IN RE THE RECALL OF BARNEY KORETSKY, AS MAYOR OF PEMBROKE PARK, FLORIDA
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The Fourth District Court of Appeal reversed an order scheduling a recall election for the Mayor of Pembroke Park, Florida, holding that section 100.361's recall provisions do not apply to municipalities that have not independently adopted recall provisions in their charters or ordinances. The court certified the issue to the Florida Supreme Court as one of great public importance.
The court held that section 100.361 applies only to cities and charter counties that have affirmatively adopted recall provisions, and therefore there is no legal authority for a recall election in the City of Pembroke Park, which had adopted no such provisions.
[1] A statute providing for recall elections applies only to municipalities that have adopted recall provisions.
[2] A municipality cannot hold a recall election if it has not adopted recall provisions in its charter or ordinances.
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Join FLexlaw to unlock all legal intelligence“The provisions of this act shall apply to cities and charter counties which have adopted recall provisions.”
This is the critical language from section 100.361(9) that the court interpreted as limiting the statute's application only to municipalities that have affirmatively adopted recall provisions.
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Join FLexlaw to unlock all legal intelligenceA recall election was scheduled pursuant to section 100.361, Florida Statutes, for the Mayor of Pembroke Park. The city of Pembroke Park had not adopt…
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PER CURIAM.
This is an appeal and an application for a constitutional stay writ concerning an or der scheduling an election and attendant proceedings for a recall election pursuant to section 100.361, Florida Statutes (1987). We grant the writ and reverse the order on appeal.
At issue is whether the provisions of section 100.361 apply to a municipality that has no recall provisions in its charter or ordinances. We answer that question in the negative but certify the issue as one of great public importance so that the parties may seek further review in the Florida Supreme Court.
Section 100.361 contains a comprehensive scheme for the recall of municipal and charter county governing officials. Three (3) provisions of section 100.361 concern us here. Section 100.361(1) sets out the provisions governing a recall petition and provides that any member of the governing body of a municipality may be removed by recall. Section 100.361(8) states that it is the intent of the legislature that recall procedures be uniform statewide and that any municipal laws to the contrary stand repealed. Section 100.361(9)1 is entitled “PROVISIONS APPLICABLE” and provides:
The provisions of this act shall apply to cities and charter counties which have adopted recall provisions.
We believe the plain meaning of subsection (9) is to limit the application of section 100.361 to cities and charter counties which have adopted recall provisions. Since it is undisputed in this case that the city of Pembroke Park has not adopted any recall provisions, or otherwise adopted the provisions of section 100.361, we hold that there is no legal authority for a recall election in the city of Pembroke Park.2
Because we believe this issue to be one of great public importance we hereby certify the following question to the Florida Supreme Court so that the parties may petition that court for further review:
Do the provisions of section 100.361 apply to a municipality which has adopted no provisions for recall elections?
ANSTEAD, GUNTHER and WARNER, JJ., concur. . The provisions of section 100.361 were originally enacted into law in three (3) separate sections, section 1. providing the substance of the recall procedure, section 2. providing that the provisions shall apply to cities and charter counties which have adopted recall provisions, and section 3. providing the effective date of the law.
. The parties have not cited, and, we are unaware of any caselaw directly on point. Cf. City of Laurel Hill v. Sanders, 392 So. 2d 33 (Fla. 1st DCA 1980) (municipal provisions adopting election laws set out in chapter 100 include section 100.361). There are four (4) opinions of the attorney general and the division of elections on this issue, three opinions that section 100.361 applies to all cities, and one taking the view we adopt here. See 1979 Op.Atty.Gen.Fla. 79-38 (Apr. 18, 1979); 1975 Op.Atty.Gen.Fla. 075-242 (Aug. 28, 1975); 1978 Op.Div.Elec.Fla. 78-48-(Nov. 6, 1978); 1977 Op.Div.Elec.Fla. 077-10-(Mar. 22, 1977).
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In re The Recall OF Barney Koretsky, 557 So. 2d 24 (Fla. 1990)…McDonald, justice. We accepted In re Koretsky, 541 So. 2d 1362 (Fla. 4th DCA 1989), for review because the court certified a question of great public importance: * Do the provisions of section 100.361 [Florida Statutes (1987) ] apply to a municipality which has adopted no provisions for recall elections? Id.…
Authorities Cited
- City OF Laurel Hill v. Sanders, 392 So. 2d 33 (Fla. 1st DCA 1980)