IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

DENNY JONES,

Petitioner,

v. CASE NO.: 2012 CA 3694

KENNETH DETZNER, in his

official capacity as Florida Secretary of State,

Respondent.

_____________________________________/

RESPONSE TO ORDER TO SHOW CAUSE

Respondent, Florida Secretary of State Kenneth W. Detzner (“Secretary”), pursuant to

Rule 1.630, Florida Rules of Civil Procedure, hereby responds to the Court’s Order to Respond

to Petition dated December 4, 2012. The election has passed and the Court cannot grant

Petitioner the relief he seeks. Regardless, the Secretary fulfilled his ministerial duty to certify

the Justices for placement on the ballot. The Petition for Writ of Quo Warranto should be

dismissed as moot or, alternatively, denied as without merit.

I. INTRODUCTION

A. The Petition

Petitioner originally filed1 his Petition for Writ of Quo Warranto in the Florida Supreme

Court on November 5, 2012. Petitioner challenges the Secretary’s determination on April 20,

2012 that Justices Lewis, Pariente and Quince qualified for placement on the November 6

general election ballot. Petitioner does not challenge the Justices’ eligibility to hold office. Pet.

at 7. Petitioner seeks issuance of writ “directing the Secretary to demonstrate his authority to[:]

identify the Justices as qualified…;” “refuse to …disqualify the Justices upon disclosure of

1 The Secretary was served with process on December 12, 2012.

2

verified facts…;” and “to assist the Justices in facially meeting the statutory deadline to submit

their candidate qualifying documents.” Pet. at 14. Petitioner also seeks a writ to “preclude the

tabulation of votes and certification of the elections.” Pet. at 46. Respondent is the Secretary of

State who is the head of the Department of State, § 20.10, Fla. Stat, and the “chief election

officer of the state,” § 97.012, Fla. Stat.2

B. The Qualifying Period and General Election

“In order for a candidate for judicial office…to be qualified,” the Division of Elections

must receive several items “by the end of the qualifying period,” which was noon, April 20,

2012. § 105.031(5)(a), Fla. Stat. Forms for these items have been adopted by Rule. Id. at (1);

Rule 1S-2.0001, F.A.C. (incorporating the qualifying forms). 3

The required items and

corresponding forms are: the “candidate’s oath” and “loyalty oath” on Form DS-DE 26; “form

for the appointment of campaign treasurer and designation of campaign depository” on Form

DS-DE 9; and “full and public disclosure of financial interests” on CE Form 6. 4

§ 105.031(5)(a),

Fla. Stat. Judicial candidates must also file a “statement of candidate for judicial office” on DS-

DE 83 within 10 days of filing the “form for the appointment of campaign treasurer and

designation of campaign depository.” § 105.031(5)(a)4., Fla. Stat.

2 Contrary to Petitioner’s assertion, the Secretary is not “a member of the Governor’s cabinet,”

Pet. at 8. Art. IV, § 4(a), Fla. Const. (“There shall be a cabinet composed of an attorney general,

a chief financial officer, and a commissioner of agriculture”). 3 Largely in footnote, Petitioner argues at length that the Division’s rule and incorporated forms,

as well as the Florida Commission on Ethics’ rule and CE Form 6, are invalid. Pet. n. 8-9, 12-13,

15-16, 18, 21, 24-26, pp. 36-38. An administrative rule has the force of law however, and can

only be declared invalid by rule challenge under Chapter 120. See Sw. Fla. Water Mgmt. Dist. v.

Save the Manatee Club, 773 So. 2d 594, 598 (Fla. 1st DCA 2000); Dep’t of Revenue v. Novoa,

745 So. 2d 378, 380 (Fla. 1st DCA 1999). The judicial qualifying statute explicitly states that

“Filing shall be on forms provided for that purpose by the Division of Elections.” § 105.031(1),

Fla. Stat. The financial disclosure must be on a form prescribed by the Florida Commission on

Ethics. § 112.347, Fla. Stat. 4 CE Form 6 is a form adopted by the Florida Commission on Ethics. Rule 34-8.002(1), F.A.C.

3

On January 12, 2012, the Division received each of the Justices’ “form for the

appointment of campaign treasurer and designation of campaign depository,” and “statement of

candidate for judicial office” on Forms DS-DE 9 and 83. Exhibits A at 1-2 (qualifying papers of

Justice Lewis), B, at 1-2 (qualifying papers of Justice Pariente), and C, at 1-2 (qualifying papers

of Justice Quince); Pet. at 18-19. Before noon on April 20, 2012, the Division received each

Justice’s remaining qualifying forms, the “candidate’s oath” and “loyalty oath” on Form DS-DE

26, and “full and public disclosure of financial interests” on CE Form 6. Exhibits A, at 6-10, B,

at 6-61, and C, at 6-10; Pet. at 10. The Justices were each determined to be qualified on April

20, 2012, and the Secretary certified their names for appearance on the general election ballot on

September 6, 2012. Exhibit D, at 3.

The general election was held on November 6, 2012. Votes were tabulated, canvassed,

and reported by local elections officials. §§ 102.071, 102.111, and 102.141, Fla. Stat. Each of the

Justices was retained in office by more than the required “majority of the qualified electors

voting within the territorial jurisdiction of the court,” i.e. Florida. Art. V, § 10, Fla. Const.

Justice Lewis received 67.51% of the votes cast, Justice Pariente received 67.99% of the votes

cast, and Justice Quince received 67.72% of the votes cast. 5

The Canvassing Commission, not

the Secretary, certified both the returns of the election for these offices and the results on

November 20, 2012. § 102.111, Fla. Stat.; Exhibits E, at 1, and F, at 1.

II. THE PETITION SHOULD BE DISMISSED AS MOOT

“An issue is moot when the controversy has been so fully resolved that a judicial

determination can have no actual effect.” Florida Birth-Related Neurological Injury Comp. Ass'n

5 Election data is available on the Division of Elections website. The number of votes received

by and percentage of votes cast for each Justice is available at:

http://enight.elections.myflorida.com/Judicial/SupremeCourtJustice/ (last accessed on December

17, 2012).

4

v. Florida Div. of Admin. Hearings, 948 So. 2d 705, 710 (Fla. 2007) citing Godwin v. State, 593

So. 2d 211, 212 (Fla. 1992). This occurs, inter alia, where “by a change of circumstances prior

to the appellate decision, an intervening event makes it impossible for the court to grant a party

any effectual relief.” Montgomery v. Dep’t of Health & Rehabilitative Services, 468 So. 2d 1014,

1016 (Fla. 1st DCA 1985). “It is the function of a judicial tribunal to decide actual controversies

by a judgment which can be carried into effect, and not to give opinions on moot questions, or to

declare principles or rules of law which cannot affect the matter in issue.” Id. at 1016-17.

The general election, which included the merit retention races Petitioner seeks to affect,

was held on November 6, 2012, one day after Petitioner filed suit. As a result, the controversy

in the instant case – whether or not the Secretary properly certified Justices Lewis, Pariente and

Quince as duly-qualified – became moot. See Tyler v. Peacock, 124 So. 463, 464 (Fla. 1929)

(dismissing post-election appeal concerning name sought to be placed on ballot as moot); Matter

of Finno, 546 So. 2d 805, 807 (Fla. 4th DCA 1989); Chafetz v. Greene, 203 So. 2d 18, 19 (Fla.

3d DCA 1967); Gill v. City of North Miami Beach, 156 So. 2d 182 (Fla. 3d DCA 1963).

Moreover, the remaining relief Petitioner seeks as to the tabulation of votes and certification of

the results, although not within the Secretary’s authority, is moot as well. “[I]t is too late to

attack the validity of an election after the people have voted.” Polly v. Navarro, 457 So.2d 1140,

1143-44 (Fla. 4th DCA 1984).

Petitioner’s own actions prevented timely resolution of this matter. Petitioner did not

move to expedite this action or even timely file. Indeed, the Petition was untimely before it even

became moot. The Secretary, through the Division of Elections, determined that each Justice

duly-qualified on April 20, 2012. Petitioner however waited 199 days to file this action on the

day before the election.

5

Indeed, “a substantial number of cases in Florida hold that remedies are available to

challenge whether a candidate has properly ‘qualified’ to appear on a ballot, and to seek removal

of that candidate's name from the ballot, BEFORE the election is held.” Levey v. Dijols, 990 So.

2d 688, 694 (Fla. 4th DCA 2008) (collecting cases). Another action, to which Petitioner was not

a party, also challenged the Secretary’s determination that the Justices duly-qualified. See Long

v. Detzner, No. 2012 CA 1980 (2nd Jud. Cir.). 6 That action however, was filed on June 27, 2012,

68 days after the Secretary’s determination was made. Moreover, actions challenging the

Secretary’s determination around June 8 as to other candidates’ qualification to be on the August

14 primary election ballot were brought less than a week after that determination. Moon v.

Detzner, No. 2012 CA 1811 (2nd Jud. Cir.) (filed on June 12); Hayden v. Detzner, No. 2012 CA

1818 (2nd Jud. Cir.) (filed on June 13); Weeks v. Detzner, No. 2012 CA 1858 (docketed on June

13). All of these actions were timely resolved by the Court. 7

Even if Petitioner were to succeed on the merits – which he should not – and even if

Petitioner timely filed this action – which he did not – the intervening event of the general

election makes it impossible for the Court to grant Petitioner the relief he seeks. See

Montgomery, 468 So. 2d at 1016. The action should be dismissed as moot. See id.

III. ALTERNATIVELY, THE PETITION SHOULD BE DENIED

A. A Writ of Quo Warranto is Improper

Quo warranto means “by what authority” and a writ of quo warranto has “historically”

been used “to determine whether a state officer or agency has improperly exercised a power or

right derived from the State.” Fla. House of Reps. v. Crist, 999 So. 2d 601, 607 (Fla. 2008). A

6 Petitioner is represented in this action by the same attorneys who represented the plaintiffs in

Long v. Detzner. 7 Weeks v. Detzner is currently on appeal. See Weeks v. Detzner, No. 1D12-4243. The Secretary

has moved to dismiss the appeal as moot.

6

petition for writ of quo warranto may be brought by a citizen, “but this, like all other rules of law

has its limitations.” State ex rel. Pooser v. Wester, 170 So. 736, 738 (Fla. 1936). A petitioner

must act “seasonably and appropriately.” Id. at 738-39 (rejecting petition where, inter alia,

petitioner filed “less than one month” prior to the general election); see also Alma’s Italian &

Seafood Restaurant v. Jones, 627 So. 2d 605, 606 (Fla. 1st DCA 1993) (denying petition for writ

of mandamus where “[a]lthough the issues presented by the motion for recusal have been known

to petitioners for some time, they waited until immediately before the scheduled final hearing to

seek relief”). Moreover, “extraordinary relief” of a writ will not be granted where the relief

sought will “result in confusion and disorder and will produce an injury to the public which

outweighs the individual right of the complainant to have the relief he seeks.” Id. at 738-39.

In Pooser, the relators sought to void two primary elections on the basis that “more than

half the voters…were not qualified and therefore voted illegally.” Id. at 738. The relators

“waited more than four months to seek relief” however, and “at the time the information was

filed, the general election…was less than a month in the future.” Id. at 739. Moreover, the

Supreme Court saw “nothing that could result but confusion and disorder” if the election were

voided, even if most votes were illegal. Id. Indeed, the state has a well-recognized interest in

“avoiding chaotic elections.” Boudreau v. Winchester, 642 So. 2d 1, 3 (Fla. 4th DCA 1994; Eu

v. San Francisco County Democratic Central Comm., 489 U.S. 214, 231 (1989)(“A State

indisputably has a compelling interest in preserving the integrity of its election process”).

“Confidence in the integrity of our electoral processes is essential to the functioning of our

participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1 at 4 (2006) (allowing the impending

election to proceed without suspending challenged voter identification rules because of the voter

7

confusion and uncertainty that would result). The Supreme Court therefore granted the motion to

discharge the show cause order issued in Pooser, dismissing the action.

Here, Petitioner waited almost seven months and filed the day before the election to

challenge the Justices’ appearance on the ballot. Petitioner does not challenge the election that

has now passed. 8

Each of the Justices has been retained by over 67 percent of the vote. Nothing

but chaos could result from voiding the Justices’ retention, which is essentially what Petitioner

asks of this Court. The Court should deny the Petition for the same reasons the Supreme Court

rejected the petition in Pooser.

B. The Petition Fails on the Merits

“Recognizing the unique nature of the election process, Florida courts have traditionally

shown deference to the judgment of election officials.” Cobb v. Thurman, 957 So. 2d 638, 642

(Fla. 1st DCA 2006). The Florida Legislature has vested the Secretary with the “general

supervision and administration of the election laws,” and specifically found the Division of

Elections to be capable and competent to render opinions regarding interpretations of the

Election Code’s provisions. §§ 15.13, 106.23(2), Fla. Stat. “An agency’s interpretation of the

statute that it is charged with enforcing is entitled to great deference.” GTC, Inc. v. Edgar, 967

So. 2d 781, 785 (Fla. 2007).

The Supreme Court will not depart from the Division’s contemporaneous construction of

the statute it is charged with enforcing “unless the construction is ‘clearly unauthorized or

erroneous’.” Id. (internal citations omitted). Indeed, the Supreme Court has stated that, “This is

how government operates. The decisions of public administrators made within the ambit of their

8 Nor could Petitioner challenge the election. The grounds and timing for an election contest are

strictly limited to those specified in section 102.168, Florida Statutes. See Norman v. Ambler, 46

So. 3d 178, 181 (Fla. 1st DCA 2010); Levey v. Dijols, 990 So. 2d 688, 693 (Fla. 4th DCA 2008).

Petitioner’s challenge would be late and failure to qualify would provide no basis.

8

responsibilities … are presumptively correct and will be upheld, if factually accurate and absent

some compelling circumstances, clear error or overriding legal basis.” State ex rel. Siegendorf v.

Stone, 266 So. 2d 345, 346 (Fla. 1972) (upholding Secretary’s determination that candidate duly-

qualified because candidate substantially complied with the requirements).

Petitioner challenges the Secretary’s authority to notify the Justices, during the qualifying

period, that qualifying documents were missing, determine that the Justices duly-qualified, and

certify their names for placement on the ballot. Quite simply, the Secretary is authorized to do

all of these things pursuant to section 105.031, Fla. Stat. and his determination should be given

great deference and upheld.

1. The Secretary may notify candidates of missing qualifying papers

Petitioner argues that the Secretary, through the Division of Elections, had no authority to

notify the Justices that some of the required items had not yet been received. Pet. at 41-44; id. at

12-13. Petitioner argues that the Secretary “is not permitted to contact candidates during the

qualifying period regarding deficiencies” unless some qualifying papers had been received

during the qualifying period or 14 days prior. Pet. at 41, 43-44. Section 105.031(5)(b) does not

prohibit the Secretary from contacting candidates regarding deficient qualifying papers however,

but rather may impose a duty upon the Secretary to contact them if some items are missing, if

the other papers were received during the qualifying period or 14 days prior, or earlier. §

105.031(5)(b), Fla. Stat.; see Sancho v. Joanos, 715 So. 2d 382 (Fla. 1st DCA 1998) (interpreting

the same language in the general candidate qualifying statute, section 99.061(7)(b), to impose a

duty to contact that may arise under either situation); Browning v. Young, 993 So. 2d 64, 67-68

(Fla. 1st DCA 2008) (explaining that in Joanos the court “held that such a duty exists with

respect to qualifying papers that are submitted for filing”).

9

Section 105.031(5)(b) states that the filing officer “shall make a reasonable effort to

notify the candidate” of “missing or incomplete” items if the filing officer “receives qualifying

papers that do not include all items” “prior to the last day of qualifying.” § 105.031(5)(b), Fla.

Stat. The Division of Elections received each of the Justice’s Forms DS-DE 9 and 83 “prior to

the last day of qualifying” on January 12, 2012. Exhibits A, at 1-2 B, at 1-2 and C, at 1-2; Pet. at

18-19. Form DS-DE 26 and CE Form 6 had not yet been received by the Division just prior to

the end of the qualifying period however, and the Division therefore made a “reasonable effort to

notify” the candidates. See Pet. Appx. at 320, ll. 8-15; id. at 321, ll. 15-22 (transcript of FDLE

interview of Elisabeth H. Goodner). Section 105.031(5)(b) did not prohibit the Division from

doing so. To the contrary, it may have required such notification.

The Secretary, through the Division of Elections was authorized and not prohibited by

section 105.031(5)(b) to make the reasonable effort to notify the Justices of the missing Form

DS-DE 26 and CE Form 6. The petition for writ of prohibition should be denied.

2. The Justices timely filed all required qualifying papers

Petitioner argues that two of the forms submitted by the Justices were early and therefore

untimely, requiring the Secretary to determine the Justices failed to qualify. Pet. at 11 & n.4; 18-

28. Specifically, Petitioner argues that “since each of the three Justices failed to submit the

required ‘completed form for the appointment of campaign treasurer and designation of

campaign depository for candidate’” and “statement of candidate for judicial office” during the

qualifying period or 14 days prior when qualifying papers may be accepted for filing during the

qualifying period, “the Secretary was mandated to determine…that they had ‘not qualified’…”

Pet. at 24-25. This ignores the plain text of section 105.031 however, which states that such

items must be received by the Division of Elections “by the end of the qualifying period,” which

10

they undisputedly were on January 12, 2012. § 105.031(5)(a), Fla. Stat. (emphasis added); Pet.

at 18-19. Indeed, in letters dated January 17, 2012, the Division not only acknowledged receipt

of each Justice’s Form DS-DE 9, but also confirmed that each Justice’s form “was placed on file

in our office.” Exhibits A, at 3, B, at 3, C at 3.

It is of no moment for the purposes of qualifying that the Justices’ Form DS-DE 9 and

Form DS-DE 83 were filed before the qualifying period began. See Pet. at 25-26. Indeed,

section 105.031 requires that Form DS-DE 9 “be received by the filing officer” “as required by s.

106.021,” § 105.031(5), Fla. Stat., which states that the form “be filed with the officer before

whom such candidate is required to qualify” “prior to qualifying,” § 106.021(1)(a), Fla. Stat.

(emphasis added). Form DS-DE 83 must be filed “within 10 days” thereafter. § 105.031(5)(a)4.,

Fla. Stat. Moreover, Form DS-DE 9 must be filed before any campaign contribution is accepted

and before any expenditure is made. § 106.021(1)(a), Fla. Stat. (“No person shall accept any

contribution or make any expenditure…unless such person has appointed a campaign treasurer

and designated a primary campaign depository”). The Justices each correctly filed their Form

DS-DE 9 on January 12 prior to accepting the contributions and making the expenditures

reported in the January 12, 2012 – March 31, 2012 filing period. Exhibit G. 9

Section 105.031 is unambiguous. In order for each Justice to qualify, “the forms

provided for that purpose,” must have been “received by the filing officer,” the “Division of

Elections,” “by the end of the qualifying period.” § 105.031(1), (5)(a), Fla. Stat. Each Justice’s

Form DS-DE 9 must have been received by the Division of Elections before the end of the

qualifying period and Form DS-DE 83, “within 10 days” after that. Id. Section 105.031 simply

9 Each Justice reported contributions received beginning on January 21 and expenditures made

beginning on January 31. See Searchable Campaign Finance Database (“Contribution Records”

and “Expenditure Records”) available at: http://election.dos.state.fl.us/campaign-finance/cam-

finance-index.shtml.

11

does not state that the forms be filed “during” the qualifying period or 14 days prior as Petitioner

insists. To hold otherwise would require the addition of words, which the Court cannot do.

Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999). Moreover, section 105.031’s requirement that Form

DS-DE 9 be filed “by the end of the qualifying period” and section 106.021’s requirement that it

be filed “prior to qualifying” are in harmony. Indeed, section 105.031 incorporates section

106.021’s mandate that the form be filed prior to financing the campaign, possibly before the

qualifying period begins. § 105.031(5)(a)4., Fla. Stat.

Each of the Justices timely filed both Form DS-DE 9 and Form DS-DE 83 on the same

day, “by the end of the qualifying period” as required by section 105.031, Florida Statutes. The

Secretary was authorized under section 105.031 to determine and certify the Justices as duly-

qualified and a writ of prohibition should be denied on this basis.

3. The Secretary cannot look beyond the face of the qualifying papers

The Secretary’s “charge under the constitution and statute does not extend to the

substance or correctness or enforcement of a sworn compliance with the law –with ‘matters in

pais,’ as it were.” State ex rel. Shevin v. Stone, 279 So. 2d 17, 22 (Fla. 1973); Op. Div. of

Elections 78-30 (Aug. 3, 1978) (stating that “[s]uch an official merely examines the face of the

qualifying papers presented and, if in proper order, accepts them”). Indeed, “the Secretary of

State is without authority to pass judgment on questions dehors the filing instruments concerning

the qualifications of candidates.” State ex rel. Cherry v. Stone, 265 So. 2d 56, 58 (Fla. 1st DCA

1972); Davis ex rel. Taylor v. Crawford, 116 So. 41 (Fla. 1928); State ex rel. Hall v. Hildebrand,

168 So. 531 (Fla. 1936); State ex rel. Siegendorf v. Stone, 266 So. 2d 345 (Fla. 1972) (judicial

candidate); Schurr v. Sanchez-Gronlier, 937 So. 2d 1166 (Fla. 3d DCA 2006) (same).

12

Petitioner argues however, that the Secretary should have looked beyond Justice

Pariente’s facially complete Form CE 6 to discover “all W-2s” were not attached, even though

the source and amount of income reported on the W-2s was attached. Pet. 28-31; Exhibit B at 57

(indicating the amount and sources of income). Additionally, Petitioner argues that the Secretary

should have judged the accuracy or veracity of financial information sworn by Justices Lewis

and Pariente on their Forms CE 6. Pet. at 31-41. Petitioner further argues that the determination

should have been based on amended forms received after the Secretary determined that the

Justices had duly-qualified. Id. at 32-33 (listing changes from the original forms, which almost

all concern increasing or decreasing reported amounts, not changing sources); id. at 34 (stating

that the amended and supplemental forms “strongly indicate[] that the original[]s” were

deficient). Moreover, Petitioner later argues that the amended forms are not qualifying papers

that the Secretary may even consider. Pet. at 36 (stating that the “Secretary may not rely on CE

Form 6X as an additional requirement for qualifying…”).

The Secretary had no authority to perform Petitioner’s suggested investigations. “Once

the candidate states his compliance, under oath, the Secretary’s ministerial determination of

Eligibility for the office is at an end.” Shevin v. Stone, 279 So. 2d at 22. The Secretary is not

authorized to determine “the correctness of the candidate’s statement of compliance” in

determining the candidate’s qualification. Id.; see also Cherry, 265 So. 2d at 58 (denying writ of

mandamus seeking to compel Secretary to “determine whether Wright has complied with the

Resign-to-Run Law” because “we cannot issue a writ commanding him to do that which he is

powerless to do”). Justices Lewis and Pariente each filed a Form CE 6, which is not a Division

13

of Elections form and implicates requirements not enforced by the Division of Elections10

, which

appeared facially complete; neither form was missing any entries. Even if Justices Lewis and

Pariente only substantially complied11

with the qualifying statute, the Secretary’s determination

would be correct. See Siegendorf, 266 So. 2d 345. Indeed, the “judgment of officials duly

charged with carrying out the election process should be presumed correct if reasonable and not

in derogation of the law.” Krivanek v. The Take Back Tampa Political Comm., 625 So. 2d 840,

844-45 (Fla. 1993).

The Secretary was authorized under section 105.031 and, alternatively, Siegendorf as

well, to determine and certify the Justices as duly-qualified and the petition for writ of quo

warranto should be denied on this basis.

4. The Secretary does not tabulate votes or certify the returns of elections

Petitioner also seeks a writ “to preclude the tabulation of the votes and certification of the

elections of the Justices.” Pet. at 46; id. at 2, 5, 7-8, 13-14. The Secretary is not a member of the

Florida Elections Canvassing Commission, the entity responsible for certifying the returns of

elections. § 102.111(1), Fla. Stat. Nor does the Secretary tabulate votes for any race. See §

10

Nevertheless, the Commission on Ethics contemplates incomplete or incorrect information

being filed and therefore permits later amendment of the form. § 112.3145(9), Fla. Stat. 11

Petitioner misstates the Secretary’s arguments in previous qualifying cases, as well as the law

regarding substantial compliance. Pet. at n.19 (citing filings in Weeks v. Detzner, No. 2012 CA

1858 and Moon v. Detzner, No. 2012 CA 1811). As the court in those cases recognized, “in

Siegendorf, the [Florida Supreme] Court applied substantial compliance to justify the Secretary’s

determination to qualify the candidate, not to override it.” Weeks, at 8 (Fla. 2d Jud. Cir. Aug. 8,

2012) (Order Granting Defendant’s Motion for Summary Judgment and Denying Plaintiff’s

Motion for Summary Judgment); Moon, at 8 ((Fla. 2d Jud. Cir. Jul. 30, 2012) (Order Granting

Defendant’s Motion for Summary Judgment). Copies of the Orders are attached as Exhibits H

and I. Candidates must strictly comply with qualifying requirements or risk being determined to

have failed to qualify. The Secretary’s determination that a candidate qualified where the

candidate substantially complied however, will nevertheless be upheld.

14

102.071, Fla. Stat. The Secretary exercised no such authority. The petition for writ of quo

warranto should be denied on this basis.

WHEREFORE, the Petition for Writ of Quo Warranto should be dismissed as moot or,

alternatively, denied as without merit.

_____/s/ Ashley E. Davis_______________

ASHLEY E. DAVIS

Assistant General Counsel

Florida Bar No.: 48032

Ashley.Davis@DOS.MyFlorida.com

Betty.Money@DOS.MyFlorida.com

Stacey.Small@DOS.MyFlorida.com

Florida Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399-0250

(850) 245-6536

(850) 245-6127 facsimile

Counsel for Florida Secretary of State

Kenneth W. Detzner

15

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing document was sent

by email this 26th day of December, 2012 to:

Eric S. Haug

eric@erichaug.com

Shannon L. Goessling

pro hac vice admission pending

Shannon@southeasternlegal.org

amy@southeasternlegal.org

jayers@southeasternlegal.org

Counsel for Petitioner

John A. DeVault, III

jad@bedellfirm.com

ghw@bedellfirm.com

Henry M. Coxe, III

hmc@bedellfirm.com

gad@bedellfirm.com

Michael E. Lockamy

mel@bedellfirm.com

jbam@bedellfirm.com

Counsel for Intervenors

_______/s/ Ashley E. Davis__________

Attorney