Recall effort against Joe Carollo scores legal victory. City Hall immediately appeals.
Miami’s city clerk needs to turn over a batch of petitions submitted in the effort to recall Commissioner Joe Carollo to the county elections department, a judge ruled in Miami-Dade Circuit Court on Tuesday, but the campaign to remove the commissioner from office will continue to be tangled up in court.
Judge Alan S. Fine’s ruling notched a legal victory for the group trying to remove the commissioner from office, though there will be more legal challenges based on other issues surrounding the recall effort.
Hours after the ruling, Miami’s municipal attorneys appealed to the Third District Court of Appeals. Carollo also appealed. Though the judge ruled the city must submit the signatures to the county, in light of the appeal, the city claimed the appeal automatically put a stay on the delivery of the petitions. On Wednesday, the city wrote a letter to the judge stating the petitions should remain in the custody of the court.
The attorneys for the recall committee immediately responded Wednesday with an emergency motion to force the delivery of the petitions.
On Tuesday, Fine issued his ruling after hearing arguments from attorneys representing the city, Carollo and the organizers of the recall. Lawyers argued several disputed points, including whether the petitions were submitted by the deadline and whether the city has the right to determine the deadline.
The hearing was called after lawyers for the recall committee, called Take Back Our City, sued the city after City Clerk Todd Hannon rejected more than 1,900 recall petitions submitted on March 2. The committee would need 1,577 of those signatures to be certified by the elections department in order for the recall campaign to continue to a second round of petitions.
After the city refused to forward the signatures to the Supervisor of Elections, the committee sued the city.
The deadline question was particularly thorny, Fine noted, because the state law does not assign the authority of determining whether a recall petition is timely to any specific public official.
“I wish it weren’t this way,” Fine said. “I wish the statutes gave plenary authority to somebody else to decide this, but they don’t.”
In his order, the judge wrote that the state law does not empower the city clerk to make the determination that he made in this case, which was that the petitions came in too late and therefore should not be transmitted to the elections department.
Representing the recall organizers, attorneys J.C. Planas and David Winker argued that the petitions were submitted on time, and that regardless, the city clerk’s responsibility under law is to receive the petitions and send them to the Supervisor of Elections for the signatures to be verified.
On the narrow point of what City Clerk Todd Hannon should have done when he received the petitions, Fine ruled that law compels Hannon to turn over the signatures.
“I’m just saying the statute says the clerk ‘shall’ do this, so the clerk shall do this,” Fine said. “That’s all this ruling is today.”
Fine also said he will allow Carollo to be a party to the case, which opens the possibilities for Carollo to appeal or ask for a reconsideration of the judge’s ruling.
Tuesday afternoon’s hearing was preceded by revelations that City Attorney Victoria Méndez and her staff began researching legal questions about recall elections before the petition drive officially began. Emails show Méndez and her staff were researching issues including the calculation of the deadline for submission of recall petitions and what would happen if someone sued to compel the city to turn over petitions to the county elections staff, mirroring the current situation.
The research, Planas and Winker argued, amounted to an improper expenditure of time for public servants who are paid by taxpayers. The attorneys accused Méndez of protecting Carollo’s interests, a contention they echoed in court Tuesday.
Méndez later made a statement to the Miami Herald: “Mr. Winker and Mr. Planas’ comments are highly inappropriate. They are using the media to create a narrative that is highly inflammatory and untrue. An attorney always thinks ahead and researches upcoming issues.”
Carollo dismissed Tuesday’s ruling as a “minimal decision” in the context of the recall, forecasting a longer legal fight over the validity of the campaign.
“I’m not the least bit worried in how this will turn out,” Carollo said.
When asked if he had ordered Méndez to begin researching legal interpretations of the state’s recall laws, he responded: “Absolutely not.”
Carollo’s attorney, Benedict Kuehne, argued before the judge that the recall effort itself was flawed because the recall committee’s chairman, Robert Piper, signed the first petition on Jan. 30, even though Piper’s signature is dated a few days later in the batch of petitions. Piper signed a petition in the presence of reporters on Jan. 30 at the city clerk’s office.
The committee’s attorneys dismissed Kuehne’s argument as irrelevant.
“It’s [BS],” said Joe Arriola, chairman of the Public Health Trust, the board that oversees the Jackson Health System, who is providing financial backing for the recall.
The recall attorneys questioned how Kuehne and Carollo would know the date on Piper’s signature.
“The petitions were in the sole control and custody of the clerk. We’ve not had any advantage to look at the petitions,” Kuehne said, adding that he knows about Piper’s petition from “information that has been submitted.”
Tuesday night, Kuehne filed an appeal and provided a statement saying Carollo was disappointed in the court’s ruling but hopes to convince the appeals court “that the recall process is not only flawed but is fraudulent.
“The recall committee cannot be allowed to subvert the will of the voters through its scheme to violate Florida’s election laws,” Kuehne wrote.
Fine said his office would keep the petitions with the expectation that Hannon would pick them up Wednesday and deliver them to the county elections department.
If the petitions were delivered to the Supervisor of Elections, staffers would follow instructions from the city clerk to review the petitions and certify if the signatures are valid and if the verified petitions represent at least 5 percent of the registered voters in District 3, Carollo’s district.
Given the appeal and potential motions the city could file, it is unclear if the petitions will reach the elections department.
This story was updated Wednesday, March 11, to reflect a dispute between the city and the recall committee over whether the petitions should be delivered to the county elections department pending the city’s appeal.
This story was originally published March 10, 2020 at 7:00 PM.
