOGUE, HENDON, and LOBREE, JJ.

LOGUE, J.

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 In this consolidated case, the City of Miami, the City Clerk, and Joe Carollo,

a City Commissioner, appeal the trial court’s writ of mandamus directing the Clerk

to deliver certain recall petitions to the Miami-Dade County Supervisor of Elections.

Because we conclude that the trial court correctly issued the writ, we affirm.

BACKGROUND

Appellee Robert F. Piper, III is the Chair of Take Back Our City, a Miami

political committee that filed a petition to recall Commissioner Carollo, pursuant to

section 100.361, Florida Statutes. On February 29, 2020, counsel for Piper

electronically submitted the recall petition to the Clerk’s office, and on Monday

March 2, 2020, Piper and his counsel hand-filed the recall petition at the Clerk’s

office. That same day, the Clerk notified Piper that the recall petition would not be

transmitted to the Supervisor of Elections for the following reasons: (1) the February

29, 2020 submission was improper because the Clerk’s office offers no electronic

filing option for recall petitions; (2) the February 29, 2020 submission was deficient

because the statute contains a non-delegable duty that the chair of the committee file

the petition; and (3) the March 2, 2020 filing was untimely because the first signature

was obtained on January 31, 2020.

Piper filed an Emergency Complaint for Writ of Mandamus, pursuant to

Florida Rule of Civil Procedure 1.630, against the City and the Clerk. Commissioner

Carollo intervened in that proceeding. Following a hearing, the trial court issued a

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writ of mandamus directing the Clerk to deliver the recall petition to the Supervisor

of Elections.

This appeal followed.

ANALYSIS

Section 100.361, Florida Statutes, provides the statutory framework for

electors to recall a member of a municipal governing body from office. With respect

to the role of the clerk, the statute mandates:

Immediately after the filing of the petition forms, the clerk

shall submit such forms to the county supervisor of elections. No
more than 30 days after the date on which all petition forms are
submitted to the supervisor by the clerk, the supervisor shall
promptly verify the signatures in accordance with s. 99.097, and
determine whether the requisite number of valid signatures has
been obtained for the petition.

§ 100.361(2)(g)1., Fla. Stat. (emphasis added).

“When the language of the statute is clear and unambiguous . . . the statute

must be given its plain and obvious meaning.” Cascar, LLC v. Cty. of Coral Gables,

274 So. 3d 1231, 1235 (Fla. 3d DCA 2019) (quoting Atwater v. Kortum, 95 So. 3d

85, 90 (Fla. 2012)); Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). The plain and

obvious meaning of the language of this statute requires the clerk “immediately after

the filing of the petition forms” to “submit such forms to the county supervisor of

elections.” The language confers no discretion on the clerk to review the recall

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petition for facial or legal sufficiency. The use of the word “shall” only reinforces

that the clerk’s responsibility in this regard is ministerial.

Our reading in this regard is supported by the 2000 legislative amendments to

the statute. Prior to that time, the statute expressly authorized the clerk to determine

the validity of the petition. In this regard, it read, “[i]f it is determined by the clerk

that the petition does not meet requirements of paragraph (b) and therefore is not

facially valid, the clerk shall so notify the governing body”. See § 100.361(d), Fla.

Stat. (2000). This language, however, was deleted. See Ch. 2000-249, § 1 (Eff. Date

July 1, 2000). The deletion of the language granting the clerk the authority to review

the petition for legal sufficiency must be read as reflecting the legislature’s intent to

terminate that authority. Bd. of Trs., Jacksonville Police & Fire Pension Fund v. Lee,

189 So. 3d 120, 126 (Fla. 2016) (citation and quotation omitted) (“When a statute is

amended to change a key term or to delete a provision, it is presumed that the

Legislature intended it to have a meaning different from that accorded to it before

the amendment.”).

This reading is consistent with long-standing interpretations of versions of the

same and similar recall statutes that, like the subject version, contained no express

language giving the clerk authority to review for facial or legal sufficiency. See State

ex rel. Landis v. Tedder, 106 Fla. 140, 143 So. 148, 150 (1932) (The city clerk “is

vested with no judicial powers to determine the sufficiency of the recall petitions,

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nor do anything other than comply with the statute.”); Jividen v. McDonald, 541 So.

2d 1276, 1279 (Fla. 2d DCA 1989) (“Recognizing that this opinion may require a

city official sought to be recalled to file a court action to test the legal sufficiency of

the recall petition, we still must agree with the trial court that the city clerk’s function

is ministerial only. Any change in recall procedure must rest with the legislature.”).

We do not reach the merits of whether the recall petition is facially or legally

sufficient.

Affirmed.