Ribaya v. The Board of Trustees of the City Pension Fund for Firefighters and Police Officers in the City of Tampa

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DENNIS RIBAYA, )
)
Appellant, )
)
v. ) Case No. 2D13-4549
)
THE BOARD OF TRUSTEES OF THE )
CITY PENSION FUND FOR )
FIREFIGHTERS AND POLICE )
OFFICERS IN THE CITY OF TAMPA, )
)
Appellee. )
)
Opinion filed April 8, 2015.
Appeal from the Circuit Court for
Hillsborough County; Christopher C.
Sabella, Judge.
David M. Snyder of David M. Snyder
Professional Association, Tampa, for
Appellant.
Paul A. Daragjati and Robert D. Klausner
of Klausner, Kaufman, Jensen & Levinson,
Plantation, for Appellee.
Jonathan D. Kaney, Jr., of Kaney & Olivari,
P.L., Ormond Beach, for Amici Curiae First
Amendment Foundation, Florida Chapter
Reporters' Committee for Freedom of the
Press, Florida Press Association, Florida
Scholastic Press Association, Society of
Professional Journalists, Creative Loafing
Tampa, LLC, and Sandra F. Chance, J.D.,
as Executive Director of Brechner Center
for Freedom of Information, in Support of
Appellant.
ALTENBERND, Judge.
Dennis Ribaya appeals an order dismissing his second amended
complaint with prejudice. In his complaint, he alleged a violation of subsection
286.011(1), Florida Statutes (2012), often called "the Sunshine Law," and also sought
declaratory relief under Chapter 86, Florida Statutes (2012), the Declaratory Judgment
Act, concerning actions of the Board of Trustees of the City Pension Fund for
Firefighters and Police Officers in the City of Tampa (the Board). Specifically, he sought
a declaration that: (1) his conduct at a meeting in June 2012 did not violate Policy 109,
which regulated conduct at the meeting; (2) his exclusion from one or more public
meetings based on the Board's decision that he had violated the policy was a violation
of the Sunshine Law; and (3) the violation of the Sunshine Law voided all actions taken
by the Board at those meetings. The circuit court dismissed the action, not because it
failed to state a cause of action, but because the circuit court determined that the issues
alleged were moot and unworthy of declaratory relief. Discussing our standard of
review in greater detail in this opinion, we conclude that the trial court erred in
dismissing this action without reaching its merits. In the context of an action for
declaratory relief that is filed to enforce the Sunshine Law, the fact that the conditions
allegedly resulting in the violation have been resolved does not necessarily render the
action moot where it is unclear from the pleadings whether a violation has occurred and
whether a remedy would be required for such violation. It may be that the circuit court
will ultimately rule against Mr. Ribaya on one or more of these three issues, but the
-2-
matter could not be dismissed on the pleadings alone. Accordingly, we reverse and
remand for further proceedings.
I. THE PROCEEDINGS IN THE CIRCUIT COURT
According to his second amended complaint, Mr. Ribaya is a retired
firefighter who receives a pension from the fund that is administered by the Board. He
attended a meeting of the Board on June 28, 2012. During a break when the meeting
was in recess, someone asked him if he expected a timely response to a public records
request that he apparently had made to the Board. Mr. Ribaya's pleading alleges that
"in a low, soft voice" he replied: "Sh*t, no."1
His conduct apparently offended others in attendance at the meeting. At
the time, the Board's policy concerning disruptions at its meetings was Policy 109,
which in its entirety stated:
Any disruption of a board meeting or pension office
operations, whether verbal or up to and including physical
violence, will not be tolerated. Anyone disrupting a meeting
or pension office operations will be issued a 90 day trespass
warning, will be asked to leave the building, and should they
refuse to leave or return to the building while the trespass
warning is in effect, they will be subject to arrest for
trespassing.
This action will in no way inhibit any person from the
ability to conduct pension business by phone, mail, fax, or
email.
The Board relied on this policy and had a police officer deliver a trespass
warning to Mr. Ribaya immediately before its next meeting on July 25, 2012. To avoid
1
Mr. Ribaya attached to his pleading a digital recording allegedly of the
public meeting, claiming that no disruption is discernable on the tape. We have
assumed the truth of the pleading but have not reviewed the recording; we have no
authority to make any factual finding relating to that attachment.
-3-
arrest, he did not attend that meeting. Despite written requests to the Board, at least
one of which was from his attorney, Mr. Ribaya was not allowed to attend the public
meetings until after the ninety-day period expired. Thus, he was allegedly barred from
the monthly meetings in July, August, and September.
Mr. Ribaya did not sue the Board under any theory that might have
allowed him to obtain a monetary judgment for some civil wrong. Instead, his complaint
alleged a violation of the Sunshine Law and sought declaratory relief. He claimed that
his exclusion from the meetings was not warranted under Policy 109, and that under
section 286.011(1), his wrongful exclusion from the meetings violated Florida's
Sunshine Law. Finally, he claimed that the only appropriate remedy for this violation
required voiding all actions taken at those meetings.
By the time the circuit court dismissed this action, the ninety-day period
had expired and the Board had adopted a new policy to address disruptions at its
meetings. Thus, there can be no dispute that aspects of the overall controversy had
become moot. The circuit court entered an order carefully explaining its reasons for
dismissing this action with prejudice. Although we reverse that order, its content has
been very helpful during our review.
The circuit court accurately noted that Mr. Ribaya was not challenging the
facial validity of Policy 109. The court concluded that the "real issue" was whether Mr.
Ribaya was wrongfully issued a trespass warning. Given the change in circumstances,
as to this issue, the court concluded that there was no present dispute and that the
mere possibility of a dispute in the future did not justify the full adjudication of an action
for declaratory relief. It recognized that there was "no precise Florida case on point" on
-4-
the question of whether the use of the trespass statute can be a violation of the
Sunshine Law. Nevertheless, concluding that a public body has the authority to ensure
orderly conduct at its meetings without violating the Sunshine Law, it saw no reason to
reach the merits of the complaint. It relied, in part, on this court's decision in Leach-
Wells v. City of Bradenton, 734 So. 2d 1168 (Fla. 2d DCA 1999), in which we affirmed a
summary judgment in favor of the defendant in an action to enjoin a public construction
project despite the defendant's technical violation of the Sunshine Law. Mr. Ribaya
appeals the trial court's order of dismissal.
II. THE STANDARD OF REVIEW FOR AN ORDER DISMISSING
AN ACTION FOR DECLARATORY RELIEF
Because the second amended complaint was dismissed with prejudice on
a motion to dismiss, we are required to assume the truth of the well-pleaded facts. See,
e.g., X Corp. v. Y Person, 622 So. 2d 1098, 1100 (Fla. 2d DCA 1993). There is likely
more to this story, but both the circuit court and this court must assume that Mr. Ribaya
was barred from public meetings due to his quiet use of a single word of profanity in the
public section while the Board's meeting was in recess.
The parties argue that this case is governed by two distinctly different
standards of review. Relying on this court's decision in Angelo's Aggregate Materials,
Ltd. v. Pasco County, 118 So. 3d 971, 973-74 (Fla. 2d DCA 2013), Mr. Ribaya claims
that we should perform a de novo review of the dismissal as a pure issue of law. The
Board, relying on Abruzzo v. Haller, 603 So. 2d 1338, 1339 (Fla. 1st DCA 1992), and
other similar cases, argues that we should give great deference to the circuit court's
ruling and reverse only in the event of an abuse of discretion. There is little question
that the case law discussing the standard of review for an order dismissing an action for
-5-
declaratory relief under chapter 86, at least if read outside its context, presents two or
more views. To the largest extent, however, we believe the case law can be reconciled.
A complaint for declaratory relief under chapter 86, like any other
complaint, must be legally sufficient. In general, the complaint must allege that: (1)
there is a bona fide dispute between the parties; (2) the plaintiff has a justiciable
question as to the existence or nonexistence of some right, status, immunity, power or
privilege, or as to some fact upon which existence of such a claim may depend; (3) the
plaintiff is in doubt as to the claim; and (4) there is a bona fide, actual, present need for
the declaration.2 See State Farm Mut. Auto. Ins. Co. v. Wallace, 209 So. 2d 719, 721
(Fla. 2d DCA 1968). A complaint can be legally sufficient even if the plaintiff ultimately
loses the case on its merits. See X Corp., 622 So. 2d at 1101; accord Murphy v. Bay
Colony Prop. Owners Ass'n, 12 So. 3d 924, 926 (Fla. 2d DCA 2009). Thus, when a
defendant challenges a complaint for declaratory relief on the ground that it fails to state
a cause of action, i.e., that it is legally insufficient, the trial court rules on that motion as
a matter of law.3 In that situation, this court reviews the order de novo as an issue of
law. See, e.g., Combs v. City of Naples, 834 So. 2d 194, 197 (Fla. 2d DCA 2002)
(affirming trial court's dismissal of count for declaratory judgment after performing de
novo review).
2
As we explain in more detail later in this opinion, the first and fourth
elements requiring a "bona fide dispute" and a "bona fide need" are not found in chapter
86; they were judicially created.
3
A purist might argue that chapter 86 is a remedial statute that provides a
statutory remedy to resolve legal questions when the plaintiff does not quite have a
"cause of action." Nevertheless, the case law consistently refers to actions brought
under chapter 86 as causes of action. That is certainly the function served by the
statute.
-6-
But beyond legal sufficiency, the case law has created a gatekeeper
function for the trial court. The trial court, within its sound discretion, may dismiss an
action that technically states a cause of action when the circumstances do not justify
using legal resources to try the factual issue and resolve the legal questions. See, e.g.,
Abruzzo, 603 So. 2d at 1339.
The need for this gatekeeper function arises from the breadth of the
potential statutory cause of action created in chapter 86. The goals of the Declaratory
Judgment Act are to relieve litigants of the common law rule that a declaration of rights
cannot be adjudicated unless a right has been violated, and to render practical help in
ending controversies that have not reached the stage where other legal relief is
immediately available. Bell v. Associated Indeps., Inc., 143 So. 2d 904, 907-08 (Fla. 2d
DCA 1962); see also State, Dep't of Educ. v. Glasser, 622 So. 2d 1003, 1006 (Fla. 2d
DCA 1992), rev'd on other grounds, 622 So. 2d 944 (Fla. 1993). To further these goals,
the use of declaratory judgments should be "liberal[ly]" construed and its "boundaries"
should be "elastic." Bell, 143 So. 2d at 908; X Corp., 622 So. 2d at 1100; accord
Jackson v. Fed. Ins. Co., 643 So. 2d 56, 58 (Fla. 4th DCA 1994).
Unfortunately, any such ubiquitous tool can be used for a wrong purpose.
Thus, the case law warns that chapter 86 is a statute with "special objectives" that
should not be "perverted" by permitting its use as a "catch-all." See Mayes Printing
Co. v. Flowers, 154 So. 2d 859, 862 (Fla. 1st DCA 1963). To ensure that this does not
occur, the courts have developed requirements to invoke the act that go beyond the
wording of the act itself: that there is a "bona fide dispute" between the parties and a
"bona fide . . . need for [a] declaration." See State, Dep't of Envtl. Prot. v. Garcia, 99
-7-
So. 3d 539, 544 (Fla. 3d DCA 2011); Britamco Underwriters, Inc. v. Cent. Jersey Invs.,
Inc., 632 So. 2d 138, 139 (Fla. 4th DCA 1994); see also X Corp, 622 So. 2d at 1100-01.
Although these requirements have been developed as essential elements necessary to
plead a cause of action under chapter 86, they play an additional role in the context of
the court's gatekeeping function. That is, once a trial court determines that a plaintiff
has sufficiently pleaded the essential elements for a declaratory action, circumstances
beyond the pleadings may be apparent and may signal to the trial court that there is not
a bona fide need for declaratory relief. For example, in looking beyond the pleadings, it
may become clear to the trial court that the act "is being used . . . to foster frivolous or
useless litigation, to satisfy idle curiosity or to answer abstract questions." See X Corp.,
622 So. 2d at 1102.
Thus, after the trial court determines as a matter of law that the complaint
is legally sufficient, performing its gatekeeping function, it has the authority to decline to
adjudicate the claim when the circumstances do not warrant expending the legal
resources to do so. A trial court may occasionally have the ability to perform this
gatekeeping function when ruling on a motion to dismiss. But it is difficult for a trial
court to justify its discretionary act of dismissal at that stage unless the parties have
made stipulations or concessions on the record or the complaint contains a detailed and
complete recitation of the facts and legal issues. In most instances, the discretionary
decision to dismiss an action for declaratory relief because it is unworthy of adjudication
is a decision that focuses on whether the matter involves a "bona fide dispute" and a
-8-
"bone fide need." These issues make the decision more akin to a summary judgment.4
See, e.g., Leach-Wells v. City of Bradenton, 734 So. 2d 1168 (Fla. 2d DCA 1999)
(affirming summary judgment despite technical violation of the Sunshine Law). When
the trial court dismisses an action for declaratory relief with prejudice in this gatekeeping
function, we review that decision for abuse of discretion. See Palumbo v. Moore, 777
So. 2d 1177 (Fla. 5th DCA 2001) (holding that trial court abused its discretion in
dismissing with prejudice counts for declaratory judgment where pleadings adequately
stated cause of action under chapter 86).
The district courts occasionally review an order dismissing an action for
declaratory judgment that seems to fit into a third category. Mr. Ribaya's case appears
to fit this category. In these cases, the trial court enters an order of dismissal in the
alleged exercise of its discretion under its gatekeeping function, but in fact makes a
legal declaration as to the dispute in its order. Sometimes that declaration is express
and other times it is implicit. This normally occurs when the trial court has decided that
it is clear that the plaintiff is going to lose the lawsuit on the merits, usually as a matter
of law. Rather than enter a judgment declaring an issue of law that seems obvious to
the trial court, it dismisses the action for failure to allege a "bona fide" issue.
The standard of review for this third category is more complex and
involves at least two steps. First, the circuit court does not have "discretion" to
determine the applicable law that governs the dispute; that is a question of law that
should be reviewed de novo. Second, whether the legal issue is so settled or perhaps
4
Unlike a summary judgment, it may be possible for a trial court to make a
discretionary decision to dismiss an action for lack of a bona fide dispute or need even if
some factual dispute exists.
-9-
so insignificant that it does not warrant the issuance of a binding judgment on the merits
is an issue for which the trial court should have discretion. However, when the trial
court essentially enters a declaratory judgment as to one or more significant, disputed
issues while describing the judgment as an order of dismissal, the role of discretion is
limited.5 See Prop. Rights Prot. Grp., Inc. v. City of Tampa¸ 627 So. 2d 61 (Fla. 2d DCA
1993) (reversing order of dismissal with prejudice that expressly declared statute and
related ordinances to be unconstitutional on their face and as applied to plaintiffs); see
also Phantom of Clearwater, Inc. v. Pinellas Cnty., 894 So. 2d 1011 (Fla. 2d DCA 2005)
(affirming in part and reversing in part an order of dismissal that expressly declared an
ordinance to be constitutional). This is true because, even if the answer to the
requested declaration seems obvious to the trial judge and the plaintiff is destined to
lose, the parties may still need a binding disposition on the merits, which a dismissal
does not provide.
Finally, the standard of review of an order dismissing an action for
declaratory judgment is somewhat different in the context of a Sunshine Law challenge.
Section 286.011 creates broad public access to governmental meetings. This statute
implements the constitutional right of access created in Article I, section 24, of the
Florida Constitution. Subsection 286.011(4) clearly contemplates legal actions by
members of the public to enforce the Sunshine Law. See § 286.011(4) (providing for
5
Freedom Properties v. Alderman, 589 So. 2d 424 (Fla. 2d DCA 1991), is
a case in which the trial court appropriately ordered dismissal based on well-established
law. In Alderman, this court affirmed the dismissal of a complaint seeking a declaration
of entitlement to homestead exemptions where the plaintiffs were residents of a
retirement community and did not have legal or equitable title to any portion of the
community’s property. See id. at 424-25.
- 10 -
attorney's fees where "an action has been filed . . . to enforce the provisions of this
section" and the trial court determines that a violation has occurred).
But section 286.011 does not contain an express right of action. As a
result, it has become common for litigants to file actions for claims under the Sunshine
Law that allege a claim for violation of the statute and a claim for declaratory relief. In
effect, the litigant alleges a claim under section 286.011 and seeks a remedy under
chapter 86. The second-amended complaint in this case is such a complaint. When
the allegations of a complaint under the Sunshine Law allege a potential violation of that
law, a trial court's discretion to dismiss the complaint with prejudice on a motion to
dismiss should be very limited.
III. MR. RIBAYA'S LAWSUIT WAS NOT RIPE FOR
A GATEKEEPER'S DISMISSAL
At the beginning of this opinion, we explained that Mr. Ribaya sought a
declaration that: (1) his conduct at a meeting in June 2012 did not violate Policy 109,
which regulated conduct at the meeting; (2) his exclusion from one or more public
meetings based on the Board's decision that he had violated the policy was itself a
violation of the Sunshine Law; and (3) the violation of the Sunshine Law voided all
actions taken by the Board at those meetings. Because the trial court and this court
must accept the well-pleaded facts, the first proposition—i.e., that Mr. Ribaya did not
violate Policy 109—was not a matter that could be resolved against him on the motion
to dismiss. The trial court, in fact, did not resolve that issue but, instead, concluded that
it was moot. Except for the effect of this issue on the Sunshine Law issues, that would
seem to have been a reasonable resolution.
- 11 -
The difficulty in this case arises because the second and third questions to
which Mr. Ribaya seeks a declaration appear to be bona fide legal questions without a
well-settled answer. As to Mr. Ribaya's second question, there does not appear to be
any dispositive case addressing whether a wrongful exclusion of a member of the public
from such a meeting based on a claim of disturbance is or is not a violation of the
Sunshine Law. No one can seriously debate that those in charge of public meetings
can have rules governing decorum. The need to maintain order at public meetings is
critical to the effective functioning of a government that values public input and
welcomes sunshine at such meetings. But policies to assure order have the potential to
be misused to silence opposing views. Without prejudging the issue in any manner, we
cannot say that the exclusion of Mr. Ribaya was or was not a violation of section
286.011.
Assuming there was a violation of the Sunshine Law, the limited body of
case law tends to support Mr. Ribaya's argument on his third proposition that such a
violation requires the court to void all action that occurred at the affected meetings. The
statute itself states that "no resolution, rule, or formal action shall be considered binding
except as taken or made at [a public meeting in compliance with the statute]."
§ 286.011(1). The early case law held that a violation of the act voided an ordinance
"ab initio." See Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974)
("Mere showing that the government in the sunshine law has been violated constitutes
an irreparable public injury so that the ordinance is void [a]b initio."). More recent cases
also apply this remedy. See, e.g., Grapski v. City of Alachua, 31 So. 3d 193, 200 (Fla.
1st DCA 2010); Sarasota Citizens for Responsible Gov't v. City of Sarasota, 48 So. 3d
- 12 -
755, 763 (Fla. 2010) (declaring void ab initio City's approval of minutes made after
sunshine violation).
Other case law, however, has recognized that a violation of the law can be
"cured" by remedial action. See Bruckner v. City of Dania Beach, 823 So. 2d 167, 172
(Fla. 4th DCA 2002). Our decision in Leach-Wells v. City of Bradenton, 734 So. 2d
1168 (Fla. 2d DCA 1999), involved a situation in which the violation was cured. The
Board in this case does not argue that it cured any violation. It may be that a Sunshine
Law violation that results in the absence of a single member of the audience at a public
meeting, a spectator without a role to play concerning any item on the agenda, justifies
a remedy less severe than voiding all action at the meeting. But this apparently is not
an issue that has been resolved by prior precedent.
In sum, although there appears to be no case law squarely resolving the
third issue—whether a wrongful exclusion of Mr. Ribaya would void actions taken at the
meeting—there is legal support for that proposition. If Mr. Ribaya's exclusion is indeed
a violation that voids all actions taken at these meetings, then this remedy would be
necessary even after Policy 109 was rewritten. Thus, it cannot be claimed that Mr.
Ribaya's legal dispute with the Board was moot when the case was dismissed. In the
absence of established law or more developed facts, the trial court abused its discretion
in dismissing what appears on the face of the complaint to be a bona fide dispute in
need of resolution.
It may be that Mr. Ribaya ultimately will not prevail on one or all three of
his issues, but at this stage, his action could not be dismissed with prejudice.
- 13 -
Reversed and remanded.
NORTHCUTT and CRENSHAW, JJ., Concur.
- 14 -