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Judge holds emergency hearing on McGraw case, will rule tomorrow

BY JENNIFER CABRERA

A hearing on the motion to grant an emergency injunction to prevent School Board Member Diyonne McGraw from voting in school board meetings was held today, with Judge Donna Keim presiding. Over 50 people attended the Zoom hearing, many of whom were local, politically-active citizens. The plaintiffs—former School Board candidate Khanh-Lien Banko and citizens Marlon Bruce, Thomas Cowart, and Richard McNeill—were represented by local attorney Jeff Childers. Diyonne McGraw was represented by Richard Keith Alan II, an attorney based in West Palm Beach who represented Christopher Chestnut in his disbarment case (Chestnut was disbarred in December, 2019). Supervisor of Elections Kim Barton was represented by Alachua County Assistant Attorney Bob Swain, and Swain said that the Election Canvassing Board for Alachua County had not yet been served with the complaint.

“The Florida Constitution, Florida Statutes, and the school board’s own policies all provide that a vacancy shall occur when a school board member fails to maintain their residence in their district” – Jeff Childers, attorney for plaintiffs

Childers opened by stating that it’s a “very simple case” and that the facts of the case are not in dispute: “Ms. McGraw was elected to the District 2 School Board seat in Alachua County, but she lives in District 4…. The Florida Constitution, Florida Statutes, and the school board’s own policies all provide that a vacancy shall occur when a school board member fails to maintain their residence in their district, and today, we’re asking you for a temporary injunction to preserve the status quo until the matter can be fully heard and resolved.” He said it was important to note that they were not contesting the election and not asking the Court to replace Ms. McGraw with anybody else who is claiming a right to the office. Childers said that none of the applicable statutes or policies require any procedure to result in the vacancy; the vacancy is “automatic.”

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Childers countered the response filed by McGraw’s attorney, which said that the plaintiffs filed the wrong action; Alan wrote that the proper vehicle would be a Writ of Quo Warranto. Childers said that only applies to “any person claiming title to an office,” and none of the plaintiffs are claiming a right to the office. Childers said that if they had filed a Writ of Quo Warranto, McGraw’s attorney would have said they lacked standing to do that. Therefore, he said it was “a Catch-22 argument, just designed to confuse the issue.” Childers further argued that the school board can continue functioning if McGraw does not vote because non-controversial items can be passed by a 3-1 vote of the remaining members. Only controversial items, in which McGraw would be the swing vote, will be delayed, “and Your Honor, the school board shouldn’t be taking those kinds of votes right now, anyway, with this issue hanging over the board.” He said the plaintiffs are okay with McGraw continuing to participate in board meetings and board discussions, as long as she doesn’t vote. He further argued that the voters were “fraudulently induced into voting for Ms. McGraw” because they “depended on the truth” of the oath that McGraw completed, stating that she lived in District 2. 

“Because of the separation of powers, the Writ is the manner in which this issue is to be addressed.” – Richard Alan, attorney for McGraw

Richard Keith Alan II, lawyer for McGraw, said the issue is separation of powers. He said that the plaintiffs had not cited any case law in which this issue was resolved via declaratory action, and “they cannot, because that’s not the appropriate mechanism that should be used in this instance.” He added that the plaintiffs are not the appropriate parties to pursue the relief they wanted, which is the removal of McGraw from her seat. He said it is “very unsophisticated” to view the statutory provisions regarding vacancies as automatic. “All laws are on the books, but you have to go through the proper enforcement mechanisms to be able to invoke the Court’s authority to enter rulings based on those laws… Because of the separation of powers, the Writ is the manner in which this issue is to be addressed.” He also cited the Askew case to argue that until a person is removed from their position, they are “de facto in that seat and can act validly… That is the closest guidance that we have on the issue.”

“Down the line, this Court will learn that information was provided to Ms. McGraw, specific statements by the number two person at the Supervisor of Elections, which basically indicated that her address was in District 2.” – Richard Alan, attorney for McGraw

Alan said it’s not true that the facts are not in dispute, “and I would proffer that, down the line, this Court will learn that information was provided to Ms. McGraw, specific statements by the number two person at the Supervisor of Elections, which basically indicated that her address was in District 2. She never once gave the wrong address or false address, at no time. And full disclosure to the Court, she does have two other addresses in District 2. The evidence will later show that she has two other residential addresses in District 2, but those two addresses were never discussed with the Supervisor of Elections in Alachua County.”

Bob Swain, representing the Supervisor of Elections, said, “The County’s not taking a position on this.”

“Moving on to this Quo Warranto issue, I don’t know how to say it any more simply: Separation of powers has nothing to do with it.” – Jeff Childers, attorney for plaintiffs

Judge Keim offered Childers the opportunity to respond to Alan’s statements. Childers replied, “Moving on to this Quo Warranto issue, I don’t know how to say it any more simply: Separation of powers has nothing to do with it. That term of art is not used in the statute.”

At that point, a fire alarm went off in the courthouse, and Judge Keim had to evacuate. After several minutes, she came back and said it was just a drill and she could continue, if the attorneys didn’t mind the flashing lights and sirens. Childers began his response again, saying that in the Askew case that Alan had used to show that Quo Warranto was the appropriate mechanism, “declaratory relief was the vehicle that was used… so the only difference between this action and the Quo Warranto action is the caption on the pleading. Your Honor, we’re not asking this court to remove Ms. McGraw. The statute, the constitution, and the school board policy provide that when there is a vacancy, the governor will replace the incumbent. So all we need the Court to do is to declare that there is a vacancy.” Childers added that if McGraw has a defense against the facts presented, she can move to dissolve the temporary injunction and get a quick hearing at any time. He asked the judge to enter the temporary injunction immediately. 

Judge Keim then said she was informed that the fire alarm was not a drill and that she had to vacate the building. She returned after a delay, and the hearing resumed. Keim had a question for Childers about whether he had any case law regarding whether she has the authority to invalidate votes if she declines to enter the emergency injunction and McGraw continues to vote. Childers said he wasn’t sure about that, particularly given the sentence in the Askew case about a candidate remaining de facto in her seat. Alan said that would “in theory” be “within the realm of possibility” but that he had seen no cases in which that had been utilized, post-election. 

Judge Keim said she wanted to review all of the case law and will enter an order tomorrow. 

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