                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

CAROL GIBSON,                       NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D15-956

STEPHEN KESTERSON, SR.
AND TAMMY JONES, IN HER
OFFICIAL CAPACITY AS
SUPERVISOR OF ELECTIONS
OF LEVY COUNTY, FLORIDA,

      Appellee.

_____________________________/

Opinion filed April 6, 2016.

An appeal from the Circuit Court for Levy County.
Stanley H. Griffis, III, Judge.

Beth M. Gordon of The Gordon Law Firm, Williston, for Appellant.

Michael J. Roper and Frank M. Mari of Bell & Roper, P.A., Orlando, for Appellee
Stephen Kesterson, Sr..




PER CURIAM.

      AFFIRMED.

LEWIS and WETHERELL, JJ., CONCUR; MAKAR, J., CONCURS WITH
OPINION.
MAKAR, J, concurring with opinion.

      Ramshackle trailers spawned this dispute. As chair of a recall committee,

Carol Gibson filed a petition against Stephen Kesterson, Sr., a newly-elected

commissioner in the Town of Inglis, Florida, seeking his removal from office for

proposing an ordinance that would outlaw dilapidated and uninhabitable

manufactured homes in the community. At issue is the trial court’s conclusion that

the petition was legally insufficient under Florida’s recall statute, section 100.361,

Florida Statutes (2015).

                                          I.

      Billing itself as the “Gateway to the Gulf,” Inglis (pop. 1,325) consists of

four square miles in western Levy County, Florida, its southern border abutting the

Withlacoochee River, which meanders past neighboring Yankeetown on its way to

the coast. Despite its size, Inglis has had its moments in the spotlight. In the

summer of 1961, Elvis Presley spent two summer months filming Follow That

Dream in the area, an event that remains central to the town’s identity and push for

tourism. 1 In the early 1970s, the ill-fated Cross Florida Barge Canal was jettisoned


1
  See Town of Inglis, https://townofinglis.org (last visited Feb. 19, 2016). The plot
involves a vagabond family, including Presley, traveling in Florida, which take up
residence by building a shanty on a vacant riverfront lot. Oddly enough, the
movie—part of which was filmed in the Citrus County Courthouse—involves a
government official who “considers the squatters’ home to be an eyesore and
wants to evict them” as well as “two gamblers . . . [who] set up a casino in a
mid-project, abandoning one of its few completed portions at Inglis Lock,

thwarting the citizenry’s hope of local economic prosperity. 2 And in 2001, the

city’s long-time mayor, sensing social decline in her community, banned Satan

from the town, a proclamation making national and international news.3

      In 2014, Inglis again attracted attention, this time due to a spat involving

citizens who objected to a commissioner’s proposed beautification ordinance

directed at damaged, uninhabitable, and vacant manufactured dwellings. At a

September 2014 meeting, Commissioner Kesterson proposed adopting an

ordinance providing that:

      [a]ny manufactured dwelling whose date of construction was 1999 or
      before would be subject to the following:

      Provided said dwelling is damaged and in disrepair or otherwise
      uninhabitable and/or vacant for 120 days from the date of sited record
      shall be condemned and removed from the subject property within a
      period to be determined by order. No replacement of the dwelling
      with another manufactured dwelling shall be allowed.


trailer” nearby. Wikipedia, https://en.wikipedia.org/wiki/Follow_That_Dream (last
visited Feb. 18, 2016).
2
  Steven Noll & David Tegeder, Ditch of Dreams: The Cross Florida Barge Canal
and the Struggle for Florida’s Future 35, 239 (2009) (noting that John Inglis was a
local banker and developer during the phosphate boom of the 1890s). A rancorous
meeting was held in the Inglis Community Hall in 1971 after President Nixon’s
decision to halt the project. Id. at 278.
3
 See Rick Bragg, Florida Town Finds Satan an Offense Unto It, N.Y. Times, Mar.
13, 2002, http://www.nytimes.com/2002/03/14/us/florida-town-finds-satan-an-
offense-unto-it.html.
      2.) Any manufactured dwelling as described above that is damaged
      and/or requires repair to make it habitable will be subject to Paragraph
      1 should the estimate for permitted repairs exceed $500.

      Hereafter, these provisions will apply to any manufactured home that
      has reached its sixteenth year from date of manufacturer [sic].

Robust discussion of the proposal ensued among the commissioners, mayor, town

clerk, and citizens concerned about the effect of the proposal on their manufactured

homes, including an historic area called Cracker Town where zoning requires that

mobile homes, once removed, can only be replaced with fixed dwellings. A major

concern was that repair costs in excess of $500 could result in people’s homes

(some used only for vacations by non-resident out-of-towners) being subject to

removal. Ultimately, the commissioners unanimously voted in favor of a resolution

that would allow the planning commission to consider the proposal.

      Displeased with Commissioner Kesterson’s attempt to regulate and

potentially condemn older manufactured homes, Ms. Gibson filed a recall petition,

which stated:

      We, the undersigned registered voters of the Town of Inglis/Levy
      County, are requesting the recall of Commissioner Stephen Kesterson,
      Sr., on the grounds of misfeasance. By intending to pass specific code
      enforcement laws and Ordinances, he is violating our 4th Amendment
      Rights because they will deprive us of our homes, an obvious
      injurious and wrongful exercise of what he believes he has been given
      the authority to do, a definite abuse of power.

In response, Commissioner Kesterson filed a defense to the petition stating that he

did not violate anyone’s rights, that no ordinance was passed, and that the
petition’s allegations were untrue. His purpose in making a motion was to discuss

abandoned mobile homes, which he believed was a community-wide problem.

      On November 18, 2014, the recall committee secured the required number of

signatures for the petition and, because Commissioner Kesterson did not resign, the

chief judge set a recall election as required by section 100.361, Florida Statutes,

prompting Commissioner Kesterson to file a complaint for injunctive and

declaratory relief, seeking an emergency hearing to rule on his request to stop the

impending election. After a bench trial, the trial court issued a final judgment in

favor of Commissioner Kesterson, which provides in pertinent part:

      In this case, the recall petition states the ground of misfeasance, which
      is defined as performance of a legal act in an improper or illegal
      manner. . . . Under Florida law, taking a position on an issue is not
      misfeasance and therefore not legally sufficient to form the basis for a
      recall petition. . . . While the substance of the position held or
      expressed regarding the code enforcement laws or ordinances may be
      disfavored by many in the town, Florida law requires that a recall
      petition for misfeasance allege that he took action in an improper or
      illegal way.

Concluding that the recall petition was legally insufficient, the trial court ordered

that the recall election “shall not be held and shall be of no force or effect.” This

appeal followed.

                                      II.

      Electors who become disillusioned with a government official have options:

they can speak out and lobby against the official’s actions; they can cajole or
pressure the official to resign; they can try to elect someone else next time. They

can also seek the removal of the official via a recall election. The power to remove

an elected official can be established in a city or county charter or ordinance, or in

a state law; the grounds for removal can be narrow or broad. The broadest allows

for the removal of an official for any reason: this “so-called purely ‘political view’

[says] people have the right to vote for the recall of their officials whenever their

actions in office are unpopular or irritate a sufficient number to initiate the recall

proceeding and a majority of the electorate support the recall group in their views.”

Joyner v. Shuman, 116 So. 2d 472, 480 (Fla. 2d DCA 1959). See, e.g., Sproat v.

Arnau, 213 So. 2d 692, 692 (Fla. 1968) (affirming denial of injunction to stop

recall election where city charter specified that the “statement of grounds for recall

shall be sufficient in law if the grounds are merely that ‘A majority of the electors

of the City of Deerfield Beach have lost confidence in the Commissioner or

Commissioners’ sought to be recalled.’”); Hines v. Dozer, 134 So. 2d 548, 550

(Fla. 3d DCA 1961) (reversing injunction in recall action under city charter where

affidavit “alleged ill-advised and possibly unlawful acts which the affiants say

resulted in a depreciation of the city treasury”). See also Good v. Common Council

of City of San Diego, 90 P. 44, 46 (Cal. Ct. App. 1907) (recall election allowed

against city councilman who, in part, “supported a certain ordinance regulating the

licensing and sale of liquors in the city of San Diego”). Narrower recall laws run
the gamut from serious felonies to incompetency and poor decision-making as

adequate grounds for removal. See Jay M. Zitter, Annotation, Sufficiency of

Particular Charges as Affecting Enforceability of Recall Petition, 114 A.L.R.5th 1

(2003) (compiling state and federal cases passing upon the legal sufficiency of

circumstances in recall petitions alleging “misfeasance, malfeasance, or the like”).

      The Inglis charter has no recall provision. Instead, the only remedy available

to the town’s electors is Florida’s recall statute, which states that “[a]ny member of

the governing body of a municipality . . . may be removed from office by the

electors of the municipality.” § 100.361(1), Fla. Stat. This method requires a recall

petition, which “shall contain the name of the person sought to be recalled and a

statement of grounds for recall.” Id. § 100.361(2)(a). A statement (up to 200

words) of the grounds for recall are limited to only the following:

             1. Malfeasance;
             2. Misfeasance;
             3. Neglect of duty;
             4. Drunkenness;
             5. Incompetence;
             6. Permanent inability to perform official duties; and
             7. Conviction of a felony involving moral turpitude.

Id. § 100.361(2)(d)(1)-(7). As the statute requires, a recall committee was formed

(Ms. Gibson designated as its chair), id. § 100.361(2)(c), and a petition alleging

misfeasance by Commissioner Kesterson was filed.
      Everyone agrees that proper recall procedures were followed, making our

task a limited one under the de novo standard of review. See Thompson v.

Napotnik, 923 So. 2d 537, 539 (Fla. 5th DCA 2006). Because recall of an elected

official is an “extraordinary proceeding” the burden is “on those seeking to

overturn the regular elective process to base the petition upon lawful grounds or

face the invalidation of the proceedings.” Garvin v. Jerome, 767 So. 2d 1190, 1193

(Fla. 2000). We do not “rule on the truth or falsity of the charges against the

official.” Moultrie v. Davis, 498 So. 2d 993, 996 (Fla. 4th DCA 1986) (citing Bent

v. Ballantyne, 368 So. 2d 351, 353 (Fla. 1979)); accord Tolar v. Johns, 147 So. 2d

196, 198 (Fla. 2d DCA 1962) (“The reasons for recall whether true or false do not

affect the proceeding. Their truth or sufficiency is for determination by the electors

alone.”). Instead, we address only whether the conduct alleged in the petition was

legally sufficient to establish misfeasance, a purely legal question. Moultrie, 498

So. 2d at 996 (“This court’s sole function in the case at bar is to review the petition

to determine whether the facts alleged in the recall petition are sufficient to

establish any grounds for recall pursuant to section 100.361(1)(b).”). If so, the trial

court’s termination of the recall process was error.

      Misfeasance is “the performance, in an official capacity, of a legal act in an

improper or illegal manner.” Id. at 995-96. It contrasts with malfeasance, which is

the “performance of a completely illegal or wrongful act[.]” Id. at 995. Here, Ms.
Gibson argues that Commissioner Kesterson’s actions, though lawful, “would lead

to an unlawful ordinance,” one that would—according to Gibson—violate

constitutional rights under the Fourth Amendment, which in pertinent part says the

“right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated[.]” U.S. Const.

amend. IV.

      Under the recall statute, a plebiscite is impermissible where the alleged

misfeasance by a municipal official consists of lawful actions done in a proper and

lawful manner. The recall petition does not allege that Commissioner Kesterson’s

actions were unauthorized or illegal, Taines v. Galvin, 279 So. 2d 9, 11 (Fla. 1973)

(“There were no allegations of actions which were beyond the councilmen’s

authority or were in any way illegal.”), only that the actions, if successful, might

affect or have consequences on existing legal rights. In essence, what Ms. Gibson

argues—that Commissioner Kesterson’s proposal “would, as soon as it was

applied, have violated citizens’ due process rights”—goes to hypothetical

consequences of an unadopted ordinance. But absent improper or unlawful actions

(such as violating the public meeting laws), no misfeasance exists. Id. Indeed, the

“[l]egitimate or authorized actions of a city councilman, although unpopular, are

not adequate to justify a recall.” Moultrie, 498 So. 2d at 996. Moreover, merely

“intending” to pass an ordinance (as the petition alleges) or to have discussion
about a controversial one is far from misfeasance; most citizens expect their

representatives to discuss controversial matters and propose solutions that may

require new ordinances or laws. Taines, 279 So. 2d at 11 (charges that “amounted

to no more than unpopular actions in regard to controversial issues” are not

actionable); see also In re DeBruyn, 774 P.2d 1196, 1198 (Wash. 1989) (en banc)

(“Directing that an ordinance be drafted, or directing that the subject be put on the

agenda for the next meeting is a matter within the discretion of the council. Elected

officials cannot be recalled for appropriately exercising the discretion granted to

them by law.”).

      In the end, Ms. Gibson’s dispute with Commissioner Kesterson is a matter

of public debate that courts do not resolve. See Taylor v. Thornber, 418 So. 2d

1155, 1156 (Fla. 1st DCA 1982) (stating that “appellee’s brief argues at some

length about the merits of the allegations in the recall petitions. The merits of the

allegations are irrelevant to the issue on appeal”). Her brief says an ordinance was

adopted and that “commissioner Kesterson passed a law that would deprive Inglis

citizens of their homes.” No such ordinance has been located; even if one existed,

it would not be a ground for a recall petition absent a statutory basis. “Florida’s

recall statute is accusatory in nature and requires that a recall petition allege

conduct by the public official which would constitute one of the seven grounds for

removal.” Bent, 368 So. 2d at 353.
      A recall statute is a balance: it allows for removal of officials on serious

grounds leaving general public dissatisfaction non-actionable.

      The nature of the recall process balances two opposing positions: the
      democratic ideal of allowing the people to rectify serious mistakes in
      choosing officials, on the one hand, and the goal of allowing officials
      to work out their term of office unimpeded by having to defend
      against a series of recall attempts for trifling reasons, by disgruntled
      political opponents, and the like, on the other.

Zitter, supra, § 2[a]. As our supreme court noted sixty-five years ago, a community

sincerely divided in its sentiments on a controversial issue places an elected

official in a damned-if-you-do-damned if-you-don’t position.

      As soon as a councilman bec[omes] allied with one group and exert[s]
      himself in their behalf, the opposing group could, doubtless
      conscientiously, swear that the official had engaged in activities
      ‘inimical to the best interests of the citizens’ simply because they
      entertained the belief that the wrong course had been chosen.

Richard v. Tomlinson, 49 So. 2d 798, 799 (Fla. 1951). Local governments may

choose to adopt recall provisions that allow for removal of officials whom the

electorate believes have made poor judgments or in whom they have lost

confidence. Florida’s recall statute, however, reflects the Legislature’s policy

judgment that public officials not be “ousted” based on a petition “that contains

illegal grounds for recall in express violation of the statute.” Garvin, 767 So. 2d at

1193 (“We agree that the public policy underlying the legislative scheme does not

mandate that officials who have been duly elected to their positions of

responsibility should have to face an extraordinary recall election with every vote
they cast or statement they make.”). Thus, Commissioner Kesterson’s pursuit of

measures that he believes may be in the community’s best interests provides no

basis for recall under Florida law.

                                         III.

      Because the trial court correctly ruled that the recall petition was legally

insufficient, the grant of injunctive relief and its order stopping the recall election

should be affirmed.
