CITY OF ST. PETERSBURG, Appellant/Cross-Appellee,
BRUCE WRIGHT, Appellee/Cross-Appellant.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Kathleen T.
Kenneth W. MacCollom, Assistant City Attorney of the Office
of the City Attorney, St. Petersburg, for Appellant/
Kirsten Anderson and Jodi Siegel of Southern Legal Counsel,
Inc., Gainesville, and Alice K. Nelson of Nelson Law Group,
Tampa, for Appellee/Cross Appellant.
M. Crochet of Weber, Crabb & Wein, P.A., St. Petersburg,
for Amicus Curiae First Amendment Foundation, Inc.
Reverend Bruce Wright filed a lawsuit seeking injunctive
relief and a declaratory judgment against the City of St.
Petersburg, alleging among other things that St.
Petersburg's city council had violated Florida's
Government in the Sunshine Law, section 286.011 (2012). On
Wright's motion for summary judgment, the circuit court
ruled that the council did not break the law during a private
strategy session with the City's attorneys, known in
common Sunshine Law parlance as a "shade" meeting.
But the court held that the council members did violate
statutory notice requirements when, upon emerging from their
shade meeting with the attorneys, they took up and voted to
approve an ordinance amendment that had been discussed during
that meeting. The court voided the amendment on that ground.
City has appealed the final summary judgment, and Wright has
cross-appealed. Without further comment, we affirm the
judgment insofar as it held that the council violated the
notice requirements. We reverse the holding that the City did
not violate the Sunshine Law during the private
offending shade meeting was precipitated by developments in
federal litigation filed under 42 U.S.C. § 1983, by four
homeless plaintiffs who challenged the constitutionality of
the City's trespass ordinance. The federal district court
dismissed all of the plaintiffs' claims. Catron v.
City of St. Petersburg, 658 F.3d 1260, 1264 (11th Cir.
2011). The Eleventh Circuit Court of Appeals affirmed the
dismissal of all but two of the claims. Id. at 1273.
The court concluded that the plaintiffs had pleaded a viable
claim that section 20-30 of the trespass ordinance, regarding
the issuance of trespass warnings, violated procedural due
process because it did not provide a "way to contest the
trespass warning or at least the scope of the warning."
Id. at 1269. The court also held that the district
court should not have dismissed the plaintiffs' claim
that the City's policy of enforcing the ordinance on
public sidewalks violated the plaintiffs' right to
intrastate travel and freedom of movement under the Florida
Constitution. Id. at 1270-71. The court remanded the
case to the district court for further proceedings.
Eleventh Circuit issued its Catron opinion on
September 28, 2011. Thereafter, the shade session at issue
was placed on the agenda for the city council's meeting
on October 13. It was to be attended only by the council
members, the mayor, the city attorney, two assistant city
attorneys, and a court reporter. During the private session,
an assistant city attorney advised the council that if it
amended the trespass ordinance to correct the complained-of
deficiencies before the Catron case returned to the
district court, the City could seek to the have the suit
dismissed as moot. In that event, the City would argue that
the plaintiffs were not prevailing parties entitled to
recover attorney's fees.
mentioned, when the council emerged from the shade session
and resumed the October 13 public meeting, it approved an
amendment to the trespass ordinance on first reading. On
October 18, the City petitioned the Eleventh Circuit to
rehear the Catron case en banc. While that petition
was pending, on November 3 the city council voted final
approval of the trespass ordinance amendment. The Eleventh
Circuit denied rehearing en banc on November 29 and issued
its mandate on December 13. Three days later, the City filed
in the district court a motion to dismiss the Catron
lawsuit on the ground that the recent amendment of the
trespassing ordinance rendered the case moot. The lawsuit was
filed the instant proceeding in November 2013, contending
among other things that the trespass warning section of St.
Petersburg's trespass ordinance is invalid because it was
conceived at the October 13, 2011, nonpublic shade session in
violation of Florida law. We agree.
purpose of Florida's Government in the Sunshine Law is
the protection of the public's right to be present and to
be heard during all phases of enactments by government boards
and commissions. Sch. Bd. of Duval Cty. v. Fla.
Publ'g Co., 670 So.2d 99, 101 (Fla. 1st DCA 1996).
It functions "to prevent at non-public meetings the
crystallization of secret decisions to a point just short of
ceremonial acceptance." Monroe Cty. v. Pigeon Key
Historical Park, Inc., 647 So.2d 857, 860 (Fla. 3d DCA
1994) (quoting Town of Palm Beach v. Gradison, 296
So.2d 473, 477 (Fla.1974)). Section 286.011(1), Florida
Statutes (2011), mandates:
All meetings of any board or commission of any state agency
or authority or of any agency or authority of any county,
municipal corporation, or political subdivision, except as
otherwise provided in the Constitution, including meetings
with or attended by any person elected to such board or
commission, but who has not yet taken office, at which
official acts are to be taken are declared to be public
meetings open to the public at all times, and no resolution,
rule, or formal action shall be considered ...