Green v. Alachua Cnty.

• Decision Date: 11 June 2021
• Docket Number: No. 1D20-1661,1D20-1661
• Citation: 323 So.3d 246
• Parties: Justin GREEN, Appellant, v. ALACHUA COUNTY, Appellee.
• Court: Florida District Court of Appeals

323 So.3d 246

Justin GREEN, Appellant,

v.ALACHUA COUNTY, Appellee.

No. 1D20-1661

District Court of Appeal of Florida, First District.

June 11, 2021

Rehearing Denied July 16, 2021

Seldon J. Childers and J. Eric Hope of Childers Law, LLC, Gainesville, for Appellant

Louis Leo, IV, Joel Medgebow, Melissa Martz, and Cory C. Strolla of Florida Civil Rights Coalition, P.L.L.C., Coconut Creek, Amicus Curiae in support of Appellant.

Jack M. Ross and Krista L.B. Collins of Siegel Hughes & Ross, Gainesville, for Appellee.

Helene C. Hvizd, Senior Assistant County Attorney, Palm Beach County, West Palm Beach, Amicus Curiae in support of Appellee.

Tanenbaum, J.¹

From May 2020 until around mid-May 2021, anyone residing in or visiting Alachua County has found himself under the yoke of a mask mandate, accomplished through a series of emergency orders from the chair of the board of county commissioners. Under these fiats, any person in the county had to wear a government-approved face-covering to patronize a restaurant, grocery store, or retail establishment; visit or work on a construction site; or use public transit. The diktats also required that a person cover his face in any location "where social distancing measures are not possible." One consequence for being caught without a mask was a fine. Another consequence was being subjected to whispering informants, impelled by county-designed publicity like the following proposed signage encouraging citizens to inform on their disobedient neighbors:

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The threat of government-sponsored shaming was not an idle one. The chairman who issued the original mask mandate stated publicly that "masks are the only outwardly visible signal that you are contributing to the solution," and that "masks are also a sign of respect that you recognize [essential workers’] risk and are doing something to lower it."

Justin Green sued the county to challenge the mask mandate, which until recently seemed like it might never end.² Green argues, among other points, that the county's command that he wear something on his face violated his fundamental right to privacy. He moved for an emergency temporary injunction, and after a hearing, the trial court denied the request. Green appeals that order denying the injunction. We reverse because the trial court did not apply the strict scrutiny that the supreme court specifically requires for this type of constitutional challenge. We remand so the trial court can apply the correct analysis, if there is any extant mask mandate for Green to challenge.

I.

In the typical case, to obtain a temporary injunction, a plaintiff would have to establish the following: (1) that irreparable harm is likely; (2) that an adequate remedy at law is unavailable; (3) that success on the merits is substantially likely; and (4) that the injunction would serve the public interest. Naegele Outdoor Advert. Co. v. City of Jacksonville , 659 So. 2d 1046, 1047 (Fla. 1995). The only matter for our review regarding an order on a temporary injunction would be whether the trial court abused its discretion when it considered these four elements and ruled on the request. See Alachua County v. Lewis Oil Co. , 516 So. 2d 1033, 1035 (Fla. 1st DCA 1987) ("Wide judicial discretion rests in the circuit court in granting or dissolving temporary injunctions, and an appellate court will not interfere where no abuse of discretion appears."). Also, we ordinarily would not consider de novo the required elements of a temporary injunction. Generally, we would neither consider anew the merits of a constitutional claim nor offer preliminary commentary on the possible legal viability of those claims. See Smith v. Hous. Auth. of City of Daytona Beach , 148 Fla. 195, 3 So. 2d 880, 881 (1941) ("The obvious purpose of a temporary injunction is the maintenance of the subject matter in status quo pending the determination of the cause and, as the name implies, such an order is not conclusive and the provisions of it may be merged in, or dissolved by, the final decree.").

However, the supreme court has said that the analysis is entirely different when a temporary injunction motion is based on a privacy challenge. See Gainesville Woman Care, LLC v. State , 210 So. 3d 1243, 1256 (Fla. 2017). In Gainesville Woman Care , the court took us to task for not strictly adhering to its prior directives for handling such appeals. The supreme court in that case expressed again and again the sentiment that this court "misapplied and misconstrued [supreme court] precedent by placing the initial evidentiary burden on [the plaintiffs] to prove a ‘significant restriction’ on Florida's constitutional right of privacy before subjecting [the challenged law] to strict scrutiny." Id. at 1245 (quoting in part State v. Gainesville Woman Care, LLC , 187 So. 3d 279, 282 (Fla. 1st DCA 2016) ); id. at 1258 (concluding that this court "erred in admonishing the trial court for its failure to" make fact findings as to the "existence of a significant restriction on a woman's right to seek an abortion"); see also id. at 1246, 1255, 1259, 1260, 1261, 1262, 1263, 1264. We will not make that mistake again.

Rather, as we are told we must do, we will follow (and expect trial courts to do the same) what the supreme court made quite clear, repeatedly, in that case: The right of privacy is a "fundamental" one, expressly protected by the Florida Constitution, and any law that implicates it "is presumptively unconstitutional," such that it must be subject to strict scrutiny and justified as the least restrictive means to serve a compelling governmental interest. Id. at 1246 (emphasis supplied); see also id. at 1253, 1254, 1256, 1260, 1265 ; Winfield v. Div. of Pari-Mutuel Wagering , 477 So. 2d 544, 547 (Fla. 1985) (identifying the "compelling state interest standard" as the "explicit standard to be applied" to a privacy claim, "in order to give proper force and effect to the amendment"). The supreme court in Gainesville Woman Care told us multiple times what this special approach means for the evidentiary burden at a temporary injunction hearing: A plaintiff does not bear a threshold evidentiary burden to establish that a law intrudes on his privacy right, and have it subjected to strict scrutiny, "if it is evident on the face of the law that it implicates this right." 210 So. 3d at 1255 (emphasis supplied); see also id. at 1245–46, 1256, 1258–59.

We read the supreme court's jurisprudence on the right to privacy to require that we make a single, threshold, de novo inquiry when considering a temporary injunction appeal—Does the challenged law implicate an individual's right of privacy? Cf. Winfield , 477 So. 2d at 547 (explaining that before strict scrutiny applies, there must be a "threshold" determination of whether "a reasonable expectation of privacy" exists). This question appears to be a legal one. Cf. Gainesville Woman Care , 210 So. 3d at 1256 ; In re T.W. , 551 So. 2d 1186, 1192 (Fla. 1989) (determining as a legal matter that "Florida's privacy provision is clearly implicated in a woman's decision of whether or not to continue her pregnancy"); Winfield , 477 So. 2d at 548 (explaining that "it is within the discretion of [the supreme court] to decide the limitations and latitude afforded article I, section 23," and declaring, as a matter of state law, that an individual has a "legitimate expectation of privacy in financial institution records"). And that conclusion determines what type of proceeding the trial court must conduct when it considers a temporary-injunction motion.

If a challenged law implicates a privacy right, the burden shifts to the government "to prove that the law further[s] a compelling state interest in the least restrictive way." Gainesville Woman Care , 210 So. 3d at 1260. When the government fails to offer evidence to demonstrate a compelling state interest, the trial court then is absolved of having to make any finding to that effect. See id. at 1260–61. In this context, the supreme court also tells us that the remaining prongs of the inquiry collapse into the first prong. See id. at 1263–64 (holding that given the likelihood of the law's unconstitutional impingement on privacy, there could be no adequate remedy at law for its enforcement; the law's mere "enactment would lead to irreparable harm"; and enjoining the enforcement of a law encroaching a fundamental constitutional right would serve the public interest).

II.

A.

When we look at the proceeding before the trial court through the lens of Gainesville Woman Care , then, we must initially consider whether the trial court reached the right conclusion about whether the mask mandate implicated a privacy right. The trial court did not subject the mask mandate to strict-scrutiny analysis, because the court concluded at the threshold that there was no cognizable constitutional right in play. As the trial court put it in its order, "[t]here is no recognized constitutional right not to wear a facial covering in public locations or to expose other citizens of the county to a contagious and potentially lethal virus during a declared pandemic emergency."

The trial court, though, did not assess Florida law to consider Green's asserted right of privacy. Indeed, it never discussed or even referenced the Florida Constitution's express guarantee of privacy. It instead relied heavily on a case from a federal appellate court that considered a challenge to Florida's motorcycle helmet law under the United States Constitution. Cf. Picou v. Gillum , 874 F.2d 1519, 1521–22 (11th Cir. 1989). In Picou the Eleventh Circuit stated that "there is no broad legal or constitutional ‘right to be let alone’ by government," which the trial court quoted in its order. Id. at 1521. The trial court later backtracked by seemingly acknowledging there is a right to be let alone, but it still concluded that the right "is no more precious than the corresponding right of his fellow citizens not to become infected by that person and...