By Eric Giunta
Almost a half-dozen Democratic state legislators from South Florida are being accused of not residing in the districts they represent. The offense is not only politically unpopular, it could get them impeached, and even land them in prison for up to five years.
What are the allegations?
A recent investigative news report by Miami’s Local 10 News uncovered evidence that Sen. Maria Sachs of Delray Beach, an attorney, maintains a permanent home in Boca Raton while claiming to “reside” in Fort Lauderdale, which is within her district.
And that’s not all. Saint Petersblog reports:
“House Minority Leader Perry Thurston claims to live with a convicted felon in a small, rundown Lauderhill home, rather than with his wife and family in their longtime two-story home in an upscale Plantation neighborhood. Rep. Joe Gibbons, who represents Hallandale Beach, appears to live in Jacksonville with his wife and family while renting out a small condo in his House district. Then there’s state Rep. Jared Moskowitz who won a seat in a Coral Springs district and did so by renting an apartment a few miles away from his Parkland Golf and Country Club estate, where his wife continues to live. And as it turns out — so does he. Rep. Hazelle Rogers, the same. She rents a condo in her district, a few miles from where she actually lives.”
What laws are these legislators supposedly violating?
The Florida Constitution explicitly requires that “[e]ach legislator shall be . . . a resident of the district from which elected,” and Section 104.011 of the Florida Statutes makes it a third-degree felony to “swear or affirm falsely to any oath or affirmation … in connection with or arising out of voting or elections.”
When filing to run for office, every would-be legislator swears an oath that he is “qualified under the Constitution and the Laws of Florida to hold the office to which [he] desire[s] to be nominated or elected,” and if elected must additionally swear that he is “duly qualified to hold office under the Constitution of the state.”
What is a “residence”? Can legislators have more than one?
One helpful way to examine this question is to look at the way the Florida courts have traditionally applied similar language to judges, who the Florida Constitution says must also “reside” within the territorial jurisdiction of whatever court they serve on. In 2000, the Florida 4th District Court of Appeal, in the case Miller v. Gross, held that, for constitutional purposes, “residence” means the same as “domicile,” a place where someone resides with the intention of living there indefinitely. In both federal and state law, a person can only ever have one domicile at any given moment.
In various legal contexts one’s “domicile” is demonstrated by considering any number of factors, including the address listed on a driver’s license, which property one claims a homestead exemption on, where one spends most of one’s time residing, and where one has his newspaper regularly delivered to.
At what point in the elections process does a would-be legislator have to reside within his district?
The Constitution says that “legislators” (not “candidates”) have to reside in the district from where they are “elected,” which seems to suggest that residence only has to commence from the moment of election, when they actually become elected legislators.
What can happen to a legislator who violates the Constitution and swears falsely to their residence?
Swearing falsely on an elections-related oath is a third-degree felony, punishable by up to five years in prison and/or a fine of up to $5,000. It is up to the local prosecutor to decide whether to prosecute such a crime, or any other.
Legislators who are attorneys can also face disciplinary action by the Florida Bar for violating any law. Penalties can range from anything between censure and disbarment.
Can legislators who lie about residency be removed from office?
Yes, but only by the legislative body to which the offending members belong. Each chamber of the Legislature has its own internal rules and procedures for dealing with allegations of misconduct. It is the job of each chamber’s Rules Committee to investigate allegations that members are misbehaving. If that committee finds “probable cause” that an offense has been committed, it’s up to the House speaker or the Senate president to appoint a special committee to investigate the charge. If the charge is proven, each chamber votes on what the punishment should be.
The House rules provide that the speaker may (but does not have to) remove a legislator from office on his own if that legislator is convicted of a felony.
What actions have been taken so far against these South Florida Democrats?
One Matthew Feiler, a Broward voter, has filed a complaint against Sachs with the State Commission on Ethics, but don’t expect it to go anywhere. Without discussing any specific case, a spokeswoman with the commission confirmed to Sunshine State News that the commission has no jurisdiction whatsoever over this question. If Mr. Feiler’s out for blood, he should file his complaint with the Senate Rules Committee, the local state attorney’s office, and the Florida Bar.
Disbarred attorney Jack Thompson has filed a complaint against Thurston with the Florida Bar. Thurston, an attorney, has no disciplinary history.
Eric Giunta is a member of the Florida Bar. Reach him at email@example.com or at 954-235-9116.