Keesler vs. CMPA

8/14/2019 Keesler vs. CMPA

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1IN THE CIRCUIT COURT FOR ESCAMBIA COUNTY, FLORIDA

BYRON H. KEESLER and

LEROY BOYD,Plaintiffs,

-vs- Case No. 2008 CA 3593 B

COMMUNITY MARITIME PARK

ASSOCIATES, INC.Defendant.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS

MOTION FOR SUMMARY JUDGMENT

Plaintiffs BYRON H. KEESLER and LEROY BOYD file this memorandum of law in

support of Plaintiffs Motion for Summary Judgment and show:

I. STANDARD FOR DECISION

Summary judgment shall be rendered if the pleadings, affidavits, and other materials as

would be admissible in evidence on file show that there is no genuine issue as to any material

fact and that the moving party in entitled to judgment as a matter of law. Fla. R. Civ. P., 1.510

( c). The moving party has the burden of showing the absence of any genuine issue as to all thematerial facts, which under applicable principles of substantive law, entitle him to judgment as a

matter of law. Warring v. Winn-Dixie Stores, Inc., 105 So. 2d 915 (Fla. 3rd DCA 1958). In

determining whether there are issues of fact precluding summary judgment, the facts must be

taken in the light most favorable to the non-moving party,Key v. Trattmann, 959 So. 2d 339 (Fla.

1st DCA 2007).

When summary judgment is sought before the filing of an answer, the plaintiff must

demonstrate conclusively and to a certainty from the record that the defendant cannot plead or

otherwise raise a genuine issue. Beach Higher Power Corporation v. Granados, 717 So. 2d

563, 565 (Fla. 3d DCA 1998). This is a steep, but not insurmountable burden. Miles v. Robinson

ex rel. Estate of Kight, 803 So. 2d 864 (Fla. 4th DCA 2002).

II. THE MATERIAL FACTS


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The material facts of record in this case, shown by the Amended Complaint, and the

affidavits and certified and authenticated records attached to Plaintiffs Motion for Summary

Judgment, are undisputed. The Plaintiffs claims for declaratory and injunctive relief can be

resolved as a matter of law.

III. THE APPLICABLE LAW

The applicable law, The Government-in-the-Sunshine Law, (The Sunshine Law)

consists of Article I, Section 24(b) of the Florida Constitution and Section 286.011, Florida

Statutes. Both provisions provide that meetings of certain public bodies must be open to the

public. Article I, Section 24(b) of the Florida Constitution provides that:

All meetings of . . .any collegial public body of a . . .municipality. . ., 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).

Similarly, Section 286.011, Florida Statutes, provides that:

All meetings of any board or commission of any . . .agency or authority of any . . .

municipal corporation, . . . at which official acts are to be taken are declared to be

public meetings open to the public at all times . . . . (emphasis added).

Florida courts have given The Sunshine Law the broadest possible interpretation, holding

that The Sunshine Law having been enacted for the public benefit, should be interpreted most

favorably to the public. Canney v. Board of Public Instruction of Alachua County, 278 So. 2d

260, 263 (Fla. 1973). Florida courts also mandate that The Sunshine Law should be broadly

construed so as to frustrate all evasive devices used to close meetings and decision-making to the

public. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974).

Further, The Sunshine Law expressly requires that it be enforced to effect its purposes.

Section 286.011(2) of The Sunshine Law 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).

The purposes of The Sunshine Law to be enforced include: the protection of the publics

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

(Fla. 1st DCA 1996 )andRhea v. City of Gainesville, 574 So. 2d 221 (Fla. 1st DCA 1991);

allowing for citizen input and ideas, helping bodies be responsive to the wishes of the governed;


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and ensuring that our system of government will function as a genuine participatory democracy,

Krause v. Reno, 366 So. 2d 1244, 1250 (Fla. 3d DCA 1979); and maintaining the faith of the

public in governmental agencies,Board of Instruction of Broward County v. Doran, 224 So. 2d

693, 699 (Fla.1969).

The court inKrause noted that taxpayers deserve an opportunity to express views and

have them considered in the decision-making process. It also noted that:

[n]o governmental board is infallible and it is foolish to assume that those who are

elected or appointed to office have any superior knowledge concerning any

government problem. . . . As more people participate in governmental activities,the decision-making process will be improved. Id. at 1248.

The preponderant interest of allowing the public to participate in the conception of a complex

multimillion dollar budget was held sufficient, for example, to bring an ad hoc internal budget

committee within the provisions of The Sunshine Law. News-Press Publishing Co., Inc. v.

Carlson, 410 So. 2d 546, 548 (Fla. 2d DCA 1982).

Florida courts have uniformly rejected attempts to construe the provisions and terms of

The Sunshine Law narrowly. Because of the reform nature and protective purposes of The

Sunshine Law, Florida courts have broadly construed the terms meeting, official act, and

board or commission.

The term meetings has been broadly construed to apply to any gathering, whether

formal or casual, of two or more members of the same board or commission at which those

members discuss some matter on which foreseeable action will be taken by the board or

commission. Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973);Inf. Atty Gen. Op. to

Terrill C. Pyburn, December 10, 2008. The term official acts has been broadly construed to

cover all discussions and deliberations on which foreseeable action will be taken by a Sunshine

covered body. Frankenmuth Mutual Insurance Co. v. Magaha, 769 So. 2d 1012, 1021 (Fla.

2000);Rhea v. City of Gainesville, supra. The term board and commission has been held to

include not only official bodies, but also ad hoc volunteer groups and ad hoc advisory

committees that perform an integral role in the decision-making process. Town of Palm Beach v.

Gradison, supra, and Wood v. Marston, 442 So. 2d 934 (Fla. 1983)..

Like the terms meetings, official acts, and board and commission, used in The

Sunshine Law, the term open to the public is not defined in either the Florida Constitution or

Florida Statutes. Neither provision particularizes in what respects, or to what extent, public


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meetings must be open. The law does not state, for example, that the public has a right to be

present, a right to be heard, a right to view, a right to hear, a right to understand, or the like.

Also, like the other terms of The Sunshine Law, reasonable persons can define open to

the public in different ways. Because the language is ambiguous, it must, therefore, be

interpreted. See, Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452 (Fla.

1992). To do this, the courts must use the appropriate rules of constitutional and statutory

construction.Bush v. Holmes, 919 So. 2d 392 (Fla. 2006).

Consonant with the courts rule of broad construction of The Sunshine Law, and to

comply with the express statutory requirement concerning enforcement of its purposes, Florida

Courts have defined open to the public to mean the right of the public to be present and to be

heard. In the landmark case ofBoard of Instruction of Broward County v. Doran, supra, the

Florida Supreme Court stated that:The right of the public to be present and to be heard during all phases of enactments by

boards and commissions is a source of strength in our country. . . . Regardless of their

good intentions, these specified boards and commissions, through devious ways, should

not be allowed to deprive the public ofthis inalienable right to be present and to be

heard at all deliberations wherein decisions affecting the public are being made.

(emphasis added). Accord, School Board of Duval County, supra.

Several years afterDoran was decided, the Florida Supreme Court reaffirmed this

principle, noting that public meetings should be a marketplace of ideas, so that the

governmental agency may have sufficient input from the citizens who are going to be affected by

the subsequent action of the municipality. Town of Palm Beach v. Gradison,supra. Recently,

the Florida Attorney General stressed that even a chilling of the rights of Florida citizens to

participate in public meetings in unacceptable. Inf.Atty. Gen. Op. to Pyburn, supra, page 3.

(emphasis added).

Section 286.011 (2) tacitly recognizes the fundamental nature of the publics right by

conferring standing on any citizen to bring an action to enforce the purposes of the law in the

public interest. The provision granting jurisdiction to the circuit court to issue injunctions to

enforce this act is the equivalent of a legislative declaration that a violation of the statutory

mandate constitutes an irreparable public injury. Times Publishing Company v. Williams, 222

So. 2d 470 (Fla. 2d DCA 1969 ), overruled in part on other ground, Neu v. Miami Herald


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Publishing Company, 462 So. 2d 821 (Fla. 1985). No special injury has to be shown by a citizen

bringing a Sunshine Law action because, by definition, and in fact, business conducted by public

bodies is the business of each citizen.

Florida courts have so broadly construed the term open to the public that a meeting

does not have to be clandestine to be closed to the public. Closing an otherwise public meeting

to any member of the public violates The Sunshine Laws requirement of openness. Port

Everglades Authority v. International Longshoremens Association , 652 So. 2d 1169 (Fla. 4th

DCA 1995). InLeach-Wells v. City of Bradenton, 734 So.2d 1168 (Fla. 2d DCA 1999), in

arguably an even broader construction, the court found that The Sunshine Law had been violated

even though no meeting, secret or otherwise, was held because decision-making must occur at a

public meeting, that is, a meeting in which the public has an opportunity to be involved in the

decision-making.Supporting the rule of broad construction of the law in favor of the public, exemptions

are very narrowly construed. See, Zorc v. City of Vero Beach, 722 So. 2d 891, 897 (Fla. 4th DCA

1998), review denied, 735 So. 2d 1284 (Fla. 1999); City of Dunnellon v. Aran, 662 So. 2d 1026

( Fla. 5th DCA 1995 ). In School Board of Duval County, supra, the court held that a meeting

cannot be closed if there is any failure to comply with the technical requirements of an

exemption, even when that failure is innocent and seems reasonable.

The broad construction of the publics right to open meetings was even recognized in a

dissenting opinion. In that opinion, there was apparent recognition that open to the public

means more than mere physical presence. In Gradison, supra, Justice Deckle noted in dissent

that public meetings entail giv[ing] notice of meetings held and otherwise act[ing] to insure that

their meetings are public. Id. at 480.

The extent and nature of public participation can be determinative of whether meetings

have been open to the public. If the public is significantly involved in the decision-making

process at a number of meetings, the nature and extent of that participation can obviate the need

for a final public hearing. For example, inHomestead-Miami Speedway v. City of Miami, 828

So. 2d 411 ( Fla. 3d DCA 2002), the court held that the nature and extent of public participation

in negotiating a contract obviated the need for a public hearing on a final contract, because the

contract had previously been negotiated with significant public input and comment.

Any action taken in violation of The Sunshine Law is void ab initio. Gradison, supra.


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delegation of authority by an executive to staff brought the actions of a staff within the purview

of The Sunshine Law.

The opinion does not state whether the issue of public participation was even raised by

the parties, but the opinion makes clear that troubling academic freedom and privacy issues were

presented and vigorously argued. These troubling concerns are apparently what caused the

majority to conclude that public participation in meetings of a university faculty committee was

tantamount to interference, stating: The public has no authority toparticipate in orto interfere

with the [university faculty committees] decision-making process. Id. at 941. (emphasis

added).

Language in the dissent highlights these concerns: The majority advances a

governmental interference into the selection of who is to lead an academic community which is

totally inappropriate. In order to insure personal rights of privacy and academic freedom,legislation should be construed so that any intrusion is carefully limited. Id. at p. 944.

(emphasis added).

The court in Wood v. Marston distinguishes its decision from other Sunshine Law

decisions noting that nothing in this decision gives the public the right to participate or

interfere. In using this caveat, the court in Wood v. Marston distinguishes its ruling from cases

with categorically different facts, holding, in effect, that the right of the public to open meetings

is a function of, and can be limited by, the factual circumstances.

Wood v. Marstons ruling on the publics right to participate also confirms that, in general,

the public has a right to participate in the decision-making of public bodies. The court in Wood

v. Marston would not have been constrained to comment on public participation at all if under

Florida law the public had no right to participate in public meetings.

Florida courts recognize that Wood v. Marston is limited by its facts and by its terms,see,

e.g. School Board of Duval County, supra; Zorc, supra; andLaw & Information Services, Inc.

supra. Floridas Attorneys General, in opinions which are persuasive authority,see, Abreau v.

Cobb, 670 So. 2d 1010, 1012 (Fla. 3rd DCA 1996), also have impliedly recognized Wood v.

Marstons limited application. See, Inf. Op. Fla. Atty. Gen. to Michael Ciocchetti, March 23,

2006, reaffirmingDoran and advising that [T]he public in entitled to meaningful participation

in the decision-making process and this constitutional right is protected by the Government-the-

Sunshine Law. Id. at 2, 3. (emphasis added), and Inf. Op. Atty. Gen. to Conn, May 19, 1987,


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page 3, noting that broad interpretation ofWood v. Marston would eviscerate a central aspect of

The Sunshine Law.

The Florida Attorney Generals Office advises is that if a committee or board is carrying

out legislative responsibilities or making quasi-judicial decisions on local government land use

matters, the public should be afforded a meaningful opportunity to participate at each stage of the

decision-making process, including workshops. See,Inf. Op Fla. Atty.Gen. to Thrasher, January

27, 1994; andInf. Op. Fla. Atty. Gen. to Conn, May 19, 1987.

The Florida Attorney General, acknowledging the right of the public to participate,

advises that until the matter [of public participation] is clarified [by the courts], the public may

nothave the authority to participate when committees are carrying out certainexecutive

functions which traditionally have been conducted without public input. Government-in-the-

Sunshine Manual, 4 b.(1). (emphasis added).Local government attorneys also acknowledge the right of the public to participate in the

decision-making of public bodies. See, attached Opinions of City Attorney of Pensacola

concerning the publics right to participate in meetings of the Architectural Review Board, and

Opinion of Pensacola Charter Review Commission concerning the publics right to participate in

deliberations.

For more than forty years, Florida courts have recognized a right of the public to

participate in public business. The courts have consistently construed open to the public to

mean the right to be present and the right to be heard in a meaningful way, consonant with the

remedial and protective purposes of The Sunshine Law.

In this case, the Defendant, however, calls the requirements of The Sunshine Law

minimal and ignores its purposes. Without legal authority to support its position, the

Defendant summarily claims that the right of the public to participate in public business under

The Sunshine Law does not exist. The Defendant construes The Sunshine Law so narrowly that

it denies the public has any right to be heard under The Sunshine Law, regardless of the type of

body or decision-making involved.

The Plaintiffs, and all others similarly situated, have the right to be present and to be

heard at Defendants meetings, under the facts of this case. The City of Pensacola delegated

governmental authority to the Defendant to perform governmental functions involving the

expenditure of millions of dollars of public monies and the development of prime waterfront


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public property. The official acts of, and business transacted and discussed by, the Defendant in

meetings involved the type of decision-making in which the public was clearly entitled to

participate. None of the decision-making of the Defendant involved executive employment or

academic freedom or privacy concerns.

Rather than conduct its meetings open to the public, as required of public bodies by The

Sunshine Law, the Defendant conducted, and continues to conduct, its meetings largely as if it

were merely a private corporation transacting private business.

The Defendant used a variety of evasive devices that closed its meetings to public

participation. Those devices initially included: not providing on the meeting agenda for any

public comment; configuring its meetings, so that the Chairman sat with his back to the public

and no board member directly faced the public; gaveling down a member of public who

attempted to participate and requesting that person leave the meeting; and not providing anymeans for the public to be recognized at meetings.

Even after the City Council and City Manager directed the Defendant to open its

meetings, that is, to provide a forum for the public to afford the public a meaningful opportunity

to participate in the decision-making process, the Defendants continued to use evasive devices to

close its meetings. The devices included: not allowing the public to comment except at the

beginning of the meetings, and before business is conducted; not responding to, or even

acknowledging, questions asked, or substantive points made, by the public; not permitting the

public to address specific agenda items; using successive rapid fire one-on-one meetings, the day

before a public hearing that limited public discussion and debate; and scheduling a public

hearing in a manner that frustrated and limited public participation.

Florida courts have held that The Sunshine Law must be construed to frustrate all

evasive devices and to enforce its purposes. If the Defendants position were adopted, a central

aspect of the Sunshine Law would be eviscerated and enforcement of the purposes of the

Sunshine Law would be frustrated. Boards and commissions would be deprived of the

intellectual capital of citizens, government would not be as responsive to the citizens it

represents, and citizens would lose faith in governmental agencies.


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For all these reasons, the Plaintiffs are entitled to declaratory and injunctive relief

for the Defendants previous and ongoing violations of The Sunshine Law.

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 19, 2009.

____________________SHARON L. BARNETT

4305 Brittany Court

Pensacola, Florida 32504

[email protected]

(850) 469-9335

Florida Bar No. 323845Attorney for Plaintiffs

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Keesler vs. CMPA