§ 102.1682 Judgment of ouster; revocation of commission; judgment setting aside referendum.
Overview of Statute
This statute governs what occurs when judgments of ouster and judgments setting aside referendums are entered. If a candidate is found to actually be entitled to the office he/she ran for after his/her opponent began holding the office, then a judgment of ouster is entered. Once the copy of the judgment is presented to the Governor, the Governor is responsible for revoking the commission of the current office holder and for giving the commission to the person found to be entitled to the office. If a referendum is set aside, the election is void.
Statute
(1) If the contestant is found to be entitled to the office, if on the findings a judgment to that effect is entered, and if the adverse party has been commissioned or has entered upon the duties thereof or is holding the office, then a judgment of ouster shall be entered against such party. Upon presentation of a certified copy of the judgment of ouster to the Governor, the Governor shall revoke such commission and commission the person found in the judgment to be entitled to the office.
History:
s. 9, Art. 10, ch. 38, 1845; RS 201; GS 285; RGS 381; CGL 446; s. 3, ch. 26870, 1951; s. 18, ch. 65-378; s. 29, ch. 77-175.
- Cross-References:
- Recounts & Contests
1. Definition for Person
An individual or a corporation, association, firm, partnership, joint venture, joint stock company, club, organization, estate, trust, business trust, syndicate, or other combination of individuals having collective capacity. The term includes a political party, affiliated party committee, or political committee. Fla. Stat. § 106.011(14).
2. Definition for Election
Any primary election, special primary election, special election, general election, or presidential preference primary election. Fla. Stat. § 97.021(12).
Cases
Florida Cases
Case Name: Burns v. Tondreau
Citation: 139 So.3d 481
Year: 2014
Case URL: https://www.ravellaw.com/opinions/bd9432cd0df6ba703dae2e1115b266d7
Case Summary: Burns v. Tondreau held that courts have no inherent power to determine election contests and do not have jurisdiction to look into a candidate's qualifications to run for office after the candidate has been elected; the time to challenge a candidate's qualifications is before an election, not after; but section 102.168 authorized post-election challenges involving the eligibility of successful candidates, so the trial court did have subject matter jurisdiction in the case.
Case Name: Broward County Canvassing Board v. Hogan
Citation: 607 So.2d 508
Year: 1992
Case URL: https://www.ravellaw.com/opinions/33d008a42225dde96345019b7915fb5c
Case Summary: Broward County Canvassing Board v. Hogan held that all that should have been considered in this recount case, which involved hanging chads, was whether the canvassing board failed to perform a mandatory statutory act or whether there were any electoral improprieties that had an influence on the ultimate choice of voters. The canvassing board was acting within its discretion when it denied the candidate's request for a manual recount.
Case Name: McPherson v. Flynn
Citation: 397 So.2d 665
Year: 1981
Case URL: https://www.ravellaw.com/opinions/006dba179c6743a28ab2f6653d392d09
Case Summary: McPherson v. Flynn held that the legislature is the sole judge of members' qualifications, including residency requirements, and judicial intervention is limited to challenges of the balloting process, specifically the marking and counting of ballots.
Out-of-State Cases
Federal Cases
Additional Resources
Further Reading
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Fla. Jur. 2d Elections s 200, Judgment
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“Procedural Fairness in Election Contests” 88 Ind. L.J. 1
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“Election 2000: The Law of Tied Presidential Elections” 26 Nova L. Rev. 647