Filing # 110158236 E-Filed 07/13/2020 03:50:34 PM

IN THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD

DISTRICT
CASE NOS. 3D20-464 & 3D20-466
Lower Tribunal Case No. 20-4799-CA-01 (13)

CITY OF MIAMI, TODD HANNON,

Clerk, and COMMISSIONER
JOE CAROLLO,
Appellants,

versus

ROBERT F. PIPER III and

TAKE BACK OUR CITY,
Appellees.
_____________________________________/

APPELLANT COMMISSIONER CAROLLO’S MOTION FOR STAY

OF MANDATE PENDING DISCRETIONARY REVIEW BY THE
FLORIDA SUPREME COURT

Pursuant to Florida Rules of Appellate Procedure 9.310(a) and

9.340(b), appellant Commissioner Carollo moves this Court to stay

issuance of the mandate pending discretionary review by the

Supreme Court of Florida.

Commissioner Carollo is the subject of a municipal recall that

is the subject of this appeal. He recently initiated a separate

declaratory injunction action in Circuit Court challenging the legality

of the recall process. Carollo v. Piper, Circuit Case No. 2020-014475-

CA-01 (Miami-Dade County).

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 The underlying mandamus appeal presents a real and present

question of great public importance and that conflicts with other

appellate decisions, Commissioner Carollo today initiated his Notice

of Discretionary Review to the Florida Supreme Court. He now seeks

a stay of the mandate pending the outcome of his discretionary review

proceeding.

This mandamus case began with the appellees, a municipal

recall committee and its chair, commencing a recall petition

pursuant to Section 100.361, Florida Statutes (2020), seeking to

recall City of Miami Commissioner Joe Carollo. When the City of

Miami Clerk determined the petitions were untimely submitted in

violation of the mandatory 30-day submission period, the recall

committee sought mandamus to compel the Clerk to transmit the

petitions to the Supervisor of Elections for verification. Commissioner

Carollo was granted permission to intervene as a party. Following a

hearing, the lower tribunal issued the writ of mandamus directing

the Clerk to deliver the recall petitions to the Supervisor. On appeal,

this Court approved the issuance of the writ of mandamus, holding

the municipal clerk had no authority to determine whether the recall

petition on its face was timely submitted. City of Miami v. Piper, __

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So. 3d __, 45 Fla. L. Weekly D 1275, 2020 Fla. App. LEXIS 7252 (Fla.

3d DCAA 2020).

The jurisdictional brief in the discretionary review proceeding

will present a substantial question meriting Florida Supreme Court

review. Good cause exists for a stay of proceedings pending this

discretionary review. Granting a stay will not cause unfair prejudice

to the parties, as the panel decision in the appellees’ favor implicates

the ordinary election process by which voters cast ballots during a

regularly scheduled election. The recall process is an extraordinary

proceeding that runs counter to the right of the people to elect their

public officials.

Discretionary review will be positioned on the express and direct

conflict with decisions of another district court of appeal and the

Florida Supreme Court on the same question of law, to wit: Thornber

v. City of Ft. Walton Beach, 568 So. 2d 914, 917 (Fla. 1990)

(municipality has a responsibility in recall proceedings to ensure the

recall committee follows proper procedures); Jividen v. McDonald,

541 So. 2d 1276, 1279 (Fla. 2d DCA 1989) (municipal clerk’s function

in response to recall petition is ministerial).

Supreme Court discretionary review is also being sought on the

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basis that the election recall issue involved in this case is of

exceptional and great public importance on the following question of

law: In fulfillment of the admonition that “[a] recall election is a

special, extraordinary, and unusual proceeding[,]” State ex rel.

Landis v. Tedder, 106 Fla. 140, 144, 143 So. 148, 1349 (Fla. 1932),

does a municipal clerk’s ministerial obligation “to ensure that the

recall committee follows proper procedures” include a determination

of the facial timeliness of the recall petitions?

Supreme Court precedent allows for the stay of the mandate in

cases like this where “there is both a likelihood of success in the

Supreme Court and irremediable harm by the denial of a stay

pending review in that Court.” State ex rel. Price v. McCord, 380 So.

2d 1037, 1039 (Fla. 1980). Likelihood does not mean certainty, nor

is the appellant required to establish a high likelihood of prevailing.

He need only establish a likelihood of success.

Here, there is a significant likelihood of success in the granting

of discretionary review and an ultimate decision favoring

Commissioner Carollo. Although this Court disagreed with

Commissioner Carollo’s appellate position, the issue involved is one

that calls for a definitive, statewide Florida Supreme Court

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determination.

Commissioner Carollo faces “irremediable harm by the denial of

a stay pending review.” McCord, 380 So. 2d at 1039. If the stay is not

granted, he will be obligated to prepare for a recall, and the City will

also be required to begin the process of scheduling the recall process,

including the potential for a special recall election that undermines

the right of the voters to elect officials in the ordinary course of the

election process. Because a recall is an extraordinary proceeding that

undercuts the elections process by a small minority of the electorate

seeking to require that voters participate in a new and unscheduled

election, the initiation of a defective and deficient recall process

should be tested by the courts at the earliest opportunity.

The public interest in the finality of the regular election process

is furthered and advanced by the stay of mandate.

For these reasons, appellant Commissioner Carollo requests

that this Court stay issuance of the mandate pending discretionary

review by the Florida Supreme Court.

Respectfully submitted,

KUEHNE DAVIS LAW, P.A.

Miami Tower, Suite 3550
100 S.E. 2 St.
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 Miami, FL 33131-2154
Tel: 305.789.5989
Fax: 305.789.5987
ben.kuehne@kuehnelaw.com
mdavis@kuehnelaw.com
efiling@kuehnelaw.com

By: S/ Benedict P. Kuehne

BENEDICT P. KUEHNE
Florida Bar No. 233293
MICHAEL T. DAVIS
Florida Bar No. 63374

CERTIFICATE OF SERVICE

I certify this document was efiled on July 13, 2020, to:

JUAN-CARLOS (J.C.) PLANAS KERRI L. MCNULTY

Florida Bar No. 156167
LAW FIRM OF JUAN-CARLOS
PLANAS, P.A.
2332 Galiano Street, 2d Floor
Coral Gables, FL 33134
Tel: 850.980.6542
jcplanas@planaslawfirm.com
Florida Bar No. 16171
444 SW 2d Avenue, Suite 945
Miami, FL 33130-1910
jagreco@miamigov.com
klmcnulty@miamigov.com
csantos@miamigov.com

DAVID J. WINKER
Florida Bar No. 73148
DAVID J. WINKER, P.A.
2222 SW 17 Street
Miami, FL 33145
Tel: 305.801.8700
dwinker@dwrlc.com

VICTORIA MENDEZ
City Attorney
Florida Bar No. 194931
JOHN GRECO
Florida Bar No. 991236
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 S/Benedict P. Kuehne
BENEDICT P. KUEHNE

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