Court Moderates Canvassing Board Record Inspection Dispute, Election May Be Contested
Posted September 22, 2016 10:00 am
Judge Leandra Johnson listens to County Attorney Joel Foreman make his case.
COLUMBIA COUNTY, FL – During and following the recent primary elections County Commission candidate B. Coker, City Council incumbent candidate Zack Paulk, and City Mayor candidate Audré Washington had questions about the election process in Columbia County and what went on during the meetings of the County Canvassing Board. They claimed they were denied appropriate access to the records and meetings of the Canvassing Board and took their case to court.
The Canvassing Board provides the oversight to ensure the integrity of the electoral process.
The County Canvassing Board is composed of the Supervisor of Elections (SOE), a county court judge, who shall act as chair, and a county commission member. The County Canvassing Board meets at the Supervisor of Elections office to publicly canvas the voter's vote-by-mail ballots and provisional ballots.
Public notice of the dates and times of all meetings of the Canvassing Board are required. The Board must meet in the Sunshine (open to the public).
Ms. Coker and the other candidates believed they were being denied meaningful access to the Canvassing Board and their records requests were being unreasonably delayed, which depending on the circumstances, could mean denial.
The candidates needed quick access to the records of the Canvassing Board in order to meet the Friday, September 23 deadline if they found any improprieties.
There was local interest in this case. The gallery and attorneys before Judge Johnson took the bench. Plaintiff B Coker is at the right of the front row; County Atny Foreman is on the far left.
County Attorney Joel Foreman filed a motion to have County Commissioner DePratter and himself removed as defendants.
Mr. Foreman argued that neither Mr. DePratter nor he was the custodian of the records. He also argued that the complaint lacked allegations against him or Mr. DePratter.
Jesse Wilkerson, one of the attorneys for the three plaintiffs said that Mr. Foreman was "making representations" as if he had control of the records.
After hearing the arguments Judge Johnson said, "The Motion to Dismiss is well taken and it is granted."
Mr. Foreman and Mr. DePratter were removed as defendants.
The Next Argument: Failure to Serve the Complaint
Mr. Foreman argued next that the defendants weren’t served with the complaint.
Jesse Wilkerson, one of the attorneys for the three plaintiffs, told the court, "I think that lack of service would have to be cured."
Judge Johnson explained the plaintiffs' right to expedited hearing and said she issued the Order to Show Cause "contemplating that the other requirements would be met."
Mr. Wilkerson said the situation was "peculiar in this case."
Mr. Foreman was still shooting for dismissal and argued that without the service defect being cured the case must be dismissed.
Judge Johnson said, "Time is of the essence here."
Mr. Foreman held his ground and said the case could not go forward without service.
Judge Johnson: a wry smile
Third Circuit Public Defender Blair Payne took an interest.
Judge Johnson said, with a wry smile, "And everyone is here in this courtroom. I'm not telling anyone what to do."
Bryan DeMaggio, the plaintiffs' other attorney said he talked to the bailiff, adding, "I'll have him serve process right now if the court has no objection."
Judge Johnson continued, "I'm not telling you what to do or how to do it, but if everyone's present and that is the legal issue that has been raised..."
Mr. Foreman acquiesced, "I'll accept service on behalf of the respondents."
Judge Johnson: "Very well."
Now About Those Public Records
The complaint was about the lack of timely access to the records at the Canvassing Board.
The plaintiffs complained that they should have been able to see the records during the public meetings of the Canvassing Board and that if they had been granted access at that time, they wouldn't be in court.
In an earlier interview, Ms. Coker said, "We shouldn't have to pay for access for something that should have been available at the Canvassing Board meetings."
Attorney Ron Labasky came to the lectern and explained he was there "on behalf of SOE and the Columbia County Canvassing Board."
He told the court, "Your Honor, we have filed our motion to dismiss as well... It's moot... The Canvassing Board and the SOE advised the petitioners that they have these records available and are accessible... and in the petitioner's own words, 'Are available to them for inspection.""
Judge Johnson still had questions. She said, "The rest of the argument, which is actually the sentence after you stopped. The next sentence reads, 'Rather than limit their argument to the fact that by refusing to produce the records until after September 6, 2016, the respondents unlawfully delayed responses to their requests, which amounted to a refusal under the act."
County Court Judge and Chairman of the Canvassing Board, Tom Colman listens.
A short while later, plaintiff's attorney Wilkerson weighed in, "In light of the representation made by counsel, it is not that there is a refusal to inspect these records going forward. It is that in getting there, two days before the deadline of certification, there has been an unlawful and unreasonable delay."
After more argument Judge Johnson cut to the chase, "The respondents have said, 'You can go and inspect'. Judge looks over to the defendants' attorneys, "Like right now? They could go right now?"
Mr. Foreman nodded.
Judge Johnson continued, "OK. Let's do this. The court is going to take a 15 minute recess and I don't know whether the counsel has discussed this issue with each other, because it sounds like there might be a resolution here from what I have been hearing from both sides. So I'm going to take a 15 minute recess and let counsel discuss the issues and we can reconvene."
There was some conversation about who was going to write the order and if one was needed.
Mr. Labasky thought there needn't be an order "between counsel. Let them come inspect the documents tonight."
Judge Johnson put this part of the case to rest, "And the court agrees. There's an agreement between the parties. It's on the record what that agreement is. And it is what it is. All right? So I don't want to enter any further order if you have announced what the agreement is and the specifics of it and if there are any other proceedings then either side may file whatever is necessary."
The plaintiffs inspected the records last night at the Supervisor of Elections office and will be back today beginning at 10:00 a.m.
Last night after inspecting the records Ms. Coker called the Observer, "We got what we should have had in the first place. We shouldn't have had to go to court. We are pressed for time but are working hard. We are discovering irregularities."
After hearing from Ms. Coker, County Attorney Joel Forman told the Observer, "I am pleased with Judge Johnson's decision to dismiss the petition. Neither Commissioner DePratter nor I were the custodians of the records sought. I am also pleased that the remaining parties reached an agreement for review of the records."
Supervisor of Elections, Liz Horne, was not available for comment.