       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                          TYRON FRANCOIS,
        as candidate for Broward County Commission District 2,
                              Appellant,

                                     v.

    JENNIFER BRINKMANN, an individual, RICO PETROCELLI, an
   individual, and DR. BRENDA C. SNIPES, in her official capacity as
           Supervisor of Elections of Broward County, Florida,
                                Appellees.

                              No. 4D14-2739

                           [September 10, 2014]

  Appeal of an non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Sandra Perlman, Judge; L.T. Case No.
CACE14-012324 (09).

   Mark Herron, J. Brennan Donnelly, and Robert J. Telfer III of Messer
Caparello, P.A., Tallahassee, and Robert C.L. Vaughan of Kim Vaughan
Lerner, LLP, Fort Lauderdale, for appellant.

  Daniel S. Weinger, William R. Scherer and Michael E. Dutko, Jr. of
Conrad & Scherer, LLP, Fort Lauderdale, for appellees.

PER CURIAM.

    This appeal arises from a trial court order declaring that Tyron Francois
was not a qualified write-in candidate for the office of Broward County
Commissioner for District 2 and opening the Democratic Primary for that
office to all registered District 2 voters. At issue is whether a statute can
impose a residency requirement for placement on the ballot that differs
from the Florida Constitution’s residency requirement for the office of
county commission. We agree with Francois that section 99.0615, Florida
Statutes (2014), is unconstitutional, and the circuit court improperly
removed him from the ballot for the general election. We also agree that
the circuit court’s injunction opening the Democratic primary to all
registered District 2 voters was improper.
               Factual Background and Trial Court Proceedings

    Five candidates for Broward County Commissioner for District 2, all
Democrats, qualified to have their names printed on the ballot for the
August 2014 primary election. No Republican or Independent candidates
filed qualifying papers. Francois, a sixth candidate and also a Democrat,
filed qualifying paperwork to run as a write-in candidate. As a duly
qualified write-in candidate, a blank space on the ballot for the November
2014 general election would have been provided to allow voters to write in
Francois’s name as their vote for the county commissioner to serve District
2.1 Francois’s status as a qualified write-in candidate would constitute
“opposition,” as that term has been interpreted in relation to the Universal
Primary Amendment (UPA), Article VI, section 5(b) of the Florida
Constitution, thus requiring that the primary election be closed.2 See Telli
v. Snipes, 98 So. 3d 1284 (Fla. 4th DCA 2012).

   Appellee Brinkmann, a resident voter, filed a complaint in the circuit
court, alleging that Francois was not properly qualified to be a write-in
candidate because he did not physically live within the boundaries of the
district as required by section 99.0615, Florida Statutes (2014).
Brinkmann also sought an order forcing the primary election to be opened
to all voters pursuant to the UPA. Francois conceded below, as he does
on appeal, that he did not live in the district at the time he filed papers to
qualify as a write-in candidate. However, he contends that section
99.0615 is facially unconstitutional because it conflicts with the Florida
Constitution and violates equal protection. After an evidentiary hearing,
the circuit court found that section 99.0615 is constitutional and
disqualified Francois as a write-in candidate. The circuit court also
entered an injunction that opened the primary election to all registered
voters.3


   1   Pursuant to section 99.061(4)(b), Florida Statutes (2014), write-in
candidates are granted write-in access on the ballot for the general election,
irrespective of party affiliation. § 99.061(4)(b), Fla. Stat. (2014).
    2 The UPA states: “If all candidates for an office have the same party affiliation

and the winner will have no opposition in the general election, all qualified
electors, regardless of party affiliation, may vote in the primary elections for that
office.” Art. VI, § 5(b), Fla. Const.
    3 The primary election was conducted on August 26, 2014. While this Court

ordered an expedited briefing schedule, the circuit court’s order had the effect of
removing Francois as a write-in candidate in the general election to be held on
November 4, 2014. As it currently stands, the primary election for the Broward
County Commissioner District 2 will be conducted concurrently with the general
election on November 4, 2014, and will be open to all voters.

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                               Legal Analysis

   Francois argues that section 99.0615 is facially unconstitutional
because it conflicts with the language of the Florida Constitution,
according to supreme court interpretation, and constitutes a denial of
equal protection. Francois also contends that because the circuit court’s
decision to issue an injunction was based on its decision to disqualify him,
an error in disqualifying him makes the injunction to open the primary
improper. After reviewing the circuit court’s order, we are satisfied that
the circuit court’s decision to disqualify Francois as a candidate was the
primary predicate supporting its decision to issue the injunction.

   Because the issue of disqualification in this case involves interpretation
of the Florida Constitution, our review is de novo. Browning v. Florida
Hometown Democracy, Inc. PAC, 29 So. 3d 1053, 1063 (Fla. 2010).

   Statutes regulating the conduct of elections come to the court with “an
extremely strong presumption of validity.” Pasco v. Heggen, 314 So. 2d 1,
3 (Fla. 1975) (citing Bodner v. Gray, 129 So. 2d 419, 421 (Fla. 1961)).
Moreover, “only unreasonable or unnecessary restraints on the elective
process are prohibited.” Id. (citing State v. Dillon, 32 So. 383 (Fla. 1893)).
The Florida Supreme Court has explained that in order to hold a legislative
act unconstitutional, courts “must be convinced beyond a reasonable
doubt that the act contravenes the superior law.” Mairs v. Peters, 52 So.
2d 793, 795 (Fla. 1951).

   The crux of Francois’s argument is that section 99.0615 is
unconstitutional because the timing of its residency requirement for write-
in candidates at the time of qualifying conflicts with the timing of the
residency requirement for county commission candidates at the time of
election as determined by the Florida Supreme Court in decisions
interpreting Article VIII, section 1(e) of the the Florida Constitution.

   Article VIII, section 1(e) of the Florida Constitution states:

      Except when otherwise provided by county charter, the
      governing body of each county shall be a board of county
      commissioners composed of five or seven members serving
      staggered terms of four years. After each decennial census
      the board of county commissioners shall divide the county
      into districts of contiguous territory as nearly equal in
      population as practicable. One commissioner residing in each
      district shall be elected as provided by law.

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Art. VIII, § 1(e), Fla. Const. (emphasis added). In State v. Grassi, 532 So.
2d 1055, 1056 (Fla. 1988), our supreme court construed the constitutional
provision regarding the residency requirement for county commissioners
and stated “[t]he Florida Constitution requires residency at the time of
election.” (emphasis added). It then held unconstitutional a statute which
required a candidate for county commissioner to live in the district in
which he sought to run at the time of qualification for the office.

   Section 99.0615, a one-sentence statute applicable to only write-in
candidates, states that: “At the time of qualification, all write-in candidates
must reside within the district represented by the office sought.” §
99.0615, Fla. Stat. (2014) (emphasis added). Thus, Grassi addressed an
identical claim as is present in this case.

   In addition to Grassi, Francois argues that several cases have
consistently held that “[n]o statute can add to or take from the
qualifications for office set forth in the Constitution.” Norman v. Ambler,
46 So. 3d 178, 183 (Fla. 1st DCA 2010); see also Wilson v. Newell, 223 So.
2d 734, 735-36 (Fla. 1969) (holding, under a previous version of the
Florida Constitution, that a statute imposing an additional residency
qualification for candidates for county commission was facially
“unconstitutional, invalid and ineffective because it prescribes
qualifications for the office of County Commission in addition to those
prescribed by the Constitution”).

   In view of the supreme court’s decision in Grassi, we are “convinced
beyond a reasonable doubt that the act contravenes the superior law.”
Mairs, 52 So. 2d at 795. We hold that section 99.0615, Florida Statutes
(2014), is facially unconstitutional because the timing of its residency
requirement for write-in candidates conflicts with the timing of the
residency requirement for county commission candidates as established
by Article VIII, section 1(e) of the Florida Constitution. Because we
determine that section 99.0615 is facially unconstitutional, we do not
address the equal protection argument raised. Thus, we reverse the circuit
court’s order disqualifying Francois as a valid write-in candidate for office.
We also reverse the injunction entered by the trial court opening the
primary election to all voters. We remand for further proceedings
consistent with this opinion.

   Reversed and remanded.

WARNER, GROSS and CONNER, JJ., concur.




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Not final until disposition of timely filed motion for rehearing.




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