IN THE SUPREME COURT OF FLORIDA. v. Case No.: SC RESPONSE OF THE SECRETARY OF STATE IN OPPOSITION TO PETITION FOR WRIT OF MANDAMUS

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1 Filing # E-Filed 06/26/ :44:58 AM IN THE SUPREME COURT OF FLORIDA TOBY BOGORFF, ET AL., Petitioners, v. Case No.: SC RICK SCOTT, GOVERNOR, ET AL., RECEIVED, 06/26/ :48:26 AM, Clerk, Supreme Court Respondents. / RESPONSE OF THE SECRETARY OF STATE IN OPPOSITION TO PETITION FOR WRIT OF MANDAMUS Respondent, Florida Secretary of State Kenneth W. Detzner ( Secretary ), responds to this Court s Order dated June 21, 2017, ordering that the Secretary file a response to the petition. The Secretary takes no position regarding the substance of petitioner s constitutional arguments. Indeed, in the main, the petition is not directed to the Secretary. To comply with the Court s order and to assist the Court, however, the Secretary respectfully submits this short response. INTRODUCTION Petitioner makes merely passing and incidental mention of the Secretary, see Pet. at 1 (introductory paragraphs), 3 (under Nature of the Relief Sought ), 6 (asking the Court to order that Governor Scott s veto of the Citrus Canker Final Judgment Appropriations should be expunged ), 17 (same), 18 (under Conclusion ), and offers nothing in the way of facts to establish a clear legal duty

2 that the Secretary has failed or refused to perform. Rather, regarding the Secretary, petitioner only asks that the Secretary be directed to expunge the vetoes from the public records of the State of Florida.... Pet. at 1. A peremptory writ of mandamus directed to the Secretary in this case is unwarranted and ultimately unnecessary. Currently, petitioner has no clear legal right to have the Governor undo his veto. The primary thrust of the petition is to establish the unconstitutionality of the Governor s vetoes. See Pet. at 1 ( This petition challenges Governor Rick Scott s line-item vetoes of two specific appropriations... ). Unless and until petitioner succeeds, the Secretary has no duty to expunge the Governor s vetoes from the public records of Florida. If this Court were to hold that the Governor s vetoes were unconstitutional, the Secretary, as custodian of the State s laws, would be capable of making a notation in the official records in his custody to that effect, without the need for a court order. Any writ the Court might enter against the Secretary upon a holding of unconstitutionality, though, necessarily would be limited to a direction that a notation be added near the offending veto that indicates it has been invalidated and expunged. SCOPE OF APPELLATE MANDAMUS JURISDICTION Mandamus is a narrow, extraordinary writ provided for in article V of the Florida Constitution for use to compel the performance of a clear legal duty in the 2

3 absence of any other adequate remedy. Mathews v. Crews, 132 So. 3d 776, 779 (Fla. 2014). The basis for appellate exercise of mandamus jurisdiction is extremely limited. Id. at To be entitled to a writ of mandamus, a petitioner ordinarily needs to establish three elements: (1) that the petitioner has a clear legal right to the requested relief ; (2) that the state officer has an indisputable legal duty to perform the requested action ; and (3) that the petitioner has no other adequate remedy available. Huffman v. State, 813 So. 2d 10, 11 (Fla. 2000); see also Tyson v. The Florida Bar, 826 So. 2d 265, 266 (Fla. 2002) ( Because petitioner cannot demonstrate that the Bar has failed to perform some duty which he has a clear legal right to have performed, this Court has no jurisdiction to issue the writ and we therefore dismiss the petition ). Petitioner does not establish any of these elements here regarding the Secretary. The purpose of mandamus is not to establish a legal right. Its function is to enforce a right which has already been clearly established. In other words, the petitioner[] must demonstrate [an] entitlement to a clear legal right to compel the performance of an indisputable legal duty. State ex rel. Glynn v. McNayr, 133 So. 2d 312, 316 (Fla. 1961). Traditionally, it has not been a proper function of mandamus to establish a legal right [rather] than to enforce a clear legal duty 3

4 already established. State ex rel. Fraternal Order of Police, Orlando Lodge No. 25 v. City of Orlando, 269 So. 2d 402, 402 (Fla. 4th DCA 1972). Here, petitioner fails to establish an immediate need in this case for a writ of mandamus against the Secretary. The Supreme Court has routinely withheld issuance of such a writ because of its confidence that the Secretary will fully comply with the views expressed in [its] opinion. Chiles v. Milligan, 659 So. 2d 1055, 1059 (Fla. 1995); see also Fla. House of Representatives v. Martinez, 555 So. 2d 839, 846 (Fla. 1990); Chiles v. Milligan, 682 So. 2d 74, 77 (Fla. 1996); Florida Senate v. Harris, 750 So. 2d 626, 631 (Fla. 1999). Such would be the case here if this Court were to issue an opinion invalidating the Governor s vetoes. A writ against the Secretary in turn is not necessary. LIMITATION ON MANDAMUS RELIEF REGARDING EXPUNCTION If this Court concludes that the Governor s vetoes are unconstitutional and directs that the vetoes be expunged, the peremptory writ could only require the Secretary to note on the official records in his custody that the vetoes are void that is, require him to annotate, not expurgate. No court has or should require the Secretary to permanently destroy a public record. The term expunge has at least two meanings. It can mean [t]o remove from a record, list, or book; to erase or destroy. Black s Law Dictionary 621 (8th 4

5 ed. 2004). But it also can mean [t]o declare (a vote or other action) null and outside the record, so that it is noted in the original record as expunged and is redacted from all future copies. Id. Put differently, expunction can be limited to cross[ing] out the words or draw[ing] a line around them in the original, noting that those words are expunged, but ensuring that in the original, it is not impossible to determine whether more was expunged than ordered. Id. (quoting Mason s Manual of Legislative Procedure 444, at (2000)). When mandamus previously has issued to the Secretary that required expunction, it surely must have been under this latter meaning. Presumably, petitioner does not ask for any more here. The Secretary of State is custodian of the original statutes of Florida, and of the laws of the state , 15.02, Fla. Stat. Moreover, the Secretary must maintain and preserve public records in his custody and can only dispose of records in accordance with applicable retention schedules. See (6), Fla. Stat.; see also Art. I, 24(a), Fla. Const. ( Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state.... ); (1), Fla. Stat. ( Public records shall be maintained and preserved.... ). There is no retention schedule for the original laws of Florida, see rule 1B (1)(a), Fla. Admin. Code ( General Records Schedule GS1-SL for State and Local Government Agencies ), so they must be preserved indefinitely and not destroyed. 5

6 The most, then, that petitioner could be seeking here is a writ to require the Secretary to make a notation in the official records of the vetoes invalidation. A court cannot grant a petition for writ of mandamus to compel an officer to perform an act which the officer cannot legally perform. See Rodriguez v. Smith, 673 So. 2d 559, 560 (Fla. 3d DCA 1996). If the Court determines that the Governor s vetoes are invalid, any writ of mandamus directed to the Secretary presumably would be limited to a direction that he officially note the fact at the offending text in the official records. CONCLUSION Regardless of the Court s determination regarding the constitutionality of the Governor s vetoes, a writ of mandamus against the Secretary is unnecessary here. There is no indication that the Secretary would refuse to dutifully note in the official records that the Governor s vetoes had been invalidated, if that is the Court s determination. But if the Court holds that the Governor s vetoes are unconstitutional and determines that a writ against the Secretary is necessary, the writ s direction would be limited to a form of expunction that does not include permanent destruction of a public record. [Signature line on next page] 6

7 Respectfully submitted, /s/ David A. Fugett DAVID A. FUGETT (FBN ) General Counsel W. JORDAN JONES (FBN 87766) Assistant General Counsel FLORIDA DEPARTMENT OF STATE R.A. Gray Building, Suite South Bronough Street Tallahassee, Florida Phone: (850) Fax: (850) Counsel for Respondent, Florida Secretary of State Kenneth W. Detzner 7

8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the above document was filed via the Florida Courts E-Filing Portal on this 26th day of June, 2017, which will serve the following counsel of record: BRUCE S. ROGOW BRUCE S. ROGOW, P.A. 100 Northeast 3rd Avenue Suite 1000 Fort Lauderdale, FL DANIEL NORDBY Daniel.Nordby@eog.myflorida.com General Counsel to the Governor MEREDITH SASSO Meredith.Sasso@eog.myflorida.com Asst. General Counsel to the Governor EXECUTIVE OFFICE OF THE GOVERNOR The Capitol Tallahassee, Florida Counsel for Respondent Governor Rick Scott ROBERT C. GILBERT NEAL A. ROTH GROSSMAN ROTH YAFFA COHEN, P.A Ponce de Leon Boulevard Suite 1150 Coral Gables, FL CHASITY O STEEN General Counsel to the Chief Financial Officer Chasity.O Steen@myfloridacfo.com FLORIDA DEPARTMENT OF FINANCIAL SERVICES 200 East Gaines Street Tallahassee, Florida Counsel for Respondent Chief Financial Officer Jeff Atwater CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Response complies with the font requirements of Florida Rule of Appellate Procedure 9.100(l). /s/ David A. Fugett DAVID A. FUGETT (FBN ) General Counsel 8