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City of St. Petersburg v. Wright

Florida Court of Appeals, Second District

February 14, 2018

CITY OF ST. PETERSBURG, Appellant/Cross-Appellee,
v.
BRUCE WRIGHT, Appellee/Cross-Appellant.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Pinellas County; Kathleen T. Hessinger, Judge.

          Kenneth W. MacCollom, Assistant City Attorney of the Office of the City Attorney, St. Petersburg, for Appellant/ Cross-Appellee.

          Kirsten Anderson and Jodi Siegel of Southern Legal Counsel, Inc., Gainesville, and Alice K. Nelson of Nelson Law Group, Tampa, for Appellee/Cross Appellant.

          Paul M. Crochet of Weber, Crabb & Wein, P.A., St. Petersburg, for Amicus Curiae First Amendment Foundation, Inc.

          NORTHCUTT, Judge.

         The 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.

         The 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 attorney-client session.

         The 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.

         The 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.

         As 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 ultimately dismissed.

         Wright 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.

         The 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 ...

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