Can a Recall Proceeding Serve As the Basis of Recall Election When 3 of the 4 Substantive Charges Are Striken As Legally Insufficent ?
In Davis v. Friend, 507 So. 2d 796 (Fla. 4th DCA 1987), the Fourth District held that, where a recall proceeding was predicated on four substantive charges set forth in a recall petition and three of the four were stricken as legally insufficient, the petition with its one remaining charge could not serve as the basis for a recall election. See 507 So. 2d at 796-97.
In Davis, the court explained:
The court agree with appellants that the instant recall proceedings, predicated from the outset on four substantive charges, cannot serve as the basis for a recall election now that three of the four charges have been stricken.
The trial court correctly ruled that in the absence of controlling precedent from this court, it was obligated to follow the holding of our sister court that a recall election may proceed under similar circumstances. See Wolfson v. Work, 326 So. 2d 90 (Fla. 2d DCA 1976).
Wolfson may be distinguishable in that the trial and appellate courts refused to rule on the validity of several charges after determining that the first ground was sufficient to sustain recall proceedings. the appellate court noted that the additional allegations "would likely surface during a campaign anyway." Id. at 92.
The recall statute requires the approval of a petition by a substantial number of voters before a recall election may be scheduled pursuant to that petition. 100.361, Fla. Stat. (1985).
Here, three distinct charges have actually been ruled invalid and it is undisputed on this record that a substantial number of voters endorsed the petition on the basis of all four charges.
The court agree with appellants that it is impossible to determine whether those voters would have endorsed the recall petition in the absence of three charges, all of which we note superficially appear to be more serious than the remaining charge.
The court disagree with Wolfson to the extent it holds that recall proceedings may not be enjoined even though they are predicated on a petition substantially based on invalid grounds.