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Plaintiff's Response to Defendant's Motion for Summary Judgment

VIEWS: 50 PAGES: 9

									                IN THE CIRCUIT COURT FOR ESCAMBIA COUNTY, FLORIDA


BYRON H. KEESLER and
LEROY BOYD,
           Plaintiffs,

        -vs-                                            Case No. 2008 3593 B

COMMUNITY MARITIME PARK
ASSOCIATES, INC.,
          Defendant.

                    PLAINTIFFS‟ RESPONSE TO DEFENDANT‟S MOTION
                              FOR SUMMARY JUDGMENT

        Plaintiffs BYRON H. KEESLER and LEROY BOYD respond to Defendant‟s Motion for
Summary Judgment, and allege:
        1. The party moving for Summary Judgment must meet the burden of showing there is
no genuine issue of material fact, Landers v. Milton, 370 So.2d 368 (Fla. 1979), and the movant
must conclusively establish the nonexistence of issues of material fact beyond even the slightest
possibility or doubt, Leon County v. Bradfordville Phipps Limited Partnership, 823 So. 2d 292
(Fla.1st DCA 2002). The Defendant, however, has not shown that there is no genuine issue of
material fact, because it does not state all the material facts and asserts facts that are either
disputed or not material.
        2. The Defendant‟s first assertion of fact, that the CMPA does not exclude members of
the public from its meetings, is not supported by any material in the record that would be
admissible as evidence. See, Rule 1.510( c), (e), Fla. R. Civ. P., and Florida Department of
Financial Services v. Associated Industries Insurance Company, Inc., 868 So. 2d 600 (Fla. 1st
DCA 2004).
        3. Further, the first assertion is disputed by the Plaintiffs‟ Amended Complaint and
attached affidavits, which show that the Defendant excluded the public, in various ways, from
participating in its meetings. See, University Nursing Care Center Inc. v. First Union National
Bank, 835 So. 2d 1186 (Fla. 1st DCA 2002). The affidavits also show that the Defendant, through
its chairman, physically excluded a member of the public who attempted to participate in one of
the Defendant‟s meetings by requesting and directing the individual to leave. See, Port
Everglades Authority v. International Longshoremen’s Association, Local 1922-1, 652 So. 2d
1169, 1170 (Fla. 4th DCA 1995), in which the court held that a request to leave made by an
official constituted a de facto exclusion from a meeting.
        4. The Defendant‟s second assertion of fact, that the CMPA gives reasonable notice of
the time and place of its meetings, is not material to the issues in this case. The Plaintiffs have
not alleged any facts regarding notice, or lack of notice, of CMPA meetings.
        5. The Defendant does not address the substantial matters of law to be argued, which
are: (a) the scope of the public‟s right to participate in Defendant‟s meetings; and (b) the
remedies for the Defendant‟s violations of the public‟s right to open meetings. Instead, the
Defendant addresses whether the public was physically excluded from meetings at which official
acts were taken.
        6. The Defendant contends that meetings covered by Section 286.011, Florida Statutes,
(“The Sunshine Law”), irrespective of all the facts concerning those meetings, can conclusively
be declared to be “open to the public” if official acts are taken at those meetings and the public is
not physically excluded from the meetings.
        7. The Defendant reaches this unsupported conclusion of law by omitting, misstating,
and misinterpreting the applicable law.
        8. The Defendant begins its “legal analysis” on page two of its Motion for Summary
Judgment where it states what The Sunshine Law purportedly requires:
                The Government in the Sunshine Law (“the Sunshine Law”)
                requires that when (1) official acts are taken (2) by the Board, the
                meetings must be (3) open to the public at all times (i.e., the public
                must not be excluded), and the board must give (4) reasonable
                notice of the meetings. (emphasis in original)

        9. The Sunshine Law, in fact, expressly states in Section 286.011 (1) that “all meetings
at which “official acts are to be taken are declared to be public meetings open to the public to all
times . . . .” (emphasis added).   Article I, Section 24(b) of the Florida Constitution expressly
provides, similar to the statute, that “All meetings. . . at which official acts are to be taken or at
which public business of such body is to be transacted or discussed, shall be open . . . to the
public. . . .” (emphasis added).
        10.   Further, Florida decisional law holds that the entire decision-making process is held
to be within the purview of The Sunshine Law.        In Times Pub. Co. v. Williams, 222 So. 2d 470,
473 (Fla. 2d DCA 1969), Judge Woodie Liles, who was a member of the 1967 Legislature that
passed The Sunshine Law explained:
          Every thought, as well as every affirmative act, of a public official as it relates to
          and is within the scope of his official duties, is a matter of public concern; and it
          is the entire Decision-making process that the legislature intended to affect by the
          enactment of the statute before us. . . .Every step in the decision-making process,
          including the decision itself, is a necessary preliminary to formal action. It
          follows that each such step constitutes an „official act‟, an indispensable requisite
          to „formal action‟ within the meaning of the act.

          11. The Florida Supreme Court reaffirmed this crucial point in subsequent decisions.
In Frankenmuth Mutual Insurance Co., v. Magaha, 769 So. 2d 1012, 1021 (Fla. 2000) the court
stated: “. . . the intent of the Sunshine Law is to cover any gathering of the members of the
Board where the members deal with some matter on which foreseeable action will be taken by
the Board.” (emphasis added). See also, City of Miami Beach v. Berns, 245 So. 2d 38 (Fla.
1971)
          12. The Defendant continues its analysis by stating that Section 286.011, Florida
Statutes, “simply grants the public the right to be present.” Defendant‟s Motion for Summary
Judgment, page 3.
          13. Section 286.011, Florida Statutes, however, does not “simply grant[],” or simply
provide for the right of the public to be present at public meetings, or otherwise particularize the
public‟s rights to meetings that are open to the public. It provides that certain meetings “are
declared to be public meetings open to the public at all times. . . .”
          14. Furthermore, Article 1, Section 24 (b) of the Florida Constitution does not simply
“grant,” or simply provide for, the right of the public merely to be present at public meetings.
The Florida Constitution does not define the meaning of “open to the public” or particularize
what rights of openness are provided by The Sunshine Law (e.g., whether the public is entitled to
be present, entitled to hear proceedings, entitled to view proceedings, entitled to intelligible
proceedings, or entitled to be heard at proceedings).
          15. Because neither the constitutional provision nor the statute is “simple,” that is,
plain and unambiguous, the terms in that provision and the statute must be interpreted by the
courts.     Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452 (Fla. 1992).
Despite its contention that the law is “simple,” even the Defendant is required to “interpret” The
Sunshine Law in order to reach its erroneous legal conclusion.
          16. Florida courts consistently hold that The Sunshine Laws, as reform legislation
passed for the public benefit, should be interpreted most favorably for the public, Canney v.
Board of Public Instruction of Alachua County, 278 So. 2d 260, 263 (Fla. 1973), and must be
broadly construed to effect their remedial and protective purpose. Wood v. Marston, 442 So. 2d
934 (Fla. 1983).
        17. The Defendant, however, interprets The Sunshine Law by using a narrowing rule of
construction, espressio unius est exclusio alterius, which cannot be used to construe the remedial
and protective provisions of the Law that afford rights to the public. Because of The Sunshine
Law‟s nature and purpose narrowing rules of construction are only applied to provisions of The
Sunshine Law that would limit the public‟s rights, namely exemptions. See, Zorc v. City of Vero
Beach, 722 So. 2d 891 (Fla. 4th DCA 1998), review denied, 735 So. 2d 1284 (Fla. 1999).
        18. Even if this rule of construction could be applied to construe Sunshine Law
provisions, it could not be used to construe the term “open to the public.” In the term “open to
the public” there is no expression of any particular right (e. g., the right to be present) that would
permit the exclusion of other rights (e. g., the right to be heard, the right to view, the right to
hear, the right to have business conducted in an intelligible manner). Neither the constitution
nor the statute expresses what “open to the public,” means, only the Defendant does that.
        19. This rule of construction also cannot be used to construe “open to the public” in
Article I, Section 24(b), Fla. Const. Espressio unius is rarely used in construing constitutional
provisions, and only when a provision forbids, rather than when it provides for, something, as
does Article I, Section 24(b).    Bush v. Holmes, 919 So. 2d 392 (Fla. 2006).
        20. Further, application of espressio unius is inappropriate because the constitutional
requirement of openness is fundamental, see, Halifax Hospital Medical Center v. News-Journal
Corporation, 724 So. 2d 567 (Fla. 1999), which means that exceptions or limitations to the right
to open public meetings secured by Article I, Section 24(b) should be strictly scrutinized, not
merely asserted without even a rational basis, as does the Defendant. See, Frankenmuth Mutual
Insurance Company v. Magaha, 769 So. 2d 1012, 1021 (Fla. 2000), wherein the court notes that
The Sunshine Law is of both constitutional and statutory dimension.
        21. The Defendant also narrowly construes The Sunshine Law by mis-characterizing the
requirements of the law as “minimal.” Defendant‟s Motion, page 9.
        22. The Defendant fails to discuss, or cite, another part of The Sunshine Law that is
necessary to construe the term “open to the public.” See, Jones v. ETS of New Orleans, Inc.,
793 So. 2d 912 (Fla. 2001), holding that related statutory sections must be read together to
achieve a consistent whole and construed in harmony with one another.        Section 286.011 (2),
Florida Statutes, expressly provides that: “The circuit courts of this state shall have jurisdiction
to issue injunctions to enforce the purposes of this section upon the application by any citizen of
this state.” (emphasis added)
       23. The multiple purposes of The Sunshine Law that must be enforced include: the
protection of the public‟s right to be present and to be heard during all phases of enactments by
governmental boards and commissions, School Board of Duval County v. Florida Publishing
Company, 670 So. 2d 99, 101 (Fla. 1st DCA 1996); allowing for citizen input and ideas and
helping bodies be responsive to the wishes of the governed, Krause v. Reno, 366 So. 2d 1244,
1250 (Fla. 3d DCA 1979); and maintaining the faith of the public in governmental agencies,
Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, 699 (Fla. 1969).
       24. The Defendant also interprets The Sunshine Law by relying on an inapposite case,
Wood v. Marston, 442 So. 2d 934 (Fla. 1983), for the proposition that the public has no right to
be heard at public meetings. The Defendant‟s reading of Wood v. Marston would convert a
narrow, arguably sui generis, into a general rule.
       25. Wood v. Marston is, however, clearly limited by its facts and by its terms, stating
that “nothing in this decision gives the public the right to be more than spectators. Id. at 941.
(emphasis added).
       26. The limited application of Wood v. Marston has been recognized by subsequent
court decisions, see, e. g., Neu v. Miami Herald Pub. Co., 462 So. 2d 821 (Fla. 1985), Zorc,
supra, and Law & Information Services, Inc. v. City of Riviera Beach, 670 So. 2d 1014 (Fla. 4th
DCA); by Florida‟s Attorneys General; and by various Florida local government attorneys. See,
attached Opinion of the City Attorney of Pensacola concerning the public‟s right to participate in
meetings of the Architectural Review Board and the attached opinion of the current Pensacola
Charter Review Commission attorney.
       27. Futher, Wood v. Marston does not hold, or even discuss, overruling, disavowing, or
limiting language in prior cases, like Doran, concerning the public‟s right to participate in
decision-making concerning its own business. See, Inf. Op. Fla. Atty Gen. to David G. Conn,
May 19, 1987, noting that Wood v. Marston did not recede from Doran or Gradison and, in fact,
relied on both decisions. In Wood v. Marston, Doran and its progeny were upheld on other
points, while the decision of the First District was quashed.
          28. The Defendant mis-characterizes the holding in Doran, supra. Doran does not
“clearly hold[] that the public has the right to attend the meetings,” as the Defendant asserts.
Defendant‟s Motion for Summary Judgment, page 7. In any event, “right to attend,” was
defined in the case as the right to be present and to be heard. Rather, the “ right to attend” is yet
another ambiguous term narrowly construed by the Defendant, contrary to the rules of
construction mandated for Sunshine cases and the purposes of the law which are to be enforced.
Cf., Inf. Op. Atty. Gen. Fla. to Terrill C. Pyburn, December 10, 2008, advising that “open to the
public” means open to all persons who choose to attend and reaffirming that all persons attending
have the right to participate. Id. at page 3.
          29. Rather, Doran held that Section 286.011 is constitutional in multiple respects: it
does not deny procedural due process, constitute an unlawful legislative delegation or judicial
encroachment on the executive branch, violate the Art. III, Section 16 one subject requirement, or
contravene any penal statute requirement of scienter.
          30. The Defendant fails to cite, or discuss, applicable Florida decisional law. Florida
courts consistently hold, state, or indicate that “openness” under The Sunshine Laws means the
public has a right to participate in a meaningful way in the decision-making of Sunshine Law
bodies, see, e.g., School Board of Duval County, supra; Finch v. Seminole County School Board,
995 So. 2d 1068 (Fla. 5th DCA 2008); Homestead-Miami Speedway, LLC v. City of Miami, et al.,
828 So. 2d 411 (Fla. 3d DCA 2002), Zorc, supra; and New-Press Publishing Company. Inc. v.
Carlson, 410 So. 2d 546 (Fla. 2d DCA 1982), and that the public has a right to be heard on
various types of public business. See, Law & Information Services, Inc., supra.
          31. The Defendant also fails to cite, or discuss, opinions of the Florida‟s Attorneys
General that are persuasive authority. See, Abreau v. Cobb, 670 So. 2d 1010, 1012 (Fla. 3rd
DCA 1996). The Florida Attorney General‟s Office advises that “the public is entitled to
meaningful participation in the decision-making process and this constitutional right is protected
by the Government in the Sunshine Law.” Inf. Op. Atty. Gen. Fla. to Michael Ciocchetti, page 2,
March 23, 2006. (emphasis added). See also, Inf. Op. Atty. Gen. Fla. to Thrasher, January 27,
1994; and Inf. Op. Atty. Gen. Fla. to Conn, May 19, 1987; Government-in-the-Sunshine Manual,
4 b(1).
          32. The Defendant contends that Wood v. Marston “foreclosed any argument that the
Sunshine Law gives the public the right to speak at public meetings,” Defendant‟s Motion for
Summary Judgment, page 5, but the Defendant‟s contention is belied by Florida decisional law
and the opinions of Florida‟s Attorneys General rendered after Wood v. Marston. Cf., Neu v.
Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985), rendered two years after Wood
v. Marston , holding that Doran‟s broad reading of Section 286.011 could only be overruled by
the legislature.
        33. The Defendant contends, without citing any authority, that allowing the public to
participate is merely discretionary custom or practice. This might comport with the Defendant‟s
philosophical view of what the law should be, but it is not what the legislature intended or what
the courts have held.
        34. The Defendant contends, again without citing any authority, that common sense
“reveals” that the public has no right to speak at public meetings concerning the public‟s own
business. It is common sense that the public should be permitted to speak at public meetings
concerning the expenditure of $40,000,000.00 of its own money and the development of one of
its prime waterfront properties.
        35. The Defendant contends, again without citing any authority, that public participation
will render public meetings chaotic, or grind business to a halt. It is established that bodies
conducting public business can adopt reasonable rules which require orderly behavior and allow
for the orderly progression of public meetings.    Inf. Op. Atty. Gen. Fla. to John Thrasher,
January 27, 1994; see also, Jones v. Heyman, 888 F. 2d 1328 (11th Cir. 1989), holding that the
First Amendment does not guarantee persons the right to communicate their views “at all times
or in any manner that may be desired.” Id. at 1331.
        36. Furthermore, any argument that public business cannot be conducted under the glare
publicity, lest the publicity reduce the discussion to absurdum, should be addressed to the
legislature, not the courts. Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla.
5th DCA 1979). The courts are without power to enact law or pass on its wisdom or folly; the
court‟s duty is to construe or interpret the law. Id. at 581.   See also, Neu, supra.
        37. Contrary to the Defendant‟s assertions, Plaintiffs‟ allegations concerning the
one-on-one meetings and the scheduling of the litigation session show, together with Plaintiffs‟
other allegations, the ways in which the Defendant‟s actions taken together prevent, or limit,
public participation and thereby close public business conducted at Defendant‟s meetings to the
public.
          38. The Defendant asserts that Plaintiffs‟ claim is frivolous and or was filed in bad faith.
          39. The Defendant‟s assertion that Plaintiffs‟ counsel gave no reason to Defendant‟s
counsel why the Wood v. Marston decision is inapposite is untrue. The letter of Plaintiffs‟
counsel attached to Defendant‟s Motion for Summary Judgment explains that the Wood v.
Marston case is inapposite to this matter because that case is fact specific. Defense counsel
may not like the reason, or the reason may not comport with his philosophical view of what the
law should be, but it is simply untrue that Plaintiffs‟ counsel gave no reason why Wood v.
Marston is inapposite. Furthermore, Plaintiffs‟ counsel has no obligation to explain case law to
the Defendant‟s counsel or to disclose her legal opinions, theories or conclusions to Defendant‟s
counsel.
          40. The Defendant‟s assertion that Wood v. Marston “specifically addresses the very
issue presently before this Court” is untrue. Defendant‟s Motion, page 14. The Court in Wood
v. Marston addressed the staff and remoteness exceptions to The Sunshine Law and construed
the term “board and commission” not the term “open to the public.”
          41. The Defendant‟s conclusory assertion that Plaintiffs‟ counsel failed to perform even
cursory research into the law on which the claim rests is untrue. Defense counsel may not agree
with Plaintiffs‟ contentions, but he cannot, in good faith, presume to know what research
Plaintiffs‟ counsel performed.
          42. Before filing this action, Plaintiffs‟ counsel extensively researched The Sunshine
Law, and consulted with the First Amendment Foundation‟s Executive Director, and its General
Counsel, who is one of the leading authorities on Florida‟s Government-in-the-Sunshine Law.
          43. Plaintiffs‟ counsel obtained opinions issued by attorneys who represent similar
bodies. See, page two of attached letter of a former assistant county attorney, who now serves as
counsel to a City of Pensacola advisory volunteer commission, which states: “[T]he Sunshine
Law is meant to allow public input at meetings of governmental bodies so that the public has the
opportunity to be a part of the decision-making process.”
          44. Plaintiffs‟ counsel attended The Florida Bar‟s Sunshine Law CLE seminar presented
in Pensacola in 2007, by noted Sunshine Law authority, Barbara A. Peterson, Esquire, who also
is President of the First Amendment Foundation. Ms. Peterson discussed and affirmed Doran’s
finding that the public has an inalienable right to be present and to be heard at meetings.
Written CLE materials provided at the seminar expressly stated in the section titled “Public
Participation”: “Florida‟s Supreme Court has stated that the public has an „inalienable right to
be present and to be heard‟ at public meetings.”
        45. Attorney‟s fees can only be granted under Section 57.105, Florida Statutes, if a
complaint is completely untenable, Shulmister v. Yaffe, 912 So. 2d 53 (Fla. 4th DCA 2005),
baseless or frivolous. Connelly v. Old Bridge Village Co-op, Inc., 915 So. 2d 652 (Fla. 2d
DCA 2005); Read v. Taylor, 832 So. 2d 219 (Fla. 4th DCA 2002), which is manifestly not the
case in this matter.
        46. Given that Florida Courts, Florida‟s Attorneys General, local government attorneys
in Pensacola, and leading authorities on The Government-in-Sunshine Law all agree with
Plaintiffs‟ counsel, and disagree with Defendant‟s counsel, that the public has a right to
participate in many types of decision-making by public bodies, Defendant‟s assertion that this
action is frivolous or was brought in bad faith is incredible and shocking.


        The undersigned certifies that a copy hereof has been furnished to Edward P. Fleming of
McDonald Fleming Moorhead, et al., 25 West Government Street; Pensacola, Florida, 32502, by
delivery on February 17, 2009.



                                                  ____________________
                                              SHARON L. BARNETT
                                                  4305 Brittany Court
                                                  Pensacola, Florida 32504
                                                  sharon_barnett@cox.net
                                                  (850) 469-9335
                                                  Florida Bar No. 323845
                                                  Attorney for Plaintiffs

								
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