Home » Legislature & Courts » Briefs and Complaints » Voting Briefs and Complaints
Ex-offenders and Voting Rights
IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON
COUNTY, FLORIDA
GENERAL JURISDICTION
FLORIDA CONFERENCE OF BLACK STATE LEGISLATORS, PEOPLE UNITED
TO LEAD THE STRUGGLE FOR EQUALITY, INC., BROTHERS OF
THE SAME MIND, INC., INNER CITY GRASSROOTS
CIVIC COALITION, and REGINALD GREENLEE,
JOSEPH BROWN, MILTON MCCLOUD, HOLLIS HORTON,
on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
MICHAEL MOORE, in his official capacity as the
Secretary of the Florida Department of Corrections,
Defendant.
________)
COMPLAINT FOR MANDAMUS, INJUNCTIVE
AND DECLARATORY RELIEF
Plaintiffs Florida Conference of Black State Legislators, People United to Lead the Struggle for Equality, Inc., Brothers of the Same Mind, Inc., Inner City Grassroots Civic Coalition and Reginald Greenlee, Joseph Brown, Milton McCloud and Hollis Horton, on behalf of themselves and all others similarly situated, sue the defendant, Michael Moore, in his official capacity as Secretary of the Florida Department of Corrections, and request that this Court issue a Writ of Mandamus ordering the defendant to fully comply with Fla. Stat. § 944.293 by assisting all offenders prior to their release in completing the necessary application and other forms required for the restoration of civil rights before discharge from supervision and to forward same to the Governor, to order defendant Moore to assist those offenders already released from custody and supervision in completing the necessary application and other forms required for the restoration of civil rights and to forward same to the Governor, and to order such other equitable relief as may be just and proper. As grounds therefor, the plaintiffs allege as follows:
Jurisdiction
1. This Court has jurisdiction to issue a writ of mandamus against state officers where there are no disputed issues of fact and the issues are purely legal, pursuant to Article V, § 5(b), Fla. Const. and in accordance with Rule 1.630(a), Fla. R. Civ. P.
2. This Court also has jurisdiction to issue an injunction, pursuant to Article V, § 5(b), Fla. Const.; § 26.012(3), Fla. Stat. (2000); and in accordance with Rule 1.610, Fla. R. Civ. P.
3. This Court also has jurisdiction to grant declaratory and injunctive relief pursuant to Article V, § 5(b), Fla. Const.; and § 86.011, Fla. Stat. (2000).
Parties4. Plaintiff the Florida Conference of Black State Legislators (hereinafter "Black Caucus") is comprised of elected Black members of the Florida legislature. Membership is automatic upon election to the Legislature. The Black Caucus has been organized to operate exclusively for the promotion of the economic and social condition, as well as the promotion of the common good and general welfare of the various people of the State of Florida. The goals of the organization are to bring together various segments of the community in an effort to inform the public of the need for governmental action to help solve Florida's political, economic and social problems. The Black Caucus issues public statements and gives testimony before legislative bodies urging the passage of legislation concerned with Florida's problems. It also contacts legislators to solicit their support for legislative proposals initiated by or supported by the Black Caucus and monitors the proper administration of existing laws. The Black Caucus believes the persons it represents are uniquely impacted by the defendant's failure to fully comply with Fla. Stat. § 944.293 by assisting all offenders prior to their release in completing the necessary application and other forms required for the restoration of civil rights.
5. Plaintiff People United to Lead the Struggle for Equality, Inc. (hereinafter "PULSE") is a Florida, not-for-profit corporation which seeks to eradicate racial discrimination in Miami-Dade County. PULSE's membership includes churches and community groups whose individual members become PULSE members when their group joins. Members of PULSE include felons who were released without being provided the necessary application and other forms required for the restoration of their civil rights prior to discharge from supervision.
6. Plaintiff Brothers of the Same Mind, Inc. is a Florida, not-for-profit corporation located in Miami-Dade County. The organization is dedicated to assisting ex-felons, and to helping them make a smooth transition back into general society. Its mission includes providing former offenders with assistance in understanding the executive clemency application and in completing applications for the restoration of civil rights.
7. Plaintiff Inner City Grassroots Civic Coalition is an unincorporated association located in Miami-Dade County which strives to enhance the quality of life of grassroots citizenry through the restoration of voting rights for former offenders.
8. Plaintiff Reginald Greenlee is a resident of Florida, a United States citizen, and is presently under the supervision of, but not incarcerated in, the Florida Department of Corrections.
9. Plaintiff Joseph Brown is a resident of Florida, a United States citizen, and was recently discharged from the supervision of the Florida Department of Corrections.
10. Plaintiff Milton McCloud is a resident of Florida, a United States citizen, and was recently discharged from the supervision of the Florida Department of Corrections.
11. Plaintiff Hollis Horton is a resident of Florida, a United States citizen, and is presently under the supervision of, but not incarcerated in, the Florida Department of Corrections.
12. Defendant Michael Moore is the Secretary of the Florida Department of Corrections and he is sued in his official capacity only. As Secretary of the Department of Corrections, he is charged with complying with § 944.293, Fla. Stat. (2000).
Class Representation Allegations
13. Plaintiffs Joseph Brown and Milton McCloud bring this action pursuant to Rule 1.220, Fla. R. Civ. P., on their own behalf and on behalf of a class of all persons previously discharged from the supervision of the Florida Department of Corrections whom the Department did not assist in obtaining restoration of their civil rights.
14. Plaintiffs Reginald Greenlee and Hollis Horton bring this action pursuant to Rule 1.220, Fla. R. Civ. P., on their own behalf and on behalf of a class of all persons presently under the supervision of the Florida Department of Corrections whom, absent an order from this Court, the Department will not assist in obtaining restoration of their civil rights.
15. Maintenance of this action as a plaintiff class action is proper because:
a. The putative plaintiff classes of several thousand persons is so numerous that joinder of all members is impractical;
b. The claims of the named plaintiffs are typical of the claims of class members, in that the named plaintiffs Joseph Brown and Milton McCloud were each recently discharged from the supervision of the Florida Department of Corrections and have been denied assistance in obtaining restoration of their civil rights, and named plaintiffs Reginald Greenlee and Hollis Horton are presently under the supervision of the Florida Department of Corrections and, based on the defendant's practices and policies they do not anticipate that the defendant will provide them with any assistance in obtaining restoration of their civil rights prior to and upon their release from supervision;
c. The named plaintiffs will fairly and adequately protect and represent the interests of the class members. Named plaintiffs have no interests adverse to the plaintiff class. Plaintiffs' attorneys are experienced in class action litigation and have no interests adverse to the plaintiff class;
d. There are questions of law and fact common to all plaintiff class members, including, but not limited to, whether the defendant's failure to provide plaintiffs with assistance in obtaining restoration of their civil rights prior to and upon their release from supervision violates Fla. Stat. § 944.293; and
e. Defendant has acted on grounds generally applicable to the plaintiff class in that defendant has failed and refused, and continues to fail and refuse, to provide assistance in obtaining restoration of civil rights prior to and upon release from supervision to thousands of Florida citizens.
Statement of Facts
16. Florida permanently disenfranchises all individuals who are convicted of a felony unless they apply for and are granted restoration of their civil rights. Article IV, section 4 of the Florida Constitution provides that "[n]o person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights."
17. Two statutes repeat this prohibition on voting by convicted felons. The Florida Voter Registration Act, Fla. Stat. § 97.041 (2000), provides that "[a] person who has been convicted of any felony by any court of record and who has not had his or her right to vote restored pursuant to law" is not entitled to register and vote even if otherwise qualified. Fla. Stat. § 944.292 states that "[u]pon conviction of a felony as defined in s. 10, Art. X of the State Constitution, the civil rights of the person convicted shall be suspended in Florida until such rights are restored by a full pardon, conditional pardon or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution."
18. Article X, section 10 of the Florida Constitution defines a felony as "any criminal offense that is punishable under the law of this state, or that would be punishable if committed in this state, by death or by imprisonment in the state penitentiary." Hence, a felon who is found guilty of an offense punishable by imprisonment in a state prison, but who is not actually sentenced to such imprisonment, is nonetheless disenfranchised. A conviction counts for purposes of this constitutional provision when it is no longer subject to direct appeal. See 1960 Op. Gen., 060-45 (Mar. 8, 1960).
19. Restoration of civil rights is part of the governor's clemency power. Article IV, section 8 of the Florida Constitution authorizes the Governor to "suspend collection of fines and forfeitures, . . . and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses," except in cases of treason or where impeachment results in conviction. See also Fla. Stat. § 940.01 (same). A person convicted of a felony "may be entitled to the restoration of all the rights of citizenship" if he or she receives a full pardon, served his or her maximum sentence, or been granted final release by the parole board. Fla. Stat. § 940.05 (2000).
20. The Governor has issued Rules of Executive Clemency that set out the eligibility requirements for receiving restoration. Under these rules, an offender "may not apply for the restoration of his or her civil rights unless he or she has completed all sentences imposed and all conditions of supervision have expired or been completed, including but not limited to, parole, probation, community control, control release, and conditional release." Rule 5.E., Rules of Executive Clemency.
21. There are three procedures set forth in the Rules of Executive Clemency which could result in the restoration of one's civil rights. Rule 9 is the simplest. It provides for the restoration of a felon's civil rights without a hearing if the applicant has completed and satisfied all sentences imposed and all conditions of supervision (including but not limited to, parole, probation, community control, control release, and conditional release) and meets all of the following requirements:
1. No outstanding detainers or any pending criminal charges;
2. No outstanding pecuniary penalties or liabilities which total more than $1,000 and result from a criminal conviction or traffic infraction, including but not limited to, fines, court costs, or unpaid costs of supervision pursuant to Chapter 944, Florida Statutes;
3. No outstanding pecuniary penalties or liabilities if such penalties or liabilities are attributed to victim restitution, including, but not limited to, restitution pursuant to a court order or obligations pursuant to Chapter 960, Florida Statutes; 4. No conviction of a capital or life felony;
5. No previous Clemency Board action;
6. No more than two felony convictions of record;
7. No felony conviction involving (i) prosecution by the Office of Statewide Prosecution under section 16.56, Florida Statutes; (ii) prosecution under the Florida RICO (Racketeer Influenced and Corrupt Organization) Act, Chapter 895, Florida Statutes; (iii) trafficking or conspiracy to traffic in a controlled substance under section 893.135, Florida Statutes; (iv) crime described as a "dangerous crime" under section 907.041, Florida Statutes; (v) two or more counts of a single conviction of violent crime; (vi) conspiracy to commit a crime of violence; (vii) lewd, lascivious, indecent, or unnatural acts under Chapter 800, Florida Statutes; (viii) crime that required registration under the Florida Sexual Predators Act, section 775.21, Florida Statutes; (ix) sexual battery under Chapter 794, Florida Statutes; (x) battery, aggravated assault, or aggravated battery of a law enforcement officer, firefighter, emergency medical care provider, public transit employee or agent, or any other specified officer under section 784.07, Florida Statutes; (xi) DUI manslaughter or DUI classified as a felony under section 316.193, Florida Statutes; (xii) homicide; (xiii) public corruption or violations of election laws; or (xiv) crime committed by an elected official;
8. The individual must be a citizen of the United States, if he or she is requesting restoration of civil rights.
9. If convicted in a court other than a Florida court, the individual must be a legal resident of Florida if requesting a restoration of civil rights.
10. The individual must be domiciled in Florida, if requesting Restoration of Alien Status Under Florida Law.
22. Rule 9.A., Rules of Executive Clemency. The second procedure is an application for clemency pursuant to Rule 6, Rules of Executive Clemency. Felons seeking restoration of their civil rights via this procedure must complete, submit, and file an application form in triplicate (Form ADM 1501 1/95) to the Office of Executive Clemency on forms furnished by the Coordinator. Id. Exhibit A. Each application for clemency shall have attached to it a certified copy of the charging instrument (indictment, information or warrant with supporting affidavit) for each felony conviction, and a certified copy of the judgment and sentence of each and every felony conviction including those that occurred within the State of Florida, outside the State of Florida and federal convictions. Id. Each application for clemency may include character references, letters of support, or any other documents that are relevant to the application for clemency. Id. If determined necessary by the person reviewing the application for clemency, an applicant for clemency may also be required to complete a 12 page in-depth questionnaire. Exhibit B.
23. The third procedure is to seek a waiver of the rules to apply for clemency if a felon cannot meet the requirements of the Rules. Rule 8, Rules of Executive Clemency. Again, this requires the completion, submission, and filing of a form with supporting documents consisting of the information/indictment and a copy of the judgment, sentence and other supporting documents to the Office of Executive Clemency. Exhibit C.
24. To better facilitate the restoration of an offender's civil rights, the application process is required to be done and completed prior to release from supervision. Fla. Stat. § 944.293 (2000) provides:
Initiation of restoration of civil rights.---
With respect to those persons convicted of a felony, the following procedure shall apply: Prior to the time an offender is discharged from supervision, an authorized agent of the department shall obtain from the governor the necessary application and other forms required for the restoration of civil rights. The authorized agent shall assist the offender in completing these forms and shall ensure that the application and all necessary material are forwarded to the governor before the offender is discharged from supervision.
25. Defendant Moore is not fully complying with Fla. Stat. § 944.293. Prior to the time an offender is discharged from supervision, agents of defendant Moore sometimes assist the offender in the completion of a Department of Corrections' screening form (DC 4-322) intended to make a threshold determination of whether the offender qualifies for the restoration of one's civil rights without a hearing pursuant to Rule 9. Exhibit D. There are times when the defendant does not even assist in providing and assisting offenders in completing Form DC 4-322. Furthermore, Form DC 4-322 is misleading and incomplete. Additionally, defendant Moore is failing to provide any assistance whatsoever in assisting those offenders who do not qualify for the restoration of their civil rights without a hearing via Rule 9. Defendant Moore does not provide offenders with an application and other forms necessary to apply for clemency pursuant to Rule 6. Defendant Moore does not provide and assist offenders in filling out the 12 page clemency questionnaire form. Defendant Moore also does not provide offenders with an application and other forms requesting a waiver of the rules for clemency pursuant to Rule 8. Defendant Moore does not assist offenders with obtaining certified copies of all documents necessary for the clemency process.
26. The failure of defendant Moore to fully comply with Fla. Stat. § 944.293 has had drastic consequences for felons seeking the restoration of their civil rights. There are currently 525,100 disenfranchised felons in Florida, or 4.6% of the 1998 voting age population. This figure includes 63,700 who are currently incarcerated, 137,200 who are on probation, 9,200 on parole, and 436,900 ex-felons who have completed their sentence and all supervision requirements. Indeed, one third of all disenfranchised ex-felons in the United States live in Florida. And that number is rapidly increasing. The racial impact is highly disproportionate: 204,600 of these disenfranchised felons, or 47%, are African American men. 31% of the African American adult male population in Florida cannot vote as a result of felon disenfranchisement. According to 1997 census estimates, African Americans represent 15% of Florida's population.
27. The defendant's failure and refusal to fully comply with Fla. Stat. § 944.293 in assisting former felons with the restoration of their civil rights also adversely affects their ability to obtain meaningful professional employment. E.g., Fla. Stat. § 112.011(2)(b) (employment with any fire department); Fla. Stat. § 231.17 (teacher certification).
28. Plaintiff Reginald Greenlee has a ten (10) year old drug trafficking conviction from Lee County. He is presently a highly productive member of society who works at a Community Action Agency in Miami assisting public housing residents. He is currently under probation for the felony of driving with a suspended license. His probation will expire on or about December 17, 2002, although due to his earning credits toward his sentence, he reasonably anticipates that he will in fact be released from supervision in December of 2001. Based on the practices and policies of defendant Moore as described in ¶¶24 and 25, above, Reginald Greenlee does not anticipate that Moore will provide him with any assistance in obtaining restoration of his civil rights upon his release from supervision. Mr. Greenlee has a college degree and is otherwise qualified for employment as a teacher in the Dade County Public Schools. He very much wants to teach but has been told that he cannot be certified unless and until his civil rights are restored.
29. Plaintiff Joseph Brown has a record of robbery and drug related convictions. He was discharged from the supervision of the Florida Department of Corrections on or about March 3, 2001. At that time he was provided with no assistance in obtaining restoration of his civil rights.
30. Plaintiff Milton McCloud has a record of non-violent felony convictions related to cocaine trafficking and driving with a suspended license. He was discharged from the supervision of the Florida Department of Corrections on or about August 27, 2000. At that time he was provided with no assistance in obtaining restoration of his civil rights.
31. Plaintiff Hollis Horton has a series of felony convictions from 1996. He is currently under conditional supervised release from prison. His supervised release will expire on or about April 14, 2001. Based on the practices and policies of defendant Moore as described above, Hollis Horton does not anticipate that defendant Moore will provide him with any assistance in obtaining restoration of his civil rights upon his release from supervision.
32. Plaintiffs seek either a writ of mandamus or an injunction ordering defendant Moore to fully comply with Fla. Stat. § 944.293. Defendant Moore has failed to assist offenders with the necessary application and other forms required for the restoration of civil rights, to assist the offender in completing these forms, and to forward all necessary material to the Governor before the offender is discharged from supervision. Sometimes, defendant Moore does not provide plaintiffs with any forms or assistance whatsoever. The one form defendant Moore sometimes provides, Form DC 4-322, is incomplete and misleading. If one does not qualify for the restoration of one's civil rights without a hearing pursuant to Rule 9 after completing Form DC 4-322, defendant Moore is not providing and assisting the offender with the necessary application and other forms to request the restoration of civil rights pursuant to Rule 6 (clemency application), the 12 pages clemency questionnaire, obtaining certified copies of all necessary court documents, and Rule 8 (waiver of the rules for clemency).
Relief Requested
WHEREFORE, the plaintiffs request this Court to:
a. Certify this matter as a plaintiff class action pursuant to Florida Rule of Civil Procedure 1.220;
b. Declare that defendant Moore is failing to comply with Fla. Stat. § 944.293;
c. Order defendant Moore to issue accurate and non-misleading forms necessary for the restoration of one's civil rights;
d. Order defendant Moore to obtain from the Governor all necessary applications and other forms which could provide the basis for the restoration of one's civil rights pursuant to Rules 6, 8, and 9, Rules of Executive Clemency, and to assist all offenders in completing these forms and ensuring that the application and all necessary material, including certified court documents, are forwarded to the Governor for every offender before each offender is discharged from supervision;
e. Order defendant Moore to obtain from the Governor all necessary applications and other forms which could provide the basis for the restoration of one's civil rights pursuant to Rules 6, 8, and 9, Rules of Executive Clemency, and to assist all previously released offenders in completing these forms and ensuring that the application and all necessary material, including certified court documents, are forwarded to the Governor for consideration; and
f. Award such other relief as the Court may deem just and proper.
Respectfully submitted,
THE FLORIDA EQUAL VOTING RIGHTS PROJECT
Randall C. Berg, Jr., Esq.
JoNel Newman, Esq.
Peter M. Siegel, Esq.
Florida Justice Institute, Inc.
2870 First Union Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2309
305-358-2081
305-358-0910 fax
rcberg@bellsouth.net
Randall Marshall, Esq.
American Civil Liberties Union
of Florida Foundation, Inc.
3000 Biscayne Blvd., Suite 215
Miami, Florida 33137
305-576-2337, 305-576-1106 fax
Charles F. Elsesser, Jr., Esq.
Florida Legal Services, Inc.
3000 Biscayne Blvd., Suite 450
Miami, FL 33137
305-573-0092, 305-576-9664 fax
Attorneys for Plaintiffs
Randall C. Berg, Jr., Esq.
Florida Bar No. 318371
