IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN ...

Filing # 15899149 Electronically Filed 07/15/2014 02:35:08 AM

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR

LEE COUNTY, FLORIDA

CIVIL ACTION

LARRY AGUILAR, Petitioner,

vs.

CASE NO.:

Judge

KEN DETZNER, in his official capacity as Secretary of State for the State of Florida

Respondent. _________________________________//

VERIFIED PETITION FOR WRIT OF QUO WARRANTO OR, ALTERNATIVELY, PETITION FOR WRIT OF MANDAMUS AND

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

COMES NOW, the Plaintiff, LARRY AGUILAR, by and through his undersigned attorneys, and sues Respondent, KEN DETZNER, in his official capacity as Secretary of State for the State of Florida and alleges as follows:

INTRODUCTORY STATEMENT 1. This is an action for writ of quo warranto pursuant to Article V, section 3(b)(8) of the

Florida Constitution and Florida Rule of Civil Procedure 1.630. In addition, this is an action for declaratory and injunctive relief. 2. Petitioner, LARRY AGUILAR, ("Petitioner"), a candidate for State Representative District 79, hereby petitions this Court to issue a writ of quo warranto directed to Respondent, KEN DETZNER, as Secretary of State, to declare his action of precluding Petitioner from being put on the ballot for consideration of State Representative for District 79 for the August 26, 2014 primary election to be unlawful. To the extent necessary, the Petitioner requests the issuance of a writ of mandamus requiring the

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Respondent to place the Petitioner, LARRY AGUILAR, on the ballot for the District 79, Florida State Representative seat.

PARTIES AND JURISDICTION 3. At all times relevant to this petition, the Petitioner, LARRY AGUILAR, was and

continues to be a resident of Lee County, Florida and a candidate for the Florida State Representative race for District 79. 4. Florida's District 79 is a Florida electoral district that encompasses portions of Lee County, Florida. 5. Petitioner, LARRY AGUILAR, is a candidate affiliated with the Democratic Party. Mr. Aguilar, is the only Democratic candidate running for the position of State Representative in District 79. 6. A primary election for the State House of Representative seat for District 79 is set to occur for all qualified candidates on August 26, 2014. If the election proceeds without the Petitioner, LARRY AGUILAR, on the ballot, then the primary election set for August 26, 2014 will serve as a general election for the seat. 7. The Division of Elections ("Division") is a division of the Florida Department of State. The Division is tasked with the responsibility of administering elections in the State of Florida, among other things. In addition, the Division of Elections conducts the process by which candidates for public office are qualified to be placed on the ballots utilized by Florida's voters in elections. 8. Respondent, KEN DETZNER, in his official capacity as Florida Secretary of State, is a state officer pursuant to Article IV, Section 6 of the Florida Constitution and is the chief administrative officer for the Department of State, an agency of the State of Florida.

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9. As such, Respondent, KEN DETZNER, is subject to suit based upon the actions of the Division of Elections.

10. Venue is proper before this Court because the acts complained of have their chief impact in, Lee County, Florida. WRIT OF QUO WARRANTO

11. This Court has jurisdiction pursuant to Article V, sections 3(b)(7) (all writs) and 3(b)(8) (quo warranto) of the Florida Constitution.

12. Pursuant to Article V, section 3(b)(7), this Court may "issue . . . all writs necessary to the complete exercise of its jurisdiction" and pursuant to Article V, section 3(b)(8), this Court may "issue writs of . . . quo warranto to state officers and state agencies."

13. The writ of quo warranto historically has been used to determine whether a state officer or agency has improperly exercised a power or right derived from the State. See Martinez v. Martinez, 545 So.2d 1338, 1339 (Fla. 1989).

14. In addition, the writ of quo warranto is a proper remedy for contesting the authority of public officers and agencies in actions taken in their official capacities. See Crist v. Florida Association of Criminal Defense Lawyers, Inc., 978 So. 2d 134 (Fla. 2008). See also State ex rel Butterworth v. Kenny, 714 So. 2d 404, 406 (Fla. 1998) (Confirming that a writ of quo warranto may be utilized to prevent the Office of the Capital Collateral Regional Counsel (OCRC) from representing death row inmates in civil rights lawsuits and to require withdrawal of their representation from all such pending civil cases). WRIT IN MANDAMUS

15. "For the issuance of a writ of mandamus, the petitioner must demonstrate a clear legal right to the performance of a ministerial duty by the respondent and that no other

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adequate remedy exists." See Pino v. District Court of Appeal, Third Dist., 604 So.2d 1232, 1233 (Fla. 1992). 16. Petitioner, LARRY AGUILAR, will demonstrate through this petition that he has a right to the relief described in this Petition.

STATEMENT OF THE FACTS 17. On June 17, 2014, Petitioner, LARRY AGUILAR, mailed all required documents and

fees required to declare his candidacy and qualify as a candidate for the November 4, 2014 Florida State Representative race for District 79--a state electoral district that encompasses portions of Lee County, Florida. 18. Petitioner, LARRY AGUILAR, submitted his application to qualify as a candidate for Florida State Representative for District 79 well in advance of the deadline of June 20, 2014 at noon. 19. These documents included the Loyalty Oath (Candidate with Party Affiliation) (Form DSDE 24), Full and Public Disclosure of Financial Interest (form 6), and the filing fee of $1,781.82. A copy of these documents are attached as Exhibits "A", "B", and "C" respectively and are incorporated by reference herein. 20. Petitioner, LARRY AGUILAR, mailed his qualifying materials via Certified Mail. Those materials arrived at the Tallahassee mail facility where the Division's mail box sits on June 19, 2014 at 8:06am. The qualifying materials were available for pickup by the Division of Elections on June 20, 2014 at 9:46am. The United Stated Postal Service's (USPS) tracking system confirms that the Petitioner's qualifying materials was available for pickup to the department prior to the deadline of June 20, 2014 at noon. A true and correct copy of the USPS tracking receipt for the above described qualifying materials

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along with the proof of mailing and signature cards are attached hereto as Composite Exhibit "D." 21. On June 20, 2014 just after the noon deadline, the Division's website indicated that Petitioner, LARRY AGUILAR, "did not qualify" as a candidate for the District 79 seat. 22. On June 20, 2014 at approximately 12:46pm, Petitioner, LARRY AGUILAR, contacted the Division by telephone and spoke to a mail clerk for the Division identified as "David." 23. David stated that the Division has a policy of picking up mail twice each day--once just before 11am and again at some time just after 2pm. David indicated that the Division's mail was not picked up on the morning of June 20, 2014 despite the department's policy of receiving its mail just before 11am. Further, the Division failed to pick up mail on the morning of its noon, June 20, 2014 deadline. 24. The Division failed to pick up Petitioner's qualifying materials until June 23, 2014 at 7:29am. 25. On June 24, 2014, the Petitioner, LARRY AGUILAR, submitted correspondence through counsel to the Respondent, KEN DETZNER. The correspondence requested that the Respondent reconsider the determination that Petitioner, LARRY AGUILAR, did not qualify as a candidate for the State Representative District 79 seat. A true and correct copy of the correspondence is attached hereto as Exhibit "E." 26. In a letter dated June 27, 2014 the Division of Elections stated that the Petitioner's check was received on June 19, 2014 before the qualifying deadline. The correspondence further indicated that Petitioner, LARRY AGUILAR, did not qualify as a candidate. A true and correct copy of the Division's correspondence is attached hereto as Exhibit "F."

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