Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT TAMARA SHAMBURGER, Appellant, v. HENRY WASHINGTON and HILLSBOROUGH COUNTY CANVASSING BOARD, Appellees. No. 2D21-255 December 29, 2021 Appeal from the Circuit Court for Hillsborough County; Cheryl K. Thomas, Judge. Christian W. Waugh, Morgan Fayocavitz, and Reba Abraham Pearce of Waugh Grant PLLC, Orlando, for Appellant. Cheryl E. Forchilli of Forchilli Law PLLC, Tampa, for Appellee Henry Washington. Stephen M. Todd, Senior Assistant County Attorney, and Mary Helen Farris, Deputy County Attorney, Office of County Attorney, Tampa, for Appellee Hillsborough County Canvassing Board. SLEET, Judge. Tamara Shamburger challenges the trial court's order dismissing with prejudice her postelection challenge to the results of the Hillsborough County School Board District 5 election, which she lost to the only other candidate, Henry Washington. We affirm. Pursuant to section 102.168(1), Florida Statutes (2020), "the certification of election or nomination of any person to office . . . may be contested in the circuit court by any unsuccessful candidate for such office or nomination thereto or by any elector qualified to vote in the election related to such candidacy." Subsection (3) lists "[t]he grounds for contesting an election under this section." § 102.168(3). Shamburger proceeded under section 102.168(3)(b)—the "[i]neligibility of the successful candidate for the nomination or office in dispute"—alleging that Washington's eligibility to hold office was in dispute because he was not a resident of District 5 at the time he qualified for office. In raising such a challenge, she relied on section 1001.361, Florida Statutes (2020), which provides that "[e]ach candidate for district school board member shall, at the time she or he qualifies, be a resident of 2 the district school board member residence area from which the candidate seeks election." Washington moved to dismiss Shamburger's complaint for failure to state a cause of action, and following a hearing, the trial court granted the motion. In its written final judgment, the trial court determined that Shamburger's "claim does not allege that as the 'successful candidate' . . . Washington was constitutionally ineligible to hold office" and that instead her complaint "alleges the defendant failed to meet the statutory residency requirement in order to qualify as a candidate." The court went on to state that Washington had been "listed as a 'qualified' candidate on the ballot for election as a member of the Hillsborough County School Board." Thus, the court's order distinguishes between an elected official’s eligibility to hold office and the qualifications required for a candidate to run for office. We conclude that Florida law supports this distinction. "While at common law there was no right to a post-election [sic] challenge, the legislature added section 102.168(3)(b) . . . ." Leon v. Carollo, 246 So. 3d 490, 492 (Fla. 3d DCA 2018). In Leon, the Third District went on to explain that "[s]ection 102.168(3)(b) 3 ineligibility . . . refers to 'constitutional ineligibility'—'the constitutional requirement for holding the office sought.' " Id. (quoting Burns v. Tondreau, 139 So. 3d 481, 484 (Fla. 3d DCA 2014)). To establish constitutional ineligibility, "a pleading must aver, and proof must show, constitutional ineligibility—the failure to meet qualifications the constitution lays down." Burns, 139 So. 3d at 484 (emphasis added) (quoting Norman v. Ambler, 46 So. 3d 178, 184 (Fla. 1st DCA 2010)). However, with regard to the office of school board member, article IX, section 4(a), of the Florida Constitution, titled "School districts; school boards," provides only that "[e]ach county shall constitute a school district . . . . In each school district there shall be a school board composed of five or more members chosen by vote of the electors in a nonpartisan election for appropriately staggered terms of four years, as provided by law." Thus, article IX, section 4(a), is silent as to the qualifications or requirements necessary to be eligible to hold the office of school board member. In such a case, statutes imposing qualification for eligibility to hold office may apply. "[S]tatutes imposing additional qualifications for office are unconstitutional where the . . . constitution itself has 4 already undertaken to set forth those requirements." State ex rel. Askew v. Thomas, 293 So. 2d 40, 42 (Fla. 1974). But because the applicable constitutional provision here, article IX, section 4(a), "does NOT address itself to [q]ualifications of the school district members, but only to the manner of choosing such members," statutes setting forth eligibility requirements for that office are "viable." Id. The problem for Shamburger, however, is that in her complaint she alleged a violation of the residency provision in section 1001.361, which applies to a "candidate for district school board member . . . at the time she or he qualifies." By its own plain language that statute does not create a requirement for eligibility "for holding the office sought." See Burns, 139 So. 3d at 484. Rather, it creates a qualification to run for school board member. While such a challenge could have been brought at the time of qualification to keep Washington's name off the ballot, that time has passed as Washington is no longer a candidate for school board member. Accordingly, section 1001.361 is no longer applicable.1 1 Section 1001.34 requires that "[e]ach member of the district school board . . . shall be a resident of the district school board 5 Additionally, we note that as a matter of public policy, "[an] aggrieved party cannot await the outcome of [an] election and then assail preceding deficiencies which he [or she] might have complained of . . . before the election." Pearson v. Taylor, 32 So. 2d 826, 827 (Fla. 1947). Affirmed. NORTHCUTT and KHOUZAM, JJ., Concur. Opinion subject to revision prior to official publication. member residence area from which she or he is elected." (Emphasis added.) But Shamburger's complaint only alleges a violation of section 1001.361, and the factual allegations in the complaint only concern the location of Washington's residence at the time he qualified as a candidate to run in the election. 6