The Rule of Law Takes A Hit; Stoltzfus Appeals

Okay, so that you know, Judge Nicholas’ Order today is being appealed. Attorney Richard Harrison issued this statement late this afternoon:

“We believe that the trial court’s order is inconsistent with the controlling precedent as established by the appellate courts in Florida and the Florida Supreme Court, and Commissioner Stoltzfus has authorized us to commence an appeal immediately. We will do that and the case will now proceed to the Second District Court of Appeal for further review.”

(Update 1 p.m., August 25th: The Notice of Appeal has been filed today with the Second DCA. You can view a copy HERE.)

I wouldn’t bet a round of beers that you’ll be voting on September 7th but until then chalk one up for the Recall crowd. Attorney Fred Moore, as we have said, a fine advocate with a respected law firm, was somehow able to persuade Judge Edward Nicholas to render a decision that effectively allows the Judge to have his cake and eat it too, that is to say, to render an opinion without worrying whether it is supportable. Yes, unfortunately, somewhere along his 11 day journey to this decision, the Judge lost the one thing most precious to the work he does: a concern for the rule of law. Hit the "Please Read More" link below and let us explain:


We assume many of you are uninterested in the nuances of the legal arguments and more importantly, the requirements of law to which Judge Nicholas was bound as he wrote his opinion. But you should be because this case is full of those nuances. And that is exactly the way the Judge and Mr. Moore and the rest of the Recallers like it. The Judge gives the appearance of due deference to those requirements of law at the same time he in fact ignores the very requirements the Florida Supreme Court demands. Bear with us on this.

When the Supreme Court says the law is “a, b and c,” then the law is “a, b and c.” Period. When the Supreme Court says in Garvin v. Jerome that each of the grounds for recall must be legally sufficient unto themselves, it means the law in the State of Florida is that each of the grounds for the recall must be legally sufficient unto themselves. Period. Legal precedence is not a difficult concept to grasp but it can be a difficult concept to accept, particularly if that precedent makes it impossible to support a decision one is already predisposed to make.

In his discussion of Ground Four of the petition when Judge Nicholas asks, “[I]s that to say that the Court is unable to consider the petition as a whole?” just before he does exactly that, he is conveniently refusing to accept precedent as mandated by the Supreme Court and ignoring the law. He is also ignoring the inconvenient truth that the answer to his question is “Yes, Judge Nicholas, that IS absolutely to say you are unable to consider the petition as a whole. Why? Because the Supreme Court says so, that’s why.”

So why does the Supreme “say so”, you ask? It is a simple concept, really. Mr. Moore even discussed it with the Judge at the hearing when he agreed, most ironically, that each of the grounds in the petition must stand on its own pursuant to Garvin. Each voter who reads and signs a recall petition signs for his or her own reasons. Some may sign because one of the grounds strikes them as particularly unpalatable. Others may sign because of another or all of the grounds. If some of the grounds are found to be valid and some are not, who determines which of the grounds for recall generated enough signatures for certification? Therefore, in order to prevent someone from knowingly placing highly charged but obviously invalid grounds in the petition just to generate signatures so the valid but less objectionable grounds can squeak through, the Supreme Court requires each to stand independently. Judge Nicholas knows this is the law, he cites it as the law, he just refuses to accept that it is the law.

There are several other examples of what one may consider “writing to the result, not the law” like citing allegations that appear nowhere in the recall petition and finding certain conduct “violative” without a hint of authority or precedent that defines it as such. We’ll let the Second District sort that out in the next few weeks.

For now, the Recallers will understandably rejoice in this decision and will probably squeal about sour grapes and all that. Hey, give them their moment or two of exultation. It will be short lived and the hangover will be painful. Everyone, though, should take a moment to consider the implications of this decision and the manner in which this decision was rendered. Not implications to the voters or to the target of the recall or to the candidates in the recall election. Not implications to the city’s treasury or the next site plan application. No, everyone should consider the implications this decision has upon the way in which we choose to govern ourselves and expect to be governed by others. The rule of law in this country, in this state, in this county and in this city is sacrosanct. It is sacred and undeniable.

And today, here in little Anna Maria, the rule of law took a nasty blow. We are confident The Second District Court of Appeals will take a much different approach, as they should.

Bill Yanger