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The Florida Recount: Palm Beach County Canvassing Board Holds Public Meeting

Aired November 14, 2000 - 7:50 a.m. ET


LEON HARRIS, CNN ANCHOR: Now back to that Florida recount story. We want to quickly taking you now to West Palm Beach, Florida, where we're hearing now from Judge Charles Burton.


JUDGE CHARLES BURTON, PALM BEACH COUNTY CANVASSING BOARD: Do we need a motion before we have discussion, or...?


BURTON: All right, go ahead.

ROBERTS: I'm discussing the letters. I contend there's really nothing different between yesterday and today. We didn't ask, really, whether we could recount the -- we asked, and it was my understanding that we asked for advice. I was not told that an advisory opinion is binding or I don't think we would have asked for it. I'm not an attorney. I made that clear. I don't think there's anything any different from yesterday or today. The statute still says that the third remedy, if there is a difference that would, in this board's mind, affect an election, you can ask for a recount.

And that question is still there. We think there might be the ability to affect an election. And I believe that we really haven't settled anything. And certainly we do want to wait for the attorney general's opinion, but I think that there is a court opinion already, and I think it's the Broward vs. Hogan (ph), which also gives us the right to go forward. And I think in something I read that was sent up to Tallahassee, and your name was on that, the Broward vs. Hogan case was cited. So do we have any idea when the attorney general's opinion will be here?

UNIDENTIFIED FEMALE: No, we do not. We're trying to make contact with the office right now to determine when that will be received.

ROBERTS: Is that somebody that says attorney general? I can't see.


ROBERTS: Well, the Bush-Cheney campaign I don't think is representing the attorney general's office, so...


ROBERTS: I'm not interested in their past decisions, I'm interested in what they're going to say today. I'm sorry, I don't mean to be...

BURTON: All right. No, that's fine. I think, quite honestly, it has been the intent of this board, really, to do several things. No. 1, to act as openly is possible so that there could be no question about the process that's being undertaken. But certainly as a county court judge and as a chair of this board, I think it is my obligation to follow the law, and the law tells me that this opinion is binding on this board, and the law tells me we have to follow it. And so based on this, it would be my motion that the manual recount be suspended until, No. 1, we receive an opinion from the attorney general, and then depending on what that opinion is, any subsequent legal election that this board will take to seek the opinion of the courts...


BURTON: ... as to its obligations.

UNIDENTIFIED FEMALE: Mr. Chairperson, if I could just clarify. So you would be authorizing legal counsel to seek that declaratory judgment at such time if there's a conflicting opinion?

BURTON: Right. Depending -- if there is a conflicting opinion received from the attorney general, it would also be included within my motion that the county attorney be instructed to seek -- the action would be declaratory judgment from a circuit court as to how this board should proceed.


BURTON: All right, there's a second. Any discussion?

ROBERTS: Mr. Chair?

BURTON: Your name? I'm sorry, Commissioner Roberts.

ROBERTS: I still believe -- and of course I don't have the advantage that you have because I'm not an attorney and you do have that legal advantage. I still believe that we have an obligation to -- and I guess I picked up the right sweatshirt this morning -- to allow everybody's vote to be counted. And so I'm going to vote no. I believe we ought to go forward. I am willing to wait for the attorney general's opinion that the way your motion read it, I just -- I would be happier if we -- I certainly believe we ought to get a declaratory opinion.

BURTON: All right -- I'm sorry.

ROBERTS: Go ahead. I don't think we really need to listen to anybody else, we ought to just vote. BURTON: Well, we need discussion. I mean, we ought to discussion now. We already asked.

ROBERTS: Well, I mean if the Bush-Cheney people want to be heard (OFF-MIKE).

BURTON: Your name, sir?


BURTON: Can I just ask you, is that the request that was received by the board?


BURTON: All right.

UNIDENTIFIED MALE: (OFF-MIKE) Florida decided in 1994 by the Supreme Court, the courts are required to give deference and great weight to an agency's construction of the statutes which it administers. Of course, the agency involved here is the secretary of state in the Elections Division. With respect to the attorneys general, the attorney general's own opinions are in accord with this principal. In numerous published opinions, the attorney general has affirmed that the construction of a statute by an agency charged with this administration is entitled to great weight and should not be overturned unless it is clearly erroneous. This derives from several opinion of the attorney general, including 9858, 9603 and 9507. There's also an attorney general opinion from 1997 -- that's 9754 -- referring questions regarding interpretation.

BURTON: All right, sir. And I do want to interrupt, but the board has received your memorandum. We will consider this a verbal request that the board receive and file that. We will do that. And, quite honestly, I don't want to listen to you reading your memorandum. So...

UNIDENTIFIED MALE: I'm sure, your honor....

ROBERTS: I understand what you're saying and I understand your position.

Is there any other discussion to be had?


HARRIS: Shandra (ph). I'm sorry, we were listening there just moments ago to judge Charles Burton, who's a member of the Canvassing Board for West Palm Beach.

And let's go now to CNN's John Zarrella, who is standing by.

John, you've been listening. What do we hear, John?

JOHN ZARRELLA, CNN CORRESPONDENT: Well, it's a major development here that they have gotten one legal opinion that says that, basically, based on the reasons why they want to recount the entire county, that apparently that does not coincide with what the law says in Florida for valid reasons to recount the entire county. We're going to try to get the judge over year or one of the commissioners when they're finished with this press conference to give us any clarifications. They're still waiting, however, for an opinion from the attorney general on whether they can recount the entire county.

Now, I recall over the weekend even and yesterday morning there was discussion that they were waiting for that opinion from the attorney general -- had sent a letter, but still hasn't sent that letter -- Leon.

HARRIS: All right, thanks, John.

We want to go back to that press conference to see if we can listen in now.


UNIDENTIFIED MALE: ... an opinion which was signed by the Canvassing Board's chair. The letter did not follow the motion, the unanimous motion of this board, which was to seek an opinion on several different issues, one of which included an application of section 102.111. Nowhere in the -- in Judge Burton's request letter does it appear -- at least the request letter that has been publicly disclosed -- does it appear that the chairman followed the board's directive in seeking an opinion as to that particular subsection.

BURTON: Let me interrupt you, Mr. Cuny (ph), briefly, because the chair sent a previous letter to the director of elections regarding that issue and the chair received a response, and I will read that to you briefly, if you would like.

And the response from the director of Division of Elections is that "the application of Section 102.111 is explicitly mandatory. It provides that the county returns are not received by the Department of State by 5:00 p.m. on the seventh day, all missing counties shall be ignored and the results shown by the returns on file shall be recertified."

The director of elections opinion is that that deadline is mandatory. The only reason I didn't address that is because all of you are aware that there is currently an action pending up in, I believe, Leon County in which we have joined in that lawsuit. And we were waiting for the judge up there to render his opinion as to whether he was going to enjoin the secretary of state from enforcing that deadline, notwithstanding that based upon this opinion.

So just to briefly respond, we had already received an opinion as to that issue.

UNIDENTIFIED MALE: Thank you, Judge.

BURTON: All right.

UNIDENTIFIED MALE: The record does need to be clear that the attorney general's office has still not received the Canvassing Board's request for an opinion on the application of 102.111, notwithstanding the unanimous vote of the Canvassing Board yesterday that that would be included in the request to the attorney general. And your honor has recognized specifically that no such request has been made to the attorney general's office, although it had been made to the Division of Elections.

BURTON: Although, Mr. Cuny, as you would know, that if we received an opinion of the attorney general, for example, we would have to abide by the circuit judge's ruling in Leon County. So that would be the precedence this court -- this board would have to follow. So we felt it appropriate to simply -- there's an action pending, the matter is being heard in circuit court, and we felt it appropriate to wait for that judge's ruling.


UNIDENTIFIED MALE: And since the public had not received any notice of a reconsideration of that motion, which was unanimously made in the past, it appears that the board does have a continuing obligation to fill that request. Notwithstanding that the board's letter to the attorney general's office was not submitted until after 5:00, it did not include that compliance with the request.

UNIDENTIFIED FEMALE: I want to address that.

UNIDENTIFIED MALE: In addition, there are several other items which substantively need to be brought to the board's attention in evaluating this. First of all, the board is well aware that where an administrative agency makes a post-controversy ruling, meaning a ruling after the controversy has commenced as opposed to a pre- controversy ruling, those rulings do not have the deferential or binding effect of law. In fact, they are advisory in nature.

In this particular case, the request to the secretary of state was a post-controversy ruling made after litigation had ensued over these particular items.

UNIDENTIFIED FEMALE: That was post-controversial.

UNIDENTIFIED MALE: In addition, as the board is aware, the courts have determined with regard to the effect, the binding or non- binding effect of an opinion of the Division of Elections, and the court is, I'm sure -- the board is, I'm sure, aware of the decisions -- the Gonzalez vs. Vogel (ph) case is the most noteworthy -- that decision of the Florida elections director, the director of elections, are not binding but are persuasive. In addition, the fourth district in the Nicholas vs. Nikosia (ph) case has expressly informed the public and the courts that where a Department of Elections opinion is based on or in conflict with a decision of the court or is incorrect, that opinion has no force of law and is not to be followed.

I would note that the opinion...

BURTON: All right, Mr. Cuny, again, I don't want to cut you off, I cut the other gentleman off. A really don't want a memorandum of law. If you have a few brief remarks, that's what I wanted to hear.

UNIDENTIFIED MALE: That is my intention, your honor.

BURTON: All right.

UNIDENTIFIED MALE: And in addition, we urge the Canvassing Board because this was a matter addressed yesterday to effect the commencement of a recount, a manual counting, because it appears that the Canvassing Board and the public are ready to commence that recounting...

BURTON: Mr. Cuny...

UNIDENTIFIED MALE: ... the recounting should continue until there is a receipt of the decision of the attorney general. If there is, in fact, a conflict between the decision of the attorney general and the decision of the Division of Elections...

BURTON: All right, Mr. Cuny, first of all, as you well know, whatever the public's desire is, this board must follow the law. And as this chair expressed early Sunday morning when this motion was made, it's concerned that we ought to have the advice of those who are in a better position to advise us before proceeding. We have sought that opinion, we have received that opinion.

Ms. Dietrich (ph), did you want to comment on...?

UNIDENTIFIED FEMALE: I would like to comment on two things. First of all, the after-5:00 fax. As the whole world knows, we were in federal court in the morning and in the afternoon. In fact, you gave me the fax number and the person to direct that letter to at the hearing last night, Jocelyn Wilson (ph), and we followed that instruction and both were faxed simultaneously to Tallahassee. Yes, it was at the end of the business day, but we were proceeding as quickly as we could in light of the circumstances. So we faxed it to the person at the number that you had given us in the courtroom last night.

On the second issue, I'm not aware of the post- or pre- controversy standard, but once you do seek an advisory opinion, it is a binding opinion. It's very clear in 106.23 subsection II there's no discretion with that at this point. And besides, taking what you say as being true for a moment, the issue that was presented to Tallahassee is not an issue in court. So just to clarify those two points for the public.

BURTON: Didn't hear you.

ROBERTS: I didn't hear what you said.

UNIDENTIFIED FEMALE: OK, which part? The whole part?

ROBERTS: Start about...

BURTON: You started to say, the second point... UNIDENTIFIED FEMALE: All right, as far as the second point, as far as a post- or pre-controversy standard, I'm not aware of that. All I know is that under 106.23 subsection II, when you seek an advisory opinion, which is exactly what was asked, it is a binding opinion pursuant to Florida law. And assuming what you said was true just for the moment for discussion, the questions that were presented were not at issue in court, so it's not -- we're not -- it's not a pre- or post-controversy with the specific issue that's being addressed by the judicial system.

HARRIS: We have been listening here to an open public meeting of the Palm Beach County canvassing board. At this point, we want to welcome our international viewers who have just joined us, and go now to CNN's John Zarrella who's been there listening to this meeting.

John, you want to tell all our viewers what we've been listening to so far this morning?

ZARRELLA: Well, Leon, at this open meeting, which is how they've been doing here -- this here in Palm Beach County as part of the "Florida's government in the sunshine laws," everything is in the open here. They are discussing whether they had the legal authority to proceed with this recount.

Now, Judge Charles Burton, who is the chairman of the Canvassing Board, had on Sunday morning said we ought to wait before we make a decision until we get some legal authority, something from attorneys that can tell us that. They've tried to get a letter off to the attorney general of Florida. They have not gotten a response from him. They did get a response from the director of elections in Tallahassee. It basically says that, under the circumstances, they don't really have the legal authority to continue with a complete recount of the county.

So that's out there. We're not sure exactly what way they're going to go here. The judge wants to continue holding off now, don't start the recount until they get the legal opinion of the attorney general.

Now, there's a dissenting opinion from Carol Roberts, the commissioner, also on the Canvassing Board, who says, hey, wait a minute, everything is in motion, we're geared to do this. Let's just go ahead and start this. That's the will of the people, that's what the people want.

Right now, they are in the midst of listening to some opinions from people in the audience, citizens here in Palm Beach County. And at some point, they're going to have to actually vote to see, the three of them, on whether or not they wish to go ahead and start the recount now or whether they want to wait until they get an opinion from the attorney general. And they've been waiting on that opinion for about 48 hours now, I believe, and we're not quite sure what's taking so long on that -- Leon.

HARRIS: All right, thanks, John. We appreciate it. We'll get back to you a little bit later on. Folks, we will continue to listen in on this open meeting of the Palm Beach County Canvassing Board, and if anything happens more there, if anything develops, we will bring it to you.



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