Hendricks, Thomas A.

English

bepress Legal Repository

Resign to Run: A Qualification for State Office or a New Theory of Abandonment?

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review1-1-1971Resign to Run: A Qualification for State Office or aNew Theory of Abandonment?Thomas A. HendricksFollow this and additional works at: http://repository.law.miami.edu/umlrThis Case Noted is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationThomas A. Hendricks, Resign to Run: A Qualification for State Office or a New Theory of Abandonment?, 25 U. Miami L. Rev. 339 (1970)Available at: http://repository.law.miami.edu/umlr/vol25/iss2/10CASES NOTEDunconstitutional as violative of the equal protection clause of the four-teenth amendment. "The differences between the interests of propertyowners and the interests of nonproperty owners are not sufficiently sub-stantial to justify excluding the latter from the franchise."2Though real property owners may have a somewhat different inter-est than that of nonproperty owners in the issuance of general obligationbonds,29 the existence of this difference is no basis for assuming that non-property owners will not be substantially affected by the outcome of theelection. Nonproperty owners will in effect also be paying a portion ofthe taxes to finance the general obligation bonds through higher rents andprices for goods and services.80In the author's opinion, the effect of the instant case will be toeliminate property ownership limitations on the right to exercise thevoting franchise. The question posed in Kramer and Cipriano appears tobe resolved. Limiting the franchise to those primarily interested is not acompelling interest because "when all citizens are affected in impor-tant ways by a governmental decision . . . the Constitution does notpermit weighted voting or the exclusion of otherwise qualified citizensfrom the franchise."'" The United States Supreme Court has yet to alludeto a situation in which limiting the voting franchise to a certain classof voters might further a compelling state interest. Furthermore, whenapplying the stricter "valid state interest" test to determine the constitu-tionality of voter qualifications, most classifications will inevitably fallsince the excluded class of voters can usually show an interest in anyelection and that they will be affected to some degree by the outcome.SUSAN GOLDMANRESIGN TO RUN: A QUALIFICATION FORSTATE OFFICE OR A NEWTHEORY OF ABANDONMENT?The plaintiff, a Florida Circuit Judge whose term did not expire forthree years, intended to run for the office of Justice of the Florida Su-preme Court. He was informed by the Florida Secretary of State, that28. City of Phoenix v. Kolodziejski, 399 U.S. 204, 209 (1970).29. General obligation bonds may be described as a lien on property within the munic-ipality since the issuers must levy sufficient taxes to service the bonds.30. Several reasons were set out by the Court to show how non-property holders areaffected by the outcome of general obligation bond elections:a. All residents of Phoenix are affected by this election since it is to finance publicfacilities;b. Although property taxes are initially paid by property owners, this expense ispassed on to tenants in higher rents and prices; andc. Although Arizona law calls for property taxes to service general obligation bonds,other revenues are legally available and will probably be used.31. City of Phoenix v. Kolodziejski, 399 U.S. 204,209 (1970).1971]UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXVunless he submitted an irrevocable resignation from his office of CircuitJudge, ten days before the date of qualifying, the Secretary would rejecthis qualification papers for the office of Justice of the Supreme Court.The plaintiff, however, wished to retain his present office in the event thathis quest for a seat on the Florida high court should be unsuccessful. Hetherefore brought a suit for declaratory judgment, contending that theFlorida "resign-to-run" law' was unconstitutional in that it imposed anadditional qualification upon a constitutionally created office. The trialcourt found section 99.012(2), (3), & (4) of the 1970 Florida Statutesto be constitutional. On appeal to the Supreme Court of Florida, held,affirmed: The statute does not relate to the qualifications one must pos-sess in order to hold office, but merely the conditions under which a per-son may become eligible to become a candidate. Holley v. Adams, 238So.2d 401 (Fla. 1970).As early as 1934, the Supreme Court of Florida proclaimed thatwhen the state constitution creates an office and names the requirementsof eligibility therefor, the legislature has no authority to create additionalqualifications for that office.2 The legislature may establish and modifyqualifications for only those offices which it has the power to create.3Speaking for a unanimous court, Chief Justice Davies not only laid downthe general rule for Florida but also provided its first exception. TheFlorida Constitution4 had created the office of County Surveyor withoutprescribing any qualifications and therefore the legislature could enact astatute5 which required the registration of all surveyors as a police power1. (2) No individual may qualify as a candidate for public office who holds anotherelective or appointive office, whether state, county or municipal, the term of whichor any part thereof runs concurrent with the term of office for which he seeks toqualify without resigning from such office not less than ten (10) days prior to thefirst day of qualifying for the office he intends to seek. Said resignation shall beeffective not later than the date upon which he would assume office, if electedto the office to which he seeks to qualify, or the expiration date of the term of theoffice which he presently holds, or the general election day at which his successor iselected, whichever occurs earliest. With regard to elective offices said resignationshall create a vacancy in said office thereby permitting persons to qualify ascandidates for nomination and election to that office, in the same manner as if theterm of such public officer were otherwise scheduled to expire; or, in regard toelective municipal or home rule charter county offices, said resignation shall createa vacancy which may be filled for the unexpired term of the resigned officer insuch manner as provided in the municipal or county charter. This does not apply topolitical party offices.(3) Any incumbent public officer whose term of office or any part thereof runsconcurrent to the term of office for which he seeks to qualify and who desires toresign his office pursuant to the provisions of this section shall execute an instru-ment in writing directed to the governor irrevocably resigning from the office hecurrently occupies. The resignation shall be presented to the governor with a copyto the department of state. The resignation shall become effective and shall have theeffect of creating a vacancy in office as provided herein, and the public officershall continue to serve until his successor is elected or the vacancy otherwise filled asprovided in subsection (2).(4) Nothing contained in subsections (2) and (3) shall relate to persons hold-ing any federal office.FLA. STAT. § 99.012(2), (3), (4) (Supp. 1970).2. State v. Ward, 117 Fla. 585, 158 So. 273 (1934).3. Id. at 586, 158 So. at 274.4. FnA. CONST. art. 18, § 10 (1885).5. Fla. Laws 1931, ch. 15657.CASES NOTEDmeasure designed to regulate a public profession. In State v. Ward,6 thestatute was held to be a reasonable exercise of the legislature's powerover public professions because it establishedcertain reasonable standards of professional fitness for thosepersons otherwise qualified who aspire to hold particular officesimplying some additional qualification in the nature of a profes-sional or technical fitness or training to be possessed by the of-fice holder .... IEighteen years after Ward, the Supreme Court of Florida was againcalled upon to decide the power of the legislature to impose additionalqualifications upon a constitutional office.' The legislature had enacted aschool code,9 part of which required candidates for the office of Superin-tendent of Public Instruction to hold a valid Florida Graduate Teacher'sCertificate.10 However, the constitution never mentioned any such re-quirement or qualification for the office."' The court agreed that it mightbe desirable to have certain educational, physical, mental, and moralqualifications definitely prescribed for the office of County Superinten-dent of Public Instruction, and conceeded that such qualifications wouldvery likely improve the efficiency of the educational system. However, thecourt noted that the County Superintendent of Public Instruction is notmerely an employee, but that he is a constitutional officer and, if the qual-ifications for this office prescribed by the legislature conflict with thoseprescribed by the state constitution, the statute prescribing those qualifi-cations must be declared invalid.'2 The constitution prescribes in no un-certain terms that certain persons are disqualified to hold certain con-stitutional offices, such as, Governor,18 Members of the Legislature, 4Justices of the Supreme Court and Judges of the Circuit and CriminalCourts. 5 The constitution further excludes from the offices it creates allpersons convicted of certain high crimes and misdemeanors.' 6 Accordingto the court, these enumerated qualifications were to be taken as exclu-sive of all other criteria, whether in the affirmative or negative.These plain and unambiguous specifications of disabilities ex-clude all others unless the Constitution provides otherwise. Theeffect of this declaration in the Constitution that certain officesare not qualified carries with it the necessary implication thatall others are qualified.' 76. 117 Fla. 585, 158 So. 273 (1934).7. State v. Ward, 117 Fla. 585, 586, 158 So. 273, 274 (1934) (emphasis added).8. Thomas v. State, 58 So.2d 173 (Fla. 1952).9. FLA. STAT. §§ 230.25, 231.17, 231.20, 231.24 (1951).10. FLA. STAT. § 230.25 (1951).11. FLA. CONST. art. 8, § 6 (1885).12. Thomas v. State, 58 So.2d 173, 175 (Fla. 1952).13. FLA. CONST. art. 4, § 3 (1885).14. FLA. CONST. art. 3, §§ 4, 7, 8 (1885).15. FLA. CONST. art. 5, § 3 (1885).16. FLA. CONST. art. 6, § 5 (1885).17. Thomas v. State, 58 So.2d 173, 185 (Fla. 1952).UNIVERSITY OF MIAMI LAW REVIEWWhen questioned as to the eligibility of an incumbent governor torun for re-election under rather dubious circumstances, the court in Er-vin v. Collins,'8 reasoned that doubt or ambiguity as to eligibility for of-fice should be resolved in favor of the peoples' right to choose theirelected officials.The lexicon of democracy condemns all attempts to restrictones right to run for office.... Florida is committed to the gen-eral rule in this country that the right to hold office is a valuableone and should not be abridged except for unusual reason or byplain provision of law. 9This commitment was found to be somewhat less than absolute when itwas applied in Jones v. Board of Control,20 wherein the court sustainedthe validity of a Board of Control rule which required its employees toresign before running for office. Jones held that the right to seek publicoffice is not a constitutional absolute, but a privilege subject to reason-able restraints and reasonable conditions.In State v. Adams," the court was presented with an incumbentoffice-holder seeking to qualify for two different offices in an upcomingprimary election. After first deciding that there were no statutory or con-stitutional bars to an incumbent becoming a candidate for another office,even if the terms were inconsistent, the court held that multiple candi-dacies were contrary to a sound public policy and therefore subject toreasonable restrictions in the public interest.22In a per curiam decision, the court in Maloney v. Kirk28 held that astatute24 which authorized the making of a decree voiding a gubernatorialelection for failure to comply with statutory regulations 25 regarding cam-paign contributions and election expenses was an unconstitutional at-tempt to add to the qualifications prescribed by the constitution 21 for can-didates for the office of Governor. Justice Roberts, concurring specially,argued that the legislature could not by indirection do what it was pro-hibited from doing directly.27 The statute "in effect disqualifies the can-didate from holding the office notwithstanding the election.'12818. 85 So.2d 853 (Fla. 1956).19. Id. at 858.20. 131 So.2d 713 (Fla. 1961).21. 139 So.2d 879 (Fla. 1962).22. Subsequent to this decision the Florida Legislature enacted FLA. STAT. § 99.012(1969) subsection one of which reads as follows:(1) No individual may qualify as a candidate for public office whose nameappears on the same or another ballot for another office, whether federal, state,county or municipal, the term of which or any part thereof runs concurrent to theoffice for which he seeks to qualify. This, however, does not apply to political partyoffices.23. 212 So.2d 609 (Fla. 1968).24. FLA. STAT. § 104.27 (1967).25. FLA. STAT. § 99.161 (1967).26. FLA. CONST. art. 4, § 3 (1885).27. Maloney v. Kirk, 212 So.2d 609, 613 (Fla. 1968).28. Id.[Vol. XXVCASES NOTEDIn a recent opinion29 the Florida Supreme Court invalidated a stat-ute8 ° setting up a six month residence requirement for the constitutional8'office of County Commissioner. The statute was held invalid because itprescribed qualifications for the office in addition to those prescribed bythe Constitution. The court made it clear that it was following the settledlaw of Thomas v. States2 and Maloney v. Kirk.s8The decision reached in the case sub judice represents not so mucha retreat from established constitutional interpretation as an escape fromliteral interpretation into the dimension of reasonability. Faced by con-flicting decisions in other jurisdictions construing similar statutes," theFlorida Supreme Court was forced to rely on its own reasoning and ahandful of previous decisions. The pattern traced by these earlier deci-sions is extremely ambiguous. On the one hand, the tradition of theFlorida Supreme Court has been one of summarily invalidating anylegislation which might create, modify or remove qualifications for con-stitutional offices. On the other hand is the growing propensity of thesame court to sustain police power measures which can be shown to bereasonably necessary to correct troublesome or potentially troublesomesituations.The Holley court was forced to apply these apparently conflictingprecedents to an act with the stated legislative intent of modifying, insome measure, the qualifications for becoming a candidate for a constitu-tional office.85 Evidently the court perceived a duty to sustain the act if atall possible. 6 The apparent semantic shuffling of the court in seeking abasis for sustaining the act probably resulted from the attempted perfor-mance of this duty.After first defining "eligible" as being "capable of being chosen"and "qualified" as being "the performance of the acts which the personchosen is required to perform before he can enter into the office," thecourt decided that Florida Statute section 99.012 did not prescribe addi-tional qualifications for office, but merely regulated the conditions underwhich one might become eligible.17The importance of the decision in Holley lies not so much in theavoidance of the constitutional issue as in the advancement of the propo-29. Wilson v. Newell, 223 So.2d 734 (Fla. 1969).30. FLA. STAT. § 99.032 (1967).31. FLA. CONST. art. 8, § 5 (1885).32. 58 So.2d 173 (Fla. 1952).33. 212 So.2d 609 (Fla. 1968).34. Mulholland v. Ayers, 109 Mont. 558, 99 P.2d 234 (1940); Burroughs v. Lyles, 142Tex. 704, 181 S.W.2d 570 (1944).35. WHEREAS, it is generally agreed to be considered inequitable to permit anelected official or appointive official holding office to use the prestige and power ofthat office in seeking election to a higher or different office, andWHEREAS, it is generally agreed that by providing for prospective resignationsthe people of the State of Florida would not be compelled to bear unnecessary costof special elections occasioned by elected or appointed officials who, while holdingone office, seek and obtain another elective office.FLA. STAT. § 99.012 (Supp. 1970).36. Holley at 405, citing Amos v. Matthews, 99 Fla. 1, 126 So. 308 (1930).37. Holley supra, at 406.UNIVERSITY OF MIAMI LAW REVIEWsition that the right to hold office as well as the right to seek office wassubject to reasonable restraints. Prior to the enactment of section 99.012,Judge Holley would have been required to resign his present office onlywhen he accepted and entered upon the duties of his new office. 8 Thecourt decided that section 99.012 operates as an extension of the rule ofabandonment of office by those who become a candidate for anotheroffice. Moreover, in the court's opinion,there is no constitutional provision prohibiting the Legislaturefrom declaring that the mere filing for a second office by theholder of one office under the circumstances covered by [section99.012] operates as an abandonment of the first. 9In the opinion of this writer, the decision reached in the instant casemerely represents an attempt to make the best of a bad situation. TheFlorida high court studiously avoided addressing itself to the constitu-tional implications of the amendments to Florida Statute section 99.012spending precious little time exploring the very real differences betweeneligibility for office and qualifications required for office. However, it didat least advance a plausible theory of voluntary abandonment of office,sufficiently well reasoned to allow the court to sustain a badly needed po-lice power measure.While there can be little doubt that this ruling will bring order to aconfused electoral scene, one must also consider the possible dangers ofallowing the legislature the power to tamper with the people's right offree access to constitutional offices. It appears that only Chief JusticeErvine was disturbed by this prospect as evidenced by his extremely co-gent dissent.Lastly, although the instant decision concerned only state officersseeking other state offices, and although section 99.012 states specificallythat it does not apply to persons holding federal office, in light of theabandonment theory adopted by the courts, the decision in Holley wouldhave been more enlightening if it had adequately explored the dimensionof state office-holders seeking federal office. The act would be transpar-ently unconstitutional if it were applicable to present federal office-holders. In the opinion of this writer its application to any prospectivefederal officer presents the same issues and should result in a finding ofinvalidity.4"THOMAS A. HENDRICKS38. State v. Adams, 139 So.2d 879 (Fla. 1962).39. Holley at 407, citing Mulholland v. Ayers, 109 Mont. 558, 99 P.2d 234 (1940).40. In a companion case, State v. Adams, 238 So.2d 415 (Fla. 1970), the FloridaSupreme Court sustained the provisions of § 99.012 as applied to a state officeholder seek-ing federal office. Subsequently, however, a three-judge federal district court in Stack v.Adams, 315 F. Supp. 1295 (N.D. Fla. 1970), held that § 99.012 did in fact prescribe an ad-ditional qualification for office when applied to those seeking a seat in the United StatesHouse of Representatives. In the face of this conflict the Supreme Court of Florida grantedrealtor Davis' petition for rehearing of State v. Adams, supra, and stayed its decision pend-ing review by the United States Supreme Court.[Vol. XXV

https://repository.law.miami.edu/cgi/viewcontent.cgi?article=2865&amp;context=umlr

Resign to Run: A Qualification for State Office or a New Theory of Abandonment?

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

University of Miami School of Law