Clean Up City of St. Augustine, Florida: March 12, 2024 Hearing on Commissioner Krista Joseph's Action Against State's Attorney

Controversial 7th Circuit State's Attorney RALPH JOSEPH LARIZZA refuses to say whether he agrees with the County's ex-DeSANTIS lawyer, RAYMOND TREADWELL, defense counsel for four pro-developer St. Johns County Commissioners. TREADWELL claimed that Commissioner Joseph somehow committed a crime when she called on people to vote to oust pro-developer cat's paws, whose votes for clearcutting projects and against tree protection have changed the face of St. Johns County. Commissioner Joseph dropped her declaratory case against the County after its Answer to her declaratory judgment action indicated it was not going to prosecute her; the federal court dismissal is "without prejudice," meaning that she could refile if necessary.

But State's Attorney LARIZZA remains a defendant. Why?

Louche lachrymose RALPH LARIZZA used his silence as both a sword and a shield, asking Senior U.S. District Court Judge Harvey Schlesinger to dismiss her lawsuit as lacking a "case and controversy," stating her "information and belief" about LARIZZA's beliefs on F.S. 104.31 is not enough.

So, Commissioner Krista Keating Joseph's lawyers have asked the federal court to order LARIZZA to answer three (3) interrogatory questions:

1. Please state whether you contend that the legal opinion of Raymond Treadwell, Esquire, dated January 8, 2024, correctly states the law with respect to a criminal violation of section 104.31(1)(a), Florida Statutes.

2. Please state whether you contend that a criminal violation of section 104.31(1)(a), Florida Statutes, by a public official requires the element of corruption as stated in Attorney General Opinion 1978-133.

3. Please state whether you contend that a St. Johns County Commissioner may commit a criminal offense under section 104.31(1) (a), Florida Statutes, by attempting to influence a voter through traditional political speech.

A civil discovery motion hearing is set for March 12, 2024 before the Magistrate Judge Patricia D. Barksdale, at 10:30 AM in Courtroom 5B at the Bryan Simpson Federal Courthouse, 300 North Hogan Street in Jacksonville (named for the late Honorable John Milton Bryan Simpson, the courageous federal judge who ruled against St. Augustine and St. Johns County in civil rights cases, including dismissing some 1000 state court criminal prosecutions against civil rights protesters, whose cases William Kuntsler, et al. removed from local courts).

If you go, leave your cellular telephone elsewhere -- they're not allowed in federal courthouses unless you're a lawyer or a judge authorizes it.

From PACER:

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KRISTA JOSEPH, St. Johns County Commissioner, Case No. 3:24-cv-35-HES-PDB

Plaintiff,
v.

ST. JOHNS COUNTY BOARD OF COUNTY COMMISSIONERS; and R.J. LARIZZA, State Attorney for the Seventh Judicial District of Florida,

Defendant.
/

MOTION FOR JURISDICTIONAL DISCOVERY

COMES NOW Commissioner Krista Joseph and moves for an order authorizing her to immediately send limited interrogatories to the state attorney, R.J. Larizza, asking whether he contends Commissioner Joseph can be prosecuted for her political speech on the theory set out in the legal opinion of outside counsel to the St. Johns County Board of County Commissioners, and requiring the state attorney to answer such interrogatories within seven days.

The essence of this case is that Commissioner Joseph faces a credible threat of criminal prosecution for anti-incumbent political speech in an upcoming primary election, which threat is sufficient to unconstitutionally

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chill her First Amendment rights. The St. Johns County Board of County Commissioners sought and obtained an opinion of outside legal counsel accusing Commissioner Joseph of violating a criminal statute when she made comments whose purpose, outside counsel found, “was to encourage voting out the Incumbent Commissioners.” Outside counsel’s legal opinion noted the matter could be referred to the state attorney for consideration of criminal charges. The theory of the legal opinion would make Commissioner Joseph criminally liable any time she engaged in anti-incumbent speech in circumstances in which she was identified as holding the position of county commissioner. Commissioner Joseph desires to engage in further anti- incumbent speech in the course of an upcoming primary election. These circumstances present a credible threat of criminal prosecution sufficient to invoke the jurisdiction of this Court under the teaching of Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014).1

The state attorney filed a motion to dismiss essentially arguing that the threat is not credible because Commissioner Joseph does not know

1 While it was the St. Johns County Board of County Commissioners—not the state attorney—that initiated the threat of prosecution, that does not detract from the credibility of the threat. “People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around . . . .” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68 (1963); accord Biden v. Knight First Amendment Inst., 141 S. Ct. 1220, 1226 (2021) (Thomas, J., concurring).

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whether the state attorney agrees with the opinion of outside counsel that Commissioner Joseph can be prosecuted for anti-incumbent speech. As such, the state attorney argued, Commissioner Joseph’s complaint does not present a case or controversy in the constitutional sense. (See Mot. to Dismiss, Doc. 11, at 3.) This is because, according to the state attorney, the complaint does not set out sufficient facts to justify the allegation in paragraph 22 of the complaint. (Id. at 1.) Paragraph 22 alleges, on information and belief, that the state attorney agrees with the legal opinion of outside counsel that Commissioner Joseph can be prosecuted for her political speech. (Compl., Doc. 1, at ¶ 22.) Accordingly, the thrust of the state attorney’s argument is that Commissioner Joseph does not know whether or not the state attorney agrees she can be prosecuted for her political speech.

The state attorney did not say in his motion that he disagrees with the opinion of outside counsel. Indeed, before the state attorney filed his motion, counsel for Commissioner Joseph asked whether the state attorney contends Commissioner Joseph can be prosecuted for political speech under the theory set out in outside counsel’s legal opinion. The state attorney’s counsel declined to give the state attorney’s position on the matter. By leaving his position ambiguous, the state attorney allows the threat of prosecution to continue to hang over Commissioner Joseph and to chill her political speech.

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Cf. Susan B. Anthony List, 573 U.S. at 165 (evaluating whether plaintiffs faced credible threat of enforcement and noting government did not disavow enforcement action based on plaintiffs’ intended future political statements).

The state attorney’s motion raises an argument about the power of the Court to hear this case under Article III of the U.S. Constitution. This is an argument that the Court lacks subject matter jurisdiction. See Dermer v. Miami-Dade County, 599 F.3d 1217, 1220–21 (11th Cir. 2010) (“A court . . . lacks subject matter jurisdiction to hear a case if the requirements of Article III of the Constitution are not satisfied.”). Commissioner Joseph agrees there would be no Article III case or controversy—and the Court’s subject matter jurisdiction would be lacking—if the state attorney contends Commissioner Joseph is not subject to prosecution for political speech on the theory set out in outside counsel’s legal opinion. Otherwise, Commissioner Joseph faces a credible threat of prosecution sufficient to chill her anti-incumbent speech, and the Court has subject matter jurisdiction under Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014).

Accordingly, the Court’s subject matter jurisdiction turns on a factual issue—whether or not the state attorney contends Commissioner Joseph can be prosecuted for political speech. Commissioner Joseph should be given the opportunity to develop that issue through discovery at the outset of this case.

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See ACLU of Fla., Inc. v. City of Sarasota, 859 F.3d 1337 (11th Cir. 2017) (holding district court erred when it completely denied plaintiff opportunity to conduct jurisdictional discovery); Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 731 (11th Cir. 1982) (holding plaintiff must be given opportunity to develop facts through discovery before case can be dismissed for lack of subject matter jurisdiction).

This factual issue can be resolved with simple interrogatories asking the state attorney to state his position on the matter. Accordingly, Commissioner Joseph should be permitted to propound limited interrogatories to the state attorney asking him to state whether or not he contends Commissioner Joseph can be prosecuted for political speech under the theory set out in the legal opinion of outside counsel. In light of the ongoing chill to Commissioner Joseph’s political speech, the Court should order that the state attorney answer such interrogatories within seven days after being served with them.

WHEREFORE, Commissioner Joseph respectfully prays that the Court permit her immediately to serve the following three interrogatories on State Attorney Larizza, and order State Attorney Larizza to answer such interrogatories within seven days after service.

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// // // // // // // // //

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LOCAL RULE 3.01(g) CERTIFICATION
Counsel for Commissioner Joseph has conferred with counsel for State

Attorney Larizza, and the parties do not agree on the resolution of this motion. Counsel for the parties conferred by means of email.

DATED: February 22, 2024.

/s/ W. Bradley Russell
W. Bradley Russell
Florida Bar No. 29492
Russell & Russell, Attorneys at Law, P.A. 6550 St. Augustine Road, Suite 305 Jacksonville, Florida 32217

Tel. 904-527-8813
Email: brad@russellandrussell.law

Lead counsel for Commissioner Joseph