IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION CASE

NO. 13-21112 CA 25 KEVIN BURNS Plaintiff, vs. LUCIE TONDREAU, et al. Defendants ____________________________________/ ORDER ON DEFENDANTS MOTION TO DISMISS

THIS CAUSE came before this Court on Defendants Motion to Dismiss. Having
reviewed the motion, the record, and otherwise, being fully advised in the law and on the premises, this Court hereby finds as follows: 1. Plaintiff, Kevin Burns (hereinafter Burns), was one of several mayoral candidates running for the position in the City of North Miami (hereinafter North Miami). A runoff election was held on June 4, 2013 between Burns and the Defendant, Lucie Tondreau (hereinafter Tondreau). Tondreau was certified the winner of the runoff election on June 7, 2013 by the City of North Miami Canvassing Board and was sworn into office on June 11, 2013. On June 17, 2013, Burns filed this cause of action seeking: 1) a declaratory judgment from this Court, pursuant to 86.021 and 102.168, Florida Statutes, to determine whether Tondreau was qualified to run for mayor1; and 2) a judgment of ouster if this Court determined that Tondreau was not qualified to run. More specifically, as it applies to Count I of the complaint, Burns is contesting whether Tondreau satisfied the prerequisite residency requirement all candidates must comply with before declaring his or her candidacy. Finally, if this Court deemed that Tondreau

The cause of action filed by Burns, in addition to naming Tondreau as a defendant, also lists Penelope Townsley (a Miami-Dade County Supervisor of Elections), Michael Etienne (North Miamis City Clerk), and the City of North Miami Canvassing Board as defendants. Penelope Townsley was subsequently dismissed as a defendant. For purposes of this writing, all defendants shall be referred to collectively as Tondreau unless warranted. Furthermore, a motion to intervene was filed by another mayoral candidate, Smith Joseph. That motion was granted on July 25, 2013.

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was not qualified to run for mayor, Burns requested that this Court oust Tondreau as mayor and replace him in that position. 3. In response to Burns declaratory action filed with this Court, Tondreau has filed a motion to dismiss the complaint. For the following reasons, this Court grants Tondreaus motion.2 4. To survive a motion to dismiss, a complaint must allege a prima facie case. Alvarez v. E.A. Produce Corp., 708 So. 2d 997, 999 (Fla. 3d DCA 1998). When ruling on a motion to dismiss, the trial courts consideration must be limited to the four corners of the complaint, the allegations of which must be accepted as true and must be considered in the light most favorable to the non-moving party. United Auto. Ins. Co. v. Law Offices of Michael Libman, 46 So. 3d 1101, 1104 (Fla. 3d DCA 2010). 5. Furthermore, courts have construed the Florida Declaratory Judgment Act to be remedial in nature and thus, its interpretation should be broadly construed. Dept. of Environmental Protection v. Garcia, 99 So. 3d 539, 544 (Fla. 3d DCA 2011). However, in order to properly invoke the jurisdiction of the circuit court, a party seeking declaratory relief must not only show that he or she is in doubt as to the existence or nonexistence of some right or status, but also that there is a bona fide, actual, present, and practical need for the declaration. Id. 6. Generally, courts have no inherent power to determine election contests nor do courts have jurisdiction to inquire into a persons qualifications to run for office after that person has been duly elected. McPherson v. Flynn, 397 So. 2d 665, 667 (Fla. 1981) citing Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969); Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L.Ed. 2d 663 (1962) (emphasis added). At common law, except for limited application of quo warranto, there is no right to contest any public election in court, because such a contest is political in nature and is therefore, outside of judicial power. Id. 7. Burns argues that this Court does have has jurisdiction, and cites Marina v. Leahy, 578 So. 2d 382 (Fla. 3d DCA 1991) as controlling case law. Upon review, however, this Court finds the Marina case distinguishable. 8. In Marina, a mayoral candidates residency status was challenged by an elector who alleged that the mayoral candidate did not reside in the city of Sweetwater for six (6) months prior to declaring his candidacy. Id. at 383. The trial court concluded that the mayoral candidate did not meet the prerequisite residency requirement pursuant to city code, and therefore removed the mayoral candidate from the ballot prior to the election. Id. (emphasis added). That decision was affirmed upon appeal. Id. In the case at bar, Tondreau has already been elected into office. No challenge against Tondreau was filed until after she was duly elected and sworn into office.
2

A motion for summary judgment was filed by Burns. However, by ruling in favor of Tondreaus motion to dismiss, the outstanding motion for summary judgment is rendered moot.

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This Court finds that a courts jurisdiction to review a candidates qualifications to run for office lapses once that candidate is elected into office. 9. Burns also argues that this Court retains jurisdiction through 102.1683 and 102.1682,4 Florida Statutes (2012), which collectively provides the procedural means one may use to challenge election results. However, this Court finds that the McPherson case makes it clear that any statutory right to contest an election pursuant to 102.168 and 102.1682 is limited only to consideration of the balloting and counting process. McPherson, 397 So. 2d at 667. (We can therefore find no right to attack the residency qualifications [of a candidate] under statutory sections [102.168 and 102.1682] providing for contest of elections.). This Court also finds that Section 6-78(b)(2) of North Miamis City Code, which details the minimum qualifications any person seeking to run for the office of mayor must satisfy prior to the election, also does not provide jurisdiction to a court, once a candidate is elected into office. WHEREUPON, it is ORDERED and ADJUDGED as follows: Defendants Motion to Dismiss is GRANTED WITH PREJUDICE. DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on the 21st day of September, 2013.

_______________________________ JORGE E. CUETO CIRCUIT COURT JUDGE FINAL ORDERS AS TO ALL PARTIES SRS DISPOSITION NUMBER 12 THE COURT DISMISSES THIS CASE AGAINST ANY PARTY NOT LISTED IN THIS FINAL ORDER OR PREVIOUS ORDER(S). THIS CASE IS CLOSED AS TO ALL PARTIES. Judges JEC Initials The parties served with this Order are indicated in the accompanying 11th Circuit email
3

102.168, Florida Statutes (2012) provides for a post-election challenge of a winning candidate or referendum question. 4 102.1682, Florida Statutes (2012) deals with the ouster of an official, the revocation of a commission, or the setting aside of a referendum a post-election challenge is successful.

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confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or handdelivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court. Signed and stamped original Order sent to court file by Judge Cuetos staff.

Copies furnished to: Counsel of Record

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