JOE SCOTT, BROWARD COUNTY SUPERVISOR OF ELECTIONS; BILL COWLES, ORANGE COUNTY SUPERVISOR OF ELECTIONS; TOMMY DOYLE, LEE COUNTY SUPERVISOR OF ELECTIONS; ET AL.

v.

GERALDINE THOMPSON, VICTOR M. TORRES, JR.; JOSEPH S. GELLER; MIKE FOX; NATHAN GANT; DAN HELM, ET AL.

WINOKUR, J.

The sole issue in this case is whether the appellants, the supervisors of elections in eight Florida counties, are entitled to exercise the home venue privilege in a suit seeking to compel them to retain digital copies of paper ballots. We hold that they are, and reverse the order below denying their motion to dismiss on this ground.

The appellees, who consist of politicians, voters, and the Florida Democratic Party, filed a complaint against the supervisors of elections representing Broward, Orange, Lee, Duval, Hillsborough, Palm Beach, Pinellas, and Miami-Dade Counties (collectively, the Supervisors), the Florida Secretary of State (the Secretary), and the Director of the Division of Elections (the Division Director). The appellees sued in Leon County under chapter 119, Florida Statutes, seeking orders requiring the Supervisors to retain digital copies of permanent paper ballots (Digital Ballot Copies).¹

The Supervisors jointly moved to dismiss the complaint on the ground that it violated the home venue privilege, which generally entitles governmental entities to be sued where they are headquartered. The Secretary and Division Director separately moved to dismiss the complaint on other grounds. The trial court

dismissed the Division Director but otherwise denied the motions to dismiss. The Supervisors brought this appeal.²

The home venue privilege is a common-law doctrine that “provides that, absent waiver or exception, venue in a suit against the State, or an agency or subdivision of the State, is proper only in the county in which the [defendant] maintains its principal headquarters.” Fla. Dep’t of Children and Families v. Sun-Sentinel, Inc., 865 So. 2d 1278, 1286 (Fla. 2004).

We review de novo. See Sch. Bd. of Hernando Cnty. v. Rhea, 213 So. 3d 1032, 1037 (Fla. 1st DCA 2017).

Florida courts recognize four exceptions to the home venue privilege: “(1) when venue is waived by statute; (2) when the governmental entity is the ‘sword wielder’; (3) when the governmental entity is sued as a joint tortfeasor; and (4) when a ‘good cause’ petition is filed under chapter 119, Florida Statutes, to access otherwise confidential records.” Rhea, 213 So. 3d at 1039. This is not a tort case, so exception (3) is clearly inapplicable. And despite the appellees’ contention that exception (4) applies because this case involves public records, there has been no request to access confidential records and no good-cause petition, so the criteria of exception (4) have not been met. For the following reasons, exceptions (1) and (2) do not apply either. There was no statutory waiver in this case. The appellees’ argument that section 47.021, Florida Statutes, waives the home venue privilege is unpersuasive.

Section 47.021 generally provides that actions against multiple defendants may be brought in the county of residence of any defendant. This provision does not override the home venue privilege. “The presumption is that no change in the common law is intended [by enactment of a statute] unless the statute is explicit and clear in that regard.” Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 918 (Fla. 1990). “Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.” Id. (internal citations omitted).

Moreover, this Court has previously

held that section 47.021 does not waive the home venue privilege. Levy Cnty. Sch. Bd. v. Bowdoin, 607 So. 2d 479, 481 (Fla. 1st DCA 1992) (“The venue provisions of Chapter 47, Florida Statutes, do not abrogate [the home venue] privilege.”).

We reject the appellees’ contention that section 97.0115, Florida Statutes, which preempts election matters to the state, creates a statutory waiver of the home venue privilege.

Section 97.0115 addresses the authority to make election laws; it is silent on—and immaterial to—the proper venue for lawsuits. Similarly, election-law provisions requiring the Secretary to sue in Leon County do not affect where other parties must sue. They apply only to her. Lastly, we observe that election laws overall—in any combination—do not affect venue in this case. This is a matter of public-records retention, and the appellees invoked the trial court’s jurisdiction under chapter 119, Florida Statutes, which governs public records, not chapters 97 through 106, Florida Statutes, which constitute The Florida Election Code.

The sword-wielder exception is also inapplicable. This exception involves suits in which the primary purpose of the litigation is to obtain direct judicial protection from an alleged unlawful invasion of the constitutional rights of the plaintiff within the county where the suit is instituted, because of the enforcement or threatened enforcement by a state agency of rules and regulations alleged to be unconstitutional as to the plaintiff, and where the validity or invalidity of the rules and regulations sought to be enforced comes into question only secondarily and as incidental to the main issue involved.

Sun-Sentinel, 865 So. 2d at 1287. This “exception applies when the plaintiff’s constitutional rights are in ‘real and imminent danger’ of invasion by a state agency.” Jacksonville Elec. Auth. v. Clay Cnty. Util. Auth., 802 So. 2d 1190, 1192 (Fla. 1st DCA 2002).

The test is “whether the state is the initial sword-wielder in the matter and whether the plaintiff’s action is in the nature of a shield against the state’s thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on.” Id. (quoting Fla. Pub. Serv. Comm’n v. Triple A Enters., Inc., 387 So. 2d 940, 942 (Fla. 1980)).³ Auth., 802 So. 2d at 1192–94, but would be short-sighted. Cases outlast circumstances that exist when they are written. Indeed, the merits of the case underlying this interlocutory appeal have not yet been adjudicated, and Florida courts are already reopening.

Because there was no waiver and no exception applies, the Supervisors are entitled to exercise the home venue privilege. Accordingly, the trial court’s order denying the Supervisors’ motion to dismiss is REVERSED.

RAY and LONG, JJ., concur.³ The Supreme Court cannot be blamed for creating this clumsy sword-fighting metaphor, only for citing it. It was originally the work of the Second District in Dep’t of Revenue v. First Fed. Sav. & Loan Ass’n of Fort Myers, 256 So. 2d 524, 526 (Fla. 2d DCA 1971).