IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT,
IN AND FOR LEON COUNTY, FLORIDA
ROBERT R. ROSCOW and
THEODORE E. BIERLY
(a/k/a TEDDI BIERLY),
Plaintiffs,
vs. CASE NO. 03-CA-1893
JOSE' ABREU,
as Secretary of the
FLORIDA DEPARTMENT
OF TRANSPORTATION,
Defendant.
______________________________
IN RE: Chamber Hearing
BEFORE: Honorable Janet Ferris
DATE: October 5, 2004
TIME: Commenced at 2:30 p.m.
Concluded at 3:33 p.m.
LOCATION: Leon County Courthouse
Tallahassee, FL
REPORTED BY: VERONICA M. GUTIERREZ
Court Reporter
ACCURATE STENOTYPE REPORTERS, INC
2894 REMINGTON GREEN LANE
TALLAHASSEE, FL 32308 (850)878-2221
2
APPEARANCES:
REPRESENTING PLAINTIFFS:
ROSS STAFFORD BURNAMAN, ESQUIRE
LAW OFFICES OF ROSS STAFFORD BURNAMAN
1018 HOLLAND DRIVE
TALLAHASSEE, FLORIDA 32301-4508
REPRESENTING DEFENDANT:
ROBERT D. VANHORNE, ESQUIRE
DEPARTMENT OF TRANSPORTATION
605 SUWANEE STREET, MS 58
TALLAHASSEE, FLORIDA 32399-0458
ALSO PRESENT:
KATHY LAMB-FLYNN, ESQUIRE
JACK LEONARD, ESQUIRE
RAYMOND ASHE, ESQUIRE
MARIANNE TRUSSELL, ESQUIRE
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1 P R O C E E D I N G S
2 THE COURT: Mr. Burnaman?
3 MR. BURNAMAN: Yes.
4 THE COURT: Obviously I don't think we have
5 time to consider all of these. We can give it a
6 shot, but what is your preference as far as most
7 important?
8 MR. BURNAMAN: Well, Judge Ferris, I wouldn't
9 have set three motions for half an hour, but for
10 the fact the Defendants were gracious enough to
11 agree, if you will, to the attorneys' fees and
12 court costs --
13 THE COURT: Okay.
14 MR. BURNAMAN: -- so we don't need to argue
15 that, unless Your Honor desires argument. The only
16 question we have with respect to the court costs
17 and the attorneys' fees is the form of the order
18 itself.
19 I prefer a form particularly with respect to
20 the attorneys' fees that sets forth findings of
21 fact and conclusions of law. Mr. VanHorne was
22 gracious enough to draft an alternate order that
23 summarily just grants the amounts.
24 And so -- what I would suggest is that we
25 simply present Your Honor with the proposed orders
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1 in that regard that we have already exchanged
2 previously and let Your Honor decide what forms she
3 prefers.
4 THE COURT: Okay. Do you want to give me your
5 thoughts on why? I mean, in other words, if these
6 amounts are essentially stipulated to, is there
7 some reason why you want some special findings,
8 et cetera.
9 MR. BURNAMAN: Well, Your Honor, I can't
10 profess to be an expert on collecting attorneys'
11 fees, since I so rarely win. But the Rowe case --
12 and I read a recent Fourth DCA case that suggests
13 that notwithstanding the stipulations of the
14 parties, there was some suggestion that a trial
15 court is required to make particular findings of
16 fact on attorneys' fees. Now, Mr. VanHorne
17 suggested that's where there's a dispute as to the
18 amount. But in an abundance of caution, since the
19 order is relatively short anyway, that's the reason
20 I did it that way, basically through ignorance.
21 THE COURT: That's not ignorance. That is a
22 very technical matter, if it is disputed. Some of
23 my more elaborate orders have occurred on either
24 attorneys' fees or taxation costs when there is a
25 dispute. And it is very complex, so I don't
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1 disagree about that. It's just that generally if
2 there's an agreement, we would assume there's not
3 going to be any intent to attack the order. Now,
4 the only thing that I would do, I'm going to put
5 the word "final" in front of whatever I do so that
6 it's very clear. We'll have the judgment and then
7 of course the Court always has jurisdiction to
8 conclude matters on cost of fees, but I just want
9 to make sure that that's done as a final order,
10 too, okay?
11 MR. BURNAMAN: Yes, ma'am.
12 THE COURT: So we'll get that taken care of,
13 and I will take a look at both of them.
14 MR. VANHORNE: Our only point was that the
15 case that Mr. Burnaman cited, the Highlands case it
16 was contested as to both the fees and the costs,
17 and that's why they talk about having findings of
18 fact. And it just doesn't apply in this case.
19 THE COURT: Okay. Fair enough. All right.
20 So I suspect then that the real matter at issue is
21 the motion for remedies and enforcement of the
22 final judgment?
23 MR. BURNAMAN: Yes, Your Honor, thank you.
24 And incidentally, this afternoon I filed with the
25 clerk and I also provided to Mr. VanHorne, although
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1 he had already left his office, a written request
2 for judicial notice. And I have a copy for Your
3 Honor. And Your Honor what that request for
4 judicial notice is, it's a hard copy of three of
5 the pages from the Suncoast Parkway to the Internet
6 site that's been referred to throughout this
7 litigation. The Internet address is given in the
8 request, and the basis for the request for judicial
9 notice is 90.202(12) where it's a matter that's
10 capable of ready and accurate determination from a
11 source whose accuracy cannot be questioned.
12 And I would just note that in the motion for
13 remedies and enforcement of the final judgment in
14 paragraph five, I did in fact refer to the Internet
15 site. And the complaint that I have with respect
16 to the Internet site is that one can go on the
17 Internet with respect to the pages that are
18 attached to the judicial notice, that is the public
19 involvement opportunity page particularly, and not
20 see any reference whatsoever to the fact that
21 future ERAG meetings, were they to be scheduled,
22 would be open to the public.
23 And it seems to me that the Court ought to
24 enforce the summary final judgment with respect to
25 the Department to require them to update their Web
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1 site to where, if they're going to have a Web site,
2 that purports to advise the public as to what their
3 opportunities are with respect to public
4 participation as to the project. It ought to
5 provide accurate information.
6 And -- so there was an objection to the
7 request for judicial notice, and I'll just let
8 Mr. VanHorne speak to that, perhaps when I conclude
9 my argument on the motion for remedies and
10 enforcement of the final summary judgment.
11 So with respect to the enforcement of the
12 final summary judgment essentially, we want to make
13 sure --
14 MS. BERRY: Excuse me. May I interrupt you
15 and say, I can just tell you in about three words
16 my objection to the request for judicial notice
17 would be materiality, timeliness, and the fact that
18 this is not an evidentiary hearing. And we don't
19 need to take evidence in this. I'm sorry, Ross.
20 THE COURT: That's what I'm trying to sort out
21 here, because I sense that there -- well, let me
22 continue to hear then from Mr. Burnaman and I'll
23 see where we are.
24 MR. BURNAMAN: May I, Your Honor?
25 THE COURT: Yeah, go ahead. I'm sorry.
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1 MR. BURNAMAN: Again, paragraph five of the
2 motion for remedies and enforcement of final
3 judgment specifically references the Internet site
4 and the public involvement opportunities and the
5 ERAG portions of this site. I also included the
6 PD&E page, as well.
7 Now, the, the more important aspect of the
8 motion for remedies pertains to those five ERAG
9 meetings that were held out of the Sunshine and
10 what the Court should do with respect to enforcing
11 the summary final judgment. And I have cited to,
12 in part, the government and the Sunshine manual,
13 Your Honor. It's been previously referenced in
14 this litigation, but I have some cases that I would
15 like to provide to the Court, the first being the
16 County of Palm Beach versus Gradison case. And I
17 have taken the liberty, Your Honor, to highlight
18 portions of the opinion with a yellow highlighter
19 that I believe are pertinent to Your Honor's
20 consideration.
21 The first of which is on page 477, I believe,
22 in the column on the right. And it's talking about
23 the purposes of the Sunshine law in embracing the
24 collective inquiry and discussion stage within the
25 terms of the statute. And that is in fact what
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1 ERAG has done throughout is they've had these five
2 meetings where they have had a collective inquiry
3 discussion of the PD&E of the project.
4 And the second highlighted portion is on 478,
5 and that's the holding, Your Honor, where the --
6 they held that the zoning ordinance ultimately
7 adopted by the town counsel was rendered invalid
8 because of the nonpublic activities of the
9 citizens' planning committee. Here, we don't have
10 a complete PD&E study for Your Honor to invalidate,
11 but we were able to nip in the bud this unlawful
12 out of the Sunshine conduct by DOT. And so the
13 question is: Since there's no final PD&E product,
14 what should the Court do with respect to the
15 incomplete PD&E product? And what we're asking
16 Your Honor to do is to, in essence, invalidate the
17 draft PD&E with respect to the corridor and the
18 alignment phases of the project.
19 So in essence what we would like the Court to
20 do is to take the project PD&E as it existed as of
21 the date of the first ERAG meeting and have the
22 Defendant start the project planning over at that
23 stage. And then of course if ERAG chooses to
24 consider and participate in the PD&E study, the
25 public would have the opportunity to benefit from
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1 attendance of the ERAG meetings whereby the
2 corridors were discussed and the relative
3 alignments were chosen and the criteria for
4 selection of alignments were also discussed, which,
5 as you recall, it's essentially where ERAG left off
6 at the last meeting was discussing whether it would
7 be more appropriate for them to propose alternative
8 alignments or whether they should participate in
9 establishing the criteria for mitigation,
10 minimization, and so forth.
11 The second case that I'd like to present to
12 Your Honor is Torque versus City of Vero Beach.
13 And again, I've taken the liberty of highlighting
14 portions of the Torque opinion. It's not
15 particularly instructive. First of all, it's not
16 from either the Supreme Court or the First DCA.
17 But toward the end of the opinion, there is some
18 discussion about the Gradison decision in light of
19 a more recently decided decision of Tolar. And I'm
20 on page 902. And -- strike that.
21 I'm on page 903 in the left-hand column in
22 headnote 17 where it's talking about, that only a
23 full, open hearing will cure a defect arising from
24 a Sunshine law violation. And that -- further on
25 the page 903, that they don't want for there to be
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1 a perfunctory or ceremonial meeting to ratify
2 actions that were previously taken out of the
3 Sunshine. And frankly, that's what I'm afraid
4 might occur in this instance is that ERAG could
5 simply convene at one meeting and say, well
6 everything we've done so far is fine, and so we'll
7 move forward. And that would be something that
8 we're trying to have the Court avoid.
9 The next case is Silver Express Company versus
10 Miami-Dade College. And again, I've highlighted
11 the case in 1101. And Silver Express involved a
12 bidding issue where there was an ad hoc committee
13 set up to advise the college with respect to
14 competitive bid situation. But again, the
15 importance of the decision, even though it's not
16 precedential insofar as it's not from the First DCA
17 or the Florida Supreme Court is that it does
18 suggest the only remedy for a Sunshine violation --
19 I'm on page 1101 -- is to enjoin enacting on the
20 decisions made out of the Sunshine.
21 And lastly, I have the case of Blackbird
22 versus School Board of Orange County for Your
23 Honor. And again, I've highlighted the last page,
24 page 581. And in that instance there was a --
25 essentially an invasion of meetings of a school
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1 board by acting through a staff intermediary. And
2 the Court didn't throw out, if you will, or require
3 the school board to designate Cherokee High School
4 or junior high school, if there is a particular
5 school.
6 But what they did recognize is where there had
7 been multiple meetings over several -- or over a
8 long period of time over a period of weeks that
9 it's unfair to simply have a meeting with, I think,
10 11 days' notice and say, well, this is what the
11 work product was and bless it and it go on.
12 Here, it seems to me -- again, I couldn't find
13 a case that was more on point than the Palm Beach
14 versus Gradison decision. But it seems to me that
15 the only remedy that the Court has, since there is
16 no final PD&E devoid is set the Department back to
17 square one the state of the PD&E as it was on the
18 date that ERAG began its deliberations. And unless
19 the Court has any questions, that's all I have.
20 THE COURT: Okay.
21 MR. VANHORNE: Well, let me assure the Court
22 that the Agency has done absolutely nothing to show
23 any disrespect for this Court's order.
24 THE COURT: Oh, God.
25 MR. VANHORNE: And we have, as you're aware,
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1 waive a right to appeal this. We have, we have
2 paid the 100 percent of what was asked for in the
3 expenses and agreed to 98 percent of the attorney
4 fees. We've even suggested that if the Plaintiffs
5 want to have some input into our curative meetings
6 we would be glad to listen to that and offer to
7 take it to mediation. The Attorney General has an
8 open meetings mediation office. They rejected
9 that. I've been told this office -- I've never
10 used it, but had 150 mediations last year and
11 successfully mediated 75, approximately 75 percent
12 of them. They're not interested in that either.
13 THE COURT: Well, tell me what that . . .
14 MR. VANHORNE: You're asking me -- well, we
15 did try to work out informally with counsel for the
16 Agency what an appropriate remedy would be. We
17 were unable to agree. After I filed my motion and
18 it was set for hearing, then the Agency suggested
19 we have some mediation --
20 THE COURT: Well, let me tell you the reason
21 why I'm asking. Because while you were talking, I
22 was thinking -- this is the judicial brain at work.
23 Because there are so many details, potentially,
24 that would have to be worked out here, we could
25 either do one of two things. It ran through my
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1 mind that a mediation might be the best way to do
2 it. I mean, in order to fully iron out all of the
3 issues between the parties. Or we can convene a
4 subsequent hearing and try and do that.
5 In other words, there is such dispute that it
6 would be up to the Court then to try to fashion the
7 full remedy with the understanding of all the
8 parameters. The reason why I specifically put in
9 the final judgment, summary final judgment, was --
10 the retention of jurisdiction is because it struck
11 me that there would be a lot of details that would
12 need to be ironed out that I was not familiar with
13 and wouldn't presume to try to address without
14 further input from both sides.
15 So that's why I'm -- when Mr. VanHorne
16 mentioned the availability of mediation my thought
17 was, there may be a category of things that need to
18 be addressed that could be effectively ironed out
19 in mediation. Maybe there would be a few left for
20 me to deal with. Is there any cost associated with
21 this mediation, or does the Attorney General do it
22 for free?
23 MR. VANHORNE: The Attorney General does it
24 for free, or we could have a court mediator and
25 pay. Either way.
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1 What I wanted to emphasize is that we've done
2 nothing at this point. What this motion is -- in
3 fact it's not really a motion. It's an amended
4 complaint. They're claiming that we have somehow
5 violated the Court's judgment when in fact the
6 exact opposite is the truth. We have not had any
7 ERAG meeting. We're still trying to figure out how
8 we're going to go about having the curative
9 meeting.
10 And certainly counsel has alluded to the Tolar
11 case, which I'm sure the Court is fully aware of.
12 We have to have some sort of curative -- and we'll
13 do that and we'll certainly -- ERAG meetings will
14 be open meetings in the future. We need to try to,
15 to get that worked out. But certainly we've not
16 had any ERAG meetings, and in fact, the whole PD&E
17 study at present is on hold. It's been less than a
18 month, I think, since we've waived our right to
19 appeal. And just a few days after that, counsel
20 files a motion suggesting that we're disrespectful
21 of the Court's judgment. And nothing could be
22 further from the truth.
23 We certainly have not been disrespectful.
24 We're trying to get our heads together to figure
25 out how we go about this, because I'm not sure how
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1 we do it. And -- but when we do do it, we'll
2 figure out an agenda, and we will set an open
3 meeting for the next ERAG and take it from there.
4 At this point, to say -- the ink on the
5 decision was fairly dry when we were hit by four
6 major hurricanes. We have been -- it's hit this
7 agency very, very hard, in addition to the other
8 agencies. We don't really at this point -- and
9 again, this is somewhat conjectural on my part, but
10 we don't suggest that we're going to have an ERAG
11 meeting until probably after the first of the year
12 even. So we have not set one, and so we haven't
13 certainly violated the Court's order in any sense
14 there or in the PD&E study.
15 We're going to try to get together an agenda
16 for the next ERAG meeting and then get together and
17 see if we can't schedule it. But we've certainly
18 done nothing --
19 THE COURT: Well, here's the only thing that
20 would concern me, and I think in light of some of
21 the authorities that Mr. Burnaman's presented
22 today, my feeling, from listening to Mr. Burnaman's
23 argument, is that he feels, on behalf of his
24 clients of course, that the holding of one sort of
25 curative meeting would be insufficient to address
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1 their concerns.
2 And I can see, in just looking very quickly,
3 obviously, at some of the cases that he's handed
4 me, I think the appellate courts have been
5 sensitive to that issue, as well.
6 In other words if there had been four or five
7 meetings that progressed down a course of inquiry,
8 is one meeting that sort of says, here's what we've
9 done and now we're going to go in the Sunshine from
10 here, is that going to be sufficient to, to address
11 their concerns? And I do think, unfortunately, if
12 any decisions were formalized during those
13 meetings -- in other words, we have three possible
14 routes.
15 Let's talk about this one at this meeting. We
16 will talk about the second one at another meeting.
17 We'll talk about the third one at a third meeting.
18 All of those meetings have not had the benefit of
19 public input or public observation, so it may be.
20 And I know that Mr. Burnaman would prefer that we
21 go all the way back and start all over again. I
22 don't know if that's necessary, because I just
23 don't know enough about what was determined at each
24 meeting or what was discussed.
25 MR. VANHORNE: Let me give you a bird's-eye
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1 view of the process. There are currently ten
2 alignments under study. There's never been more
3 than ten alignments under study. And I think just
4 before -- or just after, I think just before our
5 hearing, the Federal Highway Administration turned