Lessons In The Rule Of Law, Due Process and Tiny Olives

It is a profound understatement to say yesterday’s ruling from the Second District Court of Appeal turned every Tom, Dick and Former Inmate into a legal scholar, braying I-told-ya-so’s and citing the “rule of law” as if it were a concept they discovered on the back of a cereal box this morning. Granted, at least one of them has spent far more time in courtrooms than any of the lawyers in this case and perhaps has felt the impassioned thrust of due process far more personally than the rest of us. Another has provided the greatest form of flattery by attempting to parody this blog, your blog. We know parody, parody is a friend of ours. Trust us, the other blog is no parody. That’s not to say it is devoid of humor. With a user name like “tini-olives” one wonders whether it’s a hint at the blogger’s identity or an admission of physical prowess. Considering the blogger’s bold anonymity, one must assume the latter. To all of them we say “thank you” for logging on and reading, several times a day most days, so that you too can stay informed. Yes, we are here for you, too.

So, in deference to the zeal of the brayers, let’s at least attempt to analyze the Court’s order yesterday and its implications moving forward.

First, let’s look at what the court did do.

The City asked to replace Clerk Alice Baird as the proper party at this late point in the proceedings simply, they said, because she no longer has a ministerial role in the process. That appears to be accurate and the court allowed the substitution. This seemingly benign move had significant implications later in the order, though.

Mr. Carter’s motion for reconsideration was summarily denied. The recallers’ attempt to add relevance to the arguments failed.

Most importantly, as we know, the court did lift the stay on certification. Of course, in order to do so, the City’s canvassing board had to be brought into the case as an “indispensable party” and City Attorney Jim Dye’s twelth hour substitution discussed above dovetailed nicely with that requirement. An admirable team effort by he and Ms. Mogensen, certainly, and one deserving of recognition if for no other reason than to clearly delineate the convictions of the parties.

But what did the court not do yesterday?

Before the ruling we asked, “do laws governing the administration of elections trump an individual's right to a full, lawful and considered appeal?” The Second District has answered that question unequivocally. We have seen enough judicial review and determination over the years to expect the unexpected. And we are pragmatic enough to accept this judicial determination for exactly what it is: A ruling by the court that says if the certification of an election is in jeopardy simply because the statutory certification clock is running out, then in the Second District of Florida the law now is that certification does trump an individual’s appellate due process. Period. If that is the “rule of law” the brayers want to take from yesterday’s order have at it, we will not disagree.

Mr. Stoltzfus’ appeal, however, is not about time running out on election certification. It is and always has been about the validity of the recall petition drafted so many months ago and the subject of so much legal debate. Neither Carter’s lawyer nor Ms. Mogensen spend a single word arguing the validity of the recall petition in seeking to lift the stay. Yes, Mogensen skillfully argued why election laws trump personal due process, skillfully enough to convince a learned judicial panel of her position, and for her advocacy skills she should be appropriately applauded. But Ms. Mogensen did not convince the court that the recall petition is valid. She didn’t even try.

When brayers chortle about victory they may be right. One way or another, sleazy maneuvering by stakeholders or adept legal nuances by able lawyers, they won the battle for a seat on the commission. They did not however win the appeal. They may have lost last November’s election resoundingly but they ultimately succeeded only in punking the electorate, an electorate that should take this as a painful lesson that ordering an absentee ballot is not the equivalent of voting and showing up on election day really does matter. That opportunity will present itself yet again in 46 days. Don’t make the same mistake again.

In his order invoking the stay, when Judge Nicholas said “if the commissioner is removed from office and my order is reversed…obviously the harm is irreparable,” he recognized the need for an appellate determination on the validity of the recall petition one way or the other. He was confident in his order but recognized that Mr. Stoltzfus, as are all citizens, is entitled to due process. So, yes, Mr. Stoltzfus lost his seat on the commission and he won’t get it back, but he has not lost the war. That “rule of law” the brayers so recently cherish entitles him to a considered and thoughtful appellate review of the validity of the recall petition.

And that is what the court did not do yesterday. Not yet.

Stay informed.

Bill Yanger