Motion To Vacate

Filing # 104732707 E-Filed 03/11/2020 04:14:46 PM
IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN
AND FOR MIAMI/ DADE COUNTY,
FLORIDA GENERAL JURISDICTION
DIVISION
ROBERT F. PIPER, III, individually and

As Chair of TAKE BACK OUR CITY,
A Miami Political Committee
Plaintiff,
vs. 2020-4799-CA-13
THE CITY OF MIAMI and

TODD HANNON, in his official
capacity as CLERK OF THE
CITY OF MIAMI.
Defendants,
And,
COMMISSIONER JOE CAROLLO,
Intervening Defendant.
/
EMERGENCY MOTION TO VACATE STAY
COME NOW, the Plaintiffs, by and through undersigned Counsel and file this
EMERGENCY Motion to vacate the Stay imposed by their Notice of Appeal pursuant to the
Florida Rules of Appellate Procedure, Rule 9.310(b)(2) and in support thereof states as follows:
INTRODUCTION
As per the proceedings held in Court on March 10, 2020, the City of Miami and its Clerk,
Todd Hannon, were ordered by the Court to immediately turn over the recall petitions of
Commissioner Joe Carollo to the Miami-Dade County Supervisor of Elections. They have failed
to do so and seek protection of their order by the automatic stay granted to governmental entities
upon the filing of a Notice of Appeal. For various reasons, this stay should be immediately
vacated.
FACTS
1. This action was brought for Mandamus, seeking to force the City Clerk to turn over recall
petitions to the Miami-Dade Supervisor of Elections for Verification.
2. The Court granted Mandamus and issued an Order stating, inter alia, “that there is no
statutory authority investing the Clerk with the discretion or authority exercised by the
Clerk in this case.”
3. The Court also allowed Commissioner Joe Carollo, the subject of the recall to intervene as
a Defendant in the matter.
4. The Court orally stated that as Carollo is now a party to this action, it would be up to him
to bring forth any possible challenges to the recall, including whether or not the petitions
were timely filed under the Florida Recall Statute.
5. In sum, the Order of the Court was narrowly tailored to the limitations on the power and
duty of the City Clerk upon receipt of the petitions, reserving any decision on other matters
to a future Motion by Carollo.
6. The Court made its finding in open Court and suggested to the City that they take
possession of the Petitions to deliver them to the Supervisor of Elections. The City
Attorney’s refused to do so, indicating that their client, The Clerk, Todd Hannon, would
arrange to take possession on March 11, 2020. This direction was included in the Order,
likely based on the City Attorney’s assurances to the Court.
7. At the conclusion of the hearing, the City neither indicated it would appeal nor asked the
Court for an immediate stay of the proceedings, knowing that the Court was keeping
temporary possession of the petitions. Less than an hour after receiving the Order of the
Court, the City appealed the Order.
8. On March 11, 2011, the City sent correspondence to the Court indicating that they would
NOT be picking up the petitions and would rely on their stay pending appeal.
9. The requirement to turn over the petitions to the Supervisor of Elections is a ministerial
duty and thus the City’s appeal is based on a simple refusal to comply with both a State
Statute AND a Court Order.
ARGUMENT
Rule 9.310(b)(2) provides:
(2) Public Bodies; Public Officers. The timely filing of a notice shall
automatically operate as a stay pending review . . . when the state, any public
officer in an official capacity, board, commission, or other public body seeks
review . . . . On motion, the lower tribunal or the court may extend a stay,
impose any lawful conditions, or vacate the stay.
The City is not seeking a stay from an order finding an ordinance in violation of the law or
any other legislative action. The City is appealing an order granting a ministerial right by an entity
seeking redress of their government under the law. As a recall of a municipal official is part of the
election statutes, this matter revolves around an election. As there are currently set primary and
general elections in the upcoming 8 months, there are limited times in which a possible recall
election of Joe Carollo may be held. For this reason, it is imperative that this matter not be delayed.
Not only do the Florida Rules of Judicial Administration require electoral matter expedited,
Courts have mandated such expedition as well. See Palm Beach County Canvassing Board v.
Harris, 772 So.2d 1220 (2000) (“Election matters constitute matters “of great public importance
requiring this Court's immediate attention.”) Additionally, without certain and immediate relief
from the purported automatic stay, Plaintiffs will suffer the very same harms that other election
cases face if not expedited as well as those harms this Court issued the Judgment Granting Writ of
Mandamus to prevent.
A trial court has broad discretion to vacate the automatic stay provision of Rule
9.310(b)(2). See, e.g., City of Sarasota v. AFSCME Council ‘79, 563 So. 2d 830, 830 (Fla. 1st
DCA 1990) (“the lower tribunal has broad discretion in the matter of a stay” (internal citation
omitted); upholding trial court’s vacatur of automatic stay and denying motion to reinstate
automatic stay). To determine whether to vacate the automatic stay, this Court should consider
“the likelihood of irreparable harm if the stay is not granted and the likelihood of success on the
merits [on appeal] by the entity seeking to maintain the stay.” Mitchell v. State, 911 So. 2d 1211,
1219 (Fla. 2005). The first of Mitchell factors is met in this case, as there is absolutely no evidence
that Defendant City of Miami will suffer “irreparable harm” if the automatic stay is not granted.
This Court has already weighed the evidence and found that the preconditions to granting a Petition
for Writ of Mandamus existed, namely that the Defendant had a legal duty to perform a
nondiscretionary act that it has not performed, the plaintiff’s right to have the duty performed, and
a the lack of another adequate remedy to enforce the right. The lifting of automatic stay will only
result in the City being required to comply with Judgment Granting Writ of Mandamus and deliver
the Recall Petitions to the Miami-Dade Supervisor of Elections in accordance with applicable law.
Performing such ministerial task does not result in any harm to the Defendant City of Miami
whatsoever.
The second Mitchell factor asks whether the Defendant is likely to prevail on the merits of
its appeal. In order to make that demonstration, the Defendant City of Miami will have to
“overcome the appellate presumption of correctness,” and demonstrate that the Judgment Granting
Writ of Mandamus “was not founded on substantial competent evidence, that it resulted from an
incorrect application of law, or that the circuit court abused its discretion when entering it.” Id.
The Defendant City of Miami will not be able to make this showing. This Court correctly held that
the Judgment Granting Writ of Mandamus was necessary to protect the rights of Plaintiffs.
Plaintiffs. Courts have held that ongoing violations of constitutional rights, including elections
laws, support an order to vacate a stay. See, e.g., Tampa Sports Auth., 914 So. 2d at 1079; Bush v.
Schiavo, 861 So. 2d 506, 508 (Fla. 2d DCA 2003).

CONCLUSION
While the Defendant, Carollo, still has the ability to challenge the timing of the petitions,
the only valid argument he has even made in these proceedings, vacating the stay does not harm
him. Conversely, a delay in what is simply a ministerial function, will cause weeks of possible
delay while the Third District Court of Appeals processes this case thus causing the Plaintiffs and
the residents of the City of Miami seeking to recall Carollo irreparable harm.
WHEREFORE, the Plaintiff’s request this Honorable Court vacate the automatic stay and
once again Order the Defendants, the City of Miami and Clerk Todd Hannon to comply with the
Florida Statutes and immediately deliver the recall petitions to the Miami-Dade Supervisor of
Elections as well as any and other such relief as This Court sees fit.
Respectively submitted this 11th day of March 2020 by:
Law Firm of Juan-Carlos Planas, P.A.

2332 Galiano Street, 2nd Floor
Coral Gables, FL 33134
(850) 980-6542
By: ___s./_J.C. Planas__________
Juan-Carlos Planas, Esq.
Fla. Bar No.: 156167
Email: jcplanas@planaslawfirm.com
David J. Winker, P.A.
2222 SW 17th St
Miami, Fl 33145
305-801-8700
By:____s./ DJW______________
Fla. Bar. No. 73148
David J. Winker, Esq. B.C.S.
dwinker@dwrlc.com
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
filed with the Florida Court’s E-Filing Portal, and that as a registered participant of the Portal, I
have effectuated service through the Portal in compliance with Fla. R. Jud. Admin. 2.516 on
Victoria Mendez, Esq., John Greco, Esq., Keri McNulty, Esq. and Gerorge Wysong, Esq. City of
Miami Attorney, Office of the City Attorney 444 S.W. 2nd Avenue, Suite 945, Miami, Florida
33130, Benedict P. Kuehne, Esq., KUEHNE DAVIS LAW, P.A. Miami Tower, Suite 3550, 100
S.E. 2 St., Miami, FL 33131-2154 at the respective associated emails registered through the portal
this 11th day of March 2020 by:
Law Firm of Juan-Carlos Planas, P.A.

2332 Galiano Street, 2nd Floor
Coral Gables, FL 33134
(850) 980-6542
By: ___s./_J.C. Planas__________

Juan-Carlos Planas, Esq.
Fla. Bar No.: 156167
Email: jcplanas@planaslawfirm.com
David J. Winker, P.A.

2222 SW 17th St
Miami, Fl 33145
305-801-8700
By:____s./ DJW______________
Fla. Bar. No. 73148
David J. Winker, Esq. B.C.S.
dwinker@dwrlc.com

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Filing # 104732707 E-Filed 03/11/2020 04:14:46 PM

IN THE CIRCUIT COURT OF THE

ROBERT F. PIPER, III, individually and

THE CITY OF MIAMI and

COMMISSIONER JOE CAROLLO,

EMERGENCY MOTION TO VACATE STAY

petitions to the Miami-Dade Supervisor of Elections for Verification.

Clerk in this case.”

a Defendant in the matter.

were timely filed under the Florida Recall Statute.

to a future Motion by Carollo.

likely based on the City Attorney’s assurances to the Court.

Court, the City appealed the Order.

Statute AND a Court Order.

Rule 9.310(b)(2) provides:

Schiavo, 861 So. 2d 506, 508 (Fla. 2d DCA 2003).

Respectively submitted this 11th day of March 2020 by:

Law Firm of Juan-Carlos Planas, P.A.

this 11th day of March 2020 by:

Law Firm of Juan-Carlos Planas, P.A.

By: ___s./_J.C. Planas__________

David J. Winker, P.A.

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