Garcia v. Stillman

661 F.Supp.3d 1168

René GARCIA, et al., Plaintiffs, v. Kerrie J. STILLMAN, et al., Defendants.

Case No. 22-cv-24156-BLOOM/Otazo-Reyes

United States District Court, S.D. Florida

Signed February 28, 2023

Benedict P. Kuehne, Kuehne Davis Law, P.A., Miami, FL, Scott Andrew Hiaasen, Kendall Brindley Coffey, Coffey Burlington, P.L., Miami, FL, Robert Henry Fernandez, RHF Law Firm, LLC, Coral Gables, FL, Ronald L. Book, Ronald L. Book, P.A., Hollywood, FL, for Plaintiffs.

Elizabeth Ann Teegen, Karen Ann Brodeen, Noah Temple Sjostrom, Office of the Attorney General, Tallahassee, FL, Alison Elena Preston, Florida Attorney General's Office, Tampa, FL, for Defendants.

ORDER ON MOTION FOR PRELIMINARY INJUNCTION

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Plaintiffs' Renewed Motion for Preliminary Injunctive Relief, ECF No. [19] ("Motion"), filed on December 27, 2022. Defendants filed a Response, ECF No. [35], to which Plaintiffs filed a Reply. ECF No. [42]. The Court held a hearing ("Hearing") on the Motion on January 27, 2023. See ECF No. [43]. The Court has carefully considered the Motion, the Response, the Reply, the parties' arguments at the Hearing, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, Plaintiffs' Motion is granted in part and denied in part.

I. INTRODUCTION

On December 21, 2022, René Garcia, Javier Fernández, Crystal Wagar,¹ Mack Bernard, and William Proctor ("Plaintiffs") initiated this case against Florida Attorney General Ashley Moody, Florida Chief Financial Officer Jimmy Patronis, and the following members of the Florida Commission on Ethics: Kerrie Stillman, John Grant, Glenton Gilzean, Jr., Michelle Anchors, William Cervone, Don Gaetz, William Meggs, Ed Moore, Wengay Newton, and Jim Waldman ("Defendants"). ECF No. [1]. In their Complaint, Plaintiffs asserts facial and as-applied constitutional challenges to Article 2, Section 8(f) and 8(h)(2) of the Florida Constitution (the "Anti-Lobbying Amendment") and Fla. Stat. §§ 112.3121-112.3122 (the "Implementing Statutes"). Id. The Court will refer to the Anti-Lobbying Amendment and Implementing Statutes in combination as the "Lobbying Restrictions."

The Anti-Lobbying Amendment was enacted on November 6, 2018, when 78.9% of Floridians voted in favor of a ballot initiative entitled "Lobbying and Abuse of Office by Public Officers."² ECF No. [36-1]. Consequently, Article 2 Section 8 of the Florida Constitution was amended to place significant limits on compensated lobbying by current and former "public officer[s]," whom the Anti-Lobbying Amendment defines as:

a statewide elected officer, a member of the legislature, a county commissioner, a county officer pursuant to Article VIII or county charter, a school board member, a superintendent of schools, an elected municipal officer, an elected special district officer in a special district with ad valorem taxing authority, or a person serving as a secretary, an executive director, or other agency head of a department of the executive branch of state government.

Id. § 8(f)(1).

Section 8(f)(2) prohibits public officers from engaging in compensated lobbying while in office:

(2) A public officer shall not lobby for compensation on issues of policy, appropriations, or procurement before the federal government, the legislature, any state government body or agency, or any political subdivision of this state, during his or her term of office.

Fla. Const. Art. 2 § 8(f)(2) (the "In-Office Restrictions").

Section 8(f)(3) extends lobbying restrictions "for a period of six years after vacation of the public position." Fla. Const. Art. 2 § 8(f)(3) (the "Post-Office Restrictions"). However, unlike the In-Office Restrictions, the Post-Office Restrictions are tailored depending on the public officer's former position, as follows:

a. A statewide elected officer or member of the legislature shall not lobby the legislature or any state government body or agency.

b. A person serving as a secretary, an executive director, or other agency head of a department of the executive branch of state government shall not lobby the legislature, the governor, the executive office of the governor, members of the cabinet, a department that is headed by a member of the cabinet, or his or her former department.

c. A county commissioner, a county officer pursuant to Article VIII or county charter, a school board member, a superintendent of schools, an elected municipal officer, or an elected special district officer in a special district with ad valorem taxing authority shall not lobby his or her former agency or governing body.

Id. § 8(f)(3).

The Anti-Lobbying Amendment authorizes the Florida Legislature to enact implementing legislation "including, but not limited to, defining terms and providing penalties for violations." Id. § 8(f)(5). On May 26, 2022., the Implementing Statutes were signed into law. Implementation of the Constitutional Prohibition Against Lobbying by a Public Officer, 2022 Fla. Sess. Law Serv. Ch. 2022-140 (C.S.C.S.H.B. 7001) at Sec. 3. They create penalties for violations of the Anti-Lobbying Amendment, including "[p]ublic censure and reprimand," "[a] civil penalty not to exceed $10,000," and "[f]orfeiture of any pecuniary benefits received for conduct that violates this section." Fla. Stat. § 112.3122(4). They also define many terms that appear in the Anti-Lobbying Amendment, including "Lobby," "Lobby for compensation," "Issue of appropriation," "Issue of policy," and "Issue of procurement." See generally Fla. Stat. § 112.3121. The Implementing Statutes went into effect on December 31, 2022. Id. § 112.3122(1).

On December 27, 2022, Plaintiffs moved for a preliminary injunction to preclude enforcement of the Lobbying Restrictions during the pendency of this litigation. See ECF No. [19]. Plaintiffs assert that the Lobbying Restrictions violate "core First Amendment rights of free speech, freedom of association, and the right to petition the government for redress of grievances." Id. at 4. Defendants respond that the Lobbying Restrictions serve to "nail shut the 'revolving door' between public office and private lobbying," and to prevent quid pro quo corruption. ECF No. [35] at 2, 14.

II. LEGAL STANDARD

A district court may grant a preliminary injunction only if the movant establishes the following: "(1) a substantial likelihood of success on the merits of the underlying case, (2) the movant will suffer irreparable harm in the absence of an injunction, (3) the harm suffered by the movant in the absence of an injunction would exceed the harm suffered by the opposing party if the injunction issued, and (4) an injunction would not disserve the public interest." North Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 (11th Cir. 2008) (quoting Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246 (11th Cir. 2002)). "A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishes the burden of persuasion as to the four requisites." Keister v. Bell, 879 F.3d 1282, 1287 (11th Cir. 2018) (quotation marks omitted).

III. DISCUSSION

A. Likelihood of Success

The Court begins with Plaintiffs' likelihood of success on the merits, which is "generally the most important factor" in the preliminary injunction analysis. NetChoice, LLC v. Att'y Gen., 34 F.4th 1196, 1209 (11th Cir. 2022). "A substantial likelihood of success on the merits requires a showing of only likely or probable, rather than certain, success." Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1232 (11th Cir. 2005) (emphases in the original).

The First Amendment to the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble, and to petition the government for redress of grievances." U.S. Const. amend. I. The Fourteenth Amendment's due process clause extends these prohibitions against the States. Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).

i. Standing

Defendants argue that Plaintiffs lack Article III standing to bring their facial and overbreadth challenges to the Lobbying Restrictions. ECF No. [35] at 10. First, they argue that Plaintiffs have failed to show an "injury in fact - an invasion of a legally protected interest that is both (1) concrete and particularized and (2) actual or imminent, not conjectural or hypothetical." Id. (quoting Support Working Animals, Inc. v. Governor of Fla., 8 F.4th 1198, 1201 (11th Cir. 2021)). Second, Defendants argue that Plaintiffs' overbreadth challenge fails because they have failed "to adduce evidence about how third parties will be affected differently than them." ECF No. [35] at 11. Third, Defendants assert that, even if Plaintiffs have standing to challenge some aspect of the Lobbying Restrictions, "they only have standing to dispute specific provision(s) of the Challenged Laws that injured them." ECF No. [35] at 11 (citing CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1273 (11th Cir. 2006)).

In the First Amendment context, courts apply "the injury-in-fact requirement most loosely where First Amendment rights are involved, lest free speech be chilled even before the law or regulation is enforced." Harrell v. The Florida Bar, 608 F.3d 1241, 1254 (11th Cir. 2010). "Thus, it is well-established that an actual injury can exist when the plaintiff is chilled from exercising her right to free expression or forgoes expression in order to avoid enforcement consequences. In such an instance, the injury is self-censorship." Id. (cleaned up).

The overbreadth doctrine allows plaintiffs "to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from...