Israel v. Desantis

• Decision Date: 05 May 2020
• Docket Number: CASE NO.: 4:19cv576-MW/MAF
• Parties: SCOTT J. ISRAEL, Plaintiff, v. RON DESANTIS, in his capacity as Governor of Florida, and BILL GALVANO, in his capacity as President of the Florida Senate, Defendants.
• Court: U.S. District Court — Northern District of Florida

SCOTT J. ISRAEL, Plaintiff, v. RON DESANTIS, in his capacity as Governor of Florida, andBILL GALVANO, in his capacity as President of the Florida Senate, Defendants.

CASE NO.: 4:19cv576-MW/MAF

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

May 5, 2020

ORDER GRANTING MOTIONS TO DISMISS

In this due process case, Plaintiff, the former Sheriff of Broward County, Florida, challenges the means by which he was removed from that office. Defendants move to dismiss the complaint, on a variety of grounds. ECF Nos. 23 & 24.

At this stage of litigation, this Court must accept as true the facts as alleged in the complaint. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Here, in brief, is what Plaintiff says happened. On January 11, 2019, Defendant DeSantis suspended Plaintiff by executive order on grounds of "neglect of duty and incompetence in connection with two mass shooting events in Broward County," namely the 2017 Fort Lauderdale-Hollywood International Airport shooting and the 2018 Marjory Stoneman Douglas High School shooting. ECF No. 1 at 7; see also ECF No. 2-1 (Executive Order 19-14). In his executive order of suspension, Defendant DeSantis laid at Plaintiff's feet the blame for several alleged operational and organizational failures relating to the two shootings, which together resulted in twenty-two deaths. Id. The Supreme Court of Florida upheld the suspension. Israel v. DeSantis, 269 So. 3d 491 (Fla. 2019). Plaintiff invoked the Florida Senate's power to review his suspension and either reverse it or remove him permanently from office. ECF No. 1 at 7.

As provided by the Florida Senate's rules, Plaintiff first had an adversarial hearing before a Senate-appointed Special Master in which both Plaintiff and Defendant DeSantis participated through counsel. Id. at 9-11. During this two-day hearing, the parties had the opportunity "to present all relevant information and evidence, cross-examine witnesses, and make argument" to the Special Master. Id. at 10. Plaintiff introduced live testimony from four witnesses and deposition transcripts of nine more, and between them Plaintiff and Defendant DeSantis introduced more than fifty evidentiary exhibits. Id. The Special Master then submitted a Report and Recommendation to the Florida Senate, recommending Plaintiff be reinstated. Id. at 11. The Florida Senate referred the Report and Recommendation to its Rules Committee for consideration, and the RulesCommittee in turn scheduled a day-long public meeting for October 21, 2019. Id. at 12. In its scheduling letter, the Rules Committee specifically explained that the meeting was "a meeting of the Rules Committee and not an evidentiary hearing." Id.

On October 11, 2019—ten days before the Rules Committee meeting—the Special Counsel to the Florida Senate advised Plaintiff and Defendant DeSantis that they should submit any "new information" for the Rules Committee's consideration. Id.; see also ECF No. 86-10 at 2 (letter to Plaintiff's counsel from Special Counsel, copied to Defendant DeSantis's counsel). This letter also informed the parties that "[t]here is no statute or rule prohibiting the parties, or any other person, from discussing the merits of any suspension case with an individual Senator." Id. Plaintiff objected to this alleged change in the Florida Senate's rules, which permitted consideration of information not presented to the Special Master and "ex parte" communications between the parties and individual Senators. ECF No. 1 at 13. Before the Rules Committee meeting, Defendant DeSantis submitted two supplemental investigative reports and an additional memorandum presenting new argument beyond that presented to the Special Master. Id. Plaintiff claims the Rules Committee considered this "new information" without providing him "any meaningful opportunity to investigate, contest, or respond to the information." Id. at 14. Plaintiff also claims the Rules Committee considered "highly objectionablematerial" including, among other things, "an 'alter-ego' doctrine" that Plaintiff alleges Defendant DeSantis never advanced before that point; allegations withdrawn by Defendant DeSantis concerning a county radio system with which Plaintiff had no connection; "assertions and arguments made by members of the public whose information was not noticed to [Plaintiff];" and "unknown but admitted ex parte communications by the Governor's Office with individual Senators." Id. at 14-15. The Florida Senate then convened in special session and held a floor debate on Plaintiff's suspension, which Plaintiff alleges contained the same flaws as the Rules Committee hearing. Id. at 15-16. At the conclusion of the debate, the Florida Senate voted to permanently remove Plaintiff from office. Id. at 16.

Plaintiff claims "the combined official actions of the Governor and Senate" deprived him of due process of law by infringing on his property and liberty interests in serving as Sheriff of Broward County. ECF No. 1 at 23, 26. Plaintiff seeks declaratory and injunctive relief, and asks this Court to not just reverse the Florida Senate's decision to make his suspension permanent but to order that he be reinstated into office. See generally ECF No. 1. Defendants move to dismiss the complaint because, among other bases, it fails to state a claim for which relief can be granted, because Plaintiff lacks standing to sue Defendant DeSantis, and because Defendant Galvano is entitled to legislative immunity.

This Court understands why Plaintiff, believing the blame for numerous brutal murders has been unfairly and undeservedly laid at his feet, might feel wronged. He believes he was first scapegoated and then railroaded, without a fair chance to defend himself. But the issue in this case is not whether Defendants made the right decision in removing Plaintiff from office, and this Court is not a forum to relitigate the merits of Plaintiff's suspension and removal. The issue also is not whether the process Plaintiff received was perfect or could have been fairer or more robust, nor whether it conformed to Florida law. The sole issue before this Court is whether the process Plaintiff alleges he received satisfies the requirements of the Due Process Clause.

As explained below, having considered Defendants' motions and Plaintiff's responses, and after hearing on March 27, 2020, this Court concludes Defendants' motions are due to be GRANTED IN PART AND DENIED IN PART, but that those portions due to be granted are dispositive of the case and therefore Plaintiff's complaint must be DISMISSED in its entirety.

Note on Procedural Posture

This case is before this Court on Defendants' motions to dismiss. As previously noted, this Court must, therefore, accept the well-pleaded facts of the complaint as true for purposes of this motion, resolving any ambiguity—and making any reasonable inferences—in Plaintiff's favor. But the way Plaintiff has chosen toplead his case forces this Court into an unusual position, one that merits explanation before proceeding further.

Plaintiff's complaint is a three-count, thirty-two-page document. ECF No. 1. Plaintiff made the choice, however, to also include, incorporate, and refer to sixty-one attachments to the complaint. See ECF No. 1-4 (table of attachments). Calling these attachments voluminous would be putting it mildly. Together, they comprise more than seven thousand pages of documents, ranging from the executive order suspending Plaintiff, to the transcript of the Special Master hearing, the exhibits the parties submitted during that hearing, the transcript of the Rules Committee meeting, and the transcript of the Florida Senate's floor debate. See ECF Nos. 2, 4, 7, 14-19, and 61-90 (attachments to complaint).¹ These attachments are considered part of the pleadings and are therefore properly before this Court when considering the instant motions. See Solis-Ramirez v. U.S. Dep't of Justice, 758 F. 2d 1426, 1430 (11th Cir. 1985). In practical terms, therefore, Plaintiff filed a more than seven-thousand-page complaint.

Plaintiff's choice to plead his case in this way has an important legal consequence. "Where there is conflict between allegations in a pleading and exhibits thereto, it is well settled that the exhibits control." Friedman v. Market Street Mortg. Corp., 520 F.3d 1289, 1295 n.6 (11th Cir. 2008) (quoting Tucker v. Nat'l Linen Serv. Corp., 200 F.2d 858, 864 (5th Cir. 1953)). "The classic example is when a plaintiff attaches a document to his complaint but his allegations about what the document is or says contradict the document itself." Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016). In other words, by choosing to include the entire record of the suspension and removal proceedings as attachments to the complaint, Plaintiff forces this Court into the unusual posture of having to accept his allegations as true, and to draw all reasonable inferences in his favor, except to the extent the attachments he has provided contradict his pleadings or foreclose those inferences. If all that were before this Court were ECF No. 1, and nothing else, this Court's analysis of the pending motions might look different. But, because Plaintiff chose to provide this Court with such a voluminous body of attachments, and because those attachments are part of the complaint for purposes of the instant motions, Plaintiff has forced upon this Court the obligation to defer to the contents of those attachments where they conflict with his complaint.

This Court provides this notation to clarify what it is and is not doing. This Court is not converting the instant motions into a summary-judgment posture, whichwould entail providing the parties with prior notice and an opportunity to submit additional facts. See Fed. R. Civ. P. 12(d) (providing that, if matters outside the pleadings are presented, "the motion must be treated as one for summary judgment under Rule 56. All parties must be...