Ryan C. Torrens v. Sean Shaw, Ken Detzner, in his official capacity as the Secretary of State Department of State, Division of Elections , 257 So. 3d 168 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-3600
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RYAN C. TORRENS,
Appellant,
v.
SEAN SHAW, KEN DETZNER, in
his official capacity as the
Secretary of State; DEPARTMENT
OF STATE, DIVISION OF
ELECTIONS,
Appellees.
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On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.
November 13, 2018
PER CURIAM.
Appellant, Ryan Torrens, seeks review of a final judgment
granting declaratory and injunctive relief, which disqualified him
as a candidate for the Democratic nomination for Attorney
General. We previously stayed the final judgment, and we now
reverse. 1
1Torrens did not ultimately prevail in the August 28, 2018,
primary election. We find the issue not to be moot because of
On June 21, 2018, Ryan Torrens submitted the items listed
in section 99.061(7), Florida Statutes (2017), and qualified as a
candidate for the Democratic nomination for Attorney General.
One of the items he submitted was a check from the Ryan
Torrens for Attorney General Campaign Account in the amount
of $7,738.32.
In July, his opponent for the nomination, Sean Shaw, filed a
complaint for declaratory and injunctive relief against Torrens.
The complaint alleged that on June 18, prior to submitting his
qualifying check, Torrens’ campaign accepted a contribution of
$4,000 from Francesca Yabraian, Torrens’ wife, which the
complaint alleged to be a prima facie violation of section
106.08(1)(a)1., Florida Statutes (2017). The complaint alleged
that prior to receipt of the contribution, the Torrens campaign
account did not hold enough funds to cover the qualifying fee, and
Torrens would not have qualified as a candidate but for the
illegal contribution. It further alleged that Torrens acted in bad
faith and attempted to qualify as a candidate through fraudulent
conduct expressly designed to corrupt the ballot. Torrens moved
to dismiss the complaint for failure to state a cause of action, but
the circuit court deferred ruling on the motion until trial.
On August 24, after a non-jury trial, the circuit court entered
a final judgment granting declaratory and injunctive relief. The
circuit court found that Torrens intentionally acted contrary to
the campaign finance and qualifying laws.
Specifically, the circuit court found that Torrens knowingly
possessed the unlawful funds for more than a month. But for the
$4,000 remaining in the account from June 18 and beyond, the
qualifying check would not have cleared and Torrens would not
have qualified for the ballot. Noting that it had to determine
whether Torrens properly met the qualifying criteria in section
99.061, Florida Statutes (2017), the court concluded that Torrens
“acted improperly” in filling out the check and compounded his
potential incidental consequences that may arise out of the trial
court’s decision in this case.
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disregard for the law by not immediately refunding the excess
amount. 2
The circuit court’s order does not contain any authority
supporting its ruling that Torrens failed to properly qualify as a
candidate other than its non-specific reference to section 99.061.
Section 99.061(7), relating to qualifying, provides:
(a) In order for a candidate to be qualified, the following
items must be received by the filing officer by the end of
the qualifying period:
1. A properly executed check drawn upon the
candidate’s campaign account payable to the person or
entity as prescribed by the filing officer in an amount
not less than the fee required by s. 99.092, unless the
candidate obtained the required number of signatures
on petitions pursuant to s. 99.095. The filing fee for a
special district candidate is not required to be drawn
upon the candidate’s campaign account. If a candidate’s
check is returned by the bank for any reason, the filing
officer shall immediately notify the candidate and the
candidate shall have until the end of qualifying to pay
the fee with a cashier’s check purchased from funds of
the campaign account. Failure to pay the fee as provided
in this subparagraph shall disqualify the candidate.
2. The candidate’s oath required by s. 99.021, which
must contain the name of the candidate as it is to
appear on the ballot; the office sought, including the
district or group number if applicable; and the signature
of the candidate, which must be verified under oath or
affirmation pursuant to s. 92.525(1)(a).
2 The order also deferred ruling on Shaw’s motion to dismiss
Torrens’ amended counterclaim for libel. This counterclaim
remained pending when the appeal was filed but has since been
voluntarily dismissed.
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3. If the office sought is partisan, the written
statement of political party affiliation required by s.
99.021(1)(b).
4. The completed form for the appointment of
campaign treasurer and designation of campaign
depository, as required by s. 106.021.
5. The full and public disclosure or statement of
financial interests required by subsection (5). A public
officer who has filed the full and public disclosure or
statement of financial interests with the Commission on
Ethics or the supervisor of elections prior to qualifying
for office may file a copy of that disclosure at the time of
qualifying.
Shaw did not allege that Torrens failed to file any of the items
listed above, nor did the trial court assert what particular section
of the statute Torrens failed to follow. This case is
distinguishable from Boatman v. Hardee, 43 Fla. L. Weekly
D1956 (Fla. 1st DCA Aug. 23, 2018), where we recently upheld a
declaratory judgment finding that a candidate for School Board of
Madison County did not properly qualify as a candidate for
election because he paid his qualifying fee using a cashier’s check
instead of the “check drawn upon the candidate’s campaign
account” as required by section 105.031(5)(a)1., Florida Statutes
(2017). Here, there is no dispute that Torrens tendered “[a]
properly executed check drawn upon the candidate’s campaign
account.”
Rather, Shaw challenged the source of the funds in Torrens’
campaign account, alleging that Torrens violated section 106.08.
The remedies related to violating section 106.08 are very specific
and limit when a violation may result in removal from the ballot.
Section 106.19(1), Florida Statutes (2017), states it is a first-
degree misdemeanor to knowingly and willfully accept a
contribution in excess of the limits in section 106.08. The name of
a candidate “shall not be printed on the ballot for an election if
the candidate is convicted of violating s. 106.19.” § 106.18(1), Fla.
Stat. (2017) (emphasis added). However, “[e]xcept as otherwise
expressly stated, the failure by a candidate to comply with the
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requirements of [chapter 106] has no effect upon whether the
candidate has qualified for the office the candidate is seeking.” §
106.19(4), Fla. Stat. (2017). Thus a private citizen’s allegation of
a violation of chapter 106 has no bearing on whether a candidate
has properly qualified for office under section 99.061(7).
Our sister courts have also recognized that chapter 106 does
not create a private right of action. For example, in Schurr v.
Sanchez-Gronlier, 937 So. 2d 1166, 1170 (Fla. 3d DCA 2006), the
Third District found a candidate for circuit judge was in violation
of section 106.021 for accepting a campaign contribution prior to
appointing a treasurer and designating a primary campaign
depository but found the candidate’s removal from the ballot was
not warranted. Schurr recognized that in Goff v. Ehrlich, 776 So.
2d 1011 (Fla. 5th DCA 2001), the Fifth District held that section
106.021 does not provide for a private right of action. Schurr
further noted that enforcement of chapter 106 was “within the
purview of the Florida Elections Commission.” Schurr, 937 So. 2d
at 1170. See also Cullen v. Cheal, 586 So. 2d 1228 (Fla. 3d DCA
1991) (upholding order dismissing Cullen’s complaint to enjoin
the issuance of a certificate of election to successful candidate for
County Commissioner, finding that private citizens did not have
the power to enforce chapter 106). Accordingly, the circuit court
erred in declaring that Torrens failed to properly qualify.
Accordingly, we reverse the final judgment on appeal. Given
our disposition of Torrens’ first argument on appeal, we do not
find it necessary to address his remaining arguments.
WOLF, KELSEY, and JAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jared James McCabe of The McCabe Law Firm, Tampa; Dineen
Pashoukos Wasylik, DPW Legal, Tampa, for Appellant.
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Andrew J. Baumann, Robert P. Diffenderfer of Lewis Longman &
Walker, P.A., West Palm Beach, and Natalie A. Kato of Lewis
Longman & Walker, P.A., Tallahassee, for Appellees.
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