Shade Meetings in Florida. Susan H. Churuti Bryant Miller Olive One Tampa City Center, Suite 2700 Tampa, FL

Transcription

1 Shade Meetings in Florida Susan H. Churuti Bryant Miller Olive One Tampa City Center, Suite 2700 Tampa, FL Elizabeth W. Neiberger Bryant Miller Olive 101 North Monroe Street, Suite 900 Tallahassee, FL The authors wish to express their appreciation to Tyler Egbert, Esq., from Bryant Miller Olive, who contributed to this outline. 1. The sunshine law provision in the Florida constitution a. Article I, Section 24(b) of the Florida Constitution provides: i. All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, 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 and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution. b. Article I, Section 24(c) provides: i. This section shall be self-executing. The legislature, however, may provide by general law passed by a two-thirds vote of each house for the exemption of records from the requirements of subsection (a) and the exemption of meetings from the requirements of subsection (b), provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law. The legislature shall enact laws governing the enforcement of this section, including the maintenance, control, destruction, disposal, 1

2 2. The statutory language: and disposition of records made public by this section, except that each house of the legislature may adopt rules governing the enforcement of this section in relation to records of the legislative branch. Laws enacted pursuant to this subsection shall contain only exemptions from the requirements of subsections (a) or (b) and provisions governing the enforcement of this section, and shall relate to one subject. (emphasis added) Public meetings and records; public inspection; criminal and civil penalties Effective: July 1, 2012 Currentness (1) 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 binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings. (2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded, and such records shall be open to public inspection. The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state. (3)(a) Any public officer who violates any provision of this section is guilty of a noncriminal infraction, punishable by fine not exceeding $500. 2

3 (b) Any person who is a member of a board or commission or of any state agency or authority of any county, municipal corporation, or political subdivision who knowingly violates the provisions of this section by attending a meeting not held in accordance with the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in s or s (c) Conduct which occurs outside the state which would constitute a knowing violation of this section is a misdemeanor of the second degree, punishable as provided in s or s (4) Whenever an action has been filed against any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision to enforce the provisions of this section or to invalidate the actions of any such board, commission, agency, or authority, which action was taken in violation of this section, and the court determines that the defendant or defendants to such action acted in violation of this section, the court shall assess a reasonable attorney s fee against such agency, and may assess a reasonable attorney s fee against the individual filing such an action if the court finds it was filed in bad faith or was frivolous. Any fees so assessed may be assessed against the individual member or members of such board or commission; provided, that in any case where the board or commission seeks the advice of its attorney and such advice is followed, no such fees shall be assessed against the individual member or members of the board or commission. However, this subsection shall not apply to a state attorney or his or her duly authorized assistants or any officer charged with enforcing the provisions of this section. (5) Whenever any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision appeals any court order which has found said board, commission, agency, or authority to have violated this section, and such order is affirmed, the court shall assess a reasonable 3

4 attorney s fee for the appeal against such board, commission, agency, or authority. Any fees so assessed may be assessed against the individual member or members of such board or commission; provided, that in any case where the board or commission seeks the advice of its attorney and such advice is followed, no such fees shall be assessed against the individual member or members of the board or commission. (6) All persons subject to subsection (1) are prohibited from holding meetings at any facility or location which discriminates on the basis of sex, age, race, creed, color, origin, or economic status or which operates in such a manner as to unreasonably restrict public access to such a facility. (7) Whenever any member of any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision is charged with a violation of this section and is subsequently acquitted, the board or commission is authorized to reimburse said member for any portion of his or her reasonable attorney s fees. (8) Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity s attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, provided that the following conditions are met: (a) The entity s attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation. (b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. 4

5 (c) The entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter s notes shall be fully transcribed and filed with the entity s clerk within a reasonable time after the meeting. (d) The entity shall give reasonable public notice of the time and date of the attorney-client session and the names of persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney-client session and the names of the persons attending. At the conclusion of the attorneyclient session, the meeting shall be reopened, and the person chairing the meeting shall announce the termination of the session. (e) The transcript shall be made part of the public record upon conclusion of the litigation. (emphasis added) 3. Pre-statutory cases a. Prior to the enactment of section (8) in 1993 there was no statutory exemption from the sunshine law for meetings with counsel. All meetings of the government entities with their legal counsel were open to the public. b. City of Miami Beach v. Berns, 245 So.2d 38 (Fla. 1971). i. Court held that executive sessions of a city council to discuss matters such as pending litigation cannot be held in private, as no exceptions have been created to the law. ii. The legislature has knowledge of the courts interpretation that ALL meetings will be open without legislative exceptions created, and their lack of creating such exceptions indicates that none should be deemed to exist. 5

6 c. Bassett v. Braddock, 262 So.2d 425 (Fla. 1972). i. Government is able to instruct and consult with their attorney in teacher contract negotiations in private without violating Sunshine Laws. d. Florida Parole and Probation Commission v. Thomas, 364 So.232d 480 (Fla. 1st DCA 1978). i. Mundane decisions, such as directing the attorney in how to proceed with litigation, do not need to be made in the public eye. ii. Here, the commission s decision to appeal and administrative order was deemed to be one that did not have to be made at a public meeting. e. Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985). i. Meetings between the City Council and City Attorney to discuss settlement of pending litigation are subject to the sunshine law, and cannot be conducted in a closed fashion. The attorney client privilege in the Florida Evidence Code was not applicable to the Sunshine Law. ii. The City in this case held the meetings in a semi-open fashion. iii. They had representatives of the press allowed to come to the meeting, and maintained a record of the meeting, but all agreed to maintain the confidentiality until the cases discussed had been resolved. 4. The legislative history of section (8) a. Section (8) was added to the Florida Statutes in i. The original text of the amendment indicated that the record of shade meetings would become public following each stage of the litigation. While in committee, this language was changed to the current language of upon the conclusion of litigation. 1. (Fla. H. Comm. On Gov. Ops., Subcomm. on Gov. Account (Feb. 23, 1993 re: H.B. 491)) ii. Other considerations, such as using final judgment or other specific events in litigation as a time when records became public were considered, but ultimately rejected. Id. b. Subsection (8) has not been amended since its enactment in

7 5. Public policy arguments in favor of and against shade meetings a. Arguments Against Shade Meetings - Kadoura i. The public should have open and complete access to all government meetings and records in order to provide accountability for the government s actions. ii. Counterproposals are final decisions not directions to attorneys. b. Arguments For Shade Meetings - Kadoura i. Allows for governments to make better decisions by having the ability to discuss actions with their attorneys as a group (en banc hearings, 12 person juries). ii. Creates a record of the discussions which are ultimately made a public record, for citizens and later office-holders. iii. Allows for government to have confidentiality with their attorneys. iv. Protects litigation strategy and settlement positions from being unfairly exposed to the opposing party in a lawsuit. v. Allows timely movement in litigation matters unhinged from public meeting calendar. vi. Precludes public posturing on litigation matters (balance with bar rule on publicity). vii. Consistent with other statutes ( (1)(d) and (16)(c). c. Examples of these policy arguments may be found in Exhibits 1 (Amicus of First Amendment Foundation) and 2 (Answer Brief of City) attached from the Kadoura appeal. 6. The effect of home rule and charter amendments general constitutional principles apply a. Shade meetings occur between members of the same board or commission. Thus, conversations between City and County employees and individual members of the board are not subject to the sunshine law. Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 775 (Fla. 2010); citing Jordan v. Jenne, 938 So.2d 526 (Fla. 4 th DCA 2006) and McDougall v. Culver, 3 So.3d 391 (Fla d DCA). b. When a charter delegates power to individual employees, these employees may discuss official action with other employees and individual commission members without calling for a public hearing. c. Example i. City manager had conversations with individual members or the City Commission regarding the hiring of a lobbyist. On Summary 7

8 Judgment, the Trial Court found that a City Manager is allowed to discuss matters with the City Commission outside of public meetings because of procurement code provision delegating authority up to a dollar threshold without commission approval. 1. *Note: This issue is currently pending appeal, in Anderson. 7. Appeals involving the City of St. Pete Beach a. Kadoura v. City of St. Pete Beach, Case No.: 2D i. In a de novo review of the denial of a writ of mandamus after an in camera inspection of public records, the only facts necessary are the words in the transcripts themselves, and that the litigation has not been concluded, which is not disputed. The mandamus action under review was filed by the opposing counsel in underlying ongoing litigation. At issue were whether the city commission made decisions in the shade meetings, despite a record showing later deliberation in public. ii. The 2nd DCA per curiam affirmed the decision in favor of the City. b. Anderson v. City of St. Pete Beach, Case No.: 2D (PENDING). i. As authorized by the Sunshine Law, the City held shade meetings to discuss pending litigation. Although the City considered, debated, discussed, and took public comment regarding the Comprehensive Plan (the subject of the pending litigation) and the surrounding litigation during at least 86 regular and special public meetings between May 2006 and August 2011, Anderson challenged these shade meetings, which cured any potential violation. ii. During the shade meetings, the City discussed the possibility of adopting a charter amendment allowing the voters repealing the Local Referendum Requirements and re-adopting Comprehensive Plan amendments as a strategy to moot the pending litigation, with a related reduction in legal expenses. iii. The Circuit Court concluded that having reviewed the transcripts of all the shade meetings, I conclude that there was no Sunshine Law violation. I find that all of the conversations directly dealt with topics permitted by the statutory exemptions. iv. The oral argument was held, and the appeal is pending at the 2nd DCA. 8

9 c. Chmielewski v. St. Pete Beach, Case No.: 2D (PENDING). i. This case stems from a 2006 quiet title action filed against the city to determine ownership of a piece of beach front property. 1. Parties entered mediation to settle the claims. 2. Final Judgment entered in favor of Plaintiff granting title to the property, subject to plat dedication in original deed. 3. St. Pete Beach filed motion to enforce mediated settlement agreement relating to restrictions on access by the general public, and the parties were ordered back into mediation. ii. In 2009, a second lawsuit was filed for inverse condemnation, asserting the City was improperly using property owned by the plaintiff. 1. As an affirmative defense, St. Pete Beach asserted rights under the prior mediated settlement agreement which would require both parties to return to mediation to settle disputes arising from said judgment. 2. Plaintiffs sought Shade Meeting Transcripts relating to the settlement of the 2006 case during this litigation, claiming the litigation was concluded. iii. The Chmielewskis served their complaint in a third case for disclosure of public records on July 7, The City moved to dismiss for failure to state a cause of action on July 27, 2013, because of the outstanding court order. The case was designated as a companion case to two other pending lawsuits by the Chmielewskis against the City and all three cases were assigned to the same judge. iv. The Chmielewskis filed a motion for summary judgment on August 29, 2013, while the City s motion to dismiss was still pending. The trial judge granted the City s motion to dismiss with prejudice, and, therefore, did not reach the Chmielewskis motion for summary judgment. The final judgment of dismissal was rendered on October 7, 2013 and the Chmielewskis appeal timely followed. v. The oral argument is set for May 28 and is currently pending on appeal in the 2nd DCA. 9

10 8. The process of calling a shade meeting, which is the statutory language, as well as forms for noticing the meeting, and the transcripts where we read the notice into the record in the public meeting not at issue in any of the appeals a. The process to call a shade meeting, as described in (8), must be strictly followed. i. Mere substantial compliance with the requirements will lead to a violation of the sunshine law. 1. City of Dunnellon v. Aran, 662 So.2d 1026 (1995). (Failure to announce the names of the attorneys attending the shade meeting was a violation of the sunshine law.) b. In order to properly call a shade meeting, section (8) requires the following: i. Reasonable public notice should be given of the time and place that a shade meeting is to occur, along with the names of the persons who will be in attendance. ii. The attorney shall advise the entity at a public meeting that he or she desires advice concerning pending litigation. 1. The attorney must specifically announce this at a properly noticed meeting of the entity. This requirement cannot be achieved through notice of a proposed shade meeting. iii. At the noticed public meeting, the chair of the meeting shall announce the commencement of the shade meeting, and provide an estimated length. 1. This announcement must contain the following information: a. Announce that the entity attorney has requested advice b. The pending case(s) which will be discussed c. Who will be in attendance (including indicated whether anyone will appear telephonically or via Skype) i. Each individual name must be announced, not just the position d. The estimated length of the meeting e. Adjourn the public meeting f. Following the Shade meeting, publicly announce the end of the meeting, and re-open the public meeting 2. Example: Mayor s Script - Exhibit 3 iv. The topic of the shade meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenses. 10

11 v. No final actions are to be decided during the shade meeting. 1. If anything discussed at the meeting requires the board to take formal action, a public vote must be conducted upon reopening of the public portion of the meeting. (Kadoura issue) 9. The conduct of the shade meeting, which a transcript example of our admonishment to our clients at the beginning as to the limitations of the statute a. The attendee s of the meeting are limited to the following i. The entity itself (i.e., city council or commission) ii. The chief administrator of the entity (city manager) iii. The entities attorney 1. Also allowed are special counsel hired to represent the entity in specific litigation iv. The court reporter transcribing the meeting b. No other entity officials are allowed to attend the meeting. c. The meeting shall be recorded by a certified court reporter. i. No portion shall be taken off the record. ii. This transcript shall be provided to the clerk within a reasonable time, and shall remain exempt from the public record until the conclusion of the litigation. d. The attorney should ensure that the commission members are familiar with what is allowed to be discussed. i. Example Admonishment Exhibit 4 (Transcript of Shade Meeting in Anderson, after release to public). 10. Handling shade meetings on multiple matters, and separating the discussion for ease of later redaction as matters settle a. When there are multiple cases which need to be discussed, all cases may be noticed for the same shade meeting. i. EACH case must be referenced in the notice. ii. When discussing the cases in the meeting, it is best to discuss one case at a time, so that appropriate portions may be redacted as each case concludes in litigation. 11

12 11. Sample agenda for the use of elected officials to focus discussion in the shade a. See Exhibit 5 attached, involving four matters in litigation. b. Have agendas returned and destroyed with one attached to transcripts of shade meeting. 12. What is pending litigation? a. In order to be exempt from the public records, litigation must be pending. i. Threatened or anticipated litigation is not covered by the exemption. b. School Board of Duval County v. Florida Publishing Company, 670 So.2d 99 (Fla. 1st DCA 1996) i. The purpose of the exemption is to permit governments to meet in private with their attorneys only while they are a party to litigation. c. AGO i. Exemption does not apply to meetings to discuss a pre-suit notice under the Bert J. Harris Act or to meetings to discussion mediation pursuant to conflict resolution statutes. Until a government becomes a party in a pending litigation, the exemption does not apply. d. AGO i. Where stipulation for settlement provided for one year suspension if no additional violations, matter was not concluded. e. Query: what about advising clients of stare decisis, res judicata, or forecasting opponent s litigation strategy? 13. Scope of the discussions a. Per section (8), the only matters discussed must be confined to settlement negotiations or strategy sessions related to litigation expenditures concerning pending litigation. b. Brown v. City of Lauderhill, 654 So.2d 302 (Fla. 4th DCA 1995). i. Discussion regarding recovery of fees on behalf of the mayor is covered by the Sunshine Law exemption. ii. Also, the court held that when officials are named in their official capacity in the lawsuit, and the government is the real party in interest, exemptions apply to these lawsuits. 12

13 c. Zorc v. City of Vero Beach, 772 So.2d 891 (Fla. 4th DCA 1998). i. The shade meeting exemption allows the government to give necessary direction and provide information to their attorney. ii. No final decisions on litigation matters may be voted on. 1. Decisions to settle, for how much, and under what conditions must be voted upon at a public meeting. d. Bruckner v. City of Dania Beach, 823 So.2d 167 (Fla. 4th DCA 2002). i. Discussion regarding proposed available options did not violate the Sunshine Law. ii. Governments are allowed to have confidential discussions with their attorneys where they authorize them to pursue settlement along certain lines. iii. This court distinguished these types of discussions regarding pursuing a specific option from the decisions made in Zorc. iv. These types of discussions do not equate to a formal decision e. Sarasota Citizens v. City of Sarasota, 48 So.3d 755 (Fla. 2010). i. One on one conversations between a member of the board and the entity attorney are not subject to the Sunshine Law, so long as these conversations are not being used as a conduit to transmit information to the board as a whole. ii. Members of a collegial administrative body are not obliged to avoid their staff during the evaluation and consideration stages of their deliberations. 14. When does conclusion of the litigation occur? a. The courts have not yet interpreted the meaning of conclusion of litigation for purposes of Shade Meetings (subject of pending appeal before 2 nd DCA). Below are cases which have defined conclusion for other public records related issues. i. Wagner v. Orange County, 960 So.2d 785 (Fla. 5th DCA 2007). 1. Interpreting the Work Product Exemption under public records laws, identical language of upon the conclusion of the litigation was deemed to encompass post judgment collection efforts. ii. City of Orlando v. Desjardins, 493 So.2d 1027 *(Fla. 1986). 1. Including post judgment collection efforts in the Work Product Exemption gives effect to the dual purpose of the exemption open government and attorney-client confidentiality. 13

14 b. Attorney General Opinions discussing the matter i. AGO (1994). 1. Litigation which is suspended in order to negotiate a settlement is not considered concluded for Shade Meeting exemption purposes. ii. Informal Opinion of December 13, Based on strict construction of the language, and the legislative history, the Shade Meeting exemption is meant to last through the appeals process. c. The legislative history is also instructive in defining conclusion. i. The original language of the statute specifically made meeting records public upon the conclusion of each stage of the litigation. (Fla. H. Comm. On Gov. Ops., Subcomm. on Gov. Account (Feb. 23, 1993 re: H.B. 491)). ii. Other options were considered, such as using final judgment or post-appeal as specific times, but the broad language used today was ultimately decided upon. iii. Since the legislature did not choose to specifically use the final judgment language they considered, this suggests that they did not mean for conclusion to be synonymous with this. Note: This is an argument raised in the pending the Chmielewski appeal. 15. Cures as remedies to an alleged violation a. Later, non perfunctory public meetings held in accordance with notice requirements, where the public is free to attend and comment will cure earlier, improperly conducted closed meetings. i. Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 775 (Fla. 2010); citing Bruckner v. City of Dania Beach, 823 So.2d 167 (Fla. 4th DCA 2002). b. To avoid the draconian result of all actions becoming void, Florida Law provides that an initial violation may be resolved by later, corrective, open policy discussions and votes. i. Tolar v. School Board of Liberty County, 398 So.2d 427 (Fla. 1981). 1. So long as the subsequent acceptance is not merely a ceremonial acceptance or a perfunctory meeting, holding legitimate and open public meetings may be used as a cure. c. Following a private meeting, a public meeting which lasted over 5 hours and included great public debate, as well as debate between members of 14

15 the board, cured any effects of the private meeting which was later deemed to be conducted in violation of the Sunshine Law. i. Finch v. Seminole County School Board, 995 So.2d 1068 (Fla. 5th DCA 2008). d. Public airing of decisions and debate regarding topics discussed in private are sufficient to cure antecedent violations of the Sunshine Law by advisory board. i. Monroe County v. Pigeon Key Historical Park, Inc., 647 So.2d 857 (Fla. 3rd DCA 1994). e. Some remedies may be unavailable; for example, arguably a sunshine law violation will not void election results. i. Speigal v. Knight, 224 So.2d 703 (Fla. 3d DCA 1969). 16. Redaction of shade meeting transcripts a. An in camera inspection is impliedly necessary in order for a judge to determine whether or not challenged documents fall under an exception to the Sunshine Law. i. Ingram v. State, -- So. 3d (Fla. 5th DCA 2014). 1. In camera inspection is the appropriate procedure to use to determine whether a record is exempt from public disclosure. ii. Environmental Turf Inc. v. University of Florida Board of Trustees, 83 So.3d 1012 (Fla. 1st DCA 2012). 1. Finding that in order to determine whether there is an exemption to public records, in camera inspection is typically the only way to achieve this. b. If a shade meeting transcript contains multiple cases, some of which are no longer pending,, or if there is content on the record which is not exempt from disclosure, the City shall release redacted versions of the transcript upon conclusion of each litigation. c. When government produces redacted copies of a record to satisfy Sunshine Law, the court must look to un-redacted copies to determine whether the redacted material is truly exempt (litigation report) i. Barfield v. School Board of Manatee County -- So. 3d (Fla. 2nd DCA 2014). ii. Consider providing a digest or index to the court of unredacted transcripts. 15

16 17. The procedure for challenging a shade meeting a. File a Writ of Mandamus i. Party may file the writ requesting the transcripts be turned over pursuant to Rule of the Florida Rules of Civil Procedure. ii. Once this is filed, the plaintiff must show a prima facie case for relief, and upon such showing, the court may issue an alternate writ forcing the defendant to show cause as to why the case should not go forward. iii. Here, typical response is to file the transcripts with the court for an in camera inspection to determine whether there are grounds to issue a permanent writ. iv. Writ as appropriate remedy. School Board of Duval County v. Florida Publishing Company, 670 So.2d 99(Fla. 1 st DCA 1996). b. File a Declaratory Action i. This follows chapter 86, Florida Statutes ii. Request that the court declare a violation of Sunshine Law, and require records to be disclosed, or any other remedy available. c. File an action under section (1), Florida Statutes i. This method uses the expedited hearing process to resolve alleged violations of the public record. ii. The court will set an immediate hearing on the matter, and resolve the case with high priority. iii. Query: does (8) control over (1) as subsequently adopted legislation? McKendry v. State, 641 So. 2d 46, 46 (Fla. 1994) (discussing general principles of statutory construction). iv. Injunctions are common, and violations of the Sunshine Law have been held to constitute an irreparable injury. Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla. 1974). 18. How to file a shade meeting transcript under seal and form motion a. In order to ensure the confidentiality and integrity of any transcripts which are the subject to an alleged violation, the government should request to file transcripts of the shade meeting under seal for in-camera inspection by the trial court. i. See example attached as Exhibit Form Motion to File Transcripts Under Seal Pending Court Review (Chmielewski) 16

17 b. When on appeal, parties should ensure that transcripts remain under seal when transmitted to the appellate court. i. See example attached as Exhibit Motion to File Transcripts Under Seal Pending Appellate Review (Kadoura) 19. How to move for an in camera inspection a. In order to properly asses whether a violation of Sunshine Laws has occurred, a party should submit transcripts of the Shade Meetings to the court for in camera inspections. i. See example attached as Exhibit Letter to Judge enclosing transcripts for in camera inspection (Kadoura) 20. Sample final judgments, from those subject to appeal a. See examples attached as Exhibits 9, 10, & 11 i. Ex. 9 - Order on Alternative Writ of Mandamus - Kadoura ii. Ex Letter ruling - Anderson iii. Ex Order Granting Defendant s Motion to Dismiss with Prejudice - Chmielewski 21. Use of amicus curiae a. Amicus curiae are intended as a way for interested parties to show how pending litigation affects the public outside of just the litigants named in the litigation. b. Amicus Briefs are common in Sunshine Law appeals. i. Many groups and organizations have an interest in attempting to ensure government remains as open as possible, and operate to ensure government is properly following the laws. ii. The First Amendment Foundation has filed briefs in each of the Sunshine Law cases recently litigated by the City of St. Pete Beach. c. These allow the public, through individuals or organizations, to speak to the court and show that there is a greater public interest in the litigation at hand. d. Over time, what was designed to be friend of the court briefs, which would hold to educate the judiciary of the importance of an issue, have 17

18 evolved into groups and individuals merely reiterating the arguments of the parties involved in the litigation. e. Amicus curiae can be extremely powerful and effective if used properly. i. By submitting the brief in the context of why the issues are important in the big picture, the writers can engage with the court the larger social issues involved in many cases. ii. These can have great influence over the courts, as they look beyond the instant dispute, and see how certain decisions could affect future cases. f. For additional thoughts, see Amicus Briefs: Friend or Foe of Florida Courts, Stetson Law Review, Vol. XXXII pg Tips on appeals rising from shade meeting challenges a. Know the burden of proof. For example, if there is no dispute that the shade meeting was conducted under the proper procedures and confined to the authorized scope, the plaintiff files a public records action for disclosure of shade meeting transcripts, the plaintiff bears the burden of pleading and proving that the transcripts are public records. But if there is a dispute over whether the shade meeting was properly conducted, the government bears he burden of proving that the exemption applies. b. Make the issues concrete. Cut through the opposing party s broad, general discussions of public policy and broad construction of the Sunshine Law. Clearly identify the legal issues and put them in context of the particular case. c. Concede what you must. You can gain credibility with the court by acknowledging the strong public policy in favor of open government and the narrow construction of exemptions. On the other hand, you will lose credibility if you deny or skirt these clear issues. d. Don t forget that there are strong public policies in favor of shade meetings. Point out your opponent s arguments that would construe the exemption out of existence or defeat its objectives. e. Know the facts. Shade meeting cases are often fact-intensive and require a firm understanding of the record below. 18

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