Friday, June 11, 2021

Sara Bloomberg v. JEREMIAH RAY BLOCKER: Memorandum of Law on Proposed Temporary Restraining Order and Injunction



St. Johns County County Commission Chairman,  JEREMIAH RAY BLOCKER (R-Ponte Vedra) got our County sued when he discriminated against GLBTQIA+ people, blocking a routine proclamation for Pride Month.  Let justice be done.  (BLOCKER is a Florida real estate attorney and Florida National Guard J.A.G. Major).

Plaintiff Sara Bloomberg, through attorney Rook Elizabeth Ringer, filed a legal memo on June 10, 2021 in support of their request for a Temporary Restraining Order and Preliminary Injunction against St. Johns County and Commissioner JEREMIAH RAY BLOCKER:


UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

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SARA BLOOMBERG, Plaintiff,
v.

JEREMIAH RAY BLOCKER, in his personal and professional capacity as the chair of St. Johns County Board of County Commissioners, and as Commissioner for District 4; and the ST. JOHNS COUNTY BOARD OF COUNTY COMMISSIONERS;

Defendants.

Case No.: 3:21-cv-00575-TJC-JRK Timothy J. Corrigan, Judge
James R. Klindt, Magistrate Judge

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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

COMES NOW the Plaintiff, SARA BLOOMBERG (hereinafter, the “Plaintiff’), by and through the undersigned counsel and pursuant to Fed. R. Civ. P. 65(a) and 65(b), and hereby responds to this Court’s Order of June 7, 2021, directing the Plaintiff to file a proposed order “as well as a memorandum of law containing citations to legal authority that supports the requested relief, consistent with Local Rules 6.01 and 6.02” [Dkt. # 5]. As such, the Plaintiff files the following Memorandum of Law in support of her Motion for Temporary Restraining Order or Preliminary Injunction against Defendants, JEREMIAH RAY BLOCKER, in his personal and professional capacity as Chair of the St. Johns County Board of County

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Commissioners, and the ST. JOHNS COUNTY BOARD OF COUNTY COMMISSIONERS, (hereinafter collectively, the “Defendants”) and states the following:

MEMORANDUM OF LAW
I. This Court has the authority to grant the requested relief.

In order to obtain preliminary injunctive relief, a plaintiff must show: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless an injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.2000).

None of these elements, however, is controlling; rather, this Court must consider the elements jointly, and a strong showing of one element may compensate for a weaker showing of another. Democratic Executive Comm. of Florida v. Detzner, 347 F. Supp. 3d 1017, 1029 (N.D. Fla. 2018); see also, Fla. Med. Ass'n, Inc. v. U.S. Dep't of Health, Educ., & Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979).

Federal courts have the authority to enjoin a Florida county’s board of county commissioners. See, ex., Calvin v. Jefferson County Bd. of Commissioners, 172 F. Supp. 3d 1292, 1326 (N.D. Fla. 2016). In fact, federal courts in Florida enjoy wide latitude in temporarily enjoining municipal entities and all of its agents, including law enforcement, from enforcing their own legislation, particularly if a Constitutional

violation is found to be substantially likely. Red-Eyed Jack, Inc. v. City of Daytona Page of 18

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Beach, 165 F. Supp. 2d 1322, 1330-1331 (M.D. Fla. 2001), aff'd, 62 Fed. Appx. 921 (11th Cir. 2003). Furthermore, federal courts have previously enjoined a Florida county’s board of county commissioners with respect to certain “invocations” added to its agenda. Williamson v. Brevard County, 928 F.3d 1296, 1304 n. 2 (11th Cir. 2019) (in that case, the lower court permanently enjoined the county board of commissioners from continuing its practices with respect to religious invocations on its agenda for its meetings, which the Eleventh Circuit affirmed in part, vacated in part, and remanded).

Furthermore, this Court has previously entered a temporary restraining order enjoining and restraining the City of St. Augustine, as well as its mayor, city commissioners, and director of public affairs, from refusing to allow flags celebrating June as Lesbian, Gay, Bisexual, Transgender, and Queer (hereinafter, “LGBTQ”) pride month (hereinafter, “pride flags”) on the Bridge of Lions in St. Augustine. See, Order in Jensen v. City of St. Augustine, Florida, et al., Case No. 3:05-cv-504-J- 25HTS, attached hereto as Exhibit “A”.

II. The Plaintiff has a substantial likelihood of success on the merits.
A. Introduction.
Here, the Plaintiff has argued that requests for the discussion of an agenda item

proposing a proclamation celebrating LGBTQ civil rights progress and the contributions of the LGBTQ individuals to the St. Johns County community (hereinafter, the “LGBTQ Pride Proclamation”) were discriminatorily and unlawfully denied by the Defendants, and that this denial was unlawful viewpoint discrimination

and/or violations of the First and Fourteenth Amendments to the United States Page of 18

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Constitution, 42 U.S.C. § 1983, and 42 U.S.C. § 1988, as well as violations of Florida State Law as described in detail in the Complaint [Dkt. # 1].

In fact, the very words used to deny even putting the LGBT Pride Proclamation on the agenda were that it was too “controversial” and suggested that it was too “left leaning”. See, Complaint, [Dkt. #1], ¶ 14. The wording of the phone call stated an unwritten policy exists (also a Sunshine Law violation in itself) that any proclamations which were too “right” or “left” would not be placed on the agenda, particularly if they offended the religious and political sensitivities of Defendant Jeremiah Ray Blocker (hereinafter, “Chairman Blocker”).

In Cafe Erotica v. St. Johns County, 360 F.3d 1274 (11th Cir. 2004), the Eleventh Circuit struck down St. Johns County's "standardless delegation" on sign approval to Defendant's County Administrator, holding the County violated First Amendment rights on political signs. (The sign in question mocked the County's code enforcement officer, described on the billboard as a "fat-ass Barney Fife)." St. Johns County, the losing litigant in Cafe Erotica, still resists the rule of law, and now, some seventeen years later, St. Johns County Board of County Commissioners is still violating citizens' civil and constitutional rights. And in Celli v. City of St. Augustine, 214 F.Supp. 2d 1255 (M.D. Fla. 2000), this Court upheld a $23,500 jury verdict for First Amendment viewpoint discrimination. The violation of those rights must be remedied.

As a result, the Defendants' content and viewpoint-based restriction on

the Plaintiff’s speech through the refusal to put the LGBTQ Pride Proclamation on the Page of 18

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agenda deprived Plaintiffs of equal access to a limited public forum because of the content and viewpoint conveyed by the LGBT Pride Proclamation, in violation of the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and Article I, Section 4 of the Florida State Constitution. Furthermore, the Plaintiff argues that Defendants violated the right to equal protection under the law, when Defendants intentionally discriminated against the Plaintiff because the LGBT Pride Proclamation is a pro-LGBTQ viewpoint, in violation of the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Florida State Constitution.

B. Analysis.

The Supreme Court has broadly discerned three distinct categories of government property for First Amendment purposes: traditional public fora, designated public fora, and limited public (or nonpublic) fora. Bloedorn v. Grube, 631 F.3d 1218, 1230 (11th Cir.2011); Keeton v. Anderson–Wiley, 664 F.3d 865, 871 (11th Cir.2011). Traditional public fora are public areas such as streets and parks that, since “time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Bloedorn, 631 F.3d at 1231 (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Thus, a time, place, and manner restriction can be placed on speech in a traditional public forum if it is content neutral, narrowly tailored to achieve a significant government interest, and leaves open ample alternative channels

of communication. Id. If a content-based restriction is placed, it must survive strict Page of 18

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scrutiny; that is, the government must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Perry, 460 U.S. at 45, 103 S.Ct. 948.

A designated public forum is government property that has not traditionally been regarded as a public forum but that has been intentionally opened up for that purpose. Bloedorn, 631 F.3d at 1231. Time, place, and manner restrictions are permissible to the same extent as in traditional public fora. Id. Lastly, a limited public forum (or, alternatively, a nonpublic forum) may be established when the government limits its property to use by certain groups or dedicates it solely to the discussion of certain subjects. Id. Any restrictions made on expressive activity in a limited public forum only must be reasonable and viewpoint neutral. Id. Put differently, in addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable “and not an effort to suppress expression merely because public officials oppose the speaker's view”. McMahon v. City of Panama City Beach, 180 F. Supp. 3d 1076, 1093–94 (N.D. Fla. 2016) (emphasis added) (citing Perry, 460 U.S. at 46, 103 S.Ct. 948).

Here, even with the least stringent analysis, the Defendants’ position in defense of Chairman Blocker’s decision would fail. While the Defendants are likely to argue that Chairman Blocker may choose which items can or cannot be placed on the agenda, those decisions cannot be based on criteria that violates the Constitution,

whether on First or Fourteenth Amendment grounds. Chairman Blocker’s personal Page of 18

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opinions, religious beliefs, and political affiliations cannot play a part in affirming or denying a person, group, or entity their rights to have an agenda item heard. Essentially, “[t]he government does not have a free hand to regulate private speech on government property.” McMahon v. City of Panama City Beach, 180 F. Supp. 3d 1076, 1093 (N.D. Fla. 2016) (citing Pleasant Grove City v. Summum, 555 U.S. 460, 469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009)).

For example, if Chairman Blocker were to have a policy of denying agenda placement on the basis of religion (i.e., allowing pro-Catholic agenda items while denying pro-Protestant, Jewish, etc., groups), we would easily recognize these as unlawful content restrictions under the Constitution. Yet here, the decision to deny agenda placement of the LGBTQ Pride Proclamation is undoubtedly due to Chairman Blocker’s anti-LGBTQ religious beliefs. As noted in the Motion for Temporary Restraining Order or Preliminary Injunction, Chairman Blocker has allowed “controversial” proclamations when they were supported by controversial right-wing, anti-LGBTQ organizations.

Additionally, in Gonzalez Through Gonzalez v. Sch. Bd. of Okeechobee County, 571 F. Supp. 2d 1257, 1269 (S.D. Fla. 2008), the court found that the First Amendment Freedom of Speech issues that arose in a student organization’s purpose of discussing “matters pertinent to the challenges presented by their non-heterosexual identity and to build understanding and trust with other heterosexual students” sounds in the political speech addressed in Tinker v. Des Moines Indep. Sch. Dist., 393 U.S.

503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); see also, Gillman v. School Bd. for Holmes Page of 18

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County, Fla., 567 F.Supp.2d 1359, 1370, 2008 WL 2854266, at *9 (N.D.Fla.2008) (applying Tinker to find that expressions of tolerance towards non-heterosexuals in a public high school are purely political expressions protected by the First Amendment).

In Gonzalez, the court found that this “tolerance based” message would not materially or substantially interfere with discipline in the operation of the school, and in order for the school to justify its refusals to recognize the group, “it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Tinker, 393 U.S. at 509, 89 S.Ct. 733.

However, while the Board of County Commissioners is not a “school”, even the analysis examining Chairman Blocker’s stated reasoning of avoiding “controversy” fails even the most minor amount of scrutiny. As stated in Gonzalez,

The reasons presented by Defendant for denying the GSA equal access and recognition sound in a desire to avoid the discomfort and unpleasantness of tolerating a minority of students whose sexual identity is distinct from the majority of students and discordant to SBOC's abstinence only program. Ensuring that this minority of students are afforded meaningful expression secures the precept of freedom from external dominion over thought and expression exalted by the founders and safeguarded by the First Amendment.

571 F. Supp. 2d at 1269 (granting summary judgment in favor of the plaintiffs); see also, U.S. Const. amend. I; Good News Club v. Milford Cent. Sch., 533 U.S. 98, 120, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (stating that viewpoint discrimination violates the Free Speech Clause of the First Amendment); Rosenberger v. Rector &

Visitors of Univ. Of Va., 515 U.S. 819, 835–36, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) Page of 18

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(expressing concern that viewpoint discrimination can chill individual thought and expression).

As a result, the Plaintiff has a substantial likelihood of success on the merits of this case.

III. Irreparable injury will be suffered unless an injunction issues.

The Plaintiffs will suffer irreparable harm if the injunction is not granted. Immediate and irreparable harm will occur in absence of the injunction because Defendants' unlawful infringement on Plaintiff’s exercise of free speech constitutes irreparable harm per se. Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir.1983) (irreparable injury presumed from violation of First Amendment rights); Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328,338 (5th Cir. Unit B 1981) (irreparable injury presumed from violation of right to privacy under the Fourteenth Amendment); Northeastern Florida Chapter of Ass'n of Gen. Contractors v. City of Jacksonville, Florida, 896 F.2d 1283, 1285-86 (11th Cir.1990) (explaining that the basis for presuming irreparable injury in Cate and Deerfield was that given the "intangible nature" of the violations alleged, the plaintiffs could not effectively be compensated by an award of monetary damages).

Irreparable harm is easily satisfied in cases where a plaintiff would otherwise be prevented from exercising their constitutional right to free speech. McMahon , 180 F. Supp. 3d at 1111. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” KH Outdoor, LLC v. City of

Trussville, 458 F.3d 1261, 1271-72 (11th Cir. 2006) (quoting Elrod v. Burns, 427 U.S. Page of 18

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347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)); see also Fla. Businessmen for Free Enter. v. City of Hollywood, 648 F.2d 956, 958 (5th Cir. Unit B June 1981) (quoting Elrod). As the Eleventh Circuit held in Northeastern Fla. Chapter of the Ass'n of Gen. Contractors of America v. City of Jacksonville,

[t]he only area of constitutional jurisprudence where we have said that an on-going violation constitutes irreparable injury is the area of first amendment and right of privacy jurisprudence. The rationale behind these decisions was that chilled free speech and invasions of privacy, because of their intangible nature, could not be compensated for by money damages; in other words, plaintiffs could not be made whole.

896 F.2d 1283, 1285 (11th Cir.1990) (citations omitted).
In short, if the Plaintiff does not receive immediate relief, they will be

irreparably harmed as the June of 2021 was the start date for the annual LGBTQ Pride Month. Additionally, June is nationally recognized as “LGBTQ Pride Month”, and it has already begun. By the time that this issue has been heard, it will almost be over.

IV. The threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party.

Defendants will not be harmed in any way by permitting the Plaintiff to participate equally in the Proclamation forum. In contrast, the deprivation of the Plaintiff’s Constitutional rights has already inflicted serious and irreparable harm to Plaintiffs and continues to do so. The current and ongoing injury to Plaintiff outweighs any completely speculative harm the Defendants may allege.

For example, on June 1, 2021, President Joe Biden issued “A Proclamation on Lesbian, Gay, Bisexual, Transgender, and Queer Pride Month, 2021”, stating:

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NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim June 2021 as Lesbian, Gay, Bisexual, Transgender, and Queer Pride Month. I call upon the people of the United States to recognize the achievements of the LGBTQ+ community, to celebrate the great diversity of the American people, and to wave their flags of pride high.

Briefing Room, The White House, June 01, 2021, Presidential Actions, retrieved June 6, 2021, from https://www.whitehouse.gov/briefing- room/presidential-actions/2021/06/01/a-proclamation-on-lesbian-gay-bisexual- transgender-and-queer-pride-month-2021/>, attached hereto as Exhibit “B”. Similarly, former Presidents Barack Obama (https://obamawhitehouse.archives.gov/the-press-office/presidential-proclamation- lgbt-pride-month) and Bill Clinton (https://www.presidency.ucsb.edu/documents/proclamation-7203-gay-and-lesbian- pride-month-1999) also issued proclamations recognizing June as LGBT Pride Month, neither of those proclamations caused any “harm” to the United States of America.

Similarly, the Cities of St. Augustine, (https://staugustinefl.civicclerk.com/Web/GenFile.aspx?ad=1422),
Augustine Beach, (
https://www.staugbch.com/sites/default/files/fileattachments/city_commission/ meeting/44108/commission_agenda_05-03-2021.pdf) also passed LGBT Pride proclamations in recent weeks without causing any “harm” to the community.

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and

Florida St. Florida

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But here, the requested relief is not even necessarily as strenuous as forcing the Defendants to issue such a proclamation. Instead, the requested relief at this time is simply to enjoin the Defendants to bring the matter before the Board of County Commissioners, and to have those representatives of the citizens of St. Johns County vote to determine whether or not such a proclamation should be passed. At the very least, it would allow the citizens of St. Johns County, which includes both the Plaintiff and the Undersigned, to have the public record of which County Commissioners do not represent the interests of the LGBTQ community of St. Johns County.

The Florida Attorney General explains in the 2021 Sunshine Manual as follows:

It is the how and the why officials decided to so act which interests the public, not merely the final decision. As the court recognized in Times Publishing Company v. Williams, 222 So. 2d 470, 473 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985):

Every thought, as well as every affirmative act, of a public official as it relates to and is within the scope of his official duties, is a matter of public concern; and it is the entire decision-making process that the legislature intended to affect by the enactment of the statute before us.

Office of the Attorney General, “Government-in-the-Sunshine Manual”, 2021 Edition, Vol. 43, p. 25, retrieved June 10, 2021 from <https://myfloridalegal.com/webfiles.nsf/WF/MNOS- B9QQ79/$file/SunshineManual.pdf>.

The Florida Attorney General further states therein:

The courts have recognized that the Sunshine Law should be construed so as to frustrate all evasive devices. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971); Blackford v. School

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Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979); Wolfson v. State, 344 So. 2d 611 (Fla. 2d DCA 1977). As the Florida Supreme Court stated in Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260, 264 (Fla. 1973):

Various boards and agencies have obviously attempted to read exceptions into the Government in the Sunshine Law which do not exist. Even though their intentions may be sincere, such boards and agencies should not be allowed to circumvent the plain provisions of the statute. The benefit to the public far outweighs the inconvenience of the board or agency. If the board or agency feels aggrieved, then the remedy lies in the halls of the Legislature and not in efforts to circumvent the plain provisions of the statute by devious ways in the hope that the judiciary will read some exception into the law.

Office of the Attorney General, supra, p. 50.

While the Defendants may wish to keep that knowledge secret, the Florida Sunshine Law says that it cannot be.

V. If issued, the injunction would not be adverse to the public interest.

Issuing the requested injunction will not be adverse to the public interest The public interest and Plaintiffs interest are the same in this matter: ensuring that one of the most cherished principles of our society is protected: that the government may not censor speech based upon its content or discriminate against certain speakers based upon their viewpoint. Plaintiff’s interest is identical to the public interest. Furthermore, as recognized by President Biden in the LGBTQ proclamation issued on June 1, 2021,

Our Nation also continues to face tragic levels of violence against transgender people, especially transgender women of color. And we are still haunted by tragedies such as the Pulse Nightclub shooting in Orlando. Ending violence and discrimination against the LGBTQ+ community demands our continued focus and diligence.

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[...]

During LGBTQ+ Pride Month, we recognize the resilience and determination of the many individuals who are fighting to live freely and authentically. In doing so, they are opening hearts and minds, and laying the foundation for a more just and equitable America. This Pride Month, we affirm our obligation to uphold the dignity of all people, and dedicate ourselves to protecting the most vulnerable among us.

Ex. “B”, pp. 2-3.

Clearly, the public interest is served through the official presentation of such viewpoints. If Chairman Blocker of the St. Johns County Board of County Commissioners believes that these kinds of messages are “controversial” and should not be heard, then they should at minimum be compelled to air those opinions in the bright Florida sunshine, rather than governing through secret fiat and unwritten policies communicated illicitly.

VI. Conclusion and Remedies.

When a government inappropriately exercises the powers delegated to it, the resulting order is void. Chicago Junction Case, 264 U. S. 258 (1924); Florida v. United States, 282 U. S. 194 (1931).

Further, by not making his decision in writing or “in the sunshine” at a meeting, Chairman Blocker has violated the most fundamental principles of Florida Sunshine and Open Records laws – nothing in writing, nothing in public, and only a telephone call outside the ordinary course of business.

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However, "[h]e who decides must hear." Morgan v. United States, 298 U. S. 468, 56 S. Ct. 906, So L. ed. 1288 (1936). Chairman Blocker did not “hear” the Plaintiff, nor did he did meet with the Plaintiff, nor did he reply to or in any way respond to Plaintiff in any official capacity. This Court's remedy must make him do so.

Americans' civil and Constitutional rights deserve "breathing space." NAACP v. Button, 371 U.S. 415, 433 (1963); New York Times. v. Sullivan, 3766 U.S. 254 (1974); Gasparinetti v. Kerr, 568 F.2d 311, 314-17 (3d Cir. 1977) (illegal restrictions on policemen’s First Amendment rights); Philadelphia Newspapers, Inc. v. Hepps, 479 767, 772, 777 (1986) (O’Connor, J.) (newspaper entitled to breathing space in defamation case); Hustler Magazine v. Falwell, 485 U.S. 46, 52, 56 (1988) (Rehnquist, J.) (magazine parody of TV preacher entitled to breathing space); Keefe v. Ganeakos, 418 F.2d 359, 362 (1st Cir. 1969)(Aldrich, C.J.)(chilling effect on First Amendment illegal suspension of teacher over Atlantic Monthly article on Vietnam War); Parducci v. Rutland, 316 F.Supp. 352, 355, 357 (M.D. Ala 1970) (Johnson, C.J.) (chilling effect in illegal firing of English teacher over Kurt Vonnegut’s Welcome to the Monkey House).

By its secrecy, from March 8th to date, Defendants concede their denial to even add the LGBTQ Pride Proclamation lacks merit. “As Justice Brandeis correctly observed, ‘sunlight is the most powerful of all disinfectants,’” New York Times Co. v. Sullivan, 376 U.S. 254, 305 (1964) (Goldberg, J., concurring), citing Freund, The

Supreme Court of the United States (1949), p. 61. Furthermore, Justice Brandeis also Page 15 of 18

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wrote, when "government becomes a lawbreaker," it promotes disrespect for the law, and anarchy. Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting), overruled in part by Berger v. State of N.Y., 388 U.S. 41 (1967), overruled in part by Katz v. United States, 389 U.S. 347 (1967)

Indeed, it is an ancient equitable maxim that, "Equity delights to do justice, and not by halves." See, Office of the Attorney General, supra at 184-86, summarizing state law equitable remedies for violations of Florida Constitution, Article I, Section 24, as implemented by Florida Statutes as follows:

(1) Mandamus

Mandamus is an appropriate remedy to enforce compliance with the Public Records Act. See Chandler v. City of Greenacres, 140 So. 3d 1080, 1083 (Fla. 4th DCA 2014); Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000); Smith v. State, 696 So. 2d 814 (Fla. 2d DCA 1997); Donner v. Edelstein, 415 So. 2d 830 (Fla. 3d DCA 1982). See also Farmer v. State, 927 So. 2d 1075 (Fla. 2d DCA 2006) (trial court should treat motion to compel production of public records as petition for writ of mandamus); Major v. Hallandale Beach Police Department, 219 So. 3d 856 (Fla. 4th DCA 2017) (petition for writ of mandamus filed against a governmental agency must attach a copy of any record that supports the petition).

A petition for writ of mandamus is an appropriate vehicle to challenge the denial of a public records request, even where an exemption has been asserted. Deeson Media, LLC v. City of Tampa, 291 So. 3d 974 (Fla. 2d DCA 2019). Cf. Agency for Health Care Administration v. Zuckerman Spaeder, LLP, 221 So. 3d 1260 (Fla. 1st DCA 2017) (mandamus relief ordering agency to produce records within 48 hours and prior to requester’s payment of invoices or agency’s opportunity to review and redact exempt material was improper because agency’s duty was not “ministerial” and requester’s right to the records was not “indisputable”).

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Case 3:21-cv-00575-TJC-JRK Document 8 Filed 06/10/21 Page 17 of 18 PageID 78

If the requester’s petition presents a prima facie claim for relief, an order to show cause should be issued so that the claim may receive further consideration on the merits. Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA 1992). Accord Gay v. State, 697 So. 2d 179 (Fla. 1st DCA 1997). See Radford v. Brock, 914 So. 2d 1066 (Fla. 2d DCA 2005) (trial judge dismissal of a writ of mandamus directed to clerk of court and court reporter who were alleged to be records custodians was erroneous because trial judge did not issue an alternative writ of mandamus requiring the clerk and court reporter to show cause why the writ should not be issued, and because there was no sworn evidence refuting the petitioner’s allegations).

[...]

Mandamus is a “one time order by the court to force public officials to perform their legally designated employment duties.” Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996).

[...]

(2) Injunction

Injunctive relief may be available upon an appropriate showing for a violation of Ch. 119, F.S. See Daniels v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989) (injunctive relief appropriate where there is a demonstrated pattern of noncompliance with the Public Records Act, together with a showing of likelihood of future violations; mandamus would not be an adequate remedy since mandamus would not prevent future harm). However, an injunction is not appropriate if the acts complained of have already been committed and there is not a well-grounded probability of similar future conduct. Id. See Promenade D’Iberville, LLC v. Sundy, 145 So. 3d 980, 984 (Fla. 1st DCA 2014).

WHEREFORE, for all of the reasons stated above, Plaintiffs respectfully ask this Court to grant the relief requested in Paragraph one of the Motion for Temporary Restraining Order or Preliminary Injunction, for reasonable attorney’s fees and costs

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Case 3:21-cv-00575-TJC-JRK Document 8 Filed 06/10/21 Page 18 of 18 PageID 79

in the preparation of the Motion and this Memorandum, and for all other relief that this Court sees fit in the interests of justice.1

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Dated:

June 10, 2021

Respectfully Submitted,

ROOK ELIZABETH RINGER, ESQ. Florida Bar No. 1015698
LENTO LAW GROUP, P.A.
222 San Marco Ave., Ste. C

St. Augustine, FL 32084 904.602.9400 (Office) 904.299.5400 (Fax) reringer@lentolawgroup.com Attorney for Plaintiff

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CERTIFICATE OF SERVICE

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I HEREBY CERTIFY that a true and correct copy of the foregoing has been e- filed and has been served by email to counsel for the Defendants, Patrick F. McCormack, County Attorney for St Johns County, FL pmccormack@jcfl.us on this 10th day of June 2021.

Dated: June 10, 2021

ROOK ELIZABETH RINGER, ESQ. LENTO LAW GROUP, P.A.
Attorney for Plaintiff

The Court may order the St. Johns County Board of County Commissioners to vote on the proclamation. The Court may even order them to adopt a proclamation, or other remedy, over their objections. However, the Plaintiff concedes that the Court probably cannot Constitutionally order elected Commissioners how to vote. Spallone v. United States, 493 U.S. 265, 111 S. Ct 625, 107, L. Ed. 2d 644 (1990)(5-4)(reversing contempt citations for refusing to vote to approve consent decree in Yonkers school desegregation case).

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