Martin Dyckman
“If the law says that,” said Mr. Bumble, “the law is a ass, a idiot.” — Charles Dickens, Oliver Twist
Florida’s First District Court of Appeal sits in splendid isolation in a Tallahassee suburb, five and a half miles from the Capitol, housed in a magnificent edifice nicknamed the Taj Mahal for the $50 million it took to build and furnish it.
Is there something wrong with the water out there?
Three times this month the court has denied the public’s right to an election.
On Sept. 3, a panel voted 2-1 against Laura Rivero Levey, who was disqualified as a Republican legislative candidate at Miami Beach because a bank error bounced her perfectly good qualifying-fee check. The decision left Democratic District 113 incumbent David Richardson entirely unopposed, along with 38 others in the 120-seat House.
On Sept. 17, another panel said it’s OK for the Rick Scott administration to cancel an election for the seat of a retiring Jacksonville circuit judge who will quit office one day early to let the governor appoint his successor.
And on Sept. 22, the judges voted 9 to 6 against reviewing the Levey case en banc — that is, by all of them. The majority didn’t say why they refused even to hear it.
The facts, as told in dissents by Judges Robert T. Benton II and Scott Makar, are not even slightly in dispute.
Levey filed her candidacy papers, including her $1,781.82 check, in plenty of time, but the Elections Division didn’t know SunTrust had dishonored her check until qualifying had closed. The first Levey knew was when she was told she was disqualified.
The bank admitted it should have honored her check because the deposit on which it had placed a hold had already cleared.
But bank error or not, the Elections Division refused to reinstate her to the ballot. A circuit judge, acknowledging the “harsh result,” refused also. And now so has the First District Court of Appeal, relying on a Pecksniffian reading of a law that mandates disqualification “if a candidate’s check is returned by the bank for any reason. . . “
But the Legislature plainly did not anticipate what happened to Levey — or what could happen again to others, since checks rarely have time to clear before qualifying ends.
“Our Supreme Court has said,” Makar objected, “…that election statutes should not be read in overly-rigid ways that deprive the people of their constitutionally-recognized political power to vote for candidates of their choosing.”
As he noted, the case has more than one loser. There are 68,216 others in District 113. The only winner is Richardson, who will — if the status quo stands — have served two terms in Tallahassee with only 3,123 people ever having voted for him. That’s the number who sent him to Tallahassee (with 33 percent of the vote in a four-way primary) two years ago. No Republican ran.
The district became strongly Democratic in the 2012 redistricting. So why does Levey want even to try?
“I’m passionate about this district,” says Levey, who came to America from Venezuela when she was 15, married a Miami Beach lawyer, sent five children to public schools, and ran unsuccessfully for mayor twice. “We haven’t even had a chance in our district to debate the issues. The Republicans in my town don’t have a choice.”
She’s concerned about the schools and about the salt water that bubbles up from the storm sewers when the tide is high. “Nobody is doing anything about it,” she said.
The election decisions this month are ominous not just for democracy but also for what they imply about that court’s underlying philosophy. It’s the most important of Florida’s five district courts because nearly all appeals affecting government go there. Its bias seems to be that agency decisions get the benefit of any doubt.
Of the nine judges who refused to hear Levey’s appeal en banc, all but one have resumes characterized by extensive backgrounds as attorneys for government agencies. Among them is L. Clayton Roberts, who was once head of the elections division.
The three most senior judges, all appointed by Democrat Lawton Chiles, voted to hear the Republican candidate’s appeal. All five of Charlie Crist’s appointees — when he was a Republican — voted against Levey, as did Bob Martinez’s one appointee. Scott’s split 2-2. Jeb Bush’s divided 1-1.
The state Supreme Court needs to take the case immediately. Otherwise, the lesson to voters in District 113 this year will be that if the law is “a ass, a idiot,” it is because some judges make it so.
Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives near Waynesville, North Carolina. Column courtesy of Context Florida.
