Bloomberg v. Blocker

586 F.Supp.3d 1251

Sara BLOOMBERG, Plaintiff,

v.Jeremiah Ray BLOCKER, in his personal and professional capacity as the chair of St. Johns County Board of County Commissioners and as Commissioner for District 4, and St. Johns County Board of County Commissioners, Defendants.

Case No. 3:21-cv-575-TJC-LLL

United States District Court, M.D. Florida, Jacksonville Division.

Signed February 17, 2022

Rook Elizabeth Ringer, Lento Law Group, P.A., St. Augustine, FL, for Plaintiff.

Susan S. Erdelyi, Marks Gray, PA, Jacksonville, FL, for Defendants.

ORDER

TIMOTHY J. CORRIGAN, United States District Judge

This case requires the Court to determine whether Defendants St. Johns County Board of County Commissioners and its Chair Jeremiah Ray Blocker violated Plaintiff Sara Bloomberg's constitutional rights when they declined to consider a proclamation submitted by Bloomberg. This case is before the Court on Defendants’ Motion to Dismiss (Doc. 18), to which Bloomberg responded (Doc. 19).

I. BACKGROUND

Bloomberg is a citizen of St. Johns County, Florida, where Blocker is Chair of the St. Johns County Board of County Commissioners. (Doc. 13 ¶¶ 9–10). On March 8, 2021, Bloomberg emailed St. Johns County Commissioner Henry Dean about a proclamation celebrating "LGTBQ [sic] civil rights progress and the contributions of LGBTQ individuals to the St. Johns County community ...." Id. ¶ 12. Commissioner Dean responded that he supported the proposed proclamation and would approach the Chair about placing it on the agenda for consideration by the Board. Id. ¶ 13. Later, Michael Ryan, the St. Johns County Assistant Director of Public Affairs in the Office of the County Administrator, called Bloomberg and said, "the Chair of the St. Johns County Board of County Commissioners [Chairman Blocker] ultimately decides whether to place a proclamation on the agenda." Id. ¶ 14 (alterations in original); (see also Doc. 13-2 ¶ 4). Ryan called Bloomberg again on April 28, 2021, to report that "they would not consider proclamations that were ‘controversial’ or ‘too far left or too far right,’ and therefore that the proclamation would not come before the Board for consideration." (Doc. 13 ¶ 15).¹

According to Bloomberg, " ‘far left’ refers primarily to adherents of Communism, Anarchism, or other extreme revolutionary ideals" and does not describe the LGBTQ proclamation, which Bloomberg attaches to the First Amended Complaint (FAC). Id. ¶ 16–17; (Doc. 13-1). Bloomberg adds that St. Augustine, the largest city in St. Johns County, and St. Augustine Beach have issued nearly identical LGBTQ proclamations in the past. (Doc. 13 ¶ 17); (see also Doc. 13-3). Additionally, President Joe Biden issued a proclamation in honor of pride month on June 1, 2021, as Presidents Barack Obama and Bill Clinton did before him. (Doc. 13 ¶¶ 18–19); (see also Docs. 13-4, 13-5).

Bloomberg also alleges that Ryan suggested that the Board does not consider proclamations that are "national political topics." (Doc. 13 ¶ 20). Bloomberg contends that previous proclamations prove the contrary, including:

• A February 2021 Black History Month proclamation. Id.

• A 2019 Columbus Day proclamation, in the midst of national and local controversy about the holiday's origins and name. Id. ¶¶ 20–21.

• An October 2019 meeting where the Knights of Columbus, "a right wing, anti-LGBTQ, religious organization," spoke in favor of their own proclamation. Id. ¶ 22; (see also Doc. 13-8).

Bloomberg takes issue with the fact that the "organization behind [the Columbus Day proclamation] has spent well over $15 million dollars [sic] to fight LGBTQ rights," and that Chairman Blocker is affiliated with the Knights of Columbus. (Doc. 13 ¶¶ 24–25); (see also Docs. 13-9 at 2; 13-10 at 2, 3, 6).

Bloomberg claims that "Chairman Blocker holds beliefs antithetical to the fair and equal protection of LGBTQ Americans and their rights and seeks to impose these beliefs upon St. Johns County residents through his personal power as Chairman of the Board of County Commissioners." (Doc. 13 ¶ 26). Bloomberg alleges that Chairman Blocker himself declined to put the proclamation on the Board's agenda and claims that is supported by Ryan's affidavit and by Commissioner Dean's statement to local news: "Let me put it this way, I certainly support their cause and I would vote for it if it was on the agenda, but I don't have the authority to put it on the agenda." Id. ¶¶ 27–28; (see also Doc. 13-11 at 2). Bloomberg states that additional measures to convince Chairman Blocker to consider the proclamation "have been met with silence." (Doc. 13 ¶ 29).

Bloomberg filed this lawsuit on June 3, 2021, with a corresponding Motion for Temporary Restraining Order or Preliminary Injunction filed June 6, 2021. (Docs. 1, 4). The Court denied the Motion to the extent that it requested a temporary restraining order, directed Bloomberg to provide notice to Defendants, and set a hearing on the Motion for June 22, 2021. (Doc. 5). Following oral argument at the hearing, and with the benefit of briefing from both sides, the Court denied the Motion for Preliminary Injunction. (See Doc. 12). Bloomberg requested leave to file an amended complaint, which the Court allowed. Id. at 2 n.1. Bloomberg filed the FAC (Doc. 13), and Defendants filed the current Motion to Dismiss (Doc. 18).

Bloomberg alleges violation of freedom of speech under the First and Fourteenth Amendments as well as Article I, Section 4 of the Florida Constitution (Count I); violation of equal protection under the Fourteenth Amendment as well as Article I, Section 2 of the Florida Constitution (Count II); violation of Florida Statute § 286.011, Article I, Section 24 and Article III, Section 4 of the Florida Constitution (Count III); violation of Florida Statute § 286.0114 and Article I, Section 24 of the Florida Constitution (Count IV); and violation of the St. Johns County Board of Commissioners Rule 4.303 (Count V). (See Doc. 13).

II. DISCUSSION

Defendants first argue that Bloomberg has not established standing because Bloomberg has not shown a " ‘legally protected interest’ that is ‘concrete and particularized’ and that the Defendants violated [that interest]." (Doc. 18 at 9). However, as framed, this is not a true issue of standing. Rather, the Court answers this question in its analysis of the sufficiency of Bloomberg's claims.

A. Section 1983 Claims (Counts I, II)

As a preliminary matter, Florida law stipulates that "[t]he county commissioners shall sue and be sued in the name of the county of which they are commissioners." FLA. STAT. § 125.15. Bloomberg has not articulated any reason to sue Blocker in his individual capacity. He should be sued in his official capacity alone, which is the equivalent of suing his office. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ("[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office."); see also Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991).

Bloomberg brings the first two claims under 42 U.S.C. § 1983. To impose § 1983 liability on a county, a plaintiff must show: (1) that their constitutional rights were violated; (2) that the county had a custom or policy that constituted deliberate indifference to the constitutional right; and (3) that the policy or custom caused the violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). As discussed below, because Bloomberg's allegations fail to satisfy the first requirement, the Court need not address the final two elements of the § 1983 analysis.

1. Bloomberg has failed to allege a violation of the First Amendment.

In Count I, Bloomberg claims that Defendants’ alleged refusal to publicly hear or put to a vote Bloomberg's request for the LGBTQ pride proclamation because it was too "controversial" or "far left" violated the First Amendment as well as Article I, Section 4 of the Florida Constitution.² (Doc. 13 ¶ 44).

The First Amendment prohibits Congress from making laws that "abridg[e] the freedom of speech," U.S. CONST. amend I, and is applicable to the states through the Fourteenth Amendment, N.Y. Times Co. v. Sullivan, 376 U.S. 254, 301, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The law treats government speech different than private speech. See Mech v. School Bd. of Palm Beach Cnty., Fla., 806 F.3d 1070, 1074 (11th Cir. 2015) ("The Free Speech Clause of the First Amendment restricts government regulation of private speech; it does not regulate government speech.") (internal citation and quotation marks omitted). "When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says." Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015) (citing Pleasant Grove City v. Summum, 555 U.S. 460, 467–68, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) ). In Walker, the Supreme Court discussed the reasons behind its government speech jurisprudence:

That freedom [government speech not being barred by the Free Speech Clause] in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. Instead, the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect its electoral mandate .... It is not easy to imagine how government could function if it lacked the freedom to select the messages it wishes to convey ....

That is not to say that a government's ability to express itself is without restriction. Constitutional and statutory provisions outside of the Free Speech Clause may limit

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