IN THE SECOND JUDICIAL CIRCUIT
IN AND FOR LEON COUNTY, FLORIDA
CASE NO. 03-CA-1833
ROBERT
R. ROSCOW and THEODORE E. BIERLY
(a/k/a
TEDDI BIERLY),
Plaintiffs,
vs.
JOSE'
ABREU as Secretary of the
FLORIDA DEPARTMENT OF TRANSPORTATION,
Defendant.
___________________________________
IN
RE: Chamber Hearing
BEFORE:
Honorable Janet Ferris
DATE: May
21, 2004
TIME:
Commenced at 9:11 a.m.
Concluded at 10:22 p.m.
LOCATION: Leon
County Courthouse
Tallahassee, FL
REPORTED BY: LISA
D. FREEZE
Notary Public
ACCURATE STENOTYPE REPORTERS, INC
2894 REMINGTON GREEN LANE
TALLAHASSEE, FL 32308 (850)878-2221
2
APPEARANCES:
REPRESENTING PLAINTIFFS:
ROSS STAFFORD BURNAMAN, ESQUIRE
[Address omitted]
REPRESENTING DEFENDANT:
ROBERT D. VANHORNE, ESQUIRE
DEPARTMENT OF TRANSPORTATION
[Address omitted]
ALSO PRESENT:
Diane G. Le Rey
Raymond Ashe
3
1 P R O C E E D I N G S
2 THE COURT: All right.
Now, let me make sure
3 we have the proper motions here today.
4 My understanding is we have
motions for
5 summary judgment filed on behalf of
both the
6 Plaintiff and the Defendant. And I guess the
7 Defendant's is actually styled as a
motion for
8 summary judgment and/or partial
summary
9 judgment, so got that.
10 One thing though, Mr.
Burnaman. We should
11 put a big sign on the front of the
courthouse:
12 Don't do this. I noticed that there was a
13 filing of a deposition in support of
your
14 motion for summary, but it's not in
the court
15 file that we could find yesterday.
16 So I don't know where it is and
here is
17 what I would suggest to everybody just
for
18 future reference. If there are portions of
19 those depositions that you want it use
in
20 support of your motion, don't just
file the
21 depo because I'm not going to have
time to just
22 kind of plow through there and try to
figure
23 out what you're interested in me
looking at.
24 In other words, just either copy
those
25 portions; you can just staple them on
the back
4
1 of your motion or just give me the
line and
2 page and copy those pages, because
that's going
3 to make it a lot easier.
4 I don't think I'm at liberty to
pick and
5 choose from the depo. So you let me know what
6 you think supports your position as
part of the
7 sworn testimony submitted in support
of your
8 motion.
9 But I don't know if -- I couldn't
recall,
10 I don't think the Defendant had that situation.
11 But do you know where the depo is?
12 MR. BURNAMAN: I do not know where it is. I
13 filed it with the Clerk's office, Your
Honor. But
14 just to be clear, in actuality the
deposition was
15 filed in response to the Defendant's
motion for
16 summary judgment and/or partial
summary judgment
17 and the written response that the
Plaintiffs filed
18 to the Defendant's motions does in
fact contain
19 the excerpts from the deposition.
20 THE COURT: All right.
I wasn't sure if
21 there was some whole other thing going
on there.
22 We couldn't find the deposition
yesterday and that
23 answers that. Thank you.
24 Let me make sure because as I
recall you
25 make references to the depo; is that
right, the
5
1 Ashe deposition?
2 MR. BURNAMAN: Yes, Your Honor, in the
3 Plaintiff's response to Defendant's
motion, there
4 are in fact excerpts in many
instances, and there
5 are in some instances also just
references to a
6 page and line numbers.
7 THE COURT: I didn't read that. All right.
8 Now, one of the concerns I have
that I
9 really wasn't able to resolve in just
reading
10 the motions is whether there's
agreement that
11 there is no dispute of material fact
in regard
12 to the motions for summary judgment.
13 In other words, some of the facts
that
14 you-all are relying on are different
facts but
15 I don't know if they are disputed.
16 So if you would in your arguments
address
17 that issue for me. Because as I indicated I'm
18 sure to all of you and, you know, to
others, I
19 do think these cases are very amenable
to
20 resolution on summary judgment.
21 But I don't want to waste our
time in
22 trying to resolve it that way if the
next thing
23 that happens is on appeal and
arguments made to
24 the district court that there is
indeed a
25 dispute of material fact.
6
1 And I sense in regard to some of
the
2 issues, for example, the
characterization of
3 the what the ERAG does is wildly
different, and
4 I don't know if those are merely
5 characterizations or if there can be
some
6 stipulation as to what the group does.
7 I think there is some agreement
as to what
8 the group does, but I am troubled by
the
9 potential for a disputed material fact
involved
10 in the mission and actual activities
of that
11 group; whether there is agreement
about that
12 and whether because of the nature of
this legal
13 issue is that going to potentially
preclude
14 summary judgment, because those facts
are going
15 to be very important I think to
resolving the
16 legal issue.
17 So if you-all want to just make
sure you
18 take a few moments to address that in
your
19 arguments I'd appreciate that.
20 We'll start with you, Mr.
Vanhorne, and
21 what I can do is this. If you want to make
22 your main argument and then let the
Defendants
23 make theirs, and if you want to rebut
and then
24 you can rebut his argument, I will
give you
25 enough to time to do that. I think I'm late so
7
1 we will go ahead and take until about
10:15.
2 I think it was set for an hour,
was it
3 not? So each side will get approximately a
4 half an hour. And if you could maybe take
5 20 minutes and then you will have
another
6 ten minutes to do the response to
their
7 motions. Okay?
8 MR. BURNAMAN: Thank you, Judge Ferris, and
9 good morning to you. Glad you're feeling better,
10 Your Honor, and we appreciate your
rescheduling
11 this hearing expeditiously.
12 I'm here on behalf of Robert
Roscow and
13 Teddi Bierly. They're plaintiffs against the
14 declaratory judgment action against
the Florida
15 Department of Transportation to
ascertain
16 whether or not the meetings of a
collegial body
17 known as ERAG are subject to the
Government in
18 the Sunshine Laws that is in Article I
of
19 Section 24 of the Florida Constitution
and
20 Section 286.11, Florida Statutes.
21 We have filed a motion for
summary
22 judgment, which we believe comports
with the
23 Florida Rules of Civil Procedure. And
24 Your Honor was interested in hearing
argument
25 with respect to whether or not there
was any
8
1 disputed issues of material fact.
2 And, Your Honor, what we did in
our
3 written motion for summary judgment
was to cite
4 to the record in the case; that is, to
cite
5 to -- for example, affidavits of the
Plaintiff
6 with respect to establishing their
standing in
7 the case. There is no dispute about that.
8 We have cited to the Defendant's
answer
9 and to the Defendant's response to our
request
10 for admissions. And we have also provided
11 specific references to the response to
the
12 interrogatories that was filed by and
on behalf
13 of the Defendant.
14 Since the filing of our written
motion for
15 summary judgment, the Defendant filed
a motion
16 for summary judgment. And we took the
17 deposition of Mr. Raymond Ashe. He is an
18 employee of the Department of
Transportation
19 and we filed the transcript of his
deposition
20 with the Court. And that was in response to
21 the Defendant's arguments in its
motion for
22 summary judgment or for partial
summary
23 judgment.
24 Fortunately and coincidentally,
the issues
25 raised in the Defendant's motion, that
is the
9
1 legal arguments raised in their motion
or its
2 motion are joined in essence with the
issues in
3 the Plaintiff's motion for summary
judgment.
4 The -- for example, the whether or not
ERAG is
5 involved in the fact finding.
6 So what I'd like to do with the
Court's
7 permission is to just walk the Court
through
8 the principal grounds upon which our
motion is
9 based and we'll let the Defendant
speak to its
10 motion, and I can save my rebuttal
time to
11 address Mr. Ashe's deposition.
12 The complaint contains as an
exhibit
13 what's known as the ERAG agency
agreement,
14 that's referred to in paragraph ten of
the
15 complaint and is Exhibit 1 to the
complaint.
16 That is a document that was
signed by the
17 Department of Transportation as
18 representatives, Your Honor. And the agency
19 agreement indicates to me that the
activities
20 of ERAG -- first of all, it's
certainly a
21 collegial body; and secondly, they are
22 transacting official business of the
Florida
23 Department of Transportation with respect
to
24 the planning and design of a proposed
road
25 known as the Sun Coast Parkway II.
10
1 And in that agreement the DOT has
agreed
2 with these other members of the
collegial ERAG
3 body to, quote, partner in a
collaborative
4 effort to achieve a balance between
Florida's
5 environmental protection in the
State's
6 transportation needs.
7 And then it goes on to state what
the
8 goals of ERAG are with respect to this
planning
9 of the Sun Coast Parkway, which
includes the
10 identification of economic,
environmental and
11 social effects and their significance
and then
12 the consideration of avoidance,
minimization,
13 and mitigation of those effects. And then they
14 agreed to work together through mutual
trust
15 and respect, et cetera, holding
themselves
16 accountable for the success of the
team.
17 Well, we would submit, Your Honor
-- and
18 there's no dispute that this agreement
is in
19 place. And we would submit to Your Honor that
20 simply by reference to the agency
agreement the
21 Court can determine that in fact ERAG
is
22 operating as not mere staff to the
respective
23 agencies that comprise the membership
of ERAG
24 but rather as an adjunct to the
Florida
25 Department of Transportation with
respect to
11
1 the transaction of the official
business of
2 that agency; in this particular
instance, the
3 planning and design of a proposed major
4 highway.
5 Your Honor, we have also included
as
6 exhibits the original complaint in
this case.
7 And there's no dispute about the
authenticity
8 of these documents. The agenda and minutes are
9 so -- I call them minutes but they're
called
10 style variously as the meeting notes
or
11 whatnot. Those are Exhibits 3 and 5.
12 And what, what the minutes
indicate are --
13 and right now I'm referring to
paragraph 16 of
14 the complaint, which references in
turn
15 Exhibit 3, is that the ERAG is
developing an
16 action plan for litigation and funding
17 challenges including a plan for the
resolution
18 with the legal, that is the Department
of
19 Transportation's legal staff, and that
the ERAG
20 is going to, quote, copy the team's
progress to
21 legal and submit draft documents for
review.
22 There are limited exceptions to
the
23 Sunshine Law, Your Honor. For example, the
24 fact-finding exception that's been
talked about
25 in the agency staff exception. However, it's
12
1 clear from the exhibits, that are
2 uncontroverted in this case, that the
members
3 of ERAG are simply not acting as a
fact-finding
4 advisory capacity to the Department of
5 Transportation. They are in essence acting as
6 an adjunct in part and parcel of the
Florida
7 Department of Transportation. There's no
8 dispute of fact that they're a
collegial body,
9
that is also uncontroverted.
10 So then we go to the law, Your
Honor, and
11 the principal case that we have relied
upon is
12 a case that was cited in the
Government of the
13 Sunshine Manual, which we have filed
an excerpt