Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2445 _____________________________ JOE SCOTT, Broward County Supervisor of Election; BILL COWLES, Orange County Supervisor of Elections; TOMMY DOYLE, Lee County Supervisor of Elections; MIKE HOGAN, Duval County Supervisor of Elections; CRAIG LATIMER, Hillsborough County Supervisor of Elections; WENDY SARTORY LINK, Palm Beach County Supervisor of Elections; JULIE MARCUS, Pinellas County Supervisor of Elections, CHRISTINA WHITE, Miami-Dade County Supervisor of Elections; and LAUREL LEE, Florida Secretary of State, Appellants, v. GERALDINE THOMPSON; VICTOR M. TORRES, JR.; JOSEPH S. GELLER; MIKE FOX; NATHAN GANT; DAN HELM; SUSAN PYNCHON; JEFF RICHARDS; STEVEN P. SCHNEIDER; MICHAELA MILLER; PERRY BUSBY III; and FLORIDA DEMOCRATIC PARTY, Appellees. _____________________________ On appeal from the Circuit Court for Leon County. Charles W. Dodson, Judge. July 19, 2021 WINOKUR, J. The sole issue in this case is whether the appellants, the supervisors of elections in eight Florida counties, are entitled to exercise the home venue privilege in a suit seeking to compel them to retain digital copies of paper ballots. We hold that they are, and reverse the order below denying their motion to dismiss on this ground. The appellees, who consist of politicians, voters, and the Florida Democratic Party, filed a complaint against the supervisors of elections representing Broward, Orange, Lee, Duval, Hillsborough, Palm Beach, Pinellas, and Miami-Dade Counties (collectively, the Supervisors), the Florida Secretary of State (the Secretary), and the Director of the Division of Elections (the Division Director). The appellees sued in Leon County under chapter 119, Florida Statutes, seeking orders requiring the Supervisors to retain digital copies of permanent paper ballots (Digital Ballot Copies). 1 The Supervisors jointly moved to dismiss the complaint on the ground that it violated the home venue privilege, which generally entitles governmental entities to be sued where they are headquartered. The Secretary and Division Director separately moved to dismiss the complaint on other grounds. The trial court 1 The appellees also sought to compel the Secretary and Division Director to take various actions forcing the Supervisors to retain Digital Ballot Copies. 2 dismissed the Division Director but otherwise denied the motions to dismiss. The Supervisors brought this appeal. 2 The home venue privilege is a common-law doctrine that “provides that, absent waiver or exception, venue in a suit against the State, or an agency or subdivision of the State, is proper only in the county in which the [defendant] maintains its principal headquarters.” Fla. Dep’t of Children and Families v. Sun- Sentinel, Inc., 865 So. 2d 1278, 1286 (Fla. 2004). We review de novo. See Sch. Bd. of Hernando Cnty. v. Rhea, 213 So. 3d 1032, 1037 (Fla. 1st DCA 2017). Florida courts recognize four exceptions to the home venue privilege: “(1) when venue is waived by statute; (2) when the governmental entity is the ‘sword wielder’; (3) when the governmental entity is sued as a joint tortfeasor; and (4) when a ‘good cause’ petition is filed under chapter 119, Florida Statutes, to access otherwise confidential records.” Rhea, 213 So. 3d at 1039. This is not a tort case, so exception (3) is clearly inapplicable. And despite the appellees’ contention that exception (4) applies because this case involves public records, there has been no request to access confidential records and no good-cause petition, so the criteria of exception (4) have not been met. For the following reasons, exceptions (1) and (2) do not apply either. There was no statutory waiver in this case. The appellees’ argument that section 47.021, Florida Statutes, waives the home venue privilege is unpersuasive. Section 47.021 generally provides that actions against multiple defendants may be brought in the county of residence of any defendant. This provision does not override the home venue privilege. “The presumption is that no change in the common law is intended [by enactment of a statute] unless the statute is explicit and clear in that regard.” Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 918 (Fla. 1990). “Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.” Id. (internal citations omitted). Moreover, this Court has previously 2 The denial of the Secretary’s motion to dismiss is not reviewable through interlocutory appeal, but the Secretary filed a brief on behalf of the Supervisors. 3 held that section 47.021 does not waive the home venue privilege. Levy Cnty. Sch. Bd. v. Bowdoin, 607 So. 2d 479, 481 (Fla. 1st DCA 1992) (“The venue provisions of Chapter 47, Florida Statutes, do not abrogate [the home venue] privilege.”). We reject the appellees’ contention that section 97.0115, Florida Statutes, which preempts election matters to the state, creates a statutory waiver of the home venue privilege. Section 97.0115 addresses the authority to make election laws; it is silent on—and immaterial to—the proper venue for lawsuits. Similarly, election-law provisions requiring the Secretary to sue in Leon County do not affect where other parties must sue. They apply only to her. Lastly, we observe that election laws overall—in any combination—do not affect venue in this case. This is a matter of public-records retention, and the appellees invoked the trial court’s jurisdiction under chapter 119, Florida Statutes, which governs public records, not chapters 97 through 106, Florida Statutes, which constitute The Florida Election Code. The sword-wielder exception is also inapplicable. This exception involves suits in which the primary purpose of the litigation is to obtain direct judicial protection from an alleged unlawful invasion of the constitutional rights of the plaintiff within the county where the suit is instituted, because of the enforcement or threatened enforcement by a state agency of rules and regulations alleged to be unconstitutional as to the plaintiff, and where the validity or invalidity of the rules and regulations sought to be enforced comes into question only secondarily and as incidental to the main issue involved. Sun-Sentinel, 865 So. 2d at 1287. This “exception applies when the plaintiff’s constitutional rights are in ‘real and imminent danger’ of invasion by a state agency.” Jacksonville Elec. Auth. v. Clay Cnty. Util. Auth., 802 So. 2d 1190, 1192 (Fla. 1st DCA 2002). The test is “whether the state is the initial sword-wielder in the matter and whether the plaintiff’s action is in the nature of a shield against the state’s thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to 4 be laid on.” Id. (quoting Fla. Pub. Serv. Comm’n v. Triple A Enters., Inc., 387 So. 2d 940, 942 (Fla. 1980)). 3 In this case, the appellees have alleged that the Supervisors have put their First Amendment rights at risk, but they have not explained how. They also argue that equal-protection rights may be violated if Digital Ballot Copies are destroyed because paper ballots lost before a recount would not be tallied and some voters’ voices would not be heard. But this possible danger does not show that the Supervisors are invading the appellees’ constitutional rights in Leon County, and certainly does not satisfy the requirements of the sword-wielder exception, allowing them to be sued in Leon County. As a final matter, we reject the appellees’ argument that the temporarily remote nature of court proceedings—a safety measure in place because of the COVID-19 pandemic—supports a denial of the home venue privilege. There is no remote-proceedings exception to the privilege. And creating such an exception not only is outside the power of this Court, see Jacksonville Elec. Auth., 802 So. 2d at 1192–94, but would be short-sighted. Cases outlast circumstances that exist when they are written. Indeed, the merits of the case underlying this interlocutory appeal have not yet been adjudicated, and Florida courts are already reopening. Because there was no waiver and no exception applies, the Supervisors are entitled to exercise the home venue privilege. Accordingly, the trial court’s order denying the Supervisors’ motion to dismiss is REVERSED. RAY and LONG, JJ., concur. 3 The Supreme Court cannot be blamed for creating this clumsy sword-fighting metaphor, only for citing it. It was originally the work of the Second District in Dep’t of Revenue v. First Fed. Sav. & Loan Ass’n of Fort Myers, 256 So. 2d 524, 526 (Fla. 2d DCA 1971). 5 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andrew J. Meyers, Broward County Attorney, Nathaniel A. Klitsberg, Benjamin R. Salzillo, Joseph K. Jarone, and Mark A. Journey, Assistant County Attorneys, Fort Lauderdale, for Appellant Joe Scott, Broward County Supervisor of Elections; Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, for Appellant Bill Cowles, Orange County Supervisor of Elections; Asher E. Knipe of Knott Ebelini Hart, Fort Myers, for Appellant Tommy Doyle, Lee County Supervisor of Elections; Jason R. Teal, Deputy General Counsel, and Craig D. Feiser, Assistant General Counsel, Jacksonville, for Appellant Mike Hogan, Duval County Supervisor of Elections; Stephen M. Todd, Sr., Assistant County Attorney, Tampa, for Appellant Craig Latimer, Hillsborough County Supervisor of Elections; Ashley Houlihan, General Counsel, West Palm Beach, for Appellant Wendy Sartory Link, Palm Beach County Supervisor of Elections; Kelly L. Vicari, Senior Assistant County Attorney, Clearwater, for Appellant Julie Marcus, Pinellas County Supervisor of Elections; Oren Rosenthal, Michael B. Valdes, and Angela F. Benjamin, Assistant County Attorneys, Miami, for Appellant Christina White, Miami-Dade County Supervisor of Elections; Erik M. Figlio, Alexandra Akre, and Samuel J. Walenz of Ausley McMullen, Tallahassee, and Bradley R. McVay and Ashley E. Davis, Department of State, Tallahassee, for Appellant Laurel Lee, Florida Secretary of State. Benedict P. Kuehne and Michael T. Davis of Kuehne Davis Law, P.A., Miami; Joseph S. Geller of Greenspoon Marder, P.A., Fort Lauderdale; Marc A. Burton and Richard J. Burton of The Burton Firm, P.A., Aventura; Larry S. Davis, Shana J. Korda, and Elfrid Pati of Larry Davis Law, Hollywood; Benjamin J. Tyler, Miami, for Appellees. 6