Filing # 128791358 E-Filed 06/15/2021 02:31:59 PM

IN THE CIRCUIT COURT OF THE 8TH JUDICIAL CIRCUIT

IN AND FOR ALACHUA COUNTY, FLORIDA

KHANH-LIEN ROBERTS BANKO, CASE NO.: 01-2021-CA-1594

MARLON BRUCE DIVISION: J
THOMAS COWART, and
RICHARD MCNEILL,
Plaintiffs,

v.

DIYONNE MCGRAW,
ELECTION CANVASSING BOARD for
Alachua County, Florida, and,
KIM A. BARTON, in her capacity as
SUPERVISOR OF ELECTIONS for
Alachua County, Florida.
Defendants,
______________________________

ORDER DENYING PLAINTIFF’S VERIFIED EMERGENCY

EX-PARTE MOTION FOR INJUNCTIVE RELIEF

THIS CAUSE came before the Court on June 14, 2021, for an emergency hearing on

Plaintiffs’ Verified Emergency Ex-Parte Motion for Injunctive Relief (“Motion”) which was filed

on June 11, 2021. The Court, having heard argument of counsel for the parties, reviewed the

Motion and its attachments, reviewed the Response filed by McGraw, reviewed the legal

authorities submitted in support of and in opposition to the Motion, and being otherwise duly

advised in the premises, finds:

A. This dispute concerns a declaratory action related to McGraw, the District 2 Alachua

County School Board representative, based on Florida Statutes §§ 1001.38 and

114.01, Article X, § 3 of the Florida Constitution, and Alachua County School Board

Policy No. po0145.

Page 1 of 7 Pages
 B. Plaintiffs, Khanh-Lien Roberts Banko, Marlon Bruce, Thomas Cowart, and Richard

McNeill, seek emergency injunctive relief to prevent Diyonne McGraw from voting as a member

of the Alachua County School Board pending an evidentiary hearing for a permanent injunction.

C. McGraw was elected to the District 2 School Board seat in the November 2020

election.

D. Plaintiff, Khanh-Lien Roberts Banko, was also a candidate for the District 2 School

Board seat and received the second highest number of votes in the November 2020 election.

E. Plaintiffs assert that McGraw resides in, and at all relevant times, resided in Alachua

County District 4; therefore, her seat in District 2 is vacant.

F. In support of the Motion, Plaintiffs rely upon the following attachments to the

Motion:

1. Exhibit A to the Motion, a “Statement of Candidate” that does not reflect

McGraw’s address.

2. Exhibit B to the Motion, a Form 6 Financial Disclosure which reflects McGraw’s

mailing address as 4331 NW 21st Terrace, Gainesville, FL. 32605.

3. Exhibit C to the Motion, a statement from TJ Pyche, Director of Communications

and Outreach, which indicates “Alachua County Supervisor of Elections responds

to questions regarding candidate residency” and notes that the address on the

Candidate Oath is located within District 4 of the Alachua County School Board

and that the candidate qualified and was elected to serve in District 2.

4. Exhibit D to the Motion, a map which reflects the location of McGraw’s residence

in District 4.

Page 2 of 7 Pages
 G. The parties requested 90 minutes for an emergency hearing. Despite having ample

time to present evidence, neither party offered any additional evidence or testimony at

the hearing.

It is hereby ORDERED AND ADJUDGED that:

1. To obtain a temporary injunction, the movant must establish (1) a substantial

likelihood of success on the merits, (2) a lack of an adequate remedy at law, (3) the likelihood of

irreparable harm absent the entry of an injunction, and (4) that injunctive relief will serve the

public interest. Bayfront HMA Med. Ctr., LLC, 236 So. 3d at 472.

2. The purpose of a temporary injunction is to preserve the status quo while final

injunctive relief is sought. State, Dep't of Health v. Bayfront HMA Med. Ctr., LLC, 236 So. 3d

466, 472 (Fla. 1st DCA 2018), reh'g denied (Feb. 21, 2018) (citing Planned Parenthood of

Greater Orlando, Inc. v. MMB Props., 211 So.3d 918, 924 (Fla. 2017)).

3. A temporary injunction is an extraordinary remedy that should be granted sparingly.

Id. (citing Sch. Bd. of Hernando Cty. v. Rhea, 213 So.3d 1032, 1040 (Fla. 1st DCA 2017)).

4. The petition or other pleading must demonstrate a prima facie, clear legal right to the

relief requested. Mid-Florida At Eustis, Inc. v. Griffin, 521 So. 2d 357, 357–58 (Fla. 5th DCA

1988). The establishment of a clear legal right to the relief requested is an essential requirement

prior to the issuance of a temporary injunction. Id.

5. As to the first prong, there appears to be a substantial likelihood of success on the

merits as the statutory authority presented by the Plaintiffs supports their argument that if

McGraw does not live in the school district which she represents, District 2, she is not entitled to

hold the seat for that district; Under section 114.01(g), by McGraw’s failure to reside in the

district for which she was elected, the seat is considered vacant; McGraw’s failure to reside in

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District 2 violates Alachua County School Board Policy; and Article X, § 3, Florida Constitution,

states that a vacancy occurs when the elected official fails to meet the residency requirement of

their office.

6. As to the second prong, no adequate remedy at law, the Plaintiffs cannot establish

entitlement to injunctive relief as there is an adequate remedy at law: quo warranto. 1 “Quo

warranto is ‘a common-law writ used to inquire into the authority by which a public office is

held, or a franchise is claimed.’” Johnson v. Office of State Attorney, 987 So. 2d 206, 207 (Fla.

5th DCA 2008) (quoting Black's Law Dictionary 1285 (8th ed. 2004)). “It is properly used to

challenge the ‘power and authority’ of a constitutional officer.” Id. (citing Crist v.

Fla. Ass'n of Criminal Defense Lawyers, Inc., 978 So.2d 134, 139 n. 3 (Fla.2008) (quoting Aust

in v. State ex rel. Christian, 310 So.2d 289, 290 (Fla.1975)). “Quo warranto is the vehicle for our

consideration of the respondent school board official's eligibility under our constitution and

statutes to retain her office as school board member [failing to maintain residence in] the

residence area from which she was elected.” State ex rel. Askew v. Thomas, 293 So. 2d 40, 41

(Fla.1974). “Where there is an adequate remedy at law by quo warranto, or information in the

nature of quo warranto, a court of equity cannot, in the absence of statute, or some ground of

equitable jurisdiction to which such relief is germane or incidental, assume jurisdiction to declare

an election void or remove or enjoin officers.” Swoope v. City of New Smyrna, 125 So. 371, 372

(Fla. 1929).

1
Rosario v. Wilson, 228 So. 3d 726, (Mem)–727 (Fla. 5th DCA 2017) (“We address the propriety of a preliminary
injunction prohibiting the City of Groveland from ‘recognizing the authority of George Rosario as the City of
Groveland Mayor’ due to his alleged status as a convicted felon. Although numerous issues challenging the order
have been raised, including the failure to join Mr. Rosario as a party and the failure to provide him notice of the
hearing on the motion, we conclude as dispositive that injunctive relief is unavailable because of an adequate
remedy at law—application for a writ of quo warranto.”) (emphasis added) (citing Swoope v. City of New Smyrna,
98 Fla. 1082, 125 So. 371 (Fla. 1929)).

Page 4 of 7 Pages
 7. In addition to quo warranto, the Plaintiffs assert an additional adequate remedy at

law as reflected in paragraph 48 of the Plaintiffs’ Complaint wherein the Plaintiffs ask the Court

to "declare: (i) that Defendant McGraw was unqualified for office at all times during 2021 when

she was on the Alachua County School Board; and (ii) that any vote made by Defendant

McGraw during that time was ultra vires and void.” (emphasis added). If the Court can declare

McGraw’s votes ultra vires and void, including any votes that may occur while the Plaintiffs’

Complaint is pending, then a temporary injunction is not appropriate.

8. As to the third prong, the likelihood of irreparable injury, there is insufficient

evidence of irreparable injury to establish the right to injunctive relief. Plaintiffs argue that

irreparable injury will occur as McGraw is voting on school board matters involving significant

expenditures. However, no evidence was presented as to these matters. “Irreparable injury will

never be found where the injury complained of is ‘doubtful, eventual, or contingent.’” Id.

(quoting First National Bank in St. Petersburg v. Ferris, 156 So.2d 421, 424 (Fla. 2d DCA

1963)). “Mere general allegations of irreparable injury are not sufficient.” Stoner v. S. Peninsula

Zoning Comm'n, 75 So. 2d 831, 832 (Fla. 1954). Furthermore, “[t]he long established rule in this

jurisdiction is that before an injunction will issue, it must appear that there is a reasonable

probability, not a bare possibility, that a real injury will occur.” Miller v. MacGill, 297 So. 2d

573, 575 (Fla. 1st DCA 1974).

9. Plaintiffs have provided no evidence of past actions by McGraw that have resulted in

irreparable harm from the time she was certified as the successful candidate in Nov. 2020 until

present nor have they provided any evidence of specific anticipated actions by McGraw that may

result in irreparable harm. Although McGraw is voting on substantive matters, the claim that

irreparable harm will result from this is conclusory and speculative. See First Nat. Bank in St.

Page 5 of 7 Pages
Petersburg v. Ferris, 156 So. 2d 421, 424 (Fla. 2d DCA 1963) (“The facts comprising such

injury must be presented clearly so that the court may determine the exact nature and extent of

the possible injury. ... If the injury complained of is doubtful, eventual, or contingent, injunctive

relief will not be afforded.”).

10. Finally, as to the fourth prong, whether a temporary injunction will serve the interest

of the public, an injunction would serve the interest of the public as this would avoid questions as

to the validity of the actions taken by the Alachua County School Board while McGraw’s status

as a School Board member is in question due to litigation regarding same.

11. Plaintiffs’ Motion is DENIED.

DONE and ORDERED in Chambers, Gainesville, Alachua County, Florida, on this

Tuesday, June 15, 2021.

Page 6 of 7 Pages
 CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above has been served by E-Service
or First-Class Mail to the following on this Tuesday, June 15, 2021.

SELDON J CHILDERS, ESQ RICHARD KEITH ALAN, II ESQ

jchilders@smartbizlaw.com blackops777@timefortrial.com
notice@smartbizlaw.com attyrkaii@timefortrial.com
jkirkconnell@smartbizlaw.com timefortrial@gmail.com

ROBERT C SWAIN, ESQ

bswain@alachuacounty.us
CAO@alachuacounty.us

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