WILLIAM MCCLASKEY AND ALEX GORDON, APPELLANTS,
v.
E. B. LEATHERMAN, ETC., ET AL., APPELLEES
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The Florida Supreme Court upheld the constitutionality of Dade County's home rule charter recall provision, which allows commissioners to be recalled by majority vote upon petition from 10% or 10,000 qualified voters (whichever is smaller) without requiring any stated reason for the recall. The Court applied principles of federal-state comity by deferring to the Fifth Circuit Court of Appeals' earlier decision upholding the same provision under federal constitutional law.
The Florida Supreme Court affirmed that the recall provision does not violate the Florida Constitution. The Court held that the federal courts' final determination on the same constitutional questions, reached through the Fifth Circuit Court of Appeals' reversal of the federal district court, is controlling under principles of federal-state comity.
[1] A state court may extend the rule of comity to recognize a federal court decision on the same matter when the federal forum was chosen by the appealing party.
[2] A recall provision requiring a majority vote of electors voting, initiated by a petition with a specified percentage or number of qualified voters, is constitutional.
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Join FLexlaw to unlock all legal intelligence“The absence of a provision in the charter to require a reason for recall to be set forth is challenged as unconstitutional in denying appellants (1) the property right of the Commission seat and emoluments of office held (by Gordon, an incumbent) without due process”
States the core constitutional challenge—whether lack of stated reasons violates due process protections for a sitting official's office and compensation.
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Join FLexlaw to unlock all legal intelligenceCommissioner Alex Gordon, an incumbent Dade County Commissioner, challenged the constitutionality of Section 7.02 of the Dade County Home Rule Charter…
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Constitutional stay writ in this same cause was denied on March 7, 1972.
The appeal proper is upon constitutional grounds on direct appeal from the Eleventh Judicial Circuit of Dade County. Fla. Const. art. V, § 4(2), F.S.A. The cause has been carefully considered on the able briefs and complete record before us which indicate no need for oral argument which is dispensed with. F.A.R. 3.10, subd. e, 32 F.S.A.
Appellants challenge the validity on constitutional grounds of § 7.02 of the Dade County Home Rule Charter which provides for recall of Dade Commissioners upon the “majority vote of the electors voting” in an election initiated by a petition with signatures of “10% or 10,000, whichever is smaller, of the qualified voters in the county.” There is no requirement that the recall petition or ballot shall contain any allegation or statement as to the reasons for the recall sought.1 Dade Home Rule is preserved in Fla.Const. art. VIII, § 6(e) (1968).
The absence of a provision in the charter to require a reason for recall to be set forth is challenged as unconstitutional in denying appellants (1) the property right of the Commission seat and emoluments of office held (by Gordon, an incumbent) without due process and (2) in violation of §§ 2 and 9 of art. I of the Florida Constitution guaranteeing due process and the *138protection of property rights.2 Appellants also cite our holding in Sproat v. Arnau, 213 So.2d 692 (Fla. 1968).
Essentially the same constitutional objections were made in the initial attempt to enjoin the recall in the federal courts in Gordon v. Leatherman, 325 F.Supp. 494 (U.S.Dist.Ct.So.Dist. of Fla.1971), asserting the constitutional grounds under the Fourteenth Amendment of the U. S. Constitution. The Southern District agreed with Commissioner Gordon but the Fifth Circuit Court of Appeals reversed at 450 F.2d 562 (1971) upholding the constitutionality of the Metro Charter recall provision.3 Rehearing was denied on January 5, 1972; application for a stay was denied by the United States Supreme Court on January 26, 1972.
Federal jurisdiction has been invoked. (“Plaintiff * * * has elected his forum, as opposed to a state forum,” the U. S. District opinion puts it.) The federal courts, up to the U. S. Supreme Court, have spoken and have reached a final decision on essentially the same questions in the same matter. We would be most reluctant to “overrule” our federal brothers in any “state intrusion” (as we should hope would be reciprocated in a converse situation).
We accordingly extend the rule of comity in recognizing the federal decision since there was a choice of that forum, which was appellants’ privilege. We recognize such decision as controlling here, with the result that the denial of injunctive relief by the able chancellor is
Affirmed.
ROBERTS, C. J., and ERVIN, CARLTON, ADKINS, BOYD, McCAIN and DEKLE, JJ., concur.
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Cited By
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Fla. High Sch. Activities Ass'n, Inc. v. Bradshaw, 369 So. 2d 398 (Fla. 2d DCA 1979)…n this case, we must necessarily turn to federal decisions in similar cases for guidance. We consider the federal and Florida constitutional guarantees as imposing the same standard and thus do not treat them separately. Cf. McClaskey v. Leatherman, 261 So. 2d 137 (Fla.1972) (a final decision in the federal courts finding no violation of the 14th Amendment guarantees of equal protection and due process is controlling under the rule of comity in a state suit by the same parties challenging the same matter as v…
Authorities Cited
- Sproat v. Arnau, 213 So. 2d 692 (Fla. 1968)
- Gordon v. Leatherman, 450 F.2d 562 (5th Cir. 1971)