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Case 4:19-cv-00576-WS-CAS Document 27 Filed 02/03/20 Page 1 of 20

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
CASE NO. 4:19-Cv-576-WS/CAS

SCOTT ISRAEL,
Plaintiff,

versus

GOVERNOR RON DESANTIS and


BILL GALVANO,
Defendants.
_____________________________________/

RESPONSE OF PLAINTIFF SHERIFF ISRAEL IN OPPOSITION


TO GOVERNOR’S MOTION TO DISMISS PLAINTIFF’S
COMPLAINT, WITH INCORPORATED MEMORANDUM OF LAW

Plaintiff Scott Israel, as the elected Sheriff of Broward County,

Florida, opposes the Motion to Dismiss submitted by the Governor

(DE24). The complaint states a valid cause of action for declaratory and

injunctive relief against the Governor and Senate President Bill Galvano

in their respective official capacities arising from the unconstitutional

deprivation of Sheriff Israel’s duly elected office. The due process

deficient removal of Sheriff Israel by whim and caprice, without a

substantial evidentiary basis, offends the U.S. Constitution and

compromises the will of the voters to elect their public officials. The

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motion to dismiss should be denied.

I. MOTION FOR HEARING.

1) Plaintiff asks for a hearing for one (1) hour to enable the

parties to present the complex issues raised in both dismissal motions

and responses. In the hearing, the court can seek input from the parties

as to any concerns raised by the pleadings.

II. INCORPORATION OF POSITIONS ADVANCED IN THE


RESPONSE TO THE SENATE PRESIDENT’S MOTION TO
DISMISS.

2) Sheriff Israel incorporates by reference the positions he

advanced in his response to the Senate President’s dismissal motion

(DE23).

III. INTRODUCTION.

3) Scott Israel was elected as the Sheriff of Broward County,

Florida to serve a term of four (4) years until November 2020 (DE1, p. 7).

He was elected as a Democrat.

4) Shortly after taking office in January 2019, Governor Ron

DeSantis issued Executive Order 19-14 on January 11, 2019,

immediately suspending Sheriff Israel for alleged neglect of duty and

incompetence in connection with two mass shooting events in Broward

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County in 2017 (at the Fort Lauderdale-Hollywood International Airport)

and 2018 (at the Marjory Stoneman Douglas High School) (DE1, p. 7).

5) Pursuant to the Florida Constitution and Florida Law, Senate

President Galvano appointed a Special Master to receive evidence and

make recommendations to the Florida Senate concerning the validity of

the suspension and the existence of an evidentiary basis to support the

Sheriff’s removal from office.

6) The Special Master presided over a 2-day final hearing trial

during which the parties (Governor DeSantis and Sheriff Israel) were

provided the opportunity to present all relevant witnesses and evidence,

cross-examine witnesses, and make arguments. The Special Master

thereupon concluded “the Governor has not proven the specific charges

of suspension in Executive Order 19-14.” The Special Master

Recommended Sheriff Israel be reinstated to office.

7) The Florida Senate, without providing any notice of evidence

or argument to be newly considered by the Senate, voted on a near-party

line vote on October 23, 2019, to remove Sheriff Israel from office.

8) Until Sheriff Israel’s suspension and removal, never has the

Governor of the State of Florida suspended an elected constitutional


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officer from office without founded evidentiary support based on proven

facts. Yet, the Governor did just that in suspending Sheriff Israel from

office, despite the absence of factual and evidentiary support.

9) So, too, the Florida Senate, in determining whether to remove

a suspended constitutional officer, has never relied solely on partisan

political power in the absence of proven facts or a fair opportunity for the

suspended official to be informed of the information on which the Senate’s

suspension depended.

10) Yet, Sheriff Israel, although elected by the voters of Broward

County, Florida, has been removed from office without any factual

showing of cause and without having had an opportunity to know the

information on which the Senate relied and in the absence of any fair

hearing at which Sheriff Israel was able to respond to the accusations

against him. The resulting process of suspension and removal offends

constitutional notions of due process and substantive and procedural

fairness, the result of which is the suspension and removal of an elected

official by the partisan decisions of the Governor and Florida Senate.

11) Sheriff Israel, citing the fundamental constitutional

requirements of due process that protect an elected official’s liberty and


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property interests in public office, filed this federal complaint asserting

his entitlement to be reinstated as Sheriff due to his unconstitutional

removal from office.

12) The Governor seeks dismissal, asserting the absence of

subject matter jurisdiction, the failure to state a claim upon which relief

may be granted, and Eleventh Amendment immunity (DE24, p. 5).

IV. MOTION TO DISMISS STANDARD.

13) Rule 8(a) of the Federal Rules of Civil Procedure specifies that

a pleading in a civil action must contain a short and plain statement of

the claim showing that the pleader is entitled to relief. To satisfy the Rule

8 pleading requirements, a complaint must provide the defendant with

fair notice of the claims and the grounds supporting them; dismissal is

available only if no relief could be granted under any set of facts that

could be proven consistent with the plaintiff’s allegations. Hishon v. King

& Spalding, 467 U.S. 69, 73 (1984). A complaint does not need detailed

factual allegations and is only required to provide more than mere labels

and conclusions or a formulaic recitation of the elements of a cause of

action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

14) The threshold for a complaint to survive a dismissal motion is

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exceedingly low. Ancata v. Prison Health Services, 769 F.2d 700, 703

(11th Cir. 1985). In ruling on a motion to dismiss, the court must accept

the allegations in the complaint as true and evaluate all plausible

inferences in favor of the plaintiff. See Speaker v. U.S. Dep’t of Health &

Human Servs. Ctrs. For Disease Control & Prevention, 623 F.3d 1371,

1379 (11th Cir. 2010). A Rule 12(b)(6) dismissal motion is generally

limited to the facts contained in the complaint and attached exhibits.

V. MEMORANDUM IN OPPOSITION TO MOTION TO


DISMISS.

A. The Complaint Asserts Valid Due Process Protections


in Sheriff Israel’s Elected Office.

15) The Due Process Clause of the Fourteenth Amendment to the

U.S. Constitution prohibits a state from depriving a person of “life,

liberty, or property, without due process of law.” The Clause applies to

Sheriff Israel because he has a “property” interest in his position as

elected Broward County Sheriff and a “liberty” interest in defending

against the Governor’s suspension and removal allegations. See State ex

rel. Hatton v. Joughin, 103 Fla. 877, 881 (1931) (one’s right to office and

the emoluments thereof is protected by the Fourteenth Amendment);

State ex rel. Holland v. Ledwith, 14 Fla. 220 (1872).

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16) The Due Process Clause does not prevent a state from

depriving a person of property or liberty. A state must, however, provide

due process in connection with the deprivation. See, e.g., Board of Regents

of State Colleges v. Roth, 408 U.S. 564, 569-70 (1972); Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 542 (1985). “The fundamental

requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424

U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)).

17) For constitutional purposes, this opportunity “to be heard”

predominantly occurs before the deprivation occurs. See, e.g., Goss v.

Lopez, 419 U.S. 565, 582-83 (1975); Reams v. Irvin, 561 F.3d 1258, 1263

(11th Cir. 2009). Sometimes a state government has an interest in acting

more swiftly; if that occurs, as in this case, the opportunity to be heard

must be provided “as soon as practicable.” Goss, 419 U.S. at 583.

18) The nature of the opportunity to be heard depends on the

circumstances involved, including the nature of the property or liberty

interest and the manner of its deprivation. See Mathews, 424 U.S. at 334-

35; see also Nash v. Auburn Univ., 812 F.2d 655, 663 (11th Cir. 1987)
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(citing Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)).

19) While the Due Process Clause applies to even a temporary

deprivation of a protected interest, the taking in this instance has been

made permanent. See Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., Fla.,

956 F.2d 1112, 1122 (11th Cir. 1992) (even temporary deprivation raises

due process concerns).

20) The State of Florida deprived Sheriff Israel of his elected

position for more than one year as of the present time, and in the process

has done so without affording him a fair and reasonable opportunity to

contest the “evidence’ on which his suspension and removal was based.

When he was given an opportunity to do so during the trial before the

assigned Special Master, Sheriff Israel succeeded in countermanding all

evidence upon which the Governor relied upon for the suspension. But

when the Governor opposed the Special Master’s ruling, the Florida

Senate relied on suspicion, innuendo, and unnoticed speculation to

declare that Sheriff Israel must be removed from office. The resulting

removal, now challenged by Sheriff Israel, offends notions of due process

and fundamental fairness.

21) Even though the Governor contends the Sheriff’s suspension


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and removal complied with Florida law (it did not) (DE24, p. 5-8, 9-16),

the process used in this instance does not excuse a violation of the U.S.

Constitution. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954)

(compliance with state law that nonetheless violates constitutional

principles is not immune from federal oversight).

22) A state’s deficient procedures for suspending and terminating

a state official does not constitute all the process that is due pursuant to

the U.S. Constitution. Cleveland Board of Education v. Loudermill, 470

U.S. 532 (1985), makes that point clear. There, a state school board

unsuccessfully asserted that the property interests of employees in their

employment could be limited by the procedures authorized by local law.

The Supreme Court flatly rejected that contention: “If a clearer holding

is needed, we provide it today. The point is straightforward: The Due

Process Clause provides that certain substantive rights—life, liberty, and

property—cannot be deprived except pursuant to constitutionally

adequate procedures.” Id. at 541.

23) Accordingly, the procedure due Sheriff Israel is established by

the Due Process Clause of the U.S. Constitution, not by Florida law.

Material due process protections were violated in the course of Sheriff


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Israel’s suspension and removal. The proceedings were little more than

a sham, for which Sheriff Israel has redressable recourse in this court.

B. Sheriff Israel Is a Proper Party Entitled to Challenge


the Governor’s Suspension Decision.

24) The Governor contends Sheriff Israel lacks standing to raise

claims against the Governor because he has been removed from office by

the Florida Senate (DE24, p. 16-26). This assertion has been rejected by

U.S. District Judge Hinkle in Reams v. Scott, 2018 WL 5809967, *4 (N.D.

Fla. November 6, 2018), in which the Governor suspended the elected

Clerk of Jefferson County. Against a claim that the governor’s suspension

was complete, and the clerk’s only remedy was with the Florida Senate,

District Judge Hinkle ruled the Governor remained a proper party:

The Governor says he did all he was required to do—that he


was not required to provide an opportunity to be heard before
the suspension, that his role ended at that point, and that the
responsibility for the further delay rests with the Senate. But
the Governor initiated the process that deprived Mr. Reams
of his property and liberty without the constitutionally
required due process of law. More importantly, the Governor
is the state official who can set it right—who can withdraw
the suspension at the stroke of a pen, or who can afford Mr.
Reams an opportunity to be heard on whether the suspension
should continue. Under Ex parte Young, 209 U.S. 123 (1908),
the Governor is a state official who can be ordered to end the
constitutional violation.

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25) Accordingly, contrary to the Governor’s standing objection,

Sheriff Israel has been deprived of his elected position by action initiated

by the Governor, whose suspension decision provides this court with

jurisdiction over the cause of action and the parties. The Governor’s

standing objection must be rejected.

C. The Suspension Proceedings Do Not Present a Non-


Justiciable Political Question.

26) The Governor contends Sheriff Israel’s removal from office

presents a non-justiciable “political question” that is not within the

allowable jurisdiction of the United States Courts (DE24, p. 23-26), the

due process deprivation involved in this matter is not a political question.

Nor do the Florida Constitution and applicable Florida statutes allow an

elected official’s removal from office to be based on purely partisan

political reasons.

27) As outlined in the Complaint (DE1, p. 4 ¶1), the suspension

and removal of an elected Florida constitutional officer is governed by

Article IV, §7 of the Florida Constitution, and implemented by Chapter

112, Part V, Florida Statutes. The removal and suspension procedure, as

described by the Florida Supreme Court in State ex rel. Hardie v.

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Coleman, 115 Fla. 129, 134, 155 So. 129, 135 (Fla. 1934) (emphasis

added), is a process dependent on evidence and not political power:

The power of the Governor to suspend and of the Governor and


the Senate to remove is not an arbitrary one. Both are guarded
by constitutional limitations which should be strictly
followed. It has been charged that this is an unusual power to
vest in the Governor and the Senate, and so it is, but the
people have lodged it there. The position of Governor and
Senator is one vested with great dignity and responsibility
and we are not to presume that these places will be filled by
the people with men who do not measure up to the
responsibility imposed in them. At any rate the duty imposed
should be exercised with great care and caution because,
when done, the result is final as no other power is authorized
to interfere.

28) The Florida Supreme Court validated the judicial nature of

the Senate review of actual evidence offered in support of a suspension

and removal decision in its recent decision involving Sheriff Israel’s

suspension in Israel v. DeSantis, 269 So. 3d 491, 495 (Fla. 2019). In

analogizing the Senate process to that of judicial review, the Florida

Supreme Court stated, at 495:

The “Senate is nothing less than a court provided to examine


into and determine whether or not the Governor exercises the
power of suspension in keeping with the constitutional
mandate.”

29) The Florida Supreme Court further emphasized the

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evidentiary nature of the removal process by explaining that the Senate

must consider the matter based on the evidence presented, id., at 495:

“matter of reviewing the charges and the evidence to support


them is solely in the discretion of the Senate.”

30) As in judicial proceedings, even those deemed “quasi-judicial,”

due process principles protect participants from “gotcha tactics” and

unfair overreaching by a more powerful party, such as prohibiting ex

parte contacts and unnoticed evidence. Sheriff Israel is aware that the

quality of due process required in a quasi-judicial hearing is not the same

as that to which a party to full judicial hearing is entitled. See Goss v.

Lopez, 419 U.S. 565 (1975); Hadley v. Department of Admin., 411 So.2d

184 (Fla. 1982). Nonetheless, the Supreme Court recognized that certain

standards of basic fairness must be adhered to in order to afford due

process in deliberative proceedings outside the judicial system. Matthews

v. Eldridge, 424 U.S. 319, 334 (1976) (“Due process is flexible and calls

for such procedural protections as the particular situation demands.”).

31) Consequently, in a quasi-judicial decision based upon an

evidentiary record, minimal standards of due process are required. See

Morgan v. United States, 298 U.S. 468, 480-81 (1936). A quasi-judicial

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hearing only meets basic due process requirements if the parties are

provided notice of the hearing, given an opportunity to be heard, can

present evidence, can cross-examine witnesses, and be informed of all the

facts upon which the deciding entity acts. See Coral Reef Nurseries, Inc.

v. Babcock Co., 410 So.2d 648, 652 (Fla. 3d DCA 1982).1

32) The due process impact of ex parte communications depends

in significant measure on the ability of the party against which the

unrevealed communications were directed to rebut it on the record. See,

e.g., Richardson v. Perales, 402 U.S. 389, 410 (1971) (due process

requires, at a minimum, the opportunity to know of and contest the

evidence); Professional Air Traffic Controllers Org. (PATCO) v. Federal

Labor Relations Auth., 685 F.2d 547, 564-65 (D.C. Cir. 1982)

(undisclosed, intentional ex parte contacts that may have influenced

outcome constitute due process violation); United Air Lines, Inc. v.

C.A.B., 309 F.2d 238, 240-241 (D.C. Cir. 1962) (most important

communications were placed in a public file available to all participants).

33) As identified in the complaint (DE1, pp. 13-16 ¶¶22-25) and

supported by the Senate Committee and Senate Floor transcripts, the

Florida Senate engaged in extensive ex parte contacts with the


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Governor’s lawyer, and considered a wide array of information, much of

it immaterial to the allegations against the Sheriff, never noticed or

disclosed to the Sheriff and for which the Sheriff was given no

opportunity to contest. The Governor’s counsel even admitted to having

ex parte communications with selected partisan Senators, none of which

were disclosed to Sheriff Israel by the Governor’s lawyer or the Senators

(DE1, pp. 15-16 ¶¶24-25). Several Senators, including but not limited to

Sen. David Simmons, cited to and utilized allegations that had never

been presented to the Special Master or even to the Senate by the

Governor, cited authority from other states involving the conduct of law

enforcement officials without providing any of the underlying materials,

and argued allegations that had been withdrawn by the Governor during

the proceedings, all in an effort to support Sheriff Israel’s removal in the

absence of proof presented by the Governor.

34) Not only was the Sheriff denied meaningful notice and an

opportunity to be heard, but the proceedings resulting in his removal

included speculation, innuendo, and contrivances that did not support

the only claimed grounds for removal: neglect of duty and incompetence.

The Senate’s removal decision is not a non-justiciable political decision


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but is instead a quasi-judicial review of evidence for which this court has

the duty to review for its due process deprivation. The decisions cited by

the Governor (DE24, pp. 23-26) do not involve the narrow and

circumscribed suspension and removal process enshrined in Florida law

and are a far cry from the callous and highly partisan removal of a

democratically elected sheriff based on whim, caprice, and political

power.

35) It is in the public interest for Florida officials to abide by the

Fourteenth Amendment’s Due Process Clause. In this instance, Florida’s

leadership failed Sheriff Israel and the voting public, who ultimately hold

political power through the ballot box. Art. I, §1, Florida Constitution

(“[a]ll political power is inherent in the people.”).

36) For these reasons, the Governor’s dismissal motion must be

rejected.

D. The Governor Is Not Entitled to Eleventh Amendment


Immunity.

37) Sheriff Israel’s complaint is grounded on a due process

violation of his civil rights protected by the Fourteenth Amendment and

42 U.S.C. §1983. The Governor is not immunized from suit, consistent

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with the decision of District Judge Hinkle in Reams v. Scott, 2018 WL

5809967 (N.D. Fla. November 6, 2018), granting injunctive relief in favor

of a suspended elected official against the Governor and the Senate

President. Similarly, District Judge Walker granted injunctive relief in

part against the Governor and Senate President in a challenge by the

Broward Supervisor of Elections to her suspension from office in Snipes

v. Scott, 2019 WL 163352 (N.D. Fla. January 10, 2019). See also Fair v.

Kirk, 317 F.Supp. 12 (N.D. Fla. September 15, 1970) (challenge by elected

supervisor of elections to constitutionality of Florida Constitution

authorizing suspension from office).

38) Ex parte Young, 209 U.S. 123, 146 (1908), identifies the

exception to the immunity rule: “state officers c[an] be sued in federal

court despite the Eleventh Amendment ... [if] the officers have ‘some

connection with the enforcement of the act’ in question or [are] ‘specially

charged with the duty to enforce the statute’ and [are] threatening to

exercise that duty.”). Here, the Governor and Senate President are the

very officials who hold the suspension and removal power, authority that

is not discretionary but is conferred by Florida’s Constitution.

39) The Eleventh Amendment, moreover, does not prohibit


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federal suits against state officers seeking prospective injunctive or

declaratory relief, as is sought by Sheriff Israel here. Connor v. Halifax

Hosp. Med. Ctr., 135 F. Supp. 2d 1198, 1214 (M.D. Fla. 2001).

40) Accordingly, precedent requires the conclusion that the

Governor is a proper party defendant in this action and cannot seek

immunity protection.

VI. CONCLUSION.

41) For these reasons, the Governor’s motion to dismiss must be

denied. This cause should proceed accordingly.

VII. CERTIFICATION OF WORD COUNT.

42) Pursuant to Local Rule 7.1(F) of the Northern District of

Florida, counsel certifies the word count in this memorandum is 3,660

words.

Respectfully submitted,

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S/ Benedict P. Kuehne S/ Stuart N. Kaplan


BENEDICT P. KUEHNE STUART N. KAPLAN
Florida Bar No. 233293 Florida Bar No. 647934
MICHAEL T. DAVIS STUART N. KAPLAN, P.A.
Florida Bar No. 63374 3399 PGA Blvd Ste 150
KUEHNE DAVIS LAW, P.A. Palm Beach Gardens, FL 33410-2809
100 S.E. 2nd St., Suite 3550 Tel: 561.296.7900
Miami, FL 33131-2154 Fax: 561.296.7919
Tel: 305.789.5989 skaplan@stuartnkaplanpa.com
Fax: 305.789.5987
ben.kuehne@kuehnelaw.com
mdavis@kuehnelaw.com
efiling@kuehnelaw.com

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CERTIFICATE OF SERVICE

I certify that on February 3, 2020, a true copy of the foregoing has

been filed via the EM/ECF electronic filing system, serve a copy via email

to the following counsel of record:

Nicholas A. Primrose Jeremiah Hawkes


Deputy General Counsel General Counsel
Joseph W. Jacquot Ashley Urban
General Counsel Deputy General Counsel
Joshua E. Pratt The Florida Senate
Assistant General Counsel 302 The Capitol
Executive Office of The Governor 404 S Monroe Street
The Capitol, PL-209 Tallahassee, FL 32399-1100
400 South Monroe Street Hawkes.jeremiah@flsenate.gov
Tallahassee, Florida 32399 Urban.ashley@flsenate.gov
Nicholas.Primrose@eog.myflorida.com
Joe.Jacquot@eog.myflorida.com
Joshua.Pratt@eog.myflorida.com

S/ Benedict P. Kuehne
BENEDICT P. KUEHNE

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