Case 3:24-cv-00035-HES-PDB Document 13 Filed 02/08/24 Page 1 of 15 PageID 38

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

KRISTA JOSEPH, St. Johns County

Commissioner,

Plaintiff,

v. Civil Action No.: 3:24-cv-0035-HES-PDB

ST. JOHNS COUNTY BOARD OF

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

Defendant.

___________________________________/

DEFENDANT ST. JOHNS COUNTY BOARD OF

COUNTY COMMISSIONERS MOTION TO DISMISS COMPLAINT

It is axiomatic that a court may only issue a declaratory judgment if

there is an actual controversy between the parties. In order to obtain

declaratory relief, a party must show that such controversy between the

parties is substantial, immediate, and real and that the parties have actual

interests that are legally adverse. On the contrary, one cannot file a lawsuit

to merely seek advice from the Court as to some undetermined future course

of action. But that is exactly what has been done in this case.

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Here, no actual controversy exists between Plaintiff, Commissioner

Krista Joseph (“Plaintiff” or “Joseph”), and Defendant, the St. Johns County

Board of County Commissioners (“Defendant” or “Board”). 1 Rather, Plaintiff

expressly seeks an advisory opinion from the Court to aid her in crafting

future, undefined, political comments. The Florida Attorney General, one

agency authorized to provide such an advisory opinion, has already done so

regarding similar circumstances and the very statutory provision Plaintiff

claims to be in fear of violating. And Plaintiff cites only “information and

belief,” but no evidence that the Board plans to act in opposition to that

advisory opinion. As such, she should not be permitted use this Court to

pressure the Board into granting her a blanket license to politicize its official

meetings as she pleases. Plaintiff’s lawsuit is improper under the Federal

Rules of Civil Procedure and its accompanying case law. For that reason, this

case is due to be dismissed.

Defendant, the St. Johns County Board of County Commissioners,

respectfully moves for entry of an Order dismissing the Complaint filed by

1 Plaintiff does not appear to have correctly named the Board as a defendant
in this case, rather than St. Johns County, though the absence of an actual
case and controversy, as discussed below, indicates that neither the Board nor
the County would be a proper party here. See § 125.15, Fla. Stat. (“The county
commissioners shall sue and be sued in the name of the county of which they
are commissioners.”)

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Plaintiff, St. Johns County Commissioner Krista Joseph, pursuant to

Rule 12(b)(6), Federal Rules of Civil Procedure. In support, Defendant states:

I. BACKGROUND AND PROCEDURAL HISTORY

1. After being outnumbered on various recent votes of the Board,

Plaintiff, as part of her “Commissioner’s Report” during the November 21, 2023

Board meeting, initiated the following exchange:

Commissioner Joseph: Hello everybody. I was going to talk

about Ponte Vedra High School swim team that won state. The
girls won state. But I’m going to move on to something that I think
is important to our county. I’m going to give a public service
announcement for something. And I am thankful for America
because guess what we get in this country, we get hope. If you are
sick of the traffic, clear cutting of the trees, high density housing,
approval of more housing, children overcrowded in the schools,
living in modular class rooms and really trying to learn, ignoring
advisory boards. Just, Ponte Vedra Advisory Board, eh, we don’t
need them. Or LAMP advisory board, eh, we’re not going to listen
to them. Breaking zoning height rules on the beach. Feel you
aren’t listened to. Developers are controlling the boards. No
response for your e-mails. You know what, there’s hope. Less than
nine months, we have an election. I stopped by Vicky Oakes.
Here’s the information.

Commissioner Dean: Point of order.

Chair Commissioner Arnold: I think this is out of line. Mr.

Migut.

County Attorney Migut: We have a point of order, so please

stop speaking.

Commissioner Dean: Can she make a political speech during an

official county commission meeting?

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County Attorney Migut: It’s—our rules are silent on

political, political speech. In general, should be related to county,
county business.

Commissioner Joseph: Where, where does it say that?

‘Cause I looked for it. It’s not in here. It’s not in here. I looked for
it. I even warned you that I already, I already talked to another
attorney about what I’m allowed to say. And I was approved to
talk about general, to the city, to the people of St. Johns County
about Election Day that is only nine months away. And there’s
three open commissioner seats [gesturing her hand toward her
fellow commissioners].

County Attorney Migut: Commissioner, we have a decorum

and civility policy. I would ask you to try to get whatever point
you’re going, you’re speaking in a manner that is respectful to your
co-commissioners.

Commissioner Joseph: Well, there is three open seats. No

one here has to, you know, has come up to say they are running
again.

Chair Commissioner Arnold: Mr. Migut.

Commissioner Joseph: . . . and I was actually going to say

which is on public. D-1, Anne Marie Evans is running, D-3, Bill
Freeman is running.

Chair Commissioner Arnold: Yea, I don’t believe you can

campaign on public property.

Commissioner Joseph: I am not campaigning. I am saying

what is on the website for Vicky Oakes. Public . . .

Chair Commissioner Arnold: Okay, this is enough . . .

Commissioner Joseph: This is a public service

announcement about elections and who is already signed up to run
for the county commission seats.

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County Attorney Migut: Commissioner, I believe you’ve

crossed the line with our decorum and civility policy. I would ask
you to refrain from making any more comments on that topic.

Commissioner Joseph: Okay, but I, why can’t I say that the

election is in nine months, less than nine months?

County Attorney Migut: I think that’s a fine statement.

You’ve already made that statement.

Commissioner Joseph: Okay. Thank you, sir.

See Doc. 1 at ¶¶ 1, 7. The text of this exchange is available at

https://stjohnscountyfl.new.swagit.com/videos/281734 (4:10:35 - 4:13:25)

(cleaned up).

2. On December 5, 2023, Plaintiff was censured by the Board for her

comments at the November 21, 2023 meeting. See Doc. 1 at ¶ 8.

3. Thereafter, County Attorney Migut sought outside legal advice

regarding whether the comments made by Plaintiff violated Section 104.31,

Florida Statutes. See Doc. 1 at ¶¶ 8-9.

4. In response to the opinion letter subsequently offered by outside

counsel, Plaintiff filed this action seeking an order from this Court declaring

she has a right to “make her political views known to the citizens of St. Johns

County in connection with the local election scheduled for August 2024,

including her preference that voters vote out incumbent commissioners, in

contexts in which she is identified as holding the position of county

commissioner.” See Doc. 1 at ¶ 29.

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II. LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the

Complaint, which must “state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citation and internal quotation marks omitted) (“To

survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.”). A

claim is plausible on its face when the plaintiff alleges sufficient facts to

“allow[] the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678. “A pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

action will not do.’” Id.

On a motion to dismiss, the Court’s analysis is limited to the factual

allegations of the Complaint, attached exhibits, and documents referred to

within the Complaint that are central to Plaintiff’s claims. Mathews v.

Adjusterman, LLC, No. 17-CV-62031, 2018 WL 259518, at *1 (S.D. Fla. Jan. 2,

2018). As such, all well-pled factual allegations are taken as true and

construed in the light most favorable to the Plaintiff, “but this tenet does not

apply to legal conclusions and courts ‘are not bound to accept as true a legal

conclusion couched as a factual allegation.’” Fresh Results, LLC v. ASF

Holland, B.V., et al., No. 17-cv-60949-BLOOM/Valle, 2019 WL 4573257, at *7

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(S.D. Fla. Sept. 20, 2019) (citing Twombly, 550 U.S. at 555). In fact, “courts

may infer from the factual allegations in the complaint ‘obvious alternative

explanations,’ which suggest lawful conduct rather than the unlawful conduct

the plaintiff would ask the court to infer.” Am. Dental Ass’n v.Cigna Corp.,

605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).

III. ARGUMENT

A. Article III Courts Do Not Render Advisory Opinions.

While Plaintiff styled the Complaint as one for declaratory relief, she is,

instead, seeking an advisory opinion from this Court, as no actual case or

controversy between Plaintiff and the Board exists. 2 “‘The declaratory

judgment remedy is an all-purpose remedy designed to permit an adjudication

whenever the court has jurisdiction, there is an actual case or controversy, and

adjudication would serve a useful purpose.’” Zurich Am. Ins. Co. v. Southern-

Owners Ins. Co., 248 F. Supp. 3d 1268, 1279 (M.D. Fla. 2017) (quoting Allstate

Ins. Co. v. Emp’rs Liab. Assurance Corp., 445 F.2d 1278, 1280 (5th DCA 1971)).

“[F]ederal courts established pursuant to Article III of the Constitution do not

2 Plaintiff does not plead a cause of action for alleged violation of her First
Amendment rights based on the Board’s handling of her comments at the
November 21, 2023 meeting or her subsequent censure, but only seeks an
advisory opinion on her speech and actions going forward. The United States
Supreme Court in Houston Community College System v. Wilson, 595 U.S. 468
(2022), which Plaintiff cites in Paragraph 28 of the Complaint, held that no
viable First Amendment claim would lie under substantially similar
circumstances.

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render advisory opinions.” Golden v. Zwickler, 394 U.S. 103, 108.

Consequently, “[f]or a declaratory judgment to issue, there must be a dispute

which ‘calls, not for an advisory opinion upon a hypothetical basis, but for an

adjudication of present right upon established facts.’” Ashcroft v. Mattis, 431

U.S. 171, 172 (1977) (citations omitted).

“‘[T]he question in each case is whether the facts alleged, under all the

circumstances, show that there is a substantial controversy, between parties

having adverse legal interests, of sufficient immediacy and reality to warrant

the issuance of a declaratory judgment.’” Zurich Am. Ins. Co., 248 F. Supp. 3d

at 1280 (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)).

As stated in Zurich Am. Ins. Co.:

[T]he party seeking a declaratory judgment bears the burden “of

establishing the existence of an actual case or controversy.” This
means that:

[a]t an irreducible minimum, the party who invokes

the court’s authority under Article III must show: (1)
that they personally have suffered some actual or
threatened injury as a result of the alleged conduct of
the defendant; (2) that the injury fairly can be traced
to the challenged action; and (3) that it is likely to be
redressed by a favorable decision.

Id. (internal quotations omitted).

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B. Plaintiff’s Complaint is Due to be Dismissed as She Failed to

Adequately Allege Facts Entitling Her to Pre-Enforcement
Review.

For all of Plaintiff’s allegations, her Complaint fails to state a threatened

injury which would result in an actual case and controversy before this Court.

It is true that “where threatened injury by government is concerned, [a Court]

do[es] not require a plaintiff to expose himself to liability before bringing suit

to challenge the basis for the threat.” Medimmune, Inc. v. Genentech, Inc., 549

U.S. 118, 128-29 (2007). In turn, a “plaintiff’s own action (or inaction) in failing

to violate the law eliminates the imminent threat of prosecution, but

nonetheless does not eliminate Article III jurisdiction.” Id. at 129. Because of

this, courts have “permitted pre-enforcement review under circumstances that

render the threatened enforcement sufficiently imminent.” Susan B. Anthony

List v. Driehaus, 573 U.S. 149, 159 (2014). In fact, “a plaintiff satisfies the

injury-in-fact requirement where he alleges ‘an intention to engage in a course

of conduct arguably affected with a constitutional interest, but proscribed by a

statute, and there exists a credible threat of prosecution thereunder.’” Id.

(quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)).

Because Plaintiff cannot show a credible threat of prosecution in

accordance with her actions as violative of Section 104.31, she is not entitled

to review in this Court. As such, Plaintiff’s Complaint should be dismissed.

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i. Plaintiff’s attempt to have this Court render an

advisory opinion is improper.

As Plaintiff noted at the November 21, 2023 meeting, she has already

received legal guidance from her own counsel as to whether her intended

course of action is in line with Florida law. Any further nuanced guidance

Plaintiff wishes to receive should be directed to either the Florida Attorney

General’s Office, the Florida Division of Elections, or the Florida Commission

on Ethics. In accordance with Plaintiff’s concerns, these agencies are in the

appropriate position to render advisory opinions on pre-enforcement behavior

which lacks a credible threat of prosecution. See § 16.01(3), Fla. Stat.

(authorizing the Florida Attorney General to “give an official opinion and legal

advice in writing on any question of law relating to the official duties of the

requesting officer”); § 106.23(2), Fla. Stat. (authorizing the Florida Division of

Elections to provide advisory opinions “relating to any provisions or possible

violations of Florida election laws”); § 112.322(3), Fla. Stat. (authorizing the

Florida Commission on Ethics to issue advisory opinions on applicability and

interpretation of the code of ethics to “every public officer, candidate for public

office, or public employee”).

Pursuant to Section 104.31(1)(a), Florida Statutes:

(1) No officer or employee of the state, or of any county or

municipality thereof, except as hereinafter exempted from
provisions hereof, shall:

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(a) Use his or her official authority or influence for the purpose of
interfering with an election or a nomination of office or coercing
or influencing another person’s vote or affecting the result
thereof.

Section 104.31(1) further states:

The provisions of paragraph (a) shall not be construed so as to limit

the political activity in a general, special, primary, bond,
referendum, or other election of any kind or nature, of elected
official or candidates for public office in the state or of any county
or municipality thereof.

The Florida Attorney General Opinion Plaintiff references in her

Complaint provides sufficient guidance with regard to Plaintiff’s future

intended course of action. See AGO 078-133. That opinion addressed the

following question:

Does the writing and publication of an open letter or newsletter by

elective municipal officers using their official titles for the purpose
of endorsing or criticizing a candidate for municipal office
constitute the use of official authority or influence for the purpose
of interfering with an election, or the coercing or influencing of
another person’s vote, or affecting the result thereof in violation of
s. 104.31(1)(a), F.S.?

Id. The Attorney General noted that Section 104.31(1)(a) “should be construed

so as to prohibit the corrupt use of official authority or influence for the

purposes set forth therein.” Id. He further explained that a previous opinion

had noted “certain elected public officials (including municipal officers) and

certain appointed officers were exempted.” Id. The Attorney General

concluded “it is clear that the purpose of s. 104.31(1)(a) is to prevent corruption

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of the election process, not to limit protected political speech by public officers

(or the “political activity” of elective officers exempted therefrom by s.

104.31(1)[].”

The Attorney General has already provided the advisory opinion she now

seeks from the Court. Should Plaintiff wish to obtain greater guidance as to a

more specific issue with regard to her rights under Section 104.31, she can

return to the Attorney General or seek additional guidance from the Florida

Division of Elections or the Florida Commission on Ethics. This Court is not

the proper venue for obtaining such advice.

ii. No credible threat of prosecution exists in this case.

Plaintiff bases her desire for a declaratory judgment on an

unsubstantiated belief that there exists a credible threat of prosecution in this

case. Neither the Board—nor any other person or entity to the Board’s

knowledge—has indicated an intent to recommend Plaintiff for prosecution

under Section 104.31. Plaintiff claims she is entitled to relief in this Court

based upon an opinion rendered by outside counsel hired by County Attorney

Migut to provide guidance as to Plaintiff’s comments at the November 21, 2023

meeting. The hiring of outside counsel for this purpose, and the provision of

that opinion, are insufficient to create a credible threat of prosecution—

particularly where there is no indication that the Board has or will follow the

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advice contained therein, and where the Board has no authority to prosecute

any potential violation of Section 104.31.

While Plaintiff is not required to wait to be officially charged with

violation of the statute, there must be sufficient facts demonstrating “the

threat of future enforcement of the . . . statute is substantial.” Susan B.

Anthony List, 573 U.S. at 164 (finding the threat posed substantial where

there was a history of past enforcement of the statute against plaintiff and a

state election commission panel had actually found probable cause to believe

plaintiff’s speech violated the statute); see Steffel v. Thompson, 415 U.S. 452,

459 (1974) (acknowledging threat of prosecution was substantial where police

officers had already threatened to arrest the petitioner and his companion for

distributing handbills protesting the Vietnam War and petitioner’s companion

was, in fact, arrested and charged); also Virginia v. American Booksellers,

Assn. Inc., 484 U.S. 383, 386 (1988) (determining threat of prosecution against

bookseller was substantial where statute made it a crime to “knowingly display

for commercial purpose” material “harmful to juveniles”).

In the present case, no such threat of prosecution exists sufficient to

provide Plaintiff with access to this Court. Plaintiff’s claims before this Court

are therefore premature. Her Complaint should therefore be dismissed.

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IV. CONCLUSION

For the foregoing reasons, Defendant, the St. Johns County Board of

County Commissioners, respectfully requests entry of an Order dismissing the

Plaintiff’s Complaint.

LOCAL RULE 3.01(g) CERTIFICATION

Under Local Rule 3.01(g), the undersigned counsel has conferred with

counsel for Plaintiff, and Plaintiff opposes the relief sought herein.

DATED: February 8, 2024

Respectfully submitted,

SMITH, GAMBRELL & RUSSELL, LLP

/s/ Daniel K. Bean, Esq._____

Daniel K. Bean, Esq.
Florida Bar No. 15539
[email protected]
[email protected]
[email protected]
50 N. Laura Street, Suite 2600
Jacksonville, Florida 32202
(904) 598-6100 (Telephone)
(904) 598-6300 (Facsimile)

Attorney for Defendant,

St. Johns County Board Of
County Commissioners

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on February 8, 2024, I electronically filed the

foregoing with the Clerk of Court by using the CM/ECF filing system, which

will send a notice of the electronic filing to the following CM/ECF participants:

W. Bradley Russell
Russell & Russell, Attorneys at Law, P.A.
6550 St. Augustine Road, Ste. 305
Jacksonville, FL 32217
[email protected]

/s/Daniel K. Bean
Attorney

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