Opinion
No. 1D21-1841
08-03-2022
Scott D. HALL, Rebekah Bashford Kervin, Dr. Jessica Brawner Webb, Johnny D. Webb, Amy Webb, Daniel Griffin, Angela Shirley, Chris May, et al., Appellants, v. Rayne COOKS, et al., Appellees.
David R. McCallister, Wesley Chapel, for Appellants. George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., Madison; Ashley E. Davis, Deputy General Counsel, Department of State, Tallahassee, for Appellees.
David R. McCallister, Wesley Chapel, for Appellants.
George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., Madison; Ashley E. Davis, Deputy General Counsel, Department of State, Tallahassee, for Appellees.
Makar, J.
Madison County, Florida, the eastern-most county in Florida's Panhandle whose northern border abuts Georgia, was established in 1827 and named after President James Madison, often dubbed the father of the U.S. Constitution who served as the Nation's chief executive from 1809-1817. The county is agrarian, known as part of the "plantation belt" for its cotton mills (prior to the boll weevil), as well as its livestock and tobacco production; it recently bucked ninety years of prohibition, its citizens voting to become a "wet" county. Its population in 1850 of about 5,000 residents has grown to just 17,968 as of the 2020 census. Its county seat, also named Madison, consists of only 2.7 square miles with a population just shy of 3,000 residents. The county is approximately one-third African-American; the city is approximately two-thirds African-American.
In 1909, a life-size sculpture of a uniformed Confederate soldier standing atop a massive marble pedestal was erected in a county-owned park to honor those who fought for the Confederate States of America in the Civil War four decades earlier. In 1926, the park property was conveyed by the county to the city, which was required by deed to use the property "only for park purposes" or return it to the county. As consideration for the deal, the city gave up its right to collect a $4,800 debt from the county for road paving services.
The park was commonly known as Central Park at the time of the 1926 conveyance. It is now known as Four Freedoms Park due to an eponymous monument placed there in 1944 to honor Captain Colin P. Kelley—a Madison County native and West Point graduate—who was one of the first American heroes of World War II; he was awarded the Distinguished Service Cross for his valor in keeping his bomber, which was hit by enemy fire, airborne long enough for many of his crew to parachute to safety. The monument depicts four angels signifying four fundamental freedoms (freedom of speech and expression, freedom of worship, freedom from want, and freedom from fear) that President Franklin D. Roosevelt identified in his 1941 State of the Union Address; the city has branded itself as "The City of Four Freedoms."
Some people in the Madison County community place value on the monument because it commemorates their ancestors’ deaths and has historical worth; to them, it is akin to a cenotaph, meaning an empty tomb that honors the dead. Gardner v. Mutz , 962 F.3d 1329, 1334 n.2 (11th Cir. 2020). Others see Confederate monuments, even if cenotaphic, as relics of racial hatred and an attempt to perpetuate the subjugation of African-Americans.
The complaint describes the monument as follows:
The Cenotaph is a marble pedestal with a life size Italian marble sculpture of a uniformed Confederate soldier standing at parade rest, facing west, braced against a tree stump. The soldier is wearing a wide-brimmed hat, a blanket roll across his torso, a percussion cap box, and a canteen, holding the barrel of a rifle with both hands, with the butt resting by his feet. The pedestal sits on three square stepped foundations, the top being a shaft elevating the sculpture to a height of twenty-three feet. The faces of the Cenotaph's second level are decorated with bas-relief art. The west face is adorned with an Army of Tennessee battle flag on a broken staff, above the flag the number "1861" and below it "1865." Above this decoration, near the top below the sculpture's feet are the letters "C.S.A." On the north pedestal face is the image of a cannon on its carriage. On the east pedestal face is the image of the United Daughters of the Confederacy (UDC) Southern Cross of Honor that includes a laurel wreath, an Army of Tennessee battle flag, and the words "UNITED - DAUGHTERS - CONFEDERACY - TO THE U.C.V." On the south pedestal face is a framed design of two crossed swords pointed downward in front of a landscape. On the first level below the swords is written, "OUR CONFEDERATE SOLDIERS."
Jess R. Phelps & Jessica Owley, Etched in Stone: Historic Preservation Law and Confederate Monuments , 71 Fla. L. Rev. 627, 631 (2019) ("Many Confederate monuments dotting the landscape of the southern United States and beyond are symbols of white supremacy and were erected not to commemorate the dead but to subjugate the living.").
Over a century after its installation, the monument—like others across Florida and the country—became a focal point of local controversy. As a result, the city by divided vote (3-2) decided to remove the monument, which spawned a lawsuit by eight individuals whose ancestors the monument commemorates (each has a relative listed as a "Confederate Dead" on a plaque affixed to the monument's base); none resides in the city, six live in the county, and two pay city taxes on businesses they operate in the city. Two additional plaintiff-associations joined the lawsuit: the Florida Division of the Sons of Confederate Veterans (SCV) (a "lineage society for male descendants of Confederate veterans" and the successor to United Confederate Veterans) and Save Southern Heritage, Inc. – Florida Chapter (SSH) (a South Carolina non-profit corporation that "revere[s] the south, southern history and southern heritage" whose purpose is "historic preservation, specifically the history of the South for future generations."). Both associations have members in Madison County who have used the park and monument to express their views and "wish to continue doing so."
Their lawsuit, as initially filed and later amended, sought to prevent the removal of the monument, asserting six counts for relief against the city:
A fourth count claimed a violation of section 276.031, Florida Statutes, by the Florida Division of Historical Resources. This count was dismissed because a claim against the Florida Secretary of State must be filed in Leon County, Florida, and is not a subject of this appeal.
Count 1: Removal violates the 1926 deed; and the mayor's vote for removal was void because she resides outside the city.
Count 2: Removal violates the city's historic preservation ordinance.
Count 3: Removal violates section 872.02, Florida Statutes, which criminalizes defacing or destroying tombstones and monuments.
Count 5: Removal violates the plaintiffs’ state constitutional rights to free speech and free exercise of religion.
Count 6: Removal is a breach of the city's fiduciary duty to its citizens to protect city assets.
Count 7: Removal breaches implied contracts between the city and the SCV to
continue the monument in the park as an appurtenance.
In a detailed thirteen-page single-spaced order, the trial court granted the city's motion to dismiss the initial complaint with prejudice as to counts 1, 3, 5, 6 and 7. Count 2 was initially dismissed without prejudice due to lack of an allegation that the monument was an official landmark for the purposes of the city's historic preservation ordinance; the count was ultimately dismissed with prejudice when the plaintiffs failed to amend the count with such an allegation. The plaintiffs now appeal, claiming each of their six claims against the city is actionable.
Count 1
(Violation of 1926 Conveyance/Mayor's Vote)
The plaintiffs made two claims in Count 1, one related to the 1926 conveyance and the other regarding the mayor's vote, each of which was properly dismissed.
As to the first claim, the trial court properly ruled that the plaintiffs lack standing to assert a claim under the 1926 conveyance and that even if the plaintiffs have standing, the removal of the monument does not violate the terms of the conveyance. As to standing, the plaintiffs claim they have sustained sufficient injury, different from the public generally, to sue the city because they are direct descendants of those memorialized on a plaque affixed to the monument, which they view as a gravestone in honor of their ancestors.
The city points out, however, that the plaintiffs were not parties to the 1926 conveyance; instead, the county and the city—who both still exist—were the only parties to the conveyance. For this reason, the plaintiffs are not proper parties and lack standing to enforce the terms of the conveyance. In addition, they lack standing because the conveyance was not intended to benefit them directly or individually, particularly when the plaque honoring the Confederate Dead was not added until decades later. That they are descendants of those listed on the plaque does not give them standing absent some clear and particularized basis for concluding they have an enforceable legal right arising from the terms of the conveyance. See, e.g. , McMahon v. Fenves , 946 F.3d 266 (5th Cir. 2020). Their ancestral linkage to those memorialized is legally insufficient to accord them standing to sue to enforce a conveyance to which they were not a party. As such, the plaintiffs have no legally enforceable interest in the conveyance, nor are they "equitable owners" of the park or monument.
Even if the plaintiffs had standing, they fail to explain how the restriction in the conveyance is violated by the monument's removal. The 1926 conveyance of park property states that "said property shall be used only for park purposes for all time, and in the event that said property should be used for anything other than park purposes , the same shall revert to the party of the first part [the county], its successors and assigns free of all liens and encumbrances." (Emphases added). Removal of the monument from the park, however, does not result in a change to the property's use as a park; it is still a park. Notably, the 1926 conveyance does not prohibit the monument's removal or make its removal a basis for reverter. The only requirement is that the park property be used for park purposes, a use that is unchanged.
As to the second claim, the plaintiffs alleged that Madison's mayor, who voted for removal, is not a city resident, amounting to a violation of a municipal ordinance requiring her to reside in the district that she represents. Madison, Fla., Code of Ordinances art. III, § 9 (2020). They claimed to have "taxpayer, residency, and voter standing" to pursue an "inquiry in the nature of a quo warranto proceeding" to ensure the ordinance's requirements are met. The trial court correctly held, however, that only the Attorney General or a person claiming title to the office in question has standing to seek a writ of quo warranto, § 80.01, Fla. Stat. (2022) ; Butterworth v. Espey , 523 So. 2d 1278, 1278 (Fla. 2d DCA 1988), and that the mayor was a de facto officer whose vote was valid, see , e.g. , Kane v. Robbins , 556 So. 2d 1381, 1385 (Fla. 1989). On appeal, the plaintiffs have not contested the trial court's rulings on this point of law and insist—contrary to the language in their complaint—that they "did not assert a quo warranto claim" in this proceeding. As such, the plaintiffs have waived this issue and affirmance is required.
Count 2
(Violation of City's Historic Preservation Ordinance)
Next, the plaintiffs claim that the city was required to follow the process set forth in its historic preservation ordinance to authorize the removal of the monument; this process requires the issuance of a permit and a certificate of appropriateness and considers feasible alternatives to demolition, none of which was done before approval of the monument's removal. As the trial court noted, however, the city's historic preservation ordinance applies only to "landmarks," thereby limiting its reach in this case because the plaintiffs have not asserted the monument is a recognized landmark for purposes of the ordinance; they were given an opportunity to do so by amending their complaint, but they did not. At best, the plaintiffs assert that the monument "is situated in the geographic boundaries" of a historic district, i.e., the park, but they fail to allege or show that the monument itself is a "landmark," thereby justifying dismissal of their historic preservation claim.
Count 3
(Violation of Section 872.02, Florida Statutes )
In their third claim, the plaintiffs claim the legal right to sue the city for a purported violation of a statute, section 872.02, Florida Statutes, which criminalizes as a third-degree felony the defacing or destroying of tombstones and monuments. Private citizens, however, are not empowered to sue under a criminal statute, which involves an executive function. See , e.g. , Merritt v. Stokes , No. 3:16cv412-LC-CJK, 2019 WL 938405, at *8 (N.D. Fla. Jan. 25, 2019) ("A private individual cannot bring an individual action under a criminal statute, as the power to prosecute criminal cases is vested exclusively in the executive branch of government."), report and recommendation adopted by , No. 3:16cv412-LC-CJK, 2019 WL 937929 (N.D. Fla. Feb. 26, 2019). Criminal statutes by themselves do not authorize civil enforcement unless a civil remedy is made available. Mantooth v. Richards , 557 So. 2d 646, 646 (Fla. 4th DCA 1990) (affirming dismissal of civil claims where statutes at issue concerned "only criminal violations and do not afford a civil remedy"). Even then, a plaintiff must have standing to sue and a recognized injury in fact, which the plaintiffs lack in this case; they claim a right "to sue the City to prevent it from breaking the law," but this criminal statute does not create such a right. As an additional basis for affirmance, the city points out that the statute's language appears to limit its scope to only those structures or sites that contain human skeletal remains and related artifacts, noting the chapter's title is "Offenses Concerning Dead Bodies and Graves." This point need not be addressed because dismissal of Count 3 was proper due to the plaintiffs’ lack of authority to enforce the criminal statute.
Count 5
(Violation of State Constitutional Rights to Free Speech and Free Exercise of Religion)
The gravamen of the plaintiffs’ state constitutional claims is that their future visits to the monument to hold ceremonies to express their views about the Confederate Dead (as they have done for years) will be infringed because the monument will no longer exist; the same is true as to their past visits to the monument for religious purposes to pay their respects to deceased family members. The trial court dismissed these claims on the basis that the plaintiffs lack "standing" but its ruling was based on the fact that removal of the monument would not prevent them from engaging in either type of expressive activity post-removal. The court noted that nothing prevents the plaintiffs from gathering and engaging in free speech or religiously commemorative activities as they have done previously, thereby negating their claims of constitutional harm.
The trial court was correct to dismiss the plaintiffs’ claims because, whether the plaintiffs have standing or not, their claims as stated are not actionable. The most recent decision from the Eleventh Circuit demonstrates this point. In Gardner v. Mutz , in the City of Lakeland, Florida, the plaintiffs—like those in this case—alleged that the city's movement of a monument would violate their free speech rights. The trial court dismissed the case based on a lack of standing, which the Eleventh Circuit reversed, finding that the plaintiffs had met the federal standard for standing set forth in Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Gardner v. Mutz , 857 Fed. Appx. 633 (11th Cir. 2021), cert. denied , ––– U.S. ––––, 142 S. Ct. 762, 211 L.Ed.2d 478 (2022). The dismissal of the plaintiffs’ lawsuit was proper, however, because the plaintiffs failed to state a cognizable claim for relief on the merits. Id . at 635–36 ("Monuments in public parks, even when funded by private parties, constitute government speech. Government speech doesn't violate the Free Speech Clause of the First Amendment." (internal citation omitted)).
For like reasons, the plaintiffs’ free speech and free exercise claims under the Florida constitution are non-actionable in this proceeding. The asserted interest at stake in this case is the plaintiffs’ claim that their free speech and religious freedom rights will be violated post-removal; but, in reality, nothing prevents them from gathering, speaking, and commemorating their ancestors at the park after the monument is gone. It is true that the plaintiffs will have displeasure and sadness because a governmentally controlled structure that they venerate will be gone; the legal question that courts have uniformly answered in the negative, however, is whether this type of psychological/emotional harm from removal or relocation of such monuments is actionable. See, e.g. , Ladies Mem'l Ass'n, Inc. v. City of Pensacola, Fla. , 34 F.4th 988, 993 (11th Cir. 2022) ; Sons of Confederate Veterans v. Newton Cnty. Bd. of Comm'rs , 360 Ga.App. 798, 861 S.E.2d 653, 657 (2021), cert. granted (Mar. 8, 2022). Based on these precedents, the trial court's dismissal of the state constitutional claims was proper.
The plaintiffs point out that their allegations would entitle them to standing in a federal court, which is required to consider the federal constitutional constraint that a case or controversy must exist. As an example, the Eleventh Circuit recently held that the plaintiffs in Gardner had standing because their claim of harm was concrete and particularized because they alleged that they "regularly visit the monument and plan to do so in the near future" and that the city's relocation of the monument obstructed their plans. Gardner, 857 Fed. Appx. at 635. What the plaintiffs here overlook, however, is that the Eleventh Circuit upheld dismissal of the constitutional claims in Gardner . Moreover, a Florida state court need not rotely apply Lujan and its progeny, as is required under article III of the federal constitution, because Florida has no case or controversy requirement. Instead, Florida has a different test for standing, one that—unlike the federal standard—melds together some of the elements of federal standing with the merits of the asserted claims. The general test for standing is whether a would-be litigant has a "direct and articulable" interest in a case's outcome. See Brown v. Firestone, 382 So. 2d 654, 662 (Fla. 1980) ("Regarding standing, this Court has long been committed to the rule that a party does not possess standing to sue unless he or she can demonstrate a direct and articulable stake in the outcome of a controversy."); see Johnson v. State , 78 So. 3d 1305, 1314 (Fla. 2012) ("Thus, standing to bring or participate in a particular legal proceeding often depends on the nature of the interest asserted."). Here, no such interest exists. In sum, the trial court correctly concluded that the facts alleged did not show a legal basis for a claim of infringement of any of the free speech or free exercise rights of the plaintiffs.
Counts 6
(Breach of Fiduciary Duty)
On a different legal theory, the plaintiffs claim that the city's removal of the monument breaches a fiduciary duty that the city has to its "citizens and residents to preserve and protect" publicly owned assets such as the monument. The trial court dismissed this claim because the plaintiffs did not allege compliance with pre-suit requirements for such a claim and, even if they did, a claim against the city must arise from a claimed breach of duty owed to the plaintiffs themselves. On appeal, the plaintiffs directly link their fiduciary duty claim to their claim that they have the right to enforce the terms of the 1926 conveyance. As discussed above, the plaintiffs have no legal right to enforce the terms of the 1926 conveyance and, even if they did, removal of the monument was not a violation of the conveyance's terms. Dismissal of this count was proper.
Count 7
(Implied Breach of Contract)
Finally, the trial court dismissed SCV's implied contract claim, which was based on the allegation that by allowing the monument to be placed in the county's park in 1909 the county formed an enforceable, albeit unwritten, contract with SCV's predecessors that the monument was a park "appurtenance" that would never be removed; the plaintiffs make a similar claim about the placement of the memorial plaque commemorating the Confederate Dead. As the trial court noted, however, no written agreement exists, such that principles of sovereign immunity apply to bar such a claim. Ag. for Health Care Admin v. MIED, Inc. , 869 So. 2d 13, 21 (Fla. 1st DCA 2004) ("[W]aiver of sovereign immunity in the context of a contract action can only be supported through an express, written contract."). Dismissal on this basis was required.
* * *
In summary, the trial court correctly dismissed with prejudice the claims of the plaintiffs, who sought to prevent the city's removal of the monument.
AFFIRMED .
Bilbrey and Kelsey, JJ., concur.