McGraw asks court to dismiss Banko complaint

Former School Board of Alachua County (SBAC) member Diyonne McGraw has filed a motion to dismiss an amended complaint contesting the validity of her victory in the District 2 school board seat election.

McGraw narrowly won her seat on the school board with 52 percent of the vote against Khanh-Lien Roberts Banko last year. Seven months later, after it was discovered that McGraw lives in District 4 and not in the district she ran to represent, Banko and three Alachua County registered voters filed the complaint asking the Eighth Judicial Circuit Court to rule the seat vacant. Saturday was the deadline for McGraw to respond. 

On June 17, Gov. Ron DeSantis issued an executive order declaring the seat vacant, but he has not appointed McGraw’s replacement. On June 22 McGraw asked a circuit court to throw out the governor’s order.

In the latest motion, which attorney Richard Keith Allen II filed late Friday night, McGraw asks the court to dismiss the plaintiffs’ complaint using two main arguments.

First, she says the court “lacks jurisdiction to entertain Plaintiff’s [Banko’s] post-election challenge.”

The plaintiffs cannot use an action for declaratory and injunctive relief per Florida Statute 86.021 to challenge McGraw’s qualifications for the seat she now holds after she has been elected, the motion states, arguing they must use Florida Statute 102.168, if at all.

Second, McGraw says the complaint comes too late.

“[The] plaintiff’s post-election contest of Mrs. McGraw’s entitlement to the District 2 seat on the Alachua County School Board is limited to the process, procedure, and reasons set forth in Florida Statute 102.168. However, the statute does not permit the plaintiffs to challenge Mrs. McGraw’s qualifications for the seat after she has been elected and the ten (10) day limit to pursue a claim under that statute has expired,” the motion says. “Plaintiffs have failed to allege any facts that would support a claim under Florida Statute 102.168 and it’s too late to do so.”

The motion reiterates that, “The people of Alachua County have spoke through the democratic election process,” and claims that the Circuit Court of the Eighth Judicial Circuit in Alachua County does not have jurisdiction to remove McGraw from office, “even where she was allegedly never qualified to hold seat due to the applicable residency requirements.”

Jeff Childers, attorney for the plaintiffs, said the motion to dismiss does not respond to the merits of the complaint. 

“We are confident that our complaint will withstand the motion to dismiss,” Childers said in a statement texted to Mainstreet Daily News on Saturday. “Motion to dismiss or not, the bottom line remains the same: she doesn’t live in her district. Period. It’s pretty simple.” 

Editor’s note: This story has been updated with a comment from Jeff Childers. 

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