REPLY BRIEF OF APPELLANT - 4dca.org

01128121-1

IN THE DISTRICT COURT OF APPEAL

FOR THE FOURTH DISTRICT, STATE OF FLORIDA

CASE NO. 4D18-3319

WENDY S. LINK, in her official capacity as

Supervisor of Elections for Palm Beach County, Florida

Appellant,

v.

RICK SCOTT FOR SENATE,

Appellees.

On Appeal from a Non-Final Order of the Circuit Court of the Fifteenth Judicial

Circuit, Palm Beach County, Florida

Case No. 2018-CA-014075 XXXXMB

REPLY BRIEF OF APPELLANT

JENNIFER R. COWAN

Florida Bar No.0038081

Primary Email: [email protected]

Secondary Email: [email protected]


Lewis, Longman & Walker, P.A.

100 2nd Avenue South, Suite 501-S

St. Petersburg, FL 33701

Telephone: (727) 245-0820

Filing # 89309482 E-Filed 05/10/2019 11:50:10 AM

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01128121-1

ANDREW J. BAUMANN

Florida Bar No. 0070610




RACHAEL B. SANTANA





515 North Flagler Drive, Suite 1500

West Palm Beach, Florida 33401

Telephone: (561) 640-0820

Facsimile: (561) 640-8202

NATALIE A. KATO


Primary email: [email protected]

Secondary email: [email protected]


315 South Calhoun Street, Suite 830

Tallahassee, FL 32202

Telephone: (850) 222-5702

Counsel for Appellant







01128121-1 i

I. TABLE OF CONTENTS

I. TABLE OF CONTENTS .................................................................................... i

II. TABLE OF CITATIONS ................................................................................... ii

III. PREFACE .......................................................................................................... iv

IV. ARGUMENT ....................................................................................................... 1

A. The Circuit Court Erred in Its Interpretation of Section 101.5614(4)(a) of

the Florida Statutes. ................................................................................................ 1

B. The Circuit Court Erred in Issuing a Temporary Injunction Without

Making Any Factual Findings And That Temporary Injunction Should be

Reversed. ................................................................................................................ 3

C. The Circuit Court Erred in Granting a Temporary Injunction Without

Reasonable Notice or Making Sufficient Findings to Articulate the Reasons Why

the Temporary Injunction was Issued Without Notice. .......................................... 7

D. This Appeal Should Not Be Dismissed for Mootness Because It Is A

Matter of Great Public Importance That Is Likely To Recur. ..............................10

V. CONCLUSION ..................................................................................................15

01128121-1 ii

II. TABLE OF CITATIONS

Cases

Baldwin v. Willet, 259 So. 3d. 891 (Fla. 4th DCA 2018) ......................................4, 7

Bellach v. Huggs of Naples, Inc., 704 So. 2d 679 (Fla. 2d DCA 1997) .................... 6

Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975) ...................................................... 6

Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L.Ed.2d 388 (2000) ......................14

Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68 (Fla. 4th

DCA 2014) ............................................................................................................. 5

D. H. v. Polen, 396 So. 2d 1189 (Fla. 4th DCA 1981) ............................................11

Dubner v. Ferraro, 242 So. 3d 444 (Fla. 4th DCA 2018) ................................ 5, 6, 7

Eldon v. Perrin, 78 So. 3d 737 (Fla. 4th DCA 2012) ............................................5, 7

Fla. High Sch. Activities Ass'n, Inc. v. Benitez, 748 So. 2d 358 (Fla. 4th DCA

1999) ....................................................................................................................... 8

Godwin v. State, 593 So. 2d 211 (Fla. 1992) ...........................................................10

Gore v. Harris, 772 So. 2d 1243 (Fla. 2000) ...........................................................14

Gore v. Harris, 773 So. 2d 524 (Fla.2000) ..............................................................14

Miller v. City of Belle Glade Canvassing Bd., 790 So. 2d 511 (Fla. 4th DCA 2001)

....................................................................................................................... 14, 15

Morris Publ'g Grp., LLC v. State, 136 So. 3d 770 (Fla. 1st DCA 2014) ................10

Plante v. Smathers, 372 So. 2d 933 (Fla. 1979) ............................................... 12, 14

Rea v. Sansbury, 504 So. 2d 1315 (Fla. 4th DCA 1987) .........................................11

Reserve at Wedgefield Homeowners' v. Dixon, 948 So. 2d 65 (Fla. 5th DCA 2007)

....................................................................................................................... 6, 8, 9

Richard v. Behavioral Healthcare Options, Inc., 647 So. 2d 976 (Fla. 2d DCA

1994) ....................................................................................................................... 5

01128121-1 iii

Sadowski v. Shevin, 345 So. 2d 330 (Fla. 1977) ............................................... 12, 14

Seashore Club of Atl. City, Inc. v. Tessler, 405 So. 2d 767 (Fla. 4th DCA 1981) .... 5

State v. Beeler, 530 So. 2d 932 (Fla. 1988) ...........................................................8, 9

State v. Causey, 503 So. 2d 321 (Fla. 1987) ............................................................11

State v. Fla. Workers' Advocates, 167 So. 3d 500 (Fla. 3d DCA 2015) ........... 10, 11

Sterling v. Brevard County, 776 So. 2d 281 (Fla. 5th DCA 2000) ................... 12, 13

Tom v. Russ, 752 So. 2d 1250 (Fla. 1st DCA 2000) ..............................................4, 7

Weltman v. Riggs, 141 So. 3d 729 (Fla. 1st DCA 2014) .......................................4, 7

Statutes

Section 101.5614, Florida Statutes ........................................................................1, 3

Section 102.141, Florida Statutes ..........................................................................2, 3

Section 102.168, Florida Statutes .............................................................................. 6

Rules

Rule 9.130, Florida Rule of Appellate Procedure ...................................................... 8

Rule 1.610, Florida Rule of Civil Procedure .................................................... 4, 6, 7

Rule 1S-2.027, Florida Administrative Code ............................................................ 3

01128121-1 iv

III. PREFACE

While the Appellant, Wendy S. Link, is the current Supervisor of Elections

for Palm Beach County, Florida, throughout this brief, Susan Bucher, in her prior

capacity as the Supervisor of Elections for Palm Beach County, Florida, will be

referred to as “Supervisor” as she was the Supervisor of Elections for Palm Beach

County, Florida, at the time this appeal was filed and during all events relevant to

this appeal. The Appellee, Rick Scott for Senate, will be referred to as “Scott.”

The Palm Beach County Canvassing Board will be referred to as the “Canvassing

Board.” The Verified Complaint for Declaratory and Injunctive Relief will be

referred to as the “Verified Complaint.” The Verified Emergency Motion for

Temporary Injunction and Supporting Memorandum of Law will be referred to as

the “Emergency Motion.” Citations to the record in the Appendix that

accompanied the Initial Brief will be referenced by “(A. # p. #.)” Citations to the

Appellee’s Answer Brief will be referenced by “(App. Br. p. #.)”

01128121-1 1

IV. ARGUMENT

A. The Circuit Court Erred in Its Interpretation of Section 101.5614(4)(a)

of the Florida Statutes.

The Circuit Court incorrectly held that Section 101.5614 of the Florida

Statutes requires that the Canvassing Board determine whether or not a duplicate

ballot must be created in every circumstance. In its order, the Circuit Court

explained how the Plaintiff sought relief regarding the way the Supervisor

processed physically damaged, overvoted, and undervoted ballots. Specifically,

Plaintiff further seeks a temporary injunction ordering: (1) the

Supervisor’s staff review the duplicate ballots together with the

original damaged ballot in the presence of the Plaintiff and any other

witnesses, require the objected duplicate ballot in question to be set

aside for immediate review by the Canvassing Board once the review

process is complete of all physically damaged absentee ballots and

duplicate ballots; and (2) to allow the Palm Beach County Canvassing

Board to determine valid votes from ‘overvoted’ and ‘undervoted’

absentee ballots…

(A. 5 p. 2.) Following that explanation, the Circuit Court ordered the Supervisor to

“provide to the Canvassing Board any duplicate ballots and any ‘overvoted’ or

‘undervoted’ ballots that have not yet been provided to the Board for its review no

later than 10:00 a.m. Saturday.” (A. 4 p. 45:15-18 & 46:14-19 & A. 5 p. 2.)

(emphasis added). Despite the plain language of section 101.5614(4)(a) of the

Florida Statutes which does not require the Canvassing Board to make any

determination with damaged ballots, the Circuit Court clearly ordered the

01128121-1 2

Supervisor to give the Canvassing Board any duplicate ballots, including those

made because the ballot was physically damaged.

Scott argues that the Circuit Court’s order is proper because it orders “the

Supervisor to give the Canvassing Board any ‘overvoted’ and ‘undervoted’ ballots

her staff had processed without the Canvassing Board’s input, together with any

duplicates made of those ballots.” (App. Br. p. 14.) This attempt to reword the

Circuit Court’s order conveniently ignores the relief Scott requested related to the

physical damaged ballots and prefatory language of the Court’s order that “any”

duplicate ballots be presented to the Canvassing Board.

Scott also argues that the Canvassing Board is not permitted to use its

clerical help in the manner it did, but should only be able to use it for “menial,

office-related tasks.” (App. Br. p.16-17). The plain language of section

102.141(8) of the Florida Statutes allows “the Canvassing Board … [to] employ

such clerical help to assist with the work of the board as it deems necessary.”

Clearly by the statutory language, the Legislature provided discretion to the

Canvassing Board to use its clerical staff as it deemed appropriate, not as Scott

would demand. Furthermore, and contrary to Scott’s assertion, the trained clerical

help were never used in any circumstance where voter intent was in question.

(App. Br. p. 16) Specifically, there was no question of voter intent with overvotes

because pursuant to the Department of State rules, which were subsequently

01128121-1 3

adopted by the Canvassing Board, overvotes are not counted. Rule 1S-2.027(6) of

the Florida Administrative Code; (A. 9, p. 8:22-24 & 10:23-11:7 & A. 13). As for

undervotes, clerical help only looked at the ballots for consistency in accordance

with the adopted rules and were not used in any circumstance where voter intent

was in question. (A. 4, p. 22:16-21, 37:23-38:2, & 38:12-19.) If there was a

question as to the voter’s intent, then the ballot went to the Canvassing Board to

determine if the vote was valid. (A. 4 p. 22:22-25). Florida Election Code

mandates that valid votes on overvoted or undervoted vote-by-mail ballots be

determined in accordance with the rules adopted by the Department of State. §

101.5614(4)(a), Fla. Stat. (2018). Therefore, in accordance with sections

101.5614(4)(a) and 102.141(8) of the Florida Statutes, it is within the Canvassing

Board’s discretion to allow trained clerical staff to duplicate ballots where voter

intent was not in question so long as the duplication occurred pursuant to the rules

adopted by the Department of State and the Canvassing Board. Hence, the

Supervisor complied with section 101.5614(4)(a) of the Florida Statutes and the

Circuit Court’s ruling is in error.

B. The Circuit Court Erred in Issuing a Temporary Injunction Without

Making Any Factual Findings And That Temporary Injunction Should

be Reversed.

The Circuit Court improperly issued a temporary injunction without making

a single factual finding in its order and Scott concedes this point. (App. Br. p. 17)

01128121-1 4

Despite this concession, Scott argues incredibly that the appropriate remedy

is to uphold the injunction and remand for “the necessary findings.” (App. Br. p.

17.) In support, Scott cites to three case: Baldwin v. Willet, 259 So. 3d. 891 (Fla.

4th DCA 2018), Weltman v. Riggs, 141 So. 3d 729 (Fla. 1st DCA 2014), and Tom

v. Russ, 752 So. 2d 1250 (Fla. 1st DCA 2000). Scott alleges that in each of those

cases the appellate court remanded the matter for the court to enter an order

granting the injunction with the necessary factual findings. (App. Br. p. 18.) In

actuality, in each of those cases the courts reversed the lower court order granting

an injunction and left it to the lower court to determine whether an injunction

should be issued. Baldwin, 259 So. 3d. at 892 (“we reverse and remand for the

trial court to make clear, definite, and unequivocal factual findings on each prong

of the four-part test in determining whether Willet is entitled to relief”) (emphasis

supplied); Weltman, 141 So. 3d at 731 (“requires us to reverse and remand for the

trial court to address this flaw in its order”); Tom, 752 So. 2d at 1251

(“Accordingly, we remand with instructions to the trial court to either enter an

order that satisfies all requirements for entry of a temporary injunction or if

appropriate, an order denying the injunction.”) (emphasis supplied). These cases

cited by Scott support the Supervisor’s position that it is a reversible error for the

Circuit Court to fail to strictly comply with Florida Rule of Civil Procedure

1.610(c) and not make factual finding to support each of the four conclusions

01128121-1 5

necessary to justify a temporary injunction. Id.; Dubner v. Ferraro, 242 So. 3d

444, 447 (Fla. 4th DCA 2018); Eldon v. Perrin, 78 So. 3d 737, 738 (Fla. 4th DCA

2012); Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68, 72

(Fla. 4th DCA 2014) (the appellate court reversed the temporary injunction in its

entirety because the injunction contained no factual findings whatsoever and

lacked the necessary precision of what was being enjoined.); Seashore Club of Atl.

City, Inc. v. Tessler, 405 So. 2d 767, 768 (Fla. 4th DCA 1981) (A trial court cannot

merely accept as true the allegations of the complaint in ordering a temporary

injunction; rather it must make the factual findings sufficient to support the

elements of the relief).

Scott also cites Richard v. Behavioral Healthcare Options, Inc., 647 So. 2d

976 (Fla. 2d DCA 1994) in a misplaced effort to support the Circuit Court’s order.

In Richard, the Second District Court of Appeal found that the record supported

the trial court’s holding, but that the order was flawed because it did not specify

the reasons for entry. Id. at 978. Therefore, the Court remanded the case so the

trial court could delineate the factual findings to support its order granting the

temporary injunction and to hold an evidentiary hearing on the bond amount. Id.

at 978-979. Unlike in Richard, here the record does not support the Circuit

Court’s ruling. Specifically, absent from the hearing is any discussion on the

likelihood of irreparable harm, unavailability of adequate remedy at law,

01128121-1 6

substantial likelihood of success on the merits, or considerations of public interest.

(A. 4 & A. 5.) In fact, the only evidence before the Court related to the four

conclusions necessary to justify entry of a temporary injunction came from the

Supervisor who argued that an injunction was improper because Scott had an

adequate remedy at law; should he lose the election, he could bring an election

contest under section 102.168, Florida Statutes. (A. 9, p. 35:19-39:1.); Boardman

v. Esteva, 323 So. 2d 259, 261 (Fla. 1975).

Moreover, Scott acknowledged the necessity for a hearing on a bond and the

lack thereof in this case. (App. Br. p. 18). Failure of the Circuit Court to hold a

hearing to set a bond makes the injunction defective. Bellach v. Huggs of Naples,

Inc., 704 So. 2d 679 (Fla. 2d DCA 1997); Fla. R. Civ. P. 1.610(b); Dubner, 242 So.

3d at 447-448; (A. 5; A. 10).

Hence, where the Circuit Court’s injunction order fails to order a bond to be

posted and “fails to set forth a factual basis to support each of the elements of a

temporary injunction (i.e., the likelihood of irreparable harm, the unavailability of

an adequate remedy at law, substantial likelihood of success on the merits, and

consideration of the public interest),” the Circuit Court’s injunction order must be

reversed. Reserve at Wedgefield Homeowners' v. Dixon, 948 So. 2d 65, 67 (Fla.

5th DCA 2007). In accordance with the cases cited by Scott, Scott’s concessions

that the Circuit Court failed to hold a hearing on a bond and make any findings of

01128121-1 7

fact required by the Florida Rule of Civil Procedure 1.610, and the record and

argument provided by the Supervisor, the Circuit Court’s order of temporary

injunction should be reversed. Baldwin, 259 So. 3d. at 892; Weltman, 141 So. 3d

at 731; and Tom, 752 So. 2d at 1251; Dubner, 242 So. 3d at 447; Eldon, 78 So. 3d

at 738; (A. 4 & A. 5.).

C. The Circuit Court Erred in Granting a Temporary Injunction Without

Reasonable Notice or Making Sufficient Findings to Articulate the

Reasons Why the Temporary Injunction was Issued Without Notice.

The Circuit Court erred in granting a temporary injunction when the

Supervisor had 45 minutes prior notice of the hearing, and the Circuit Court failed

to make any findings articulating the reasons why it issued the temporary

injunction without notice.

Scott argues that the Supervisor had adequate notice because her counsel

appeared at the hearing and argued against the temporary injunction. (App. Br. p.

19.) The only reason the Supervisor had any legal representation at the hearing is

because her counsel happened to be in the courtroom on another noticed matter

immediately prior to this hearing. (A. 6 p. 1-2.) The Supervisor only received

notice of the hearing 45 minutes prior to the temporary injunction hearing, which

did not provide her with a meaningful opportunity to prepare to present evidence or

to even notify her counsel and secure a record of the proceedings. (A. 6 p. 1-2.);

01128121-1 8

Fla. High Sch. Activities Ass'n, Inc. v. Benitez, 748 So. 2d 358, 359 (Fla. 4th DCA

1999).

Scott then argues that, even if there was not adequate notice for the

November 9th hearing, the issue is moot because the Supervisor had a second

opportunity to be heard. Scott cites three cases to support his contention, however

in each of those cases the opposing party received the benefit of notice and a

meaningful opportunity at a hearing on a motion to dissolve the injunction.

After a trial court issues a temporary injunction, a defendant has two

options. He may question the lack of prior notice by immediately

appealing the injunctive order pursuant to Florida Rule of Appellate

Procedure 9.130(a)(3)(B), or he may file a motion to dissolve with the

trial court.

State v. Beeler, 530 So. 2d 932, 934 (Fla. 1988). When a party subject to a

temporary injunction chooses to file a direct appeal, the scope of the appellate

court is the legal sufficiency of the Circuit Court’s order, the complaint, and any

supporting documents. Dixon, 948 So. 2d at 67. In the instant matter, the

Supervisor filed an appeal, not a motion to dissolve the temporary injunction and

therefore, in accordance with Dixon, the appeal court must determine the legal

sufficiency of the Circuit Court’s order, which the parties agree is clearly deficient.

Id.; (App. Br. p. 17 & 18).

Scott attempts to equate the hearing on the Supervisor’s Emergency Motion

for Reconsideration, Status Conference, and Emergency Stay, to a hearing on a

01128121-1 9

motion to dissolve without citing any legal support for such a contention. (App.

Br. p. 19-20). A motion for reconsideration is clearly not a motion to dissolve.

When a defendant chooses to file a motion to dissolve, “notice becomes irrelevant

because the defendant is present, and the burden would be on the plaintiff to show

that the complaint and supporting affidavits are sufficient to support the

injunction.” State v. Beeler, 530 So. 2d 932, 934 (Fla. 1988). In contrast, at the

hearing on the Supervisor’s Emergency Motion for Reconsideration, Status

Conference, and Emergency Stay, sufficiency of the injunction was not presented;

instead, the argument was whether the timeframe set forth in the temporary

injunction could not be met. (A. 7, p. 5:4-14.) Specifically, that hearing was held

less than 24 hours after the Court entered the temporary injunction, and the Circuit

Court merely denied the stay and granted reconsideration in part by extending the

deadline for compliance by two hours. (A. 10; A. 7, p. 42:20-22.) The Supervisor

appealed the temporary injunction and was never provided a meaningful

presentation on the insufficiency of the injunction, and therefore, the Circuit

Court’s order should be reversed. Dixon, 948 So. 2d at 67; Beeler, 530 So. 2d at

934.

01128121-1 10

D. This Appeal Should Not Be Dismissed for Mootness Because It Is a

Matter of Great Public Importance That Is Likely To Recur.

Scott argues that the appeal is moot and should be dismissed because

election has concluded, but fails to address that this is a matter of great public

importance that is likely to recur.

When the controversy has been so fully resolved that a judicial

determination can have no actual effect, the issue is moot. Godwin v. State, 593

So. 2d 211, 212 (Fla. 1992). In other words a case is moot “when it presents no

actual controversy or when the issues have ceased to exist.” Id. However, there

are at least three instances where an otherwise moot case will not be dismissed: (1)

“when questions raised are of great public importance,” (2) the issue or questions

are likely to recur, or (3) “if collateral legal consequences that affect the rights of a

party flow from the issue to be determined.” Id. The exception for controversies

that are likely to recur applies when “(1) the challenged action was in its duration

too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a

reasonable expectation that the same complaining party will be subjected to the

same action again.” State v. Fla. Workers' Advocates, 167 So. 3d 500, 505 (Fla. 3d

DCA 2015) (citing Morris Publ'g Grp., LLC v. State, 136 So. 3d 770, 776 (Fla. 1st

DCA 2014)).

The instant matter is one of great public importance and it is likely to recur.

While the Supervisor acknowledges that the temporary injunction expired shortly

01128121-1 11

after the Notice of Appeal was filed, and that ten days later the Canvassing Board

certified the official returns for all federal, state and multicounty officers, this only

shows that the challenged action was so short in duration that it would be

impossible to fully litigate the matter prior to its expiration. (A. 10, A.11 & App.

Br. p. 11); Fla. Workers' Advocates, 167 So. 3d at 505. Further, to accept Scott’s

argument that the matter should be dismissed is to improperly allow an important

issue capable of repetition to evade review. Rea v. Sansbury, 504 So. 2d 1315,

1317 (Fla. 4th DCA 1987) (Despite the county ultimately publishing the number of

its electronic system enabling county employees to monitor proceedings of the

commission via telephone, the appellate court affirmed the trial court’s order

retaining jurisdiction to determine whether the number of electronic system was a

public record because of the possibility of the question arising again); State v.

Causey, 503 So. 2d 321, 322 (Fla. 1987) (Despite Causey subsequently pleaded

guilty to the offense of attempted arson, the Court retained jurisdiction to resolve

this still viable issue of great importance.); D. H. v. Polen, 396 So. 2d 1189, 1190

(Fla. 4th DCA 1981). (Despite the juvenile’s release to his mother pending final

hearing on a contempt charge and the case therefore becoming moot, the Court

retained jurisdiction because the petition “raised a recurring question of public

importance which, if not resolved, would evade appellate review.”). The appellate

courts’ recognition of the exceptions of great public importance and capability of

01128121-1 12

repetition while evading review is prevalent in election matters. Sadowski v.

Shevin, 345 So. 2d 330, 331-32 (Fla. 1977) (The Supreme Court found that,

although the questions raised were moot because of the passing of the

qualifications period and election, the question of whether a statute prohibiting a

candidate from spending campaign funds prior to qualification abridged the

candidate’s constitutional right to speak on public issues was a matter of great

importance and of general interest to the public, and therefore answered the

question). Plante v. Smathers, 372 So. 2d 933, 935 (Fla. 1979) (“This case, as it

relates to the 1978 election, has become moot; however, we elect to retain

jurisdiction and to resolve the constitutional issue because it is a matter of great

importance and of general public interest and will probably recur in the next

general election…require[ing] a candidate to make full and public financial

disclosure even though he or she may not qualify prior to July 1 of the election

year.”) Specifically, in Sterling v. Brevard County, 776 So. 2d 281, 284 (Fla. 5th

DCA 2000), the trial court ruled that a challenge to several proposed charter

amendments being placed on the ballot was moot because passage of the general

election. The District Court ruled that the fact that the general election was held

where the six amendments in question were not on the ballot did not moot the issue

or controversy. Id. It reasoned that:

[i]f such were the case, the inherent delays in the judicial process

would prevent any valid issue from ever being heard after an election

01128121-1 13

had been held. This would be an absurd result in our system of

democracy.

Id. The District Court further explained that its opinion should not be construed

merely as an advisory adjudication on the issues presented, but even if it were, “the

courts are always free to address the merits of an action which has been deemed

moot if the action is capable of repetition, yet evading review and presents an

important issue.” Id. at 285.

Here the actions taken by the Supervisor in this election were based on a

statutory interpretation of the Florida Election Code and rules adopted by the

Department of State and the Canvassing Board. Scott attempts to couch this matter

as one former Supervisor of Elections acting in a way that violated the Florida’s

Election Code; however, no court determination that the Supervisor’s actions

violated Florida’s Election Code. Contrary to Scott’s contention, a ruling on the

merits is not confined to the individuals and circumstances of this case because

Supervisors of Elections from other counties have adopted these same standards.

(A. 7, p. 10:22-25.) Hence, unless the Florida Election Code or rules are changed

to address this issue, the Supervisor and well as other Supervisors of Elections are

capable of repeating the actions questioned by Scott.

Additionally, as Scott admits “[i]t goes without saying that properly

processing and counting ballots is of the highest importance to the integrity of an

election.” (App. Br. p. 12.) The integrity of the ballots cast in elections go to the

01128121-1 14

very heart of our democracy and protecting the integrity of the election process to

insure free and fair elections is of great importance and paramount public interest.

(i.e. Sadowski, 345 So. 2d at 330.) Thus, similar to Sterling, Sadowski, and Plante,

this case presents an issue that is not only capable of repetition, but also of great

public importance. Sterling, 775 So. 2d at 284; Sadowski, 345 So. 2d 330; Plante

v. Smathers, 372 So. 2d at 935.

Moreover, if the appellate court were to find this issue to be moot and

dismiss the matter, the court would be allowing Scott to circumvent any process

that would have brought this issue to finality. The Florida Election Code provides

a two-pronged system for challenging vote returns and election procedures:

protests and contests. Miller v. City of Belle Glade Canvassing Bd., 790 So. 2d

511, 512–13 (Fla. 4th DCA 2001) (citing Gore v. Harris, 772 So. 2d 1243 (Fla.

2000), reversed on other grounds, Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148

L.Ed.2d 388 (2000), remanded, Gore v. Harris, 773 So. 2d 524 (Fla.2000)).

Specifically, a “protest proceeding is filed with the County Canvassing Board and

addresses the validity of the vote returns... [and] [t]he relief that may be granted

includes a manual recount.” Id. The protest must be filed with the Canvassing

Board prior to the time the Canvassing Board “certifies the results or within five

days after the date the election is held, whichever is later.” Id. A contest

proceeding is filed in circuit court to addresses the validity of the election itself and

01128121-1 15

it must be filed within ten days after the certification of the election results. Id.

In a contest proceeding, the relief that may be granted is varied and extensive. Id.

Scott chose neither the protest nor contest path to address his concerns over the

validity of the vote returns or the election; either of these paths would have

allowed the issue at hand to be resolved. Instead, Scott chose to bring an action for

temporary injunction against the Supervisor during the critical time of votes being

counted and then, once he was declared the winner, claimed any challenge arising

from his actions was moot.

V. CONCLUSION

The Appellant requests this Appellate Court reverse the Circuit Court’s

Order on the Plaintiff’s Verified Motion for a Temporary Injunction dated

November 9, 2018, and Order on Defendant’s Emergency Motion for

Reconsideration, Status Conference and Emergency Stay, dated November, 10,

2018.

01128121-1 16

Respectfully submitted this 10th day of May, 2019.

JENNIFER R. COWAN






100 2nd Avenue South, Suite 501-S

St. Petersburg, FL 33701

Telephone: (727) 245-0820

ANDREW J. BAUMANN





RACHAEL B. SANTANA





515 North Flagler Drive, Suite 1500

West Palm Beach, Florida 33401

Telephone: (561) 640-0820

Facsimile: (561) 640-8202

NATALIE A. KATO


Primary email: [email protected]

Secondary email: [email protected]


315 South Calhoun Street, Suite 830

Tallahassee, FL 32202

Telephone: (850) 222-5702

Counsel for Appellant










01128121-1 17

CERTIFICATE OF COMPLIANCE

Counsel for Appellee, WENDY S. LINK, in her capacity as SUPERVISOR

OF ELECTIONS for Palm Beach County, FL, certifies that this pleading has been

prepared in Times New Roman, 14-point font, in compliance with the requirements

set forth in Florida Rule of Appellate Procedure 9.210(a)(2).

/s/ Jennifer R. Cowan

JENNIFER R. COWAN, ESQUIRE

Florida Bar No.: 0038081

CERTIFICATE OF SERVICE

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

served via electronic mail to: Aliette D. Rodz, Esq., Shutts & Bowen, LLP, 200 S.

Biscayne Boulevard, Suite 4100, Miami, FL 33131, [email protected], and

Amber Stoner Nunnally, Shutts & Bowen, LLP, 215 South Monroe Street, Suite

804, Tallahassee, FL 32301, [email protected], [email protected],

Attorneys for Appellee, on this 10th day of May, 2019.

/s/ Jennifer R. Cowan

JENNIFER R. COWAN, ESQUIRE

Florida Bar No.: 0038081




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REPLY BRIEF OF APPELLANT - 4dca.org