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

LAURA RIVERO LEVEY,                     CASE NO. 1D14-3854

      Appellant,
                                        CORRECTED PAGES: pg 11
v.                                      CORRECTION IS UNDERLINED IN RED

KEN DETZNER, Secretary of State,        MAILED: September 23, 2014
State  of  Florida;  PENELOPE           BY: NMS
TOWNSLEY, Supervisor of Elections,
Miami-Dade County, Florida; and
DAVID RICHARDSON,

     Appellees.
_______________________________/

Opinion filed September 22, 2014.

An appeal from the Circuit Court for Leon County.
Charles A. Francis, Judge.

John R. Kelso of Levey Lieberman LLP, Miami Beach, for Appellant.

J. Andrew Atkinson, General Counsel, and Ashley E. Davis, Assistant General
Counsel, Florida Department of State, for Appellee Florida Secretary of State
Kenneth W. Detzner.

R.A. Cuevas, Jr., Miami-Dade County Attorney; Oren Rosenthal and Michael B.
Valdes, Assistant County Attorneys, Miami, for Appellee Penelope Townsley.

Mark Herron, Robert J. Telfer, III, and J. Brennan Donnelly of Messer Caparello,
P.A., Tallahassee, for Appellee David Richardson.

             ORDER ON MOTION FOR REHEARING EN BANC

      A judge of this court requested that this cause be considered en banc in

accordance with Florida Rule of Appellate Procedure 9.331(d). All judges in
regular active service have voted on this request. Less than a majority of those

judges voted in favor of rehearing en banc. Accordingly, the request for rehearing

en banc is denied.

LEWIS, C.J., WOLF, ROBERTS, CLARK, WETHERELL,                             ROWE,
MARSTILLER, RAY, and OSTERHAUS, JJ., concur.

BENTON, VAN NORTWICK, and PADOVANO, JJ., dissent.

MAKAR, J., dissents in an opinion in which THOMAS, J., joins.

SWANSON, J., dissents with opinion.




                                        2
MAKAR, J., dissenting from the denial of rehearing en banc.

      Presented with two interpretations of an election statute, one that puts a

compliant candidate on the ballot and one that does not, our court has chosen the

latter course, an en banc vote failing by two votes. Our supreme court has said,

however, that election statutes should not be read in overly-rigid ways that deprive

the people of their constitutionally-recognized political power to vote for

candidates of their choosing. Under these circumstances, en banc review is

warranted due to the exceptional importance of the question presented. Rule

9.331(a), Fla. R. App. P. (2014).

                                         I.

      Laura Rivero Levey would like to represent the people of House District

113, located in Miami-Dade County, which has a total of 68,218 registered voters. 1

The qualifying period for the 2014 election cycle began at noon on Monday, June

16, 2014, and was set to end at noon on Friday, June 20, 2014. On the second day

of that week, Levey timely filed all necessary paperwork to run as a Republican


1
  See Fla. Dep’t of State, Div. of Elec., 2014 Primary Election, Active Registered
Voters by House District, available at http://election.dos.state.fl.us/voter-
registration/statistics/pdf/2014/pri2014_CountyPartyHouseDist.pdf (data as of July
28, 2014). Of that number, 27,902 are registered as Democrats, 16,881 are
registered as Republicans, 1,545 are registered with other miscellaneous parties,
and the remaining 21,890 are nonparty affiliated. Id.
                                         3
candidate against the incumbent Democrat, who likewise timely filed the required

paperwork. Both also timely filed checks in the proper amounts for their qualifying

fees, which were drawn upon their respective campaign accounts and made

payable to the Florida Department of State (the Department as shorthand).

          Based on their submitted paperwork, both Levey and her Democratic

compatriot were certified as “qualified” because each had complied with relevant

statutory requirements, including the subparagraph at issue in this case, which

states:

          (7)(a) In order for a candidate to be qualified, the following items
          must be received by the filing officer by the end of the qualifying
          period:

          1. A properly executed check drawn upon the candidate’s campaign
          account payable to the person or entity as prescribed by the filing
          officer in an amount not less than the fee required by s. 99.092, unless
          the candidate obtained the required number of signatures on petitions
          pursuant to s. 99.095. The filing fee for a special district candidate is
          not required to be drawn upon the candidate’s campaign account. If a
          candidate’s check is returned by the bank for any reason, the filing
          officer shall immediately notify the candidate and the candidate shall
          have until the end of qualifying to pay the fee with a cashier’s check
          purchased from funds of the campaign account. Failure to pay the fee
          as provided in this subparagraph shall disqualify the candidate.

          ...

§ 99.061(7)(a)1, Fla. Stat. (2014) (various emphases added). Each of the

differently highlighted portions are discussed in turn below.


                                             4
      Turning first to the italicized-only portions of the statute, it states that a

candidate is deemed “qualified” if she provides the Department by the end of the

qualifying period with a check that meets statutory requirements (properly

executed, drawn on campaign account, payable to proper person or entity, and so

on). No dispute exists that Levey did so; she was thereby deemed “qualified” and

the Division of Elections officially informed her so. Likewise, as to her opponent.

      What happened in the post-qualifying period, however, triggered the present

controversy and spawned the statutory construction dispute at issue. Under section

99.061(7)(a)1, a candidate who is deemed otherwise “qualified” can be

disqualified based on the last sentence in the subparagraph (italicized and bolded

above), which provides that the “[f]ailure to pay the fee as provided in this

subparagraph shall disqualify the candidate.” Which leads to the banking snafu at

center stage in this matter.

      Levey’s check from SunTrust was drawn upon her campaign account as the

statute requires (other payment methods, such as a certified check, PayPal®, or the

like, are impermissible) and was filed timely with the Department. Once filed,

qualifying fee checks embark on a circuitous route. The Department deposits

checks into an account at Bank of America, which then undertakes efforts to

collect the funds. Notice that a check is dishonored goes to the Florida Department


                                         5
of Financial Services (DFS), not to the Department; the reason is that funds

deposited in the state treasury become treasury funds under the control of DFS.

      A check’s odyssey through this labyrinth may span a number of days. As a

result, qualifying fee checks may not clear before the end of qualifying and may

require some effort by banking institutions and election officials to determine

whether payment is forthcoming. Such was the case with Levey’s check.

      The Department deposited Levey’s SunTrust check in its Bank of America

account on Wednesday, June 18th. Soon thereafter, Bank of America presented the

check for payment, but was told that SunTrust had placed a hold on it, apparently

because someone in its fraud department decided to investigate the validity of a

check from the Republican Party of Florida that had been deposited in Levey’s

account (the party check had cleared on June 16, 2014). 2 After a second attempt to

deposit the check and being told a hold remained on Friday, June 20th, Bank of

America returned Levey’s check to DFS on Saturday, June 21st, (after the

qualifying deadline), denoting it as “uncollected funds.” To this point, with

qualifying now over, neither the Department of State, the Division, nor Levey had

been notified that any problem existed; and as we’ll see later, Levey could not


2
  The bank investigator’s stated reason for why the check drew scrutiny was that
the “$2,000 deposit was a very large deposit into a brand new account” that had no
“customer history.”
                                         6
avail herself of the certified check cure in section 99.061(7)(a)1 (underlined in the

statute above).

      The weekend having passed, the next business day, Monday, June 23rd, DFS

prepared a debit memorandum notifying the Department that Levey’s check had

been returned. DFS sent the memorandum via interoffice mail, the Department not

receiving it until two days later on June 25th. According to the Bureau Chief of

Election Records, debit memoranda are delivered by interoffice mail, not

electronically.

      Two days later, on Friday, June 27th, the Division—apparently unaware of

the looming kerfuffle over Levey’s qualifying check—certified her as qualified as

a candidate for House District 113. Levey’s certification was on the last day of the

statutory deadline for doing so. See § 99.061(6), Fla. Stat. (2014) (“The

Department of State shall certify to the supervisor of elections, within 7 days after

the closing date for qualifying, the names of all duly qualified candidates for

nomination or election who have qualified with the Department of State.”).

      Another weekend passed. On Monday, June 30th, the Division first became

aware of the situation. In response, it called Levey the next day, July 1st, to notify

her that her check had not cleared and that she was going to be disqualified.

      Understandably distraught, Levey responded on Thursday, July 3rd, with a

letter from a senior vice president of SunTrust explaining that the snafu related to
                                          7
Levey’s qualifying check was entirely due to bank error and no fault of Levey; a

cashier’s check from SunTrust drawn from funds in Levey’s account was tendered

as well.

       Almost a week later on Wednesday, July 9th, Levey—having heard nothing

from the Department—filed suit seeking a declaration that she was a qualified

candidate; she also sought an order directing the Secretary to add her to the list of

qualified candidates and directing the Supervisor of Elections to add her name to

the ballot for the November 2014 general election.

       Two days later, the Department advised Levey that—despite having initially

been deemed qualified by the Division—she was now disqualified because her

check was deemed dishonored; her cashier’s check was later returned to her.

       After discovery and an August 8th hearing on the parties’ motions for

summary judgment, the trial court ruled against Levey on August 18th. In doing

so, it found that “[t]here was nothing [Levey] could have done differently that

would have changed what happened during the week of qualifying.” Nonetheless,

it stated:

       3. The application of the law in this case results in a harsh decision,
       but the Court is bound by precedent that says when the Legislature
       speaks clearly to a particular item, the Court is not to guess at what it
       means. Specifically, the Legislature in Section 14, Chapter 2011-40,
       Laws of Florida, amended Section 99.061 (7)(a)7 [sic], Florida
       Statutes, to eliminate or preclude the relief sought by [Levey] in this
       case.
                                          8
      4. Although a check, properly made and drawn on the campaign
      account, was delivered during the qualifying period, it was returned.
      The result was the qualifying fee in this case was not paid before the
      end of the qualifying deadline as required by statute.

(Emphasis added). Levey appealed and a divided panel of this court affirmed.

                                          II.

      Two alternative statutory interpretation paths are in play. The first relies

upon a plain reading of the statutory language to reach a sensible and workable

result that, happily, effectuates the political power of the citizenry. See Art. 1, § 1,

Fla. Const. (“All political power is inherent in the people.”). This reading also

conforms to principles of strict statutory construction, and advances the judicial

philosophy in candidate qualification cases that statutes should be construed to

enable the people to exercise their right to vote for their favored candidates. State

ex rel. Siegendorf v. Stone, 266 So. 2d 345, 346 (Fla. 1972) (“Literal and ‘total

compliance’ with statutory language which reaches hypersensitive levels and

which strains the quality of justice is not required to fairly and substantially meet

the statutory requirements to qualify as a candidate for public office.”).

      In candidate qualification cases, this court has recognized the “general

philosophy of our Supreme Court was stated in [Siegendorf], wherein that Court

held a technical flaw in a candidate’s qualifying papers should not prevent his

candidacy[.]” Bayne v. Glisson, 300 So. 2d 79, 82 (Fla. 1st DCA 1974). Thus,
                                           9
rather than disenfranchise candidates and voters, “[i]t is better in such factual

situations to let the people decide the ultimate qualifications of candidates unless

they appear clearly contrary to law.” Siegendorf, 266 So. 2d at 347; see also Hurt

v. Naples, 299 S. 2d 17 (Fla. 1974) (“Widening the field of candidates is the rule,

not the exception, in Florida.”); see generally Validity and effect of statutes

exacting filing fees from candidates for public office, § 7[b] (“What constitutes

payment—Timeliness of payment or filing receipt”), 89 A.L.R.2d 864 (“The most

frequently occurring problem in connection with the meaning of filing fee statutes

is whether the fee, admittedly due, has been paid within the time prescribed by the

law, and in answering it the tendency of the courts has been to construe the

provisions liberally in favor of the candidate.”).

      This philosophical norm in mind, we turn to the statute. No dispute exists

that Levey fully complied with everything she was required to do. She submitted

all the requisite items, including a valid check in the proper amount in a timely

manner.3 The statute proclaims that “[i]n order for a candidate to be qualified”

specified “items must be received by the filing officer by the end of the qualifying


3
  Her situation is unlike cases where a candidate fails to file her qualification
papers or filing fees timely, see, e.g., State ex rel. Taylor v. Gray, 25 So. 2d 492
(Fla. 1946) (failure to pay “qualifying fee within the time required by law”).


                                          10
period” including a “properly executed check drawn upon the candidate’s

campaign account payable to the person or entity as prescribed by the filing officer

in an amount not less than the fee required by s. 99.092 . . . .” § 99.061(7)(a)1, Fla.

Stat. A plain reading of this statutory language supports the conclusion that

because Levey fully complied with these requirements, she met the requirements to

be qualified; indeed, she was deemed qualified.

      That, of course, does not end the story. Simply submitting a compliant check

in a timely manner does not ensure one’s ultimate qualification for the ballot.

Despite being initially deemed qualified, a candidate in Levey’s position is subject

to possible disqualification for actually failing to pay the fee. The last sentence of

statute says so: “Failure to pay the fee as provided in this subparagraph shall

disqualify the candidate.” Id. What constitutes a “failure to pay” and what effort

the Department must take to ensure payment are undefined; no rule or policy

exists. Further, nothing in the statute says a candidate’s check must clear the bank

prior to the end of qualifying; nor does it place any post-qualifying time limit on

when it must do so. The statute only states that the “failure to pay the fee” results

in disqualification, which leaves unanswered the parameters of the authority and

discretion the Department may exercise in these situations.

      At this point it is worth noting two things. First, nothing in statutory

language supports the trial court’s conclusion that a qualifying fee must be paid
                                          11
“before the end of the qualifying deadline as required by statute.” To the contrary,

the statute is silent on when payment is to be effectuated. Indeed, the statute as

written—and applied by the Department—only requires the submission of a check

that meets the requirements (set out in the first sentence of subparagraph 7(a)1)

before the end of qualifying; payment can and must occur sometime thereafter. As

discovery shows, and reason dictates, for checks submitted late in the qualifying

process, the payment of qualifying fee checks can and does occur after qualifying

is over.

      Second, because payment issues necessarily must be resolved even after

qualifying is over, the Department has an affirmative duty to do so. Nothing in the

statute (nor in any rule) prohibits the Department from exercising authority and

discretion as to payment issues during the post-qualifying period. See

§ 99.061(10), Fla. Stat. (“The Department of State may prescribe by rule

requirements for filing papers to qualify as a candidate under this section.”). While

neither the statute nor a rule specifies how the Department is to process payment

for timely-received qualifying fee checks, it is obvious that it must do so.

Discovery in this case shows that the Department engaged in appropriate

investigation and notification activities that pose no meaningful administrative

burdens.


                                         12
      Most importantly, the context in which the Department operates—i.e.,

qualifying candidates for public office—suggests that standards or practices that

cause admittedly “harsh” results, such as the case at hand, should be avoided. The

supreme court’s philosophy in this class of cases, one that allows room for

substantial compliance, governs. See Browning v. Young, 993 So. 2d 64, 67 (Fla.

1st DCA 2008) (applying substantial compliance doctrine in holding that error in

candidate’s financial disclosure form did not disqualify her from public office).

Problems may arise (such as the erroneous hold on Levey’s check in this case that

temporarily and wrongfully delayed payment) that can be resolved quickly as the

bank’s confession of error did as to Levey’s check. The Legislature has given no

indication that it wants the Department to disqualify fully compliant candidates

based on easily correctable bank errors arising after qualifying has ended. While

the State has an interest in the orderly administration of the candidate qualification

process, the balance decidedly shifts in favor of putting candidates on the ballot

under the circumstances presented.

      Indeed, it is hard to believe that legislators intended that a fully compliant

candidate, such as Levey, be disqualified due to an error beyond her control—

when they could easily find themselves in the same position. None of the

intervening snafus and delays within the banking system were attributable to

Levey, as the trial court specifically held: “[t]here was nothing [she] could have
                                         13
done differently that would have changed what happened during the week of

qualifying.”4

       A second and competing construction of section 99.061(7)(a)1, Florida

Statues, relies heavily on a sentence (underlined in subparagraph above) that has

no application in this case. It states:

       If a candidate’s check is returned by the bank for any reason, the filing
       officer shall immediately notify the candidate and the candidate shall
       have until the end of qualifying to pay the fee with a cashier’s check
       purchased from funds of the campaign account.

Under plain language principles, this sentence is best understood as creating a

limited remedy that allows a candidate to file a certified 5 check as a cure before

4
  The trial court’s finding notwithstanding, the suggestion that Levey may have had
some fault in what happened is not borne out by the record. At most, SunTrust
claimed it sent an email to Levey about a hold on the check; Levey denied
receiving an email and no evidence of the actual email exists (only an unhelpful
“screen shot” from an all but abandoned software program). But whatever missteps
occurred were by the bank, which accepted full responsibility for its errors. For this
reason, no material disputed facts exist making summary judgment proper. Even if
the candidate had received an email from the bank about a hold (not a “return” of
the check, which is different), the fact remains that the Department did not know
about and failed to provide notification of a potential problem until after the end of
qualifying.
5
  Under Department policy, a certified check cannot be submitted initially; it can
only be submitted as a remedy for a “returned check” under this sentence. Which
explains why the Department declined to accept the certified check Levey
submitted after the end of the qualifying period.


                                          14
qualifying is over, provided the Department notified the candidate that her check

had been returned. It is a remedial sentence, not a punitive one. The remedy serves

no purpose if notification is not given until after qualifying is over; a candidate

cannot submit a certified check before the “end of qualifying” if she wasn’t

notified until after the qualifying period has ended. Levey was not notified by the

Department about any potential problems with the check until after qualifying was

over: indeed, the Department did not even know of the problem until ten days after

qualifying had ended. Beyond having no application in this case, Levey had no

need to cure anything; her check was valid when written and remains valid today.

      The alternative construction of this sentence extrapolates its provisions onto

the post-qualifying period. This makes little sense because the sentence creates a

remedy, a certified check, which can be filed only before “the end of qualifying.”

Nothing in this sentence speaks to returns of checks or other check-related

problems arising after the end of qualifying; instead, it has a limited, focused

purpose to remedy returned check problems that arise prior to the end of

qualifying.

      Similarly, nothing shows a legislative intent that the phrase “returned for any

reason” applies other than in the period before the end of qualifying. The

alternative construction of the statute, however, applies this phrase to check-related

problems that arise after the end of qualifying, which—rather than a strict
                                         15
construction of the sentence—amounts to an expansion of it. In context, it makes

sense that the Department should “immediately” notify candidates whose checks

are “returned for any reason” so that they can file certified checks as a cure before

the end of qualifying. Doing so allows for a potentially efficient mechanism to cure

returned check problems arising before qualifying ends. But this case is not one of

the situations to which the sentence applies. And the application of this phrase to

post-qualifying determinations of whether a candidate should be disqualified for

the “[f]ailure to pay the fee” imposes a harsh penalty the Legislature has not

authorized.

      In addition, the alternative approach relies on the italicized portion of the

payment/disqualification sentence as having special significance (“Failure to pay

the fee as provided in this subparagraph shall disqualify the candidate.”). If the

Legislature intended this italicized language to mean that all qualifying checks

(whether they be the initial checks submitted or certified cure checks under the

remedial sentence) must clear and yield payment before the end of qualifying, it

woefully failed. While the italicized language might support the conclusion that a

certified check is the requisite method of curing returned check problems

discovered prior to the end of qualifying, it is a major leap to conclude that

candidates are disqualified if their timely-filed checks do not clear and provide

payment until after the end of qualifying.
                                         16
      What’s more, the 2011 amendment to the cure sentence in section

99.061(7)(a)1 yields little support for the alternative reading of the statute.

      If a candidate’s check is returned by the bank for any reason, the filing
      officer shall immediately notify the candidate and the candidate shall
      have until, the end of qualifying notwithstanding, have 48 hours from
      the time such notification is received, excluding Saturdays, Sundays,
      and legal holidays, to pay the fee with a cashier’s check purchased
      from funds of the campaign account.

Chapter 2011-40, Laws of Fla. § 14. While the Legislature tightened the timeframe

for paying fees with certified checks returned prior to the end of qualifying, it

created uncertainty as to what happens when check problems arise after the end of

qualifying. The language of the revised statute simply does not address the matter

directly. And if the Legislature intended the harsh, if not draconian, result in this

case, it could have easily (re)written the statute to say so.

      Finally, a troubling and unintended consequence of disqualifying otherwise

qualified candidates on the type of banking error in this case is the potential for

political shenanigans. What if political operatives wrongfully induce a banking

official to put a hold on a gubernatorial candidate’s check causing its return after

qualifying’s end? Ditto as to checks from a political party? Or if a bank official or

employee undertakes a pre-textual check fraud investigation that renders a

candidate’s qualifying account without funds temporarily? Must the Department



                                           17
turn a blind eye and rotely disqualify candidates in these situations? Asking the

question answers it: the Department should not.

                                        III.

      In conclusion, the natural and literal construction of section 99.061(7)(a)1,

one that allows for the Department’s acceptance of payment on checks that are

erroneously held by a bank, makes the most sense. In contrast, extrapolating

statutory provisions that apply only in the pre-qualifying period to situations that

arise in the post-qualifying period creates a harsh and unreasonable result the

Legislature could not have intended. Disqualifying a candidate who did everything

right is both unreasonable and unnecessary. Treiman v. Malmquist, 342 So. 2d

972, 975 (Fla. 1977) (“The right of the people to select their own officers is their

sovereign right, and the rule is against imposing unnecessary and unreasonable

disqualifications to run.”). As it currently stands, the 68,218 registered voters in

House District 113 get the short end of the stick. There will be no robust candidate

debates, no campaigning on important legislative issues affecting their futures, and

no choice between candidates with alternative visions for their district; instead,

they have a qualified candidate unnecessarily pushed to the sidelines and another

qualified candidate who wins by default without running the race. These

circumstances, and the exceptional importance of the legal question presented,

warrant en banc review.
                                        18
SWANSON, J., dissenting on denial of en banc.


      I concur with Judge Makar that en banc review is warranted in this case.

The issues presented are of great public importance and the final opinion will serve

as broadly impacting precedent.




                                        19
