author: JOINER, Judge. WINDOM, Presiding Judge, dissenting.

text:
    Sara Courtney HABEL v. STATE of Alabama
    CR-16-1017
    Court of Criminal Appeals of Alabama.
    March 16, 2018 Rehearing Denied May 25, 2018 Certiorari Denied August 10, 2018
    Alabama Supreme Court 1170823
    Reta A. Mckannan, Huntsville, for appellant.
    Steve Marshall, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   JOINER, Judge.

Sara Courtney Habel was convicted of first-degree perjury, see § 13A-10-101, Ala. Code 1975, and was sentenced to seven years' imprisonment. Habel's sentence was split, and she was ordered to serve 30 days followed by 5 years' supervised probation. Habel was ordered to pay a $100 fine, a $100 crime-victims-compensation assessment, a $150 bail-bond fee, court costs, and attorney's fees.

Facts and Procedural History

The State's evidence at trial tended to show the following: In February 2015, Habel alleged that her husband, Matthew, had sexually abused their two children, M.H. and S.H. Habel and Matthew were involved in divorce proceedings when she made the allegations. Deputy Eugene Nash of the Madison County Sheriff's Department, who was assigned to the National Children's Advocacy Center ("NCAC"), initiated a criminal investigation. Because the allegations involved possession and production of child pornography, Deputy Nash informed Special Agent Troy McCarter of the United States Department of Homeland Security about the investigation.

On March 16, 2015, Agent McCarter searched Matthew's house and seized several electronic devices. Agent McCarter testified that Matthew was distraught but extremely cooperative and that the search failed to uncover any evidence of child pornography. On April 6, 2015, Agent McCarter interviewed Habel; during the interview, he informed her that it was a crime to lie to law-enforcement officials. Habel then provided a sworn affidavit detailing her allegations against Matthew and signed the affidavit in the presence of Agent McCarter and Special Agent Derrick Moore.

Habel's affidavit, which the State introduced as an exhibit, had a heading stating "Department of Homeland Security, U.S. Immigration and Customs Enforcement, State of Alabama, County of Madison" and began with the statement, "I, Sara Courtney Habel, being duly sworn, state the following." (C. 108.) The affidavit was four pages in length. Habel initialed the first page and signed each subsequent page under a statement that read: "The contents of this statement are true and correct to the best of my knowledge and belief. I have provided the above statement freely and voluntarily without any threats or coercion." (C. 109-11.) Agent McCarter signed each page; his signature on the second, third, and fourth pages appeared under a statement that read: "Subscribed and sworn to me on 6 in the month of April in the year of 2015." (C. 109-11.) Pages two, three, and four were signed by the witness, Agent Moore.

December Guzzo, a child-forensic-interview specialist with the NCAC, interviewed M.H. on February 9, 2015. Guzzo testified that, during that interview, M.H. did not "make any specific allegations about sexual abuse ... committed by her father." (R. 99.) Guzzo stated that during a second interview conducted on February 23, 2015, M.H. "pretty much disclose[d] almost right away." (R. 103.)

Beth Jackson, a therapist and program manager at the NCAC, treated M.H. from May 2015 through February 2016. Jackson testified:

"[M.H.] told me that her mom made her feel uncomfortable by asking her to lie about what daddy did. And I asked her what that lie was and she said, 'To say that he touched me.' I asked her, 'Where did you, did you say that he had to touch you?' And she said, 'On my privates and on my bottom.' "

(R. 108.)

M.H., who was eight years old at the time of trial, testified that her father never touched her or S.H. inappropriately; that her father never touched himself inappropriately in front of her or S.H.; and that her father never showed her any "naked people" on his cellular telephone. M.H. stated that she had made up those allegations on her own and that Habel had not pressured her to lie about her father. When asked why she said her "dad had done that stuff," M.H. shrugged her shoulders and responded that she did not know. M.H. testified that she did not want anyone to get in trouble.

Matthew testified that he never touched M.H. inappropriately; that he never touched himself in front of her in an inappropriate manner; that he never discussed "masturbation, male or female, child porn, anything like that" with M.H. (R. 78); that he never viewed child pornography; and that he never viewed adult pornography in the presence of his children. Matthew testified that, during M.H.'s last visit with Habel, which occurred two days before the trial,

"[M.H.] stated that her mother asked her about the case and with, um, what she had talked about, uh, with the D.A. And [M.H.] said that she refused. She was asked again. And Sara [Habel] stated that-per [M.H.], Sara stated that, um, she wouldn't talk to her again if she did not tell her what she had talked about with the lawyers.
"[M.H.] told me that she stomped her foot and said, 'No, I'm not going to tell you and you will talk to me again.' And five or 10 minutes later [M.H.] said her mother talked to her again and she said, 'See, I told you you would talk to me again.' "

(R. 85.)

After the State rested, Habel moved for a judgment of acquittal, and the circuit court denied her motion.

Habel testified in her own behalf and stated that she believed the allegations of abuse. On direct examination by the defense, Habel testified as follows:

"Q. Let me ask you did you, did you, in fact, ask your daughter to lie about her father?
"A. I did not.
"Q. Did you give her information to say when she went in to talk to Ms. Guzzo or the second interview?
"A. No.
"Q. Did you threaten your daughter in any way if she didn't tell something in your behalf?
"A. No.
"Q. Or if she didn't tell something on her father?
"A. No.
"....
"Q. Okay. And we've heard some testimony today. Did you, in fact, talk to your daughter Sunday about her testimony here today?
"A. No.
"Q. Did you bring it up?
"A. No.
"Q. Did you ask her what [the prosecutor] said to her?
"A. No.
"Q. Did you have any intent to mislead [Agent] McCarter about what you wrote in your statement?
"A. No.
"Q. Did you make it up?
"A. No.
"....
"Q. All right. But in point of fact, did you contemplate, create in your mind, engineer a story whereby your children would accuse him of something so that you would win custody?
"A. No."

(R. 136-39.)

At the close of the evidence, Habel renewed her motion for a judgment of acquittal, and the circuit court again denied it. Habel was ultimately convicted of first-degree perjury.

Habel filed a motion for a new trial alleging, among other things, that the verdict was contrary to the great weight of the evidence, that the State's evidence was insufficient to sustain her conviction, and that her conviction was contrary to the law. The circuit court denied Habel's motion.

On appeal, Habel raises several issues. We address each in turn.

Discussion

I.

Initially, we note that several of the arguments Habel raises on appeal fail to comply with Rule 28(a)(10), Ala. R. App. P., and, therefore, are deemed waived. See Hooks v. State, 141 So.3d 1119 (Ala. Crim. App. 2013). Rule 28(a)(10), Ala. R. App. P., provides, in relevant part, that appellate briefs must include "[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on."

This Court has previously stated:

" ' "[R]ecitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed." Hamm v. State, 913 So.2d 460, 486 (Ala. Crim. App. 2002). "An appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned. This standard has been specifically applied to briefs containing general propositions devoid of delineation and support from authority or argument." Ex parte Riley, 464 So.2d 92, 94 (Ala. 1985) (citations omitted). "When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court's duty nor its function to perform an appellant's legal research." City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala. 1998).' "

Taylor v. State, 157 So.3d 131, 143 (Ala. Crim. App. 2010).

" '[A]pplication of Rule 28(a)(10) to find a waiver of arguments in an appellate brief has been limited to those cases in which the appellant presents general assertions and propositions of law with few or no citations to relevant legal authority, resulting in an argument consisting of undelineated general propositions unsupported by sufficient legal authority or argument. Although Rule 28(a)(10) is to be cautiously applied, it has been applied recently by the Alabama Supreme Court and by this Court when appropriate ....' "

McWhorter v. State, 142 So.3d 1195, 1236 (Ala. Crim. App. 2011).

In the statement-of-issues section of her brief on appeal, Habel contends that the circuit court erred when, she says: (1) it did not dismiss the "first-degree perjury charge when [Habel] did not make [her statement] knowing it to be false, as it relates to the definition of first-degree perjury" (Habel's brief, p. 3); (2) it denied her "appointed counsel at a critical stage of a proceeding in which she faced incarceration if convicted" (Habel's brief, p. 3); (3) it denied her "volunteer counsel a continuance, preventing counsel from preparing for trial and providing [Habel] with competent counsel" (Habel's brief, p. 3); and (4) it allowed the State "to have the child's therapists testify as to what the child said to them when the child could not waive the privilege of confidentiality." (Habel's brief, p. 4.)

Aside from her claim that she did not knowingly make a false statement, Habel does not address these issues in the argument section of her brief. With respect to that claim, Habel's argument consists entirely as follows: "Sara Habel believed with all her heart that her children were being harmed; she still believes it. She did not knowingly make a false statement to discredit or have her husband charged, as argued by the State's attorney. (R-9.)." (Habel's brief, p. 11.) In the conclusion section of her brief, Habel briefly references the remaining issues listed above; she does not, however, support her claims with citations to the record or to any legal authority whatsoever. Habel's arguments, therefore, are merely "undelineated general propositions unsupported by sufficient legal authority or argument." McWhorter, 142 So.3d at 1236. Accordingly, these claims are deemed waived, and Habel is not entitled to relief on these issues.

II.

Habel contends that the State failed to present sufficient evidence to sustain her conviction because, she says, the false statement at issue was not made during an official proceeding, as that term is defined in § 13A-10-100, Ala. Code 1975, and as is required for a first-degree-perjury conviction pursuant to § 13A-10-101. Specifically, Habel claims that the State

"used [her] statement to law enforcement, notarized, to accommodate first-degree perjury. The criminal charge indicated that since the statement was notarized, it was a proceeding. An investigation is not a proceeding, and notarizing a signature does not make it one anymore than someone signing their name before a notary to complete a sworn pleading is a proceeding. The proceeding is one wherein testimony is taken or a person takes an oath. Notarizing a signature is affirming that person's identity, not swearing them in for testimony."

(Habel's brief, pp. 10-11). According to Habel, §§ 13A-10-100 and 13A-10-101, Ala. Code 1975, limit official proceedings to "actual proceedings-i.e., grand jury, preliminary hearing, trial, ethics hearings-places where one would be sworn to testify." (Habel's brief, p. 10.) We disagree.

The indictment against Habel reads:

"The Grand Jury of said County charge, that before the finding of this indictment, SARA COURTNEY HABEL, whose name is unknown to the Grand Jury other than as stated, did swear falsely in an official proceeding, to-wit: the criminal investigation into Matthew Habel, and her false statement was material to the proceeding, to-wit: she swore that her children had been sexually abused by her husband when they had not, in violation of Section 13A-10-101 of the CODE OF ALABAMA, against the peace and dignity of the State of Alabama."

(C. 11.)

On April 18, 2017, Habel moved to dismiss the first-degree-perjury charge against her, stating:

"In response to the discovery request, the undersigned was given only an affidavit made to a police officer in the course of his investigation as the basis for one count of perjury in the first degree. The difference between perjury first degree and perjury second degree is that perjury first is made under oath in an official proceeding. The statement to police does not constitute a statement made under oath in an official proceeding. The indictment refers to the police report-which does not constitute perjury in the first degree, but, rather, perjury in the second degree.
"There is either discovery that has not been provided to the defense, or this matter is due to be dismissed, because no sworn statement given in an official proceeding has been provided by the State. There isn't a scintilla of evidence to support a felony indictment ...."

(C. 60.)

The circuit court held a hearing at which Habel reiterated the argument presented in her written motion. In response, the State argued that a criminal investigation is considered an official proceeding because it is conducted by "somebody that has been authorized to administer oaths and that intends that it will constitute a proceeding or an ultimate trial [on] the issue." (R. 10.) The State then presented evidence that Agent McCarter was authorized "to administer oaths as part of his duties." (R. 12.) Relying on the definition of "official proceeding" as discussed in Johnson v. State, 932 So.2d 979 (Ala. Crim. App. 2005), the circuit court denied Habel's motion.

This Court has stated:

" 'In any case involving statutory construction, our inquiry begins with the language of the statute, and if the meaning of the statutory language is plain, our analysis ends there. Ex parte Moore, 880 So.2d 1131, 1140 (Ala. 2003) (" ' "The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute." ' ")(quoting Ex parte Weaver, 871 So.2d 820, 823 (Ala. 2003), quoting in turn Ex parte State Dep't of Revenue, 683 So.2d 980, 983 (Ala. 1996) ). This Court in DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270-275-76 (Ala. 1998), explained:
" ' "In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
" ' " ' "Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect." ' "
" ' 729 So. 2d at 275-76 (quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala. 1998), additional citations omitted). See also 729 So.2d at 276 (explaining that the separation-of-powers doctrine requires a court to use the plain-meaning rule in construing a statute and that "only if there is no rational way to interpret the words as stated will [a court] look beyond those words to determine legislative intent").' "

Beecham v. State, 135 So.3d 988, 991-92 (Ala. Crim. App. 2013) (quoting Ex parte McCormick, 932 So.2d 124, 132 (Ala. 2005) ).

Habel was indicted and tried under § 13A-10-101, Ala. Code 1975, which provides that "[a] person commits the crime of perjury in the first degree when in any official proceeding he swears falsely and his false statement is material to the proceeding in which it is made." Looking at the plain language of the statute, in order to convict under Alabama's first-degree-perjury statute, the State must prove that the defendant's false statement was made during an "official proceeding." § 13A-10-101, Ala. Code 1975. Section 13A-10-100 defines "official proceeding" as "[a]ny proceeding heard before any legislative, judicial, administrative or other government agency or official authorized to hear evidence under oath."

Although we can find no Alabama caselaw addressing the issue whether submitting a sworn affidavit to a law-enforcement official during a criminal investigation constitutes an official proceeding as that term is defined in § 13A-10-100, Ala. Code 1975, this Court has discussed the meaning of "official proceeding" as it relates to intimidating a witness, § 13A-10-123, Ala. Code 1975-an offense subject to the definitions in § 13A-10-100 -in Johnson v. State, 932 So.2d 979 (Ala. Crim. App. 2005) :

"Johnson first contends that the evidence was insufficient to sustain his conviction for intimidating a witness because, he says, the State failed to prove that there was an 'official proceeding' pending against him at which Joyner would be a witness. According to Johnson, § 13A-10-123, Ala. Code 1975, requires that an official proceeding be pending before an accused can be convicted of intimidating a witness. This argument is meritless.
"First, contrary to Johnson's assertion, the State proved that an 'official proceeding' was pending against him at which Joyner would be a witness at the time of his second encounter with Joyner on September 30, 2003. Section 13A-10-100(a)(5), Ala. Code 1975, defines 'official proceeding' as '[a]ny proceeding heard before any legislative, judicial, administrative, or other government agency or official authorized to hear evidence under oath.' Rule 2.1, Ala. R. Crim. P., provides that '[a]ll criminal proceedings shall be commenced either by indictment or by complaint. (Emphasis added.) As noted, Joyner filed a complaint against Johnson in the Dothan Municipal Court charging harassment, on September 26, 2013, four days before Johnson returned to the school on September 30, 2003. This complaint commenced a criminal proceeding against Johnson for harassment. Thus, the State proved that there was an 'official proceeding' pending against Johnson, a criminal proceeding charging him with harassment, at which Joyner, the victim of harassment, would be a witness.

932 So.2d at 982 (emphasis added). Thus, according to Johnson, a criminal proceeding that is initiated by a complaint or indictment constitutes an "official proceeding."

The definition of "proceeding" as found in Black's Law Dictionary lends credence to this Court's position in Johnson, supra :

"1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. 2. Any procedural means for seeking redress from a tribunal or agency. 3. An act or step that is part of a larger action. 4. The business conducted by a court or other official body; a hearing. 5. Bankruptcy. A particular dispute or matter arising within a pending case-as opposed to the case as a whole.
" ' "Proceeding" is a word much used to express the business done in courts. A proceeding in court is an act done by the authority or direction of the court, express or implied. It is more comprehensive than the word "action," but it may include in its general sense all the steps taken or measures adopted in the prosecution or defense of an action, including the pleadings and judgment. As applied to actions, the term 'proceeding' may include-(1) the institution of the action; (2) the appearance of the defendant; (3) all ancillary or provisional steps, such as arrest, attachment of property, garnishment, injunction, writ of ne exeat; (4) the pleadings; (5) the taking of testimony before trial; (6) all motions made in the action; (7) the trial; (8) the judgment; (9) the execution; (10) proceedings supplementary to execution, in code practice; (11) the taking of the appeal or writ of error; (12) the remittitur, or sending back of the record to the lower court from the appellate or reviewing court; (13) the enforcement of the judgment, or a new trial, as may be directed by the court of last resort.'
"Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3-4 (2d ed. 1899)."

Black's Law Dictionary 1398 (10th ed. 2014).

Moreover, the commentary to § 13A-10-103, Ala. Code 1975, states:

"Under the Criminal Code's formulation perjury in the first degree, § 13A-10-101 will expand the narrow limits of former § 13-5-110 to include all official proceedings (see § 13A-10-100(b)(5) for definition) and not just those 'on the trial of any person under an indictment for a felony....' Further, all previous false statements made in relation to the same matter, if affirmed under oath, will be treated the same as if made in the current official proceeding. (See 'swears falsely,' § 13A-10-100(b)(1) ). Section 13A-10-101 will replace former § 13-5-110 and will include oral and written statements, so long as false, material and made in an official proceeding, and such perjury will be a Class C felony. Section 13A-10-101 will also replace part of former § 13-5-111 to the extent that it covers any known false swearing, if material and done in an official proceeding, e.g., civil trials, administrative hearings, etc., such as Tyson v. State, [29 Ala. App. 220, 194 So. 699 (1940) ]."

In addition, the commentary to § 13A-10-100 states that "[m]ost of the definitions are derived from the Model Penal Code § 241.1, Michigan Revised Criminal Code § 4901 and New York Revised Penal Law § 210.00." The Model Penal Code § 241.1 states:

"A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true."

Pennsylvania adopts § 241.1 of the Model Penal Code verbatim, see § 4902, Title 18 Pa. C.S.A. Crimes and Offenses, and its Superior Court has repeatedly held that a statutory affidavit is sufficient to constitute an official proceeding as an element of perjury. The Pennsylvania Superior Court stated in Commonwealth v. Lafferty, 276 Pa.Super. 400, 419 A.2d 518, 522 (1980) :

"The elements of the crime of perjury are as follows: '(a) An oath to tell the truth must be taken by the accused, and (b) administered by legal authority, (c) in a judicial proceeding (or statutory affidavit ). (d) The accused must have testified in such proceeding, and (e) his testimony must be material to the judicial proceeding. (f) The testimony assigned as perjury must be false, and (g) must be given wilfully, and corruptly, and with knowledge of its falsity (or given recklessly), and for the purpose of having it believed....' "

(Quoting Commonwealth v. Yanni, 208 Pa.Super. 191, 222 A.2d 617 (1966) (emphasis added).) See also Commonwealth v. Russo, 177 Pa.Super. 470, 111 A.2d 359 (1955) ; Commonwealth v. Rossi, 170 Pa.Super. 292, 85 A.2d 598 (1952).

In addition, N.Y. Penal Law § 210.00(5) states:

"A person 'swears falsely' when he intentionally makes a false statement which he does not believe to be true (a) while giving testimony, or (b) under oath in a subscribed written instrument. A false swearing in a subscribed written instrument shall not be deemed complete until the instrument is delivered by its subscriber, or by someone acting in his behalf, to another person with intent that it be uttered or published as true."

(Emphasis added.)

Accordingly, we hold that submitting a sworn affidavit to a law-enforcement official during a criminal investigation constitutes an "official proceeding" as that term is defined in §§ 13A-10-100, Ala. Code 1975.

The State introduced as evidence the sworn affidavit that Habel provided to Agent McCarter during the April 6, 2015, interview. Agent McCarter testified that he interviewed Habel as part of a criminal investigation and that he informed Habel at the beginning of the interview that it was a crime to lie to law-enforcement officials. Habel then provided a sworn affidavit detailing her allegations against Matthew and signed the affidavit in the presence of Agent McCarter and Agent Moore.

Habel's affidavit had a heading stating "Department of Homeland Security, U.S. Immigration and Customs Enforcement, State of Alabama, County of Madison" and began with the statement, "I, Sara Courtney Habel, being duly sworn, state the following." (C. 108.) The affidavit was four pages in length. Habel initialed the first page, and she signed each subsequent page under a statement that read: "The contents of this statement are true and correct to the best of my knowledge and belief. I have provided the above statement freely and voluntarily without any threats or coercion." (C. 109-11.) Agent McCarter signed each page; his signature on the second, third, and fourth pages appeared under a statement that read: "Subscribed and sworn to me on 6 in the month of April in the year of 2015." (C. 109-11.) Pages two, three, and four were signed by the witness, Agent Moore. Because Habel submitted a sworn affidavit to Agent McCarter during the criminal investigation of Matthew, her false statement was made during an official proceeding as that term is defined in §§ 13A-10-100, Ala. Code 1975. Therefore, the circuit court did not err when it denied Habel's motion to for a judgment of acquittal.

Conclusion

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

Burke, J., concurs. Kellum, J., concurs in the result. Windom, P.J., dissents , with opinion, which Welch, J., joins.

WINDOM, Presiding Judge, dissenting.

I do not believe that the act of giving a statement to two federal agents constitutes a "proceeding heard before any legislative, judicial, administrative or other government agency or official authorized to hear evidence under oath." § 13A-10-100(b)(5), Ala. Code 1975 (defining an "Official Proceeding") (Emphasis added.) In other words, I do not believe that the act of collecting evidence can be fairly equated to "a proceeding heard before" a body "authorized to hear evidence under oath." Id. Further, I do not believe that federal agents fall within the category of "any legislative, judicial, administrative or other government agency or official." Id. See also, § 13A-10-1(2), Ala. Code 1975 (defining "government" as "[t]he state, county, municipality, or other political subdivision thereof, including public county and city boards of education, the youth services department district, the Alabama Institute for Deaf and Blind, and all educational institutions under the auspices of the State Board of Education" (emphasis added) ). Accordingly, I disagree that the process of two federal agents' collecting evidence during a criminal investigation constitutes an "official proceeding" necessary for a conviction for first-degree perjury. See § 13A-10-101(a), Ala. Code 1975. Therefore, I respectfully dissent from the Court's decision to affirm Sara Courtney Habel's first-degree-perjury conviction.

      Habel was also indicted for second-degree perjury, see § 13A-10-102, Ala. Code 1975, intimidating a witness, see § 13A-10-123, Ala. Code 1975, and false reporting to law-enforcement authorities, see § 13A-10-9, Ala. Code 1975. Those charges were ultimately dismissed.

      In that affidavit, Habel alleged that Matthew had touched the genitals of M.H. and S.H., that he had touched his genitals in front of M.H., and that he had made M.H. and S.H. watch pornography depicting children and adults.

      Agent McCarter testified that Agent Moore worked with him at the Department of Homeland Security.

      Guzzo testified that Linda Cordisco Steele, a senior trainer in forensic interviewing, conducted the second interview with M.H.

      These claims appear as Issues II, III, IV, and V in the statement-of-issues section of Habel's brief.

      This claim-which appears as Issue II in Habel's brief-is actually a challenge to the weight of the evidence. Even if this argument was not deemed waived under Rule 28(a)(10), Ala. R. App. P., it is not properly before this court. See Zumbado v. State, 615 So.2d 1223, 1241 (Ala. Crim. App. 1993) (quoting Johnson v. State, 555 So.2d 818, 820 (Ala. Crim. App. 1989) )(" 'We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial.' ").

      This claim appears as Issue III in Habel's brief.

      This claim appears as Issue IV in Habel's brief.

      This claim appears as Issue V in Habel's brief.

      This claim appears as Issue I in Habel's brief.


source: Caselaw Access Project

author: BRYAN, Justice.

license: Public Domain

text:
    EX PARTE Sara Courtney HABEL
    (In re Sara Courtney Habel v. State of Alabama)
    1170823
    Supreme Court of Alabama.
    August 10, 2018
    Reta A. McKannan, Huntsville, for appellant.
    Submitted on petitioner's brief only.
   BRYAN, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

Stuart, C.J., and Parker, Main, and Mendheim, JJ., concur.


author: PER CURIAM.

text:
    Mary Beth JACKSON, etc., Petitioner, v. Ron DESANTIS, Governor, Respondent.
    No. SC19-329
    Supreme Court of Florida.
    April 16, 2019
    George T. Levesque and D. Ty Jackson of GrayRobinson, P.A., Tallahassee, Florida, for Petitioner
    Joe Jacquot, General Counsel, Nicholas A. Primrose, John MacIver, and Colleen Ernst, Deputy General Counsel, Executive Office of the Governor, Tallahassee, Florida, for Respondent
   PER CURIAM.

Article IV, section 7(a) of the Florida Constitution authorizes the governor to suspend county officers on several enumerated grounds, including "neglect of duty" and "incompetence." On January 11, 2019, in Executive Order 19-13, Governor Ron DeSantis invoked that authority and cited those grounds to suspend Mary Beth Jackson, Superintendent of Schools for Okaloosa County. Jackson has petitioned this Court for a writ of quo warranto, a remedy used to challenge a state officer's exercise of power derived from the State. We have jurisdiction, see art. V, § 3(b)(8), Fla. Const., but we deny Jackson's petition.

The gist of Jackson's petition is that the Governor exceeded his suspension authority by relying "exclusively" on conduct alleged to have occurred during Jackson's prior term in office. Jackson was first elected for a term beginning on November 20, 2012, and the voters subsequently reelected her to an additional four-year term beginning on November 22, 2016. Jackson claims that the misconduct alleged in Executive Order 19-13 is limited to acts that occurred no later than the 2015-2016 school year, which ended months before the beginning of Jackson's current term of office.

Our review of Executive Order 19-13 leads us to conclude that Jackson's petition is based on a faulty premise. Read fairly and in its entirety, the suspension order alleges acts and omissions occurring during Jackson's current term and bases Jackson's suspension on her alleged ongoing mismanagement of the school district. Specifically, the suspension order relies in part on Okaloosa County Grand Jury Reports dated February 20, 2018, and June 13, 2018-well into Jackson's current term of office. The suspension order explains that those grand jury reports faulted Jackson's longer-term response to allegations made during the 2015-2016 school year about a teacher's abuse of special needs students. According to the suspension order, the grand jury found systemic failures in Jackson's training and supervision of personnel, "especially in the areas of ethics, child abuse, and mandatory reporting obligations." The text of the suspension order leaves no doubt that, in the Governor's view, those failures continued up to the time of Jackson's suspension in January 2019: "Superintendent Jackson has failed in her responsibilities and duties ... due to her failure to provide adequate, necessary, and frequent training, a lack of supervision of school district personnel, and a failure to implement adequate safe-guards, policies, and reporting requirements to protect the safety and well-being of the students."

Because Executive Order 19-13 alleges misconduct occurring in Jackson's current term, there is no need for us to address the constitutional validity of a hypothetical suspension order alleging facts that relate exclusively to a suspended official's earlier term in office. To the extent that prior cases of this Court have addressed that issue, we take no position on those cases here. Nor do we express any views on the scope of evidence that the Senate may consider in any proceeding relating to Jackson's suspension.

We remain mindful of our limited role in reviewing the exercise of the suspension power, which the Constitution commits to the governor and which inherently involves "judgment and discretion." State ex rel. Hardie v. Coleman , 115 Fla. 119, 155 So. 129, 133 (1934). If a suspension order "names one or more of the grounds embraced in the Constitution and clothes or supports it with alleged facts sufficient to constitute the grounds or cause for suspension, it is sufficient." Id. Executive Order 19-13 satisfies that standard.

Accordingly, the petition for writ of quo warranto is hereby denied.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, LUCK, and MUÑIZ, JJ., concur.

LAGOA, J., concurs in result only with an opinion.

LAGOA, J., concurring in result only.

I concur in denying Jackson's petition, but I reach this conclusion based on the text of article IV, section 7 of the Florida Constitution. Article IV, section 7 of the Constitution does not impose a temporal limitation on the executive's suspension power such that the constitutionally enumerated grounds resulting in suspension must occur during the suspended officer's current term of office.

Article IV, section 7(a) of the Florida Constitution provides:

By executive order stating the grounds and filed with the custodian of state records, the governor may suspend from office any state officer not subject to impeachment, any officer of the militia not in the active service of the United States, or any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension. The suspended officer may at any time before removal be reinstated by the governor.

After the Governor executes the order of suspension, the Florida Senate "may, in proceedings prescribed by law, remove from office or reinstate the suspended official." Art. IV, § 7(b), Fla. Const. Where the language of the Constitution "is clear, unambiguous, and addresses the matter in issue, then it must be enforced as written," as the "constitutional language must be allowed to 'speak for itself.' " Fla. Soc'y of Ophthalmology v. Fla. Optometric Ass'n , 489 So.2d 1118, 1119 (Fla. 1986).

Article IV, section 7 of the Constitution provides a full and complete method for the suspension and removal of certain categories of officers. Article IV, section 7(a) expressly and unambiguously vests the Governor with the power to suspend. The only constitutional requirements imposed on the Governor are that (1) the officer be a member of one of the three identified categories (a state officer not subject to impeachment, an officer of the militia not in the active service of the United States, or a county officer), (2) the suspension be for one of the constitutionally enumerated grounds (malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony), and (3) the Governor file an executive order of suspension stating those grounds with the "custodian of state records," i.e., the Secretary of State. Article IV, section 7(b) expressly and unambiguously vests the Senate with the power to remove or reinstate the officer through "proceedings prescribed by law."

As previously noted by this Court, the Governor's suspension power is "executive" and "so long as the Governor acts within his jurisdiction as charged by organic law, [i.e., the Constitution,] his action may not be reviewed by the courts." State ex rel. Hardie v. Coleman , 115 Fla. 119, 155 So. 129, 133 (1934). Similarly, the Senate's judgment of removal or reinstatement "is final, and will not be reviewed by the courts," as under the constitutional process for suspension and removal, the "Senate is nothing less than a court provided to examine into and determine whether or not the Governor exercises the power of suspension in keeping with the constitutional mandate." Id. at 134. Assuming that the suspended officer falls into one of the constitutionally enumerated categories and that the Governor has filed the executive order of suspension with the custodian of records, the plain language of the Constitution excludes the judiciary from involving itself in the suspension and removal process save for a limited exception.

Turning to that exception, the Constitution requires the Governor to issue an executive order of suspension "stating the grounds" of suspension. While a suspended officer may ask the courts to examine an executive order of suspension to ensure that the order satisfies that constitutional requirement, the judiciary's role is limited to determining whether the executive order, on its face, sets forth allegations of fact relating to one of the constitutionally enumerated grounds of suspension. Id. at 133. Therefore, "[a] mere arbitrary or blank order of suspension without supporting allegations of fact, even though it named one or more of the constitutional grounds of suspension, would not meet the requirements of the Constitution," id. , but where the executive order of suspension contains factual allegations relating to an enumerated ground for suspension, the Constitution prohibits the courts from examining or determining the sufficiency of the evidence supporting those facts, as the "matter of reviewing the charges and the evidence to support them is solely in the discretion of the Senate," id. at 134 ; see also State ex rel. Kelly v. Sullivan , 52 So.2d 422, 425 (1951) ("It is the function of the Senate, and never that of the Courts, to review the evidence upon which the Governor suspends an officer in the event the Governor recommends his removal from office."). As a result, the factual allegations in an executive order of suspension must pass only a low threshold to satisfy the judiciary's limited, facial review, and "if, on the whole, [the executive order] contains allegations that bear some reasonable relation to the charge made against the officer, it will be adjudged as sufficient." Hardie , 155 So. at 133.

Under this standard, Executive Order 19-13 satisfies the requirements of article IV, section 7(a). Reviewing the four corners of the Executive Order, the Governor suspended Jackson, a county officer, on the constitutionally enumerated grounds of "neglect of duty" and "incompetence." The Executive Order supports those two grounds with various factual allegations against Jackson that, on their face, reasonably relate to the charges of neglect of duty and incompetence made against Jackson. Whether there is any merit to the grounds listed in Executive Order 19-13 for Jackson's suspension from office is a determination to be made exclusively by the Florida Senate under the Constitution.

Ordinarily, this would end the judicial inquiry. Jackson, however, contends that article IV, section 7(a) limits the Governor's suspension power to acts occurring during the officer's current term of office.

In considering Jackson's argument, the analysis again begins with the text of the Constitution, for it is the constitutional language that delineates the executive power to suspend. As discussed above, article IV, section 7(a) of the Constitution imposes only three requirements on the Governor's exercise of the suspension power: (1) the officer suspended must fall into one of the constitutionally enumerated categories; (2) the suspension must be based on one of the constitutionally enumerated grounds for suspension; and (3) the Governor must file an executive order of suspension stating those grounds with the custodian of state records. Significantly, article IV, section 7(a) does not state that the enumerated grounds resulting in suspension must occur within the officer's current term.

In support of her position that article IV, section 7(a) limits the Governor's suspension power to acts that occur within the suspended officer's current term, Jackson relies on this Court's advisory opinion to Governor Gilchrist in In re Advisory Opinion to Governor , 64 Fla. 168, 60 So. 337 (1912) (" 1912 Advisory Opinion "). In the 1912 Advisory Opinion , this Court provided Governor Gilchrist with an advisory opinion that article IV, section 15 of the 1885 Florida Constitution (the predecessor to article IV, section 7 of the 1968 Florida Constitution ) did not authorize the Governor to suspend a county officer for an act of malfeasance or misfeasance committed by him prior to the date of the beginning of his current term in office. Relying on an earlier advisory opinion, In re Advisory Opinion to the Governor , 31 Fla. 1, 12 So. 114 (1893) (" 1893 Advisory Opinion "), the 1912 Advisory Opinion noted that the "power ... given the Governor to suspend the incumbent of an office and to fill the office by appointment is necessarily confined to the current term of the office." 60 So. at 337. From the 1893 Advisory Opinion 's conclusion that an appointment is limited to the remainder of the suspended official's term, the 1912 Advisory Opinion concluded that "the Constitution contemplates that the causes for suspension from office shall arise from the conduct of the officer during the term for which the officer is then in commission." 60 So. at 337-38.

This statement, however, does not follow from a natural reading of the constitutional text, as neither article IV, section 7(a) of the Constitution nor its predecessor (article IV, section 15 of the 1885 Constitution) states that only acts occurring within the officer's current term can form the basis for a suspension. As there is nothing in the constitutional text relating to any temporal limitation on the Governor's power to suspend, it is impossible to say that the Constitution "contemplates" an additional requirement on the exercise of this constitutionally authorized executive power.

While a gubernatorial appointment following a suspension lasts only for the remainder of the suspended officer's current term of office, it does not follow that there is a constitutionally mandated correlation between the duration of an officer's suspension and the dates on which the acts giving rise to suspension occurred. Indeed, it is not hard to imagine situations where an officer's misconduct in a prior term implicates his or her fitness to serve the remainder of his or her current term. For example, an officer could have committed a felony or engaged in malfeasance during a prior term of office that went undetected until after reelection to the current term. It is not necessary to indulge in a series of hypotheticals to try to parse which ones may or may not be subject to the exercise of the suspension power, however, because nothing in the plain language of article IV, section 7(a) prohibits the Governor from suspending an officer based on an enumerated act that occurred prior to the officer's current term. The Constitution then places the responsibility on the Senate to determine whether removal or reinstatement is warranted based on those facts and the evidence presented at proceedings before that body.

Because the 1912 Advisory Opinion is premised on unsound legal principles with no support in the plain and unambiguous language of article IV, section 7(a) of the Constitution, I would disapprove its statement that "the Constitution contemplates that the causes for suspension from office shall arise from the conduct of the officer during the term for which the officer is then in commission."

The Constitution establishes a clear and unambiguous process for suspension and removal. The Governor may suspend for one or more of the grounds enumerated in article IV, section 7(a), and the Senate may remove or reinstate the officer pursuant to article IV, section 7(b). The Constitution reserves to the Senate the sole responsibility for reviewing the evidence supporting the Governor's executive order of suspension, and it is the constitutional role of the Senate to consider whether the suspended officer merits removal or reinstatement. Assuming the suspended officer falls within one of the constitutionally enumerated categories and the Governor has filed the executive order of suspension with the state custodian of records, the judiciary's sole role in this process involves a facial review of the executive order of suspension to determine whether it is merely a blank order of suspension without supporting allegations of fact or whether it contains allegations that bear some reasonable relation to the charge made against the officer. This is "due entirely to the fact that the Constitution itself has set up its own special court to try the matter, namely the state Senate." Hardie , 155 So. at 136 (Davis, C.J., concurring). Nothing in the constitutional text limits the executive suspension power to acts occurring within the suspended officer's current term, and by imposing an additional requirement on the executive suspension power not found in the text, the 1912 Advisory Opinion improperly inserted the courts into a process that the Constitution leaves to the Governor and the Senate.

For the reasons stated, I concur in denying Jackson's petition for writ of quo warranto.

      Hardie and Kelly both involved article IV, section 15 of the 1885 Florida Constitution, which is the predecessor to article IV, section 7 of the current Constitution. Like the current Constitution, the 1885 Constitution reserved to the Governor the suspension power. Regarding the removal power, however, the 1885 Constitution provided that "the Governor, by and with the consent of the Senate, may remove any officer, not liable to impeachment, for any cause above named." Thus, under the 1885 Constitution, "removals [were] accomplished by the joint action of the Governor and the Senate." Hardie , 155 So. at 130. Because the 1968 Constitution vests the removal power exclusively with the Senate, our prior descriptions of the Senate's role as the sole arbiter of the evidence supporting the Governor's exercise of his suspension power apply with even greater emphasis.

      Jackson also relies upon this Court's decision in State ex rel. Turner v. Earle , 295 So.2d 609 (Fla. 1974). Turner held that the Judicial Qualifications Commission ("JQC") could not discipline a circuit court judge for misconduct alleged to have occurred while that judge held another judicial office outside of the JQC's constitutional jurisdiction. The Court additionally noted that a jury had already acquitted the judge of the alleged felony that was to be the subject of the JQC's purported inquiry. See id. at 619. Relying on the 1912 Advisory Opinion , this Court stated that "a public officer may not be removed from office for misconduct which he committed in another public office or in a prior term of office ...." Id. at 613. The Court in Turner expressly cautioned that "[a]ll dictum in this opinion must be read in the context of the circumscribed facts and not considered a precedent in cases involving different facts ," id. at 619, and we have rejected the application of Turner in situations involving different facts, see Fla. Bar v. McCain , 361 So.2d 700, 704 (Fla. 1978).
      The facts at issue in the instant petition are materially different from those at issue in Turner , and applying Turner here would run afoul of our earlier warning regarding its limited application. Moreover, Jackson's petition concerns the Governor's power to suspend under article IV, section 7, not the JQC's jurisdiction to discipline under article V, section 12 of the Florida Constitution. As discussed below, the 1912 Advisory Opinion , which Turner relies on, is unsupported by the plain language of article IV, section 7, and importing Turner into our analysis of article IV, section 7 would be contrary to our long-established precedent that the cornerstone of constitutional interpretation begins with the "examination of that provision's explicit language." Fla. Soc'y of Ophthalmology , 489 So.2d at 1119.


author: PER CURIAM. LABARGA, J., dissenting.

text:
    ORANGE COUNTY, Florida, Petitioner, v. Rick SINGH, etc., et al., Respondents.
    No. SC18-79
    Supreme Court of Florida.
    April 18, 2019
    Gregory T. Stewart, Carly J. Schrader, and Evan J. Rosenthal of Nabors, Giblin & Nickerson, P.A., Tallahassee, Florida; and Jeffrey J. Newton, County Attorney, and William C. Turner, Jr., Assistant County Attorney, Orange County, Orlando, Florida, for Petitioner
    John H. Pelzer of Greenspoon Marder LLP, Fort Lauderdale, Florida; Michael Marder of Greenspoon Marder LLP, Orlando, Florida; Eric D. Dunlap, Assistant General Counsel, Orange County Sheriff's Office, Orlando, Florida; Scott Randolph, pro se, Orlando, Florida; and Gigi Rollini of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tallahassee, Florida, for Respondents Rick Singh, Orange County Property Appraiser, John W. Mina, Sheriff of Orange County, and Scott Randolph, Tax Collector of Orange County
    Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, Florida, for Respondent Bill Cowles, Orange County Supervisor of Elections
    Laura Youmans, Legislative Counsel, Florida Association of Counties, Tallahassee, Florida, for Amicus Curiae Florida Association of Counties, Inc.
    David H. Margolis, Orlando, Florida, for Amicus Curiae Orange County Clerk of the Circuit Court
   PER CURIAM.

Respondents' Joint Motion to Recall Mandate is hereby granted. The opinion of this Court dated January 4, 2019, is hereby withdrawn, and this opinion is substituted in its place. See § 43.44, Fla. Stat. (2018) ("An appellate court may, as the circumstances and justice of the case may require, reconsider, revise, reform, or modify its own opinions and orders for the purpose of making the same accord with law and justice."); Fla. R. Jud. Admin. 2.205(b)(5). In light of the substituted opinion, we hereby deny Respondents' Joint Motion for Clarification.

We have for review the Fifth District Court of Appeal's decision in Orange County v. Singh , 230 So.3d 639 (Fla. 5th DCA 2017), which affirmed a trial court judgment invalidating an Orange County ordinance. Because home-rule counties may not enact ordinances on subjects preempted to the State and inconsistent with general law, we approve the decision of the Fifth District.

I. Background

The underlying background was discussed in the Fifth District's opinion as follows:

On August 19, 2014, the Orange County Board of Commissioners enacted an ordinance proposing an amendment to the Orange County Charter to provide for term limits and nonpartisan elections for six county constitutional officers-clerk of the circuit court, comptroller, property appraiser, sheriff, supervisor of elections, and tax collector. The ordinance provided for the following ballot question to be presented for further approval:
CHARTER AMENDMENT PROVIDING FOR TERM LIMITS AND NON-PARTISAN ELECTIONS FOR COUNTY CONSTITUTIONAL OFFICERS For the purpose of establishing term limits and nonpartisan elections for the Orange County Clerk of the Circuit Court, Comptroller, Property Appraiser, Sheriff, Supervisor of Elections and Tax Collector, this amendment provides for county constitutional officers to be elected on a non-partisan basis and subject to term limits of four consecutive full 4-year terms.
_____ Yes
_____ No
The ballot question appeared on the November 4, 2014[,] ballot and was approved by the majority of Orange County voters. As a result, the relevant portions of section 703 of the Orange County Charter were amended (as underlined) to read:
B. Except as may be specifically set forth in the Charter, the county officers referenced under Article VIII, Section 1(d) of the Florida Constitution and Chapter 72-461, Laws of Florida, shall not be governed by the Charter but instead governed by the Constitution and laws of the State of Florida. The establishment of nonpartisan elections and term limits for county constitutional officers shall in no way affect or impugn their status as independent constitutional officers, and shall in no way imply any authority by the board whatsoever over such independent constitutional officers.
C. Elections for all county constitutional offices shall be non-partisan. No county constitutional office candidate shall be required to pay any party assessment or be required to state the party of which the candidate is a member. All county constitutional office candidates' names shall be placed on the ballot without reference to political party affiliation.
In the event that more than two (2) candidates have qualified for any single county constitutional office, an election shall be held at the time of the first primary election and, providing no candidate receives a majority of the votes cast, the two (2) candidates receiving the most votes shall be placed on the ballot for the general election.
D. Any county constitutional officer who has held the same county constitutional office for the preceding four (4) full consecutive terms is prohibited from appearing on the ballot for reelection to that office; provided, however, that the terms of office beginning before January 1, 2015 shall not be counted.
Prior to the November 4, 2014 election, three Orange County constitutional officers-the sheriff, property appraiser, and tax collector (collectively "Appellees")-filed a suit for declaratory and injunctive relief against Orange County, challenging the underlying county ordinance as well as the ballot title and summary. After the election, in ruling on competing summary judgment motions, the trial court upheld the portion of the charter amendment providing for term limits, but struck down that portion providing for nonpartisan elections. The trial court concluded that Orange County was prohibited from regulating nonpartisan elections for county constitutional officers because that subject matter was preempted to the Legislature.

Singh , 230 So.3d at 640-41 (footnote omitted).

On appeal, the Fifth District affirmed the trial court's judgment. Id. at 640. The Fifth District held that section 97.0115, Florida Statutes, expressly preempts the Orange County ordinance requiring nonpartisan elections for county constitutional officers. Id. at 641-42. The Fifth District reasoned that the Legislature regulates elections generally through the Florida Election Code and "enacted section 97.0115, which expressly provides that all matters set forth in the Florida Election Code were preempted" to the Legislature. Id. at 642. The Fifth District further reasoned that chapter 105, Florida Statutes, "set forth provisions and procedures specific to nonpartisan elections," and "chapter 105 did not authorize counties to hold nonpartisan elections for the county constitutional officers that are the subject of the charter amendment at issue." Id.

II. The Florida Election Code

Article VI, section 1 of the Florida Constitution provides that "[r]egistration and elections shall, and political party functions may, be regulated by law[.]" See Grapeland Heights Civic Ass'n v. City of Miami , 267 So.2d 321, 324 (Fla. 1972) ("[I]t necessarily follows that 'law' in our constitution means an enactment by the State Legislature ...-not by a City Commission or any other political body."). The Legislature regulates elections through the Florida Election Code, which encompasses chapters 97-106, Florida Statutes (2018). Importantly, the Florida Election Code contains express language of preemption as section 97.0115 states that "[a]ll matters set forth in chapters 97-105 are preempted to the state, except as otherwise specifically authorized by state or federal law." The Florida Election Code further explains that the Secretary of State, as "the chief election officer of the state," is to "[o]btain and maintain uniformity in the interpretation and implementation of the election laws." § 97.012(1), Fla. Stat. (2018).

The Florida Election Code generally contemplates partisan elections. In other words, candidates nominated by political parties in the primary election are to appear on the general election ballot for most offices. See § 101.151(2)(c), Fla. Stat. (2018) ("Each nominee of a political party chosen in a primary shall appear on the general election ballot in the same numbered group or district as on the primary election ballot."). In fact, section 97.021(29) (emphasis added), defines a "[p]rimary election" as "an election held preceding the general election for the purpose of nominating a party nominee to be voted for in the general election to fill a national, state, county , or district office."

Specifically, section 100.051 provides that "[t]he supervisor of elections of each county shall print on ballots to be used in the county at the next general election the names of candidates who have been nominated by a political party and the candidates who have otherwise obtained a position on the general election ballot in compliance with the requirements of this code." In addition to the candidates nominated by political parties, no-party affiliation candidates, minor political party candidates, and spaces for write-in candidates may be listed on the general election ballot and may compete for the same offices as the major political party candidates in compliance with the Florida Election Code. § 99.0955, Fla. Stat. (2018) ; § 99.096, Fla. Stat. (2018) ; § 99.061(4)(b), Fla. Stat. (2018).

Regarding qualifying for nomination or election to county offices in particular, section 99.061(2) (emphasis added) provides that "each person seeking to qualify for nomination or election to a county office ... shall file his or her qualification papers with, and pay the qualifying fee, which shall consist of the filing fee and election assessment, and party assessment , if any has been levied, to, the supervisor of elections of the county, or shall qualify by the petition process pursuant to s. 99.095." The same subsection also states that "the supervisor of elections shall remit to the secretary of the state executive committee of the political party to which the candidate belongs the amount of the filing fee, two-thirds of which shall be used to promote the candidacy of candidates for county offices and the candidacy of members of the Legislature." Id. (emphasis added).

Regarding timing, section 100.031, Florida Statutes (2018), provides that "[a] general election shall be held in each county on the first Tuesday after the first Monday in November of each even-numbered year." Section 100.061, Florida Statutes (2018), states that "a primary election for nomination of candidates of political parties shall be held on the Tuesday 10 weeks prior to the general election." Further, section 100.041(1), Florida Statutes (2018) (emphasis added), lists the following offices, including several county constitutional offices, that are to be chosen at the general election after a primary election:

State senators shall be elected for terms of 4 years, those from odd-numbered districts in each year the number of which is a multiple of 4 and those from even-numbered districts in each even-numbered year the number of which is not a multiple of 4. Members of the House of Representatives shall be elected for terms of 2 years in each even-numbered year. In each county, a clerk of the circuit court, sheriff, superintendent of schools, property appraiser, and tax collector shall be chosen by the qualified electors at the general election in each year the number of which is a multiple of 4 . The Governor and the administrative officers of the executive branch of the state shall be elected for terms of 4 years in each even-numbered year the number of which is not a multiple of 4. The terms of state offices other than the terms of members of the Legislature shall begin on the first Tuesday after the first Monday in January after said election. The term of office of each member of the Legislature shall begin upon election.

See also § 98.015(1), Fla. Stat. (2018) ("A supervisor of elections shall be elected in each county at the general election in each year the number of which is a multiple of four for a 4-year term commencing on the first Tuesday after the first Monday in January succeeding his or her election.").

However, while the Florida Election Code contemplates elections for most offices to include candidates nominated by political parties, it also specifies that elections for certain offices must be nonpartisan. Pursuant to section 97.021(22), Florida Statutes (2018), " 'Nonpartisan office' means an office for which a candidate is prohibited from campaigning or qualifying for election or retention in office based on party affiliation." Then, chapter 105, entitled "Nonpartisan Elections," provides that judicial officers and school board members are nonpartisan offices. Candidates for judicial offices (or those seeking retention) are "prohibited from campaigning or qualifying for such [offices] based on party affiliation." § 105.011(2), Fla. Stat. (2018). Furthermore, section 105.09(1), Florida Statutes (2018), states that "[n]o political party or partisan political organization shall endorse, support, or assist any candidate in a campaign for election to judicial office." Section 105.035(1), Florida Statutes (2018), also explains that "[a] person seeking to qualify for election to the office of circuit judge or county court judge or the office of school board member may qualify for election to such office by means of the petitioning process prescribed in this section." And section 105.041(3) - (4), Florida Statutes (2018), states that "[n]o reference to political party affiliation shall appear on any ballot with respect to any nonpartisan office or candidate," while "[s]pace shall be made available on the general election ballot" for write-in candidates for circuit and county court judge as well as school board members.

Regarding timing of the nonpartisan elections, section 105.051(1)(b), Florida Statutes (2018), provides that elections for judicial officers and school board members are to be conducted during the primary election with the possibility of a run-off during the general election:

If two or more candidates, neither of whom is a write-in candidate, qualify for such an office, the names of those candidates shall be placed on the ballot at the primary election. If any candidate for such office receives a majority of the votes cast for such office in the primary election, the name of the candidate who receives such majority shall not appear on any other ballot unless a write-in candidate has qualified for such office. An unopposed candidate shall be deemed to have voted for himself or herself at the general election. If no candidate for such office receives a majority of the votes cast for such office in the primary election, the names of the two candidates receiving the highest number of votes for such office shall be placed on the general election ballot. If more than two candidates receive an equal and highest number of votes, the name of each candidate receiving an equal and highest number of votes shall be placed on the general election ballot. In any contest in which there is a tie for second place and the candidate placing first did not receive a majority of the votes cast for such office, the name of the candidate placing first and the name of each candidate tying for second shall be placed on the general election ballot.

Additionally, the nonpartisan chapter of the Florida Election Code, chapter 105, specifies that the retention elections of appellate judges are to take place during the general election. § 105.051(2), Fla. Stat. (2018).

Notably, chapter 105 does not include any county constitutional officers as nonpartisan. The specific references to the county constitutional officers in the Florida Election Code are in its more general provisions in which candidates nominated by political parties may appear on the general ballot. Moreover, although the Florida Election Code expressly allows for municipal elections to vary from its requirements pursuant to an ordinance or charter so long as the variance does not conflict with "any provision in the Florida Election Code that expressly applies to municipalities," § 100.3605(1), Florida Statutes (2018), there is no similar allowance for county elections.

III. The Orange County Ordinance is Expressly Preempted and in Conflict

Orange County contends that the ordinance at issue in this case is not expressly preempted by or in conflict with the Florida Election Code. We disagree.

In Phantom of Brevard, Inc. v. Brevard County , 3 So.3d 309, 314 (Fla. 2008), this Court explained the following standards regarding whether a county ordinance is preempted by or in conflict with a statute:

Pursuant to our Constitution, chartered counties have broad powers of self-government. See art. VIII, § 1(g), Fla. Const. Indeed, under article VIII, section 1(g) of the Florida Constitution, chartered counties have the broad authority to "enact county ordinances not inconsistent with general law." See also David G. Tucker, A Primer on Counties and Municipalities, Part I , Fla. B.J., Mar. 2007, at 49. However, there are two ways that a county ordinance can be inconsistent with state law and therefore unconstitutional. First, a county cannot legislate in a field if the subject area has been preempted to the State. See City of Hollywood v. Mulligan , 934 So.2d 1238, 1243 (Fla. 2006). "Preemption essentially takes a topic or a field in which local government might otherwise establish appropriate local laws and reserves that topic for regulation exclusively by the legislature." Id. (quoting Phantom of Clearwater[, Inc. v. Pinellas County] , 894 So.2d [1011] , 1018 [ (Fla. 2d DCA 2005) ] ). Second, in a field where both the State and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute. See Tallahassee Mem'l Reg'l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc. , 681 So.2d 826, 831 (Fla. 1st DCA 1996). Local "ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute." Thomas v. State , 614 So.2d 468, 470 (Fla. 1993) ;
Hillsborough County v. Fla. Rest. Ass'n , 603 So.2d 587, 591 (Fla. 2d DCA 1992) ("If [a county] has enacted such an inconsistent ordinance, the ordinance must be declared null and void."); see also Rinzler v. Carson , 262 So.2d 661, 668 (Fla. 1972) ("A municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden.").
There is conflict between a local ordinance and a state statute when the local ordinance cannot coexist with the state statute. See City of Hollywood , 934 So.2d at 1246 ; see also State ex rel. Dade County v. Brautigam , 224 So.2d 688, 692 (Fla. 1969) (explaining that "inconsistent" as used in article VIII, section 6(f) of the Florida Constitution"means contradictory in the sense of legislative provisions which cannot coexist"). Stated otherwise, "[t]he test for conflict is whether 'in order to comply with one provision, a violation of the other is required.' " Browning v. Sarasota Alliance for Fair Elections, Inc. , 968 So.2d 637, 649 (Fla. 2d DCA 2007) (quoting Phantom of Clearwater , 894 So.2d at 1020 ), review granted , No. SC07-2074 (Fla. Nov. 29, 2007).

In this case, the Florida Election Code expressly preempts the Orange County ordinance requiring nonpartisan elections for its county constitutional officers. Section 97.0115 provides that "[a]ll matters set forth in chapters 97-105 are preempted to the state, except as otherwise specifically authorized by state or federal law." As explained above, the Florida Election Code contemplates partisan elections for most offices, and it does not specifically authorize otherwise for county constitutional officers. Furthermore, article VIII, section 1(d) of the Florida Constitution does not expressly label the election of county constitutional officers as "partisan" or "nonpartisan." Therefore, this constitutional provision is not an exception to the preemption language contained in section 97.0115.

The Florida Election Code contains detailed provisions specific to county constitutional officers and county elections, provisions that are within the portions of the code providing for partisan elections. Section 100.041 states that "[i]n each county, a clerk of the circuit court, sheriff, superintendent of schools, property appraiser, and tax collector shall be chosen by the qualified electors at the general election in each year the number of which is a multiple of 4." See also § 100.031, Fla. Stat. ("A general election shall be held in each county ... to choose a successor to each elective ... county ... officer ...."); § 98.015 (1), Fla. Stat. ("A supervisor of elections shall be elected in each county at the general election ..."). Further, section 100.051 expressly provides that candidates listed on the general election ballot are "candidates who have been nominated by a political party and the candidates who have otherwise obtained a position on the general election ballot in compliance with the requirements of this code." (Emphasis added.)

In contrast, the Orange County ordinance provides as follows:

Elections for all county constitutional offices shall be non-partisan. No county constitutional office candidate shall be required to pay any party assessment or be required to state the party of which the candidate is a member. All county constitutional offices candidates' names shall be placed on the ballot without reference to party affiliation.

Singh , 230 So.3d at 640-41 (quoting amended charter).

The portion of the ordinance that requires elections for county constitutional officers to be held during the primary election conflicts with section 100.041, which requires county constitutional officers to appear on the general election ballot. It also conflicts with section 98.015, Florida Statutes, which separately addresses the election of the supervisor of elections. See § 98.015, Fla. Stat. ("A supervisor of elections shall be elected in each county at the general election ...").

Even if the portion of the Orange County ordinance that requires such an election to be held during the primary election is severed, a glaring and unconstitutional conflict remains. The Orange County ordinance prohibits a candidate for county constitutional office from being referenced on the ballot by party or seeking nomination by a party during the primary election. However, the Florida Election Code expressly provides for nomination of candidates for county office by their respective political parties during the primary election. See § 99.061(2), Fla. Stat. (candidates for county offices may qualify for nomination or election by filing the qualifying papers and paying "the filing fee and election assessment, and party assessment"); § 97.021(29), Fla. Stat. (defining "[p]rimary election" as "an election held preceding the general election for the purpose of nominating a party nominee to be voted for in the general election to fill a national, state, county, or district office"); § 100.051, Fla. Stat. (explaining that candidates listed on the general election ballot include those "candidates who have been nominated by a political party"); see also § 100.031, Fla. Stat. ("A general election shall be held in each county ... to choose a successor to each elective ... county ... officer ...."); § 100.041(1), Fla. Stat. ("In each county, a clerk of the circuit court, sheriff, superintendent of schools, property appraiser, and tax collector shall be chosen by the qualified electors at the general election in each year the number of which is a multiple of 4."); § 98.015(1), Fla. Stat. ("A supervisor of elections shall be elected in each county at the general election ...."). Therefore, by banning a candidate for county constitutional office from running by party or seeking nomination by party, the ordinance directly conflicts with the Florida Election Code. And this Court has explained that a local government "cannot forbid what the legislature has expressly licensed, authorized or required." Rinzler , 262 So.2d at 668.

Accordingly, because the Orange County ordinance prohibits candidates from running based on their party affiliation or seeking the nomination of their party during the primary election, which is expressly provided for in the Florida Election Code, the ordinance directly conflicts with the Florida Election Code. It also conflicts with the Florida Election Code's requirement that the candidates for county constitutional officers appear on the general election ballot.

IV. Conclusion

As explained above, the Florida Election Code expressly preempts the Orange County ordinance, an ordinance that is in direct conflict with the Florida Election Code regarding whether candidates nominated by major political parties in the primary election may appear on the general election ballot for county constitutional officers. Therefore, we approve the decision of the Fifth District, which held that the Florida Election Code preempts the Orange County ordinance requiring nonpartisan elections for county constitutional officers.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur.

LABARGA, J., dissents with an opinion.

LABARGA, J., dissenting.

In Orange County v. Singh , --- So.3d ----, 44 Fla. L. Weekly S102 (Fla. Jan. 4, 2019), this Court held that the Florida Election Code does not expressly preempt the home rule authority of Orange County to determine that its constitutional officers be elected in a general election without partisan affiliation. I concurred in that decision, and I continue to agree with the analysis and conclusion reached by the earlier majority. Accordingly, I dissent from the current majority's holding that the nonpartisan-election portion of the Orange County ordinance is preempted by the Florida Election Code and to the decision of the majority to recall the mandate issued in this case.

      We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

      Article VIII, section 1(g) of the Florida Constitution provides that "[t]he governing body of a county operating under a charter may enact county ordinances not inconsistent with general law."

      Section 97.011, Florida Statutes (2018), provides "[c]hapters 97-106 inclusive shall be known and may be cited as 'The Florida Election Code.' "

      In construing the Florida Election Code, it is necessary to read all provisions in pari materia. Palm Beach Cty. Canvassing Bd. v. Harris , 772 So.2d 1273, 1290 n.22 (Fla. 2000).

      As we approve the Fifth District's decision concluding the ordinance is expressly preempted, we also approve the Fifth District's decision affirming the remaining issues presented by Respondents regarding standing, the single-subject rule, and the ballot title and summary.

      We further determined a portion of the ordinance that was inconsistent with the Florida Election Code law was severable, such that the remainder could stand. Singh , --- So.3d at ----, 44 Fla. L. Weekly at S104.


text:
    Marie Ann GLASS, Petitioner, v. NATIONSTAR MORTGAGE, LLC, etc., et al., Respondents.
    No. SC17-1387
    Supreme Court of Florida.
    April 18, 2019
    F. Malcolm Cunningham, Jr. and Amy L. Fischer of The Cunningham Law Firm, P.A., West Palm Beach, Florida, for Petitioner
    Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, Alabama, for Respondent
    Nicholas A. Vidoni of Watson, Soileau, DeLeo & Burgett, P.A., Cocoa, FL; and Beau Bowin of Bowin Law Group, Melbourne, Florida, for Amicus Curiae Brevard County Legal Aid, Inc.
    Michael Wrubel of Michael Jay Wrubel, P.A., Davie, Florida, for Amicus Curiae Jerry Warren and Michael Jay Wrubel, P.A.
    Brian K. Korte of Korte & Wortman, P.A., West Palm Beach, Florida, for Amicus Curiae Korte & Wortman, P.A.
    Peter Ticktin, Jamie Alan Sasson, and Kendrick Almaguer of The Ticktin Law Group, P.L.L.C., Deerfield Beach, Florida, for Amicus Curiae The Ticktin Law Group, P.L.L.C.
    Mandy L. Mills and Matt Bayard of Legal Services of Greater Miami, Inc., Miami, Florida; Lynn Drysdale of Jacksonville Area Legal Aid, Inc., Jacksonville, Florida; and Alice M. Vickers of Florida Alliance for Consumer Protection, Inc., Tallahassee, Florida, for Amici Curiae Florida Legal Aid and Legal Services Consumer Group, Legal Services of Greater Miami, Inc., Jacksonville Area Legal Aid, Inc., and Florida Alliance for Consumer Protection, Inc.
    Geoffrey E. Sherman, Jacquelyn Trask, Yanina Zilberman, and Roy D. Oppenheim of Oppenheim Pilelsky, P.A., Weston, Florida; and Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale, Florida, for Amicus Curiae Frederick and Janelle Sabido and Oppenheim Pilelsky, P.A.
    Robert R. Edwards of Choice Legal Group, P.A., Fort Lauderdale, Florida; David Rosenberg of Robertson, Anschutz & Schneid, P.L., Boca Raton, Florida; Marissa M. Yaker of Padgett Law Group, Tallahassee, Florida; and Andrea R. Tromberg of Tromberg Law Group, P.A, Boca Raton, Florida, for Amicus Curiae American Legal and Financial Network
   PER CURIAM.

Respondent's Motion to Recall Mandate is hereby granted. The opinion of this Court dated January 4, 2019, is hereby withdrawn, and this opinion is substituted in its place. See § 43.44, Fla. Stat. (2018) ("An appellate court may, as the circumstances and justice of the case may require, reconsider, revise, reform, or modify its own opinions and orders for the purpose of making the same accord with law and justice."); Fla. R. Jud. Admin. 2.205(b)(5). In light of the substituted opinion, we hereby deny Respondent's Motion for Clarification.

We initially accepted review of the decision of the Fourth District Court of Appeal in Nationstar Mortgage LLC v. Glass , 219 So.3d 896 (Fla. 4th DCA 2017), based on express and direct conflict with the decision of the First District Court of Appeal in Bank of New York v. Williams , 979 So.2d 347 (Fla. 1st DCA 2008). Upon further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur.

LABARGA, J., dissents.


text:
    Inquiry Concerning a Judge No. 18-386 RE: Ernest A. KOLLRA.
    No. SC19-253
    Supreme Court of Florida.
    April 18, 2019
    Honorable Krista Marx, Chair, Michael Louis Schneider, Executive Director, Alexander John Williams, General Counsel, Judicial Qualifications Commission, Tallahassee, Florida, for Florida Judicial Qualifications Commission, Petitioner
    Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, Florida, for Judge Ernest A. Kollra, Respondent
   PER CURIAM.

In this case, we review the findings and recommendation of the Florida Judicial Qualifications Commission (JQC) concerning misconduct by Judge Ernest Kollra of the Seventeenth Judicial Circuit and a stipulation entered into by Judge Kollra and the JQC. We have jurisdiction. See art. V, § 12, Fla. Const. We approve the parties' stipulation that Judge Kollra improperly introduced partisan political activity into his campaign for judicial office, that Judge Kollra's conduct violated two canons of the Code of Judicial Conduct, and that the appropriate discipline is a public reprimand.

BACKGROUND

This case arises from two incidents that occurred during Judge Kollra's campaign for reelection in 2018. As stipulated by the parties, and as set forth in the JQC's Findings and Recommendation of Discipline, those incidents are as follows:

In May of 2018, Judge Kollra and his opponent sat together for an interview with the Sun Sentinel newspaper editorial board. Judge Kollra was asked about his personal political affiliation, and he responded that he is a registered Republican. The same question was posed to Judge Kollra's opponent, and he declined to answer. Although the newspaper did not ultimately publish information about Judge Kollra's political affiliation, he understood that they could have. ...
A second incident occurred just a few weeks later, in June of 2018. On June 13, 2018, Judge Kollra attended a judicial candidate forum that was advertised as an "endorsement event" for the Dolphin Democrats. The Dolphin Democrats is a partisan political organization .... Judge Kollra was subsequently notified that he had received the official endorsement of the Dolphin Democrats. On June 24, while participating in a judicial candidate forum hosted by the Hills Democratic Club, Judge Kollra concluded his stump speech by telling the attendees that he had recently received the endorsement of the Dolphin Democrats.

In December 2018, the JQC served a Notice of Investigation on Judge Kollra stemming from these campaign incidents. On January 25, 2019, the Investigative Panel of the JQC conducted an investigative hearing at which Judge Kollra appeared with counsel and testified under oath in response to the Notice of Investigation. Following that hearing, the Investigative Panel determined that probable cause existed for the filing of formal charges. On February 14, 2019, the Investigative Panel formally charged Judge Kollra with violating certain canons of the Code of Judicial Conduct. The next day, the JQC filed its Findings and Recommendation of Discipline, along with the stipulation executed by the parties.

In its Findings and Recommendation of Discipline, the JQC found that Judge Kollra violated Canons 7C(3) and 7D of the Code of Judicial Conduct. Canon 7C(3) provides:

(3) A judicial candidate involved in an election or re-election, or a merit retention candidate who has certified that he or she has active opposition, may attend a political party function to speak in behalf of his or her candidacy or on a matter that relates to the law, the improvement of the legal system, or the administration of justice. The function must not be a fund raiser, and the invitation to speak must also include the other candidates, if any, for that office. The candidate should refrain from commenting on the candidate's affiliation with any political party or other candidate, and should avoid expressing a position on any political issue. A judicial candidate attending a political party function must avoid conduct that suggests or appears to suggest support of or opposition to a political party , a political issue, or another candidate. Conduct limited to that described above does not constitute participation in a partisan political party activity.

(Emphasis added.) Canon 7D provides:

D. Incumbent Judges. A judge shall not engage in any political activity ex cept (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law, the legal system or the administration of justice, or (iii) as expressly authorized by law.

(Emphasis added.) The JQC explained that Canons 7C(3) and 7D "very clearly and unambiguously" prohibit partisan political conduct by judges or candidates for judicial office. After finding that Judge Kollra's "course of conduct" violated Canons 7C(3) and 7D, the JQC set forth what it determined to be relevant mitigation:

Judge Kollra is a relatively new judge, and having been first appointed in 2016, and this was his first ever foray into an election of any kind. He has no prior disciplinary record with the Commission. He was admitted to [T]he Florida Bar in 1978, and has maintained an exemplary and, heretofore, unblemished record as a licensed attorney.
Further, Judge Kollra admitted to his misconduct, and has cooperated with the Commission in all respects during this inquiry. He deeply regrets that his conduct could have degraded the public's perception of the impartiality and nonpartisan nature of judicial elections. He hopes to rectify this, in part, by taking responsibility for his misconduct, and accepting the sanction.

The JQC then recommended a public reprimand, observing that this Court had imposed that sanction in "similar misconduct" cases.

In the stipulation, Judge Kollra admitted to the alleged conduct, conceded that the conduct was violative of Canons 7C(3) and 7D, expressed remorse, and accepted the JQC's findings and recommendation.

ANALYSIS

"[T]his Court gives the findings and recommendations of the JQC great weight ...." In re Kinsey , 842 So.2d 77, 85 (Fla. 2003). However, this Court is not obligated to accept a stipulation between the JQC and the subject of an investigation. Under article V, section 12(c)(1) of the Florida Constitution, this Court "may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission." We review the JQC's findings "to determine if they are supported by clear and convincing evidence." In re Decker , 212 So.3d 291, 300 (Fla. 2017). And we review the JQC's "recommendation of discipline to determine 'whether it should be approved or whether other discipline is appropriate.' " Id. at 300-01 (quoting In re Renke , 933 So.2d 482, 486 (Fla. 2006) ). In this case, our review leads us to approve the parties' stipulation.

The JQC found that Judge Kollra's campaign conduct violated Canons 7C(3) and 7D. Judge Kollra cooperated with the JQC, admitted to the conduct, and conceded the JQC's findings. "In cases where a judge admits to wrongdoing and the JQC's findings are undisputed this Court will ordinarily conclude that the JQC's findings are supported by clear and convincing evidence." In re Diaz , 908 So.2d 334, 337 (Fla. 2005). We reach that conclusion here. Judge Kollra clearly introduced partisan political activity into a nonpartisan judicial election. Judge Kollra first represented himself as a registered Republican while being interviewed by a newspaper's editorial board. Judge Kollra later touted his endorsement by a partisan political organization affiliated with the Democratic Party. That Judge Kollra's conduct went to both sides of the political aisle does not make the conduct any less violative of Canon 7. As the JQC properly observed, the purpose of the applicable canons is to "protect the integrity of non-partisan judicial elections." And as Judge Kollra recognizes, the canons accomplish that purpose in part by prohibiting the type of conduct in which he engaged.

As to discipline, we agree with the JQC that our precedent supports the recommended sanction of a public reprimand. See In re Angel , 867 So.2d 379, 383 (Fla. 2004) (imposing public reprimand for judge who admitted to, among other things, multiple violations of Canon 7C(3), and listing cases in which "this Court has accepted the JQC's recommendation of public reprimand for conduct in violation of Canon 7 of the Code of Judicial Conduct, as well as section 105.071 of the Florida Statutes"). We also agree that this case is distinguishable from and involves less severe misconduct than In re Decker , in which we imposed a public reprimand, six-month suspension, and payment of costs for misconduct involving, among other things, a violation of Canon 7C(3). In re Decker , 212 So.3d at 293, 301. Unlike here, In re Decker involved a "pattern of misconduct involving numerous separate and cumulative violations," id. at 308-09, both before and during a judicial campaign, id. at 293. Lastly, although we recognize Judge Kollra's cooperation and remorse and commend him on an otherwise unblemished four decades as a member of The Florida Bar, we also note that being "a relatively new judge" and not having any prior experience with "an election of any kind" does not lessen a judicial candidate's obligations to be familiar with and adhere to the Code of Judicial Conduct. Under the Code, it is incumbent upon judges and judicial candidates to refrain from prohibited political activity. Failures to do so require appropriate discipline. In this case, the appropriate discipline is a public reprimand.

CONCLUSION

We conclude that the JQC's findings are supported by clear and convincing evidence, and we approve the stipulation entered into by Judge Kollra and the JQC. Accordingly, we hereby command Judge Ernest Kollra to appear before this Court for the administration of a public reprimand at a time to be established by the Clerk of this Court.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur.

      The JQC also explained that section 105.071, Florida Statutes, imposes certain limitations on political activity by candidates for judicial office, including prohibiting a candidate from " '[c]ampaign[ing] as a member of any political party,' or '[p]ublicly represent[ing] or advertis[ing] herself or himself as a member of any political party.' " (Quoting § 105.071(2) -(3), Fla. Stat.)


text:
    Cornelius Joseph Roberto AUDATE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-867
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1635
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Davion HADDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1589
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Phillip COOK, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1859
    District Court of Appeal of Florida, First District.
    February 25, 2019 Rehearing Denied April 09, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Danny T. MILLER, Appellant, v. T. BARNE, Correctional Officer, Santa Rosa Correctional Institution ; and James Coker, Warden, Santa Rosa Correctional Institution, Appellees.
    No. 1D19-215
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Robert Bryan SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4076
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven John PORKOLAB, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2828
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Deborah CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-568
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Daniel Lee DURNING, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3817
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Antoinette BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1705
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Zuberlon Lenard WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3635
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lee ANSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3232
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James ISABELLA, Former Husband, Appellant, v. Melanie WYRICK f/k/a Melanie Anne Isabella, Former Wife, Appellee.
    No. 1D18-3581
    District Court of Appeal of Florida, First District.
    April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gary PEARLMAN and Elizabeth Borgia, Petitioners, v. Chen GUIHONG, Respondent.
    No. 1D18-5331
    District Court of Appeal of Florida, First District.
    April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   DENIED.


text:
    Marvin Lee KING, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5293
    District Court of Appeal of Florida, First District.
    April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arturo ZAMORA, Appellant, v. IX DESIGN, INC. /NORMANDY INSURANCE COMPANY, Appellees.
    No. 1D18-2628
    District Court of Appeal of Florida, First District.
    April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Angel Rivera MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1410
    District Court of Appeal of Florida, First District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Roberto Jesus PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2304
    District Court of Appeal of Florida, First District.
    April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Keith CANADY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5372
    District Court of Appeal of Florida, First District.
    April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    WOODLAND GROVE HEALTH & REHABILITATION CENTER, Appellant, v. Kenneth LOVING, Appellee.
    No. 1D17-3398
    District Court of Appeal of Florida, First District.
    April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert MCKINNON III, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4052
    District Court of Appeal of Florida, First District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Henry Clay RUSH, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2124
    District Court of Appeal of Florida, First District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dwayne WIMBERLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2465
    District Court of Appeal of Florida, First District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cedrick Leron STAFFORD Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0716
    District Court of Appeal of Florida, First District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Aaron H. HOLLEY Jr., Appellant, v. Shirley A. DOUGLAS, Appellee.
    No. 1D18-678
    District Court of Appeal of Florida, First District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sheldon Terrell WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3019
    District Court of Appeal of Florida, First District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Collie Edward STEVENS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1701
    District Court of Appeal of Florida, First District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alexander BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4018
    District Court of Appeal of Florida, First District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Julius FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3485
    District Court of Appeal of Florida, First District.
    April 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Frederick WADE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2987
    District Court of Appeal of Florida, First District.
    April 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Elisa CORTESE, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D17-4282
    District Court of Appeal of Florida, First District.
    April 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gary BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3933
    District Court of Appeal of Florida, First District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Christopher H. PERRITT, Appellant, v. Mary Glenn PERRITT, Appellee.
    No. 1D17-5310
    District Court of Appeal of Florida, First District.
    April 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Randall LAMP, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-736
    District Court of Appeal of Florida, First District.
    April 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    AMERICAN TREE CARE SERVICES and Harbor Specialty Insurance Company & Enstar (US) Inc., Appellants, v. Eric BUNDSHUH, Appellee.
    No. 1D18-0309
    District Court of Appeal of Florida, First District.
    April 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Todd Howard NESSA, Appellant, v. Alexandra D. NESSA, Appellee.
    Case No. 2D18-951
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Zackia S. KING-ROBINSON, Appellant, v. Carl A. ANDERSON, Appellee.
    Case No. 2D18-448
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Emose OCEANT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2628
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Darryl A. VACHON, Appellant, v. The TRAVELERS HOME AND MARINE INSURANCE COMPANY, Appellee.
    Case No. 2D17-4060
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.