       Third District Court of Appeal
                                State of Florida

                         Opinion filed September 27, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D17-1735
                          Lower Tribunal No. 17-12178
                              ________________


                               Julio J. Martinez,
                                     Appellant,

                                         vs.

                          Carlos Hernandez, et al.,
                                     Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, John
Schlesinger, Judge.

      Jose M. Herrera, for appellant.

      Abigail Price-Williams, Miami-Dade County Attorney, Oren Rosenthal and
Michael B. Valdes, Assistant County Attorneys; Lorena E. Bravo, City of Hialeah
City Attorney; Akerman LLP and Elizabeth M. Hernandez and Lorayne Perez;
Rasco Klock Perez Nieto and Joseph P. Klock, Jr.; Thomas A. Cobitz, for
appellees.


Before SALTER, EMAS and FERNANDEZ, JJ.

      SALTER, J.
      Julio J. Martinez (“Martinez”) appeals a final judgment in favor of: the City

of   Hialeah   (“City”);   the   City’s   incumbent     Mayor,    Carlos   Hernandez

(“Hernandez”); the City Clerk for the City of Hialeah, Marbelys L. Rubio-Fatjo;

and the Miami-Dade County Supervisor of Elections, Christina White. The legal

issue raised by Martinez in his circuit court action was whether the City Charter’s

term limits for the Office of Mayor precluded incumbent Mayor Hernandez from

qualifying to run for a further term in the City’s upcoming November 7, 2017,

municipal election.

      The trial court concluded that Martinez’s lawsuit was ripe,1 and that

Hernandez could permissibly qualify and seek election for a further term as Mayor

of the City. We affirm.

      The trial court entered a thorough and well-reasoned order granting the

City’s motion for judgment on the pleadings. We merely address our standard of

review and summarize the trial court’s analysis for the benefit of those who may

again confront this interpretive question in other elections for term-limited offices.

      Standard of Review



1  Martinez’s action for declaratory and injunctive relief was filed in May 2017,
before either he or incumbent Mayor Hernandez qualified to run for Mayor in the
upcoming election, as the qualifying period for filing for the office was July 10
through 31, 2017. The trial court determined that the matter was ripe for decision,
and no party challenges that conclusion here.

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      The parties correctly acknowledge that this Court reviews an order granting

a motion for judgment on the pleadings de novo. See Walker v. Figarola, 59 So. 3d

188, 190 (Fla. 3d DCA 2011) (“A judgment on the pleadings may be granted only

if the moving party is clearly entitled to judgment as a matter of law . . . and our

standard of review is de novo.” (internal citation omitted)). Additionally, the

standard of appellate review with respect to the interpretation of a charter or

ordinance is de novo. See Kuvin v. City of Coral Gables, 62 So. 3d 625, 629 (Fla.

3d DCA 2010).

      The rules of statutory construction are applicable to the interpretation of

municipal charters. See Spence-Jones v. Dunn, 118 So. 3d 261, 262 (Fla. 3d DCA

2013) (The plain meaning of the statute is always the starting point in statutory

interpretation.); and GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007) (“[W]hen

the language of the statute is clear and unambiguous and conveys a clear and

definite meaning, there is no occasion for resorting to the rules of statutory

interpretation and construction; the statute must be given its plain and obvious

meaning.”).

      Analysis

      The City’s ordinance regarding the term limits applicable to the office of

Mayor provides, in pertinent part:

      Section 2.01. - Mayor.
      ...


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      (b) Election and term of office. In the general election held in
      November 2001 and in the general election held in November every
      four years thereafter, a mayor shall be elected who shall serve for a
      term of 4 years or until a successor shall be duly qualified to take
      office.

      (c) Vacancies.

      (1) Permanent vacancy resulting from death, resignation, recall, court
      order or other lawful action. If the office of the mayor becomes
      permanently vacant by reason of death, resignation, recall or other
      lawful action, such vacancy shall be filled with the person holding the
      office of council president, who shall exercise all of the duties of the
      office of mayor and shall perform the duties and assume the
      responsibilities of that office and shall become mayor and serve out
      only that portion of the former mayor’s term that precedes the next
      regularly scheduled municipal election or state or federal general
      election for which there is sufficient time to adopt a special election
      ordinance establishing qualifying periods and related provisions, when
      an election shall be held to fill the balance of the term, if any,
      ...

       (d) Term limitations; effective date. No person shall be elected to
      serve as mayor for more than 2 consecutive terms on and after
      November 13, 1997.

[Emphasis provided].

      Hernandez became Mayor of Hialeah in May 2011 when the then-serving

Mayor, Julio Robaina, permanently resigned the office.        Hernandez was then

serving as president of the City Council, and thus became Mayor to “serve out only

that portion of the former mayor’s term that preceded the next regularly scheduled

municipal election...for which there is sufficient time to adopt a special election




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ordinance establishing qualifying periods and related provisions, when an election

shall be held to fill the balance of the term, if any,” as provided in section 2.01(c).

      The City Council then adopted Ordinance No. 11-39, scheduling a special

election for November 15, 2011, to fill the permanent vacancy for the balance of

the prior Mayor’s term (about two years rather than a four-year term). Hernandez

ran and was elected in that special election.

      In the next general election for the office of Mayor (and a four-year term) in

November 2013, Hernandez also ran and was elected Mayor.                     Martinez’s

complaint boils down to a legal argument that “2 consecutive terms” in section

2.01(d) of the ordinance includes a partial term of less than four years (which

section 2.01(c) refers to initially as “the former mayor’s term”). To express it

another way, two uninterrupted, consecutive mayoral terms would comprise eight

years of service, but if Hernandez is qualified and elected again in November 2017

(and if he serves that full four-year term), he will have served about ten and one-

half years as Mayor. But if it is determined that his service as Mayor for the

balance of former Mayor Robaina’s term counts as Hernandez’s “term” and he is

disqualified on that basis, he will only have been allowed to serve about six and

one-half years.

      The trial court correctly applied two legal principles to this scenario in

rejecting Martinez’s argument that the partial, remaining term of a resigned Mayor



                                           5
should be counted against the successor as if it is a full term for purposes of section

2.01(d). First, as a matter of statutory interpretation and plain meaning, the text of

section 2.01(b) expressly provides for elections every four years to select a Mayor

for a four-year term. The unusual circumstances resulting in a particular four-year

term not being fully served affect the “former mayor’s term,” implying that

whatever part of that term remains is not counted as a full “term” attributable to the

successor.   This common-sense conclusion also was reached in the two closest

reported cases in Florida: Ervin v. Collins, 85 So. 2d 852 (Fla. 1956) (concluding

that the Governor, who had been elected in a special election to fill a portion of an

unexpired term, could not be considered ineligible to run for re-election for a full

term); and Vieira v. Slaughter, 318 So. 2d 490 (Fla. 1st DCA 1975) (holding that a

two-year, nine-month transitional term, followed by a full four-year term, did not

constitute a term of office within the meaning of a charter provision prohibiting a

mayor who has served for two consecutive terms from running for a third term).

      Second, the trial court properly relied on an interpretive canon applicable to

Florida election cases. See Ruiz v. Farias, 43 So. 3d 124, 127 (Fla. 3d DCA 2010)

(“The law requires that we resolve doubts about qualification of a political

candidate in favor of the candidate.”). The Florida Supreme Court has recently

underscored the basis for that rule of construction: “the right to be a candidate for

public office is a valuable one and no one should be denied this right unless the



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Constitution or an applicable valid law expressly declares him to be ineligible.”

Wright v. City of Miami Gardens, 200 So. 3d 765, 775 (Fla. 2016). The Hialeah

ordinance at issue in this case does not “expressly” characterize a successor’s

partial term (filling a vacancy in the office of Mayor) as a “term” for purposes of

the term limitations in section 2.01(d).

      Martinez’s final argument is that section 166.021(4), Florida Statutes

(2017), precludes the City from (in effect) modifying the term limitation provision

of the City ordinance “without approval by referendum of the electors.” Martinez

asserts that it would be necessary for the ordinance to be amended by the voters to

clarify that a partial term, served to fill a vacancy, is not a “term” for purposes of

section 2.01(d).

      This argument is unavailing, because, as already noted, we have concluded

that the ordinance and term limitation provisions are clear enough as they presently

exist. Martinez remains free, of course, to support an amendment to section 2.01

for consideration by the voters of Hialeah at a later date to effectuate his own

position that a partial term to fill a vacancy is a “term” for purposes of section

2.01(d).

      For all these reasons, the final judgment in favor of the appellees is affirmed.2

2  We granted Martinez’s motion to expedite briefing and consideration of this
case. We deny his pending request for oral argument, as we do not find it
necessary to our resolution of the legal issues presented in the parties’ written
submissions.

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