Turn the Lights Out When You Leave: Threats to Florida's Open Government

(CASE# 5D23-1573) June 2023

"I fully concur in the majority’s conclusion that the Sunshine Law contains no requirement that public meetings permit in-person attendance."-Judge Jordan E. Pratt, 5th DCA Court of Appeals

While 44%-plus of our legislators and county commissioners from 47 non-charter counties with real estate ties are toasting the demise of the recall bill, something far more nefarious is going on behind the scenes, in the courts, for the State of Florida. Judges are setting precedent with their rulings regarding a recent recall in Putnam County. But this decision has far-reaching implications that go way beyond “recall.”

The recent decision by Judge Pratt has the potential to silence in-person citizen voices who show up to instruct their elected officials regarding their individual county issues. This will be the shuttering of an era where our legislators wrote into a law a requirement for transparency in the day-to-day operations of representative government.

The 5th DCA judges were responding to an appeal brought by Craig Oates after Circuit Court Judge Kenneth J. Janesk invalidated a successful recall by the citizens of Crescent City against city councilwoman Cynthia Burton.

Timeline of events:
  • Jan 2021 The Crescent City Commission met in person at City Hall, locked the doors to the commission chamber, and held a closed-door meeting, locking residents out from attending in person. The meeting was only streamed over Zoom/YouTube, and many residents could not participate because of technical difficulties.
  • April 2021 Citizens filed a Recall to remove a city commissioner for this meeting. It was thrown out because of a technicality. This city commissioner then chose to not run for re-election.
  • Dec 2022 Citizens filed another Recall to remove another city commissioner for this meeting. The Recall was successful, and this commissioner was removed by 60% of the voters on May 30, 2023. She filed an Appeal with the 5th DCA.
  • June 2023 The 5th DCA created a new case law, stating that the Sunshine Law contains no requirement that public meetings permit in-person attendance, overturning the results of the Recall Election.
The Court went on to say:

"In Herrin v. City of Deltona, 121 So. 3d 1094, 1097 (Fla. 5th DCA 2013), our court addressed the phrase “open to the public” contained in Florida’s Sunshine Law. We concluded that the term reasonably meant that city commissioner meetings must be properly noticed and made reasonably accessible to the public. Id. We also held that the public had no right to speak or be heard at such a meeting. Id. What Oates is essentially asking here is that we interpret section 286.011(1)’s language to mean that a meeting is “open to the public” only if the public can attend the meeting in person, despite the language “in person” being conspicuously absent from the statute. We respectfully decline to do so."-Judge Brian D. Lambert, 5th DCA.

What the judges failed to use in their decision was our Florida Constitution, Article 3, Section 4, Quorum and Procedure Subsection (e), which discusses rules for public participation while attending gatherings of their legislative bodies. In this short paragraph, we see “shall be reasonably open to the public” and "All open meetings shall be subject to order and decorum.” This section shall be implemented and defined by the rules of each house, and such rules shall control admission to the floor of each legislative chamber. “Order and Decorum” and “control admission” are all terms that point to in-person meetings.

You may disagree with the idea of recall, and that’s fine, but this decision shuts the door to passionate discussion from “We the People,” throws a cloak over freedom of assembly in our administrative buildings and squashes the original form of our First Amendment right to petition our government for a redress of grievances. If you want to learn something interesting, read up on the historical context of that! It alludes to calling our elected officials to a meeting to air our grievances, but I digress.

This decision (we believe judicial activism at its best) cannot rest peacefully in some lawbook tucked away in a library or buried in a vast sea of internet data. This case needs to be ruled unconstitutional at the federal level because the Florida Supreme Court refused to hear it or even comment as to why. The citizens cannot let this stand unchallenged. Florida's dark days are ahead.

Chance Johnmeyer

Welcome to Accountable, commentary on local and state stories regarding corruption by our elected officials at all levels. Instruction on where to look, what to look for, and how to proceed once you are in possession of the findings. Because in the words of Thomas Paine a body of men, holding themselves accountable to nobody, ought not to be trusted by anybody.

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