Everglades Law Ctr., Inc. v. S. Fla. Water Mgmt. Dist., s. 4D18-1220

• Decision Date: 18 September 2019
• Docket Number: 4D18-1519 & 4D18-2124,Nos. 4D18-1220,s. 4D18-1220
• Citation: 290 So.3d 123
• Parties: EVERGLADES LAW CENTER, INC., Maggy Hurchalla, and Donna Melzer, Appellants, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, a public corporation of the State of Florida, Martin County, a political subdivision of the State of Florida, Lake Point Phase I, LLC, a Florida limited liability company, and Lake Point Phase II, LLC, a Florida limited liability company, Appellees.
• Court: Florida District Court of Appeals

290 So.3d 123

EVERGLADES LAW CENTER, INC., Maggy Hurchalla, and Donna Melzer, Appellants,

v.SOUTH FLORIDA WATER MANAGEMENT DISTRICT, a public corporation of the State of Florida, Martin County, a political subdivision of the State of Florida, Lake Point Phase I, LLC, a Florida limited liability company, and Lake Point Phase II, LLC, a Florida limited liability company, Appellees.

Nos. 4D18-1220

4D18-1519 & 4D18-2124

District Court of Appeal of Florida, Fourth District.

[September 18, 2019]

Marcy I. LaHart of Marcy I. LaHart, P.A., Micanopy, for appellant Everglades Law Center, Inc.

Virginia P. Sherlock of Littman, Sherlock & Heims, P.A., Stuart, for appellant Maggy Hurchalla.

Donna Sutter Melzer, Palm City, pro se.

Thomas E. Warner and Dean A. Morande of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Amicus Curiae First Amendment Foundation, Inc.

Brian J. Accardo, James W. Sherman, Judith W. Levine and Laura E. Scala-Olympio of South Florida Water Management District, West Palm Beach, for appellee South Florida Water Management District.

Meagan L. Logan of Marks Gray, P.A., Jacksonville, and Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, for Amicus Curiae Florida Defense Lawyers Association.

Richard Grosso of Richard Grosso, P.A., Davie, for appellants Everglades Law Center, Inc., and Maggy Hurchalla.

Daniel S. Melzer, Palm City, for appellee Donna Melzer.

Conner, J.

We address a matter of first impression involving shade meetings¹ and the public's interest in protecting government in the sunshine and mediation communications. Reading applicable provisions of the Florida Constitution and statutes in pari materia, we conclude that mediation communications disclosed by a governmental attorney during a shade meeting are to be redacted from the transcript of the shade meeting when it becomes a public record.

Everglades Law Center, Inc. ("ELC"), Maggy Hurchalla ("Hurchalla"), and Donna Sutter Melzer ("Melzer") (collectively, "Appellants"), appeal several orders entered by the trial court involving the trial court's determination that mediation communications are exempt from disclosure with reference to the transcript of a shade meeting conducted by the South Florida Water Management District ("the District"). Appellants also appeal the trial court's order denying their motions to dismiss for improper venue. We affirm without discussion the trial court's venue ruling. We also affirm the trial court's determination that mediation communications are subject to redaction from the shade meeting transcript and explain our analysis.² However, the trial court erred in denying Appellants' petition for mandamus to compel the disclosure of the full shade meeting transcript without conducting an in camera review of the transcript to determine if redactions were appropriate. Thus, we affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

Background

Lake Point Phase I, LLC and Lake Point Phase II, LLC (collectively, "Lake Point"), the District, and Martin County entered into a partnership for an environmental project. After contract disputes arose, Lake Point brought suit against the District, Martin County, and Hurchalla, claiming damages ("the Lake Point Litigation"). During the course of that litigation, the trial court ordered the parties to attend mediation.

The District filed a certification of authority, naming its attorney, Brian Accardo, as its representative at mediation, certifying that he "ha[d] full authority to negotiate on behalf of the District and to recommend settlement to the District's Governing Board [ ("the Board") ]." Several mediation sessions were conducted by the mediator with all of the parties. Eventually, Lake Point and the District developed a settlement agreement at mediation ("the MSA").

The District held duly noticed meetings that included closed and confidential attorney-client sessions in accordance with section 286.011(8), Florida Statutes (2017). At issue in this case is one specific meeting that occurred on August 23, 2017 ("the Shade Meeting"). An open meeting immediately preceded the Shade Meeting. When the Board convened the Shade Meeting, a certified court reporter recorded the entire closed-door session, as required by statute.

According to the minutes of the public portion of the meeting, only the Board members and two attorneys representing the District in the Lake Point Litigation were present during the Shade Meeting. At the conclusion of the Shade Meeting, the Board immediately returned to an open meeting, whereupon the chair solicited a motion to "accept or reject the terms of the settlement," referring to the discussion during the Shade Meeting. The Board approved the MSA at that open meeting.

Subsequently, Lake Point and the District entered a joint stipulation for dismissal of their respective claims against one another with prejudice. Eventually, Martin County and Lake Point entered into a separate mediated settlement agreement, resulting in Martin County being dismissed from the litigation. The litigation between Lake Point and Hurchalla continued to a jury trial.

Notably, ELC, a nonprofit law firm dedicated to representing the public interest in environmental and land use matters, became interested in the Lake Point Litigation. ELC strives to enhance governmental transparency regarding governmental decisions impacting the environment.

After it was dismissed from the litigation, the District filed an action for declaratory relief, naming ELC, Martin County, Hurchalla, and Lake Point as defendants. The District alleged that shortly after it approved the MSA, Appellants made a public records request for the Shade Meeting transcript. The District requested the trial court enter a declaratory judgment that it was not required to produce and disclose the Shade Meeting transcript.

ELC filed its answer and also filed a counterclaim in the form of "a petition for writ of mandamus to enforce the provisions of Chapter 119, Florida Statutes." ELC requested that the trial court enter a writ requiring the District to produce the full Shade Meeting transcript. Melzer filed a similar counterclaim seeking disclosure of the full transcript.

At the hearing on ELC's petition for writ of mandamus, the District argued that the Shade Meeting transcript was exempt from disclosure pursuant to section 44.102(3), Florida Statutes (2017), which states: "All written communications in a mediation proceeding, other than an executed settlement agreement, shall be exempt from the requirements of chapter 119." ELC argued that the statements made during the Shade Meeting and the transcript were not "written communications" and the statements were not made in a "mediation proceeding." At no time during the proceedings below did Appellants ask the trial court to conduct an in camera review of the Shade Meeting transcript. The transcript was not filed in the trial court and is not part of the appellate record.

The trial court entered an order denying ELC's petition for writ of mandamus and entering final judgment on ELC's counterclaim. In its written order, the trial court noted that "because the parties agreed that this Court was not required to take evidence, the Court relies on the representations of counsel," and found that "as a matter of law, mediation communications reflected in the transcripts are exempt from disclosure under Chapter 119."

Based on Appellants' stipulation that the trial court's ruling as to the petition for mandamus was determinative of the declaratory judgment actions, the trial court entered final judgment in favor of the District on all claims and counterclaims filed by Appellants. The Appellants gave notice of appeal.

Appellate Analysis

In support of their contention that they are entitled to the full transcript of the Shade Meeting, Appellants rely on section 286.011(8), Florida Statutes (2017). Section 286.011(8) provides for a limited exception to the public meeting requirements of Florida's Sunshine Law. Appellants contend that section 286.011(8) does not contain an explicit exception for mediation communications. Appellants further contend that there is no provision of chapter 119, Florida's Public Records Act, which permanently exempts the disclosure of the Shade Meeting transcript. Additionally, Appellants argue that the trial court erroneously interpreted statutes pertaining to mediation to conclude that there is a public records exemption from disclosure of the Shade Meeting transcript. In Appellants' view, the trial court impermissibly expanded the temporary delay for the public to have access to the full Shade Meeting transcript, as contemplated by section 286.011(8), into a permanent delay.

The District contends that the statutory provisions protecting the confidentiality of mediation communications are not at odds with the provisions of section 286.011(8). The District relies primarily on section 44.102(3), Florida Statutes, in arguing that the trial court properly determined that mediation communications are not to be disclosed to the public in a Shade Meeting transcript. The trial court relied upon section 44.102(3), as well as section 44.405(1), Florida Statutes, in denying the relief sought by Appellants.

Also important to the analysis are the provisions of article I, section 24 of the Florida Constitution. We proceed with a discussion of the pertinent constitutional and statutory provisions.

Florida's Sunshine Law and Section 286.011(8)

"Originally codified by statute, the Sunshine Law ... became part of the Florida Constitution." Monroe Cty. v. Pigeon Key Historical Park, Inc. , 647 So. 2d 857, 860 (Fla. 3d DCA 1994). In November 1992, the Florida Constitution was amended to add article I, section 24. The constitutional amendment "elevated the public's right to government in the sunshine to constitutional proportions." Zorc v. City of Vero Beach , 722 So. 2d 891, 896 (Fla. 4th DCA 1998). Article I, section 24(b),...