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From: Bob Minton <bob@minton.org>
Subject: JUDGE'S RULING 02-09-00 re Injunction Clarification
Date: Wed, 01 Mar 2000 11:14:31 -0500
Message-ID: <5egqbsg6ig2c9snvmlutipsjqtoang1u1r@4ax.com>
Pgs 18 and 19 are where the judge says Ward, Prince, Bunker and LMT are NOT enjoined but by the time the order is written up all of a sudden they are enjoined??????????????????????????
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CASE NO. 99-7430-CI-08 ----------------------------------------X :
RICHARD W. HOWD, JR., :
:
:
Petitioner, :
:
vs. :
:
ROBERT S. MINTON, JR., :
:
Respondent. :
----------------------------------------x BEFORE: The Honorable THOMAS E. PENICK, JR.
PLACE: ST. PETERSBURG JUDICIAL BUILDING 545 First Avenue North St. Petersburg, Florida 33701 DATE: February 09, 2000 TIME: 1:30 p.m. - 2:15 p.m.
REPORTED BY: DEBORAH M. WILLIAMS Court Reporter Sixth Judicial Circuit Notary Public, State of Florida ------------------------------------------------ JUDGE'S RULING ------------------------------------------------ ORIGINAL Pages 1 - 23 COURT REPORTERS P.O. BOX 35 CLEARWATER, FLORIDA 34617-0035 (813) 443-0992 APPEARANCES FRED WALLACE POPE, ESQUIRE JOHNSON, BLAKLEY, & POPE 911 Chestnut Street Clearwater, Florida 33756 Attorney for Petitioner KIMBERLY BETH RIVELLINI, ESQUIRE DOUGLAS M. DEVLAMING, ESQUIRE 1101 Turner Street Clearwater, Florida 33756 BRUCE GRIFFITH HOWIE, ESQUIRE PIPER, LUDIN, HOWIE, & WERNER 5720 Central Avenue St. Petersburg, Florida 33707 Attorneys for Respondent 3 1 2 THE COURT: Please be seated. Good 3 afternoon. Welcome. May be losing it's 4 appeal. I see the crowd is going down a little 5 bit. Anyway. Let me check on something for 6 the purposes of the record. Mr. DeVlaming, you 7 all did, and Mr. Howie and Ms. Rivellini, you 8 all did receive a copy of Mr. Pope's letter 9 yesterday?
10 MR. HOWIE: Yes, Your Honor.
11 MR. DEVLAMING: Yes, Your Honor.
12 THE COURT: And I'll make that part of 13 the file, that will get filed, and go from 14 there.
15 I do not have a prepared order at this 16 time. I prepared the order last time, there 17 seemed to be a lot of confusion, so I'm going 18 to at this time announce my decision and let 19 the attorneys prepare the order. And I'm going 20 to shift the confusion factor.
21 But, quite frankly, we established in 22 Monday's proceeding that the language that was 23 in the order was required by law. And law 24 enforcement agency -- thank you Keith -- thank 25 you very much -- have wrestled for many years 4 1 with, you know, how do you know who is an 2 agent, et cetera, et cetera. And there are no 3 real good guidelines on this.
4 I think the thing that impresses me with 5 this, this particular case I liken to the 6 world's greatest chess match. And no matter 7 how hard I sit here and watch this game of 8 chess I will never be able to anticipate every 9 move. And this became obvious to me yesterday 10 as I sat down and started going over the cases 11 and trying to envision what could I do to make 12 it crystal clear to everybody that though shall 13 not. And, you know, there is just no possible 14 way to prevent everything.
15 Far greater minds at work here than 16 mine, I'll concede that right now. And I will 17 concede that municipalities all over the United 18 States have wrestled with this, and even 19 foreign countries, Germany have wrestled with 20 this problem. And the best thing to do, I told 21 my judicial assistant is, and I'm just going to 22 tell you all, to sit back and have fun with 23 this case and not let it be the case that wraps 24 me around the flag pole. Because something 25 became very obvious to me in Monday's hearing 5 1 that really impressed me. I had the honor of 2 having here in my courtroom what are probably 3 considered some of the greatest attorneys in 4 the United States, and you can go to Martin 5 Dale Hubbel and AV will approve that, Mr. Pope, 6 Mr. Denis DeVlaming. And when I think back 7 that Mr. Pope and Mr. Denis DeVlaming were the 8 recipient of the initial Richard T. Earl, Jr.
9 Professionalism Award presented by the Martin 10 Mastersons Court, that is the one of the courts 11 in this state, last year, and that was voted on 12 by all of judges of this circuit. And I hear 13 that they have been working with the Clearwater 14 Police Department in trying to represent their 15 perspective clients, that is something I want 16 to foster. As long as the sides can talk they 17 can work things out.
18 Let the record also reflect that I read 19 the cases that everybody had submitted. I went 20 back to the cases from the prior hearing, read 21 all the evidence that was here. It is a little 22 difficult reading the Cornell Law Review on the 23 treadmill, but I did get it done. Very 24 interesting. Very interesting. I commend that 25 to everybody. I think that may be an 6 1 indication of a future trend in this case, some 2 of the subject matter that was discussed in 3 there. But I caution both sides, take a good 4 long hard look at what the Supreme Court did 5 with what is a captive audience and where is a 6 captive audience.
7 Now, what do we have right now? Well, 8 I'm going to deal with what I have in front of 9 me. I have Petitioner's Verified Motion for 10 Clarification, Alternative Motion To Add 11 Parties Defendant. And I read the case that 12 Mr. Pope submitted to me yesterday, Riddick vs.
13 Suncoast Beauty College Inc, which was found at 14 577 So.2d 1064 Second District Court, or 15 Florida Second District Court of Appeals 1990.
16 And in there that particular case cites us back 17 to a case called Daddy's Properties Inc. vs.
18 Lucas, found at 545 So.2d 926 of Florida Second 19 DCA 1989. And that case, those cases dealt 20 with the same problem we have here. It was the 21 language that is put in by our rules of 22 procedure and by case law that says that with 23 each injunction the provisions of the 24 injunction shall be binding on either 25 respondent or petitioner, their agents, 7 1 officers, servants, employees and on those 2 persons in actual concert or participation with 3 them or with him or it who receive actual 4 notice of this injunction. So that is 5 something that applies in these injunction 6 cases.
7 Now, I was also asked in considering 8 adding certain party defendants to consider 9 adopting or making part of the order the safety 10 zone. And I looked at the pictures. They're 11 in evidence. And I studied the cases, 12 especially the cases that were cited in the 13 Cornell Law Review, and I make a reference to 14 that, I better come back and give you the cite, 15 it is Picketing and Prayer Restricting Freedom 16 of Expression Outside Churches. Now, we're 17 not, and as I said a little earlier, this might 18 be something of the future but this is in front 19 of me right now. We're just concerned about 20 the feeding hall and unloading those buses.
21 And in this particular law review article, 22 Madam Court Reporter, I'm sorry, that is 85 23 Cornell Law Review, 271, Copyright Cornell 24 University 1999, they get into the requirements 25 for areas where you limit an entity or 8 1 individuals first amendment rights. It must be 2 very carefully drawn. It must be narrow not 3 broad. The interests protected must be very 4 clear. When I looked at this and I considered 5 what we have here, and I also consider the fact 6 that this safety zone, or the United States 7 Supreme Court refers to it as a buffer zone, 8 referred to in the cases, I'm impressed by the 9 fact that the zone we have here was in essence 10 more or less negotiated. I think that it is 11 narrow enough. It is needed for safety. It is 12 very small when you consider the number of 13 individuals on a daily basis that get on and 14 off those buses and proceed directly into the, 15 as we refer to it in the documents, as the Bank 16 of Clearwater. There is ample opportunity for 17 the respondents to be heard or to exercise 18 their first ammendment rights without this 19 being over restrictive or creating a problem.
20 So I am going to adopt that.
21 Now, in the case of Riddick vs. Suncoast 22 Beauty College, Inc, that I cited earlier, the 23 570 So.2d 1064, our Second District, of which 24 we are directly a part thereof, points out that 25 if it can be shown that somebody is in active 9 1 concert or participation with a named defendant 2 or respondent and that that person has actual 3 notice of the injunction contempt might lie.
4 But the better advice from that particular case 5 is not to take that quantum leap unless you 6 have hard, cold proof, and we don't have it 7 here. But you can, they recommend, name them 8 as party defendants, serve them and give them a 9 right to be heard.
10 Now, the thing -- another thing occurred 11 to me along with thousands of other scenarios 12 that I envision to happen here. What we're 13 concerned about is physical touching. All of 14 this started with an alleged battery, a 15 touching. A getting-in-your-face, a picket 16 chicken situation. I mean, I have seen a lot 17 of movies where three and four individuals try 18 to walk in one person's foot steps and are 19 following each other so close, and that is what 20 we had going on. And that is what we're trying 21 to limit. So, when I considered those persons 22 that should be joined that is what I took into 23 consideration. And it is the finding of this 24 Court that from the evidence presented here, at 25 least for the purposes of joining a party 10 1 defendant, and then setting forth some sort of 2 allegations I will add as party defendants 3 Jessie Prince, Mark Bunker, and Grady Ward, and 4 that is all. Wait a minute, excuse me, and, 5 and, and, and I will name the corporation.
6 Strictly in looking at everything I will allow 7 them to at least plead. That is all I'm 8 saying.
9 Now, just so you know my thinking. I 10 looked at those email articles, or email 11 letters I guess you call it, at three and four 12 tabs. I make no finding one way or the other 13 and I do not join Stacy Brooks at this time.
14 It is going to take a whole lot more there.
15 We're talking first amendment, Folks.
16 Both sides have a right to a spout, 17 whatever they want to say under our first 18 amendment. I don't see anything that cause to 19 rise -- nobody is yelling fire in a private 20 theater, we'll see where it goes from there.
21 You know, going back to this Cornell Law 22 Review article is the case, and I can't touch 23 it right now, but it says that the listener, 24 and this is United States Supreme Court 25 talking, bear the burden of avoiding the 11 1 offensive speech.
2 Now, I would besiege both sides to 3 refrain from overburdening the Clearwater 4 Police Department or their authorities with 5 chicken little phone calls. The sky is not 6 falling. It is not going to fall. So knock it 7 off. That is why I lay that little predicate 8 earlier by saying that the two, what I deem to 9 be two of the greatest lawyers in our country, 10 not just in the state of Florida, are 11 representing both sides. And I know that they 12 know how to plead, and that if the truth and in 13 fact there is a crisis or the sky is falling 14 they will adequately set it out and we can deal 15 with it accordingly.
16 Now, all I have done is dealt with what 17 I actually have in front of me. I toyed with 18 the idea, quite frankly, I have done this with 19 several other cases, I don't think 20 Mr. DeVlaming has been involved, but I know 21 Mr. Pope might have, some of my bigger civil 22 cases like this I instruct my judicial 23 assistant, Ms. Barbara Greenwood, to set an 24 hour every week aside and I just hold that 25 block of time on my calendar anticipating a 12 1 phone call for a hearing. And it works. After 2 about two months it goes away and everybody 3 gets tired of traipsing down here to the 4 courthouse. But I'm more than willing to do 5 it. And I'll start reserving time so that when 6 this side identifies somebody and they come in 7 we add that name, and then that side. I'm more 8 than willing to do it. And we'll just proceed 9 thus.
10 I don't know what else I can do. I have 11 tried, like I said, I worked with every 12 possible scenario and it occurred to me that I 13 can't solve this problem. I can only deal with 14 it on a daily basis.
15 Now, Mr. Pope, Mr. DeVlaming, 16 Ms. Rivellini, and Mr. Howie, you all work out 17 an order. You all know what I have said. Get 18 it to me and we'll go from there.
19 Mr. Pope, what else would you like?
20 MR. POPE: Your Honor, I will be happy 21 to volunteer to prepare the initial draft of 22 the order and get it over to counsel so they 23 can review it and we will do our best to submit 24 an agreed order to the Court.
25 THE COURT: Please.
13 1 MR. POPE: And I just want to make sure 2 I have the procedure down. We will, the order 3 will grant the motion to add the four parties 4 that you named.
5 THE COURT: Yes, sir.
6 MR. POPE: After which -- 7 THE COURT: And adopt the safety zone.
8 MR. POPE: And adopt the safety zone.
9 And at that -- I will then serve them with a 10 process and they will have an opportunity to 11 come in and respond.
12 THE COURT: Sir, your reputation 13 precedes you. I think you know what to do.
14 Yeah, okay.
15 MR. POPE: That is fine.
16 THE COURT: Let me hear from the other 17 side. Yeah, what would you all like to say?
18 MR. DEVLAMING: Judge, the one point we 19 would like to make clear with the Court is that 20 the safety zone was constructed by the City of 21 Clearwater in conjunction with the Clearwater 22 Police Department. In the event that they 23 determine that the safety zone needs to be 24 adjusted somewhat -- 25 THE COURT: If you all can't agree, 14 1 mutually agree, and I ask you all, like I said, 2 there is some pure genius sitting out there, 3 you all put it to good use. Come see me.
4 I have to look at the scope of that 5 safety zone within the case law. I think that 6 it is adequate right now.
7 MR. DEVLAMING: Judge, the only concern 8 that we have is that there are other parties 9 that may challenge that safety zone on the 10 grounds that it limits their right to walk down 11 the public sidewalk.
12 THE COURT: Now, now -- okay. As far as 13 that safety zone is concerned it only applies 14 to Howd, Minton, right now, and their agents 15 and so forth. Now, who are you -- I mean if I 16 go out there and I made it clear Monday, years 17 ago I used to eat at the restaurant up the 18 street, and I may, you know, I go home 19 yesterday to my wife and she said, well, so if 20 I'm walking up that street my understanding I 21 can walk through that safety zone.
22 MR. DEVLAMING: Well -- 23 THE COURT: And I don't expect to be 24 stopped. Well, make it very clear that that 25 safety zone only applies to this case. And as 15 1 a citizen I expect to be able to walk through 2 that safety zone. And if Chief Kline has any 3 questions about that I'm in the phone book.
4 MR. DEVLAMING: Just so we don't have to 5 come in here and bother the Court, in the event 6 that that safety zone is changed in any way, 7 shape or form by the City of Clearwater, would 8 this Court be willing to adopt that without 9 coming back and having to argue about it?
10 THE COURT: Sure. Wait a minute. Wait 11 a minute. I'm not just going to adopt it per 12 one side. If you all agree to it I would.
13 Ms. Rivellini, yes, ma'am.
14 MS. RIVELLINI: Judge, I dealt with the 15 safety zone a little bit more first hand. I 16 wish Mr. Surrett were here to substantiate the 17 phone calls that went back and forth out of 18 frustration. The problem with adopting it 19 without setting specific guidelines is 20 Clearwater wasn't clear on what the guidelines 21 were. And even -- 22 THE COURT: The safety zone is to keep 23 the picket signs and the in-your-face out of 24 there while the people are getting on and off 25 those buses. That is my intent.
16 1 Now, as the case law clearly points out, 2 the safety zone cannot inhibit the flow of 3 traffic in or out of. Here they're dealing 4 with churches, the people, even little 5 children. And they said that it has to be just 6 narrow enough. Now, what goes on outside that 7 safety zone, sound trucks, picket signs, 8 handing out individual literature or anything 9 else is allowed.
10 MR. POPE: Judge -- 11 THE COURT: She is not through. She is 12 not through. Just a minute. I'll come back to 13 you.
14 MS. RIVELLINI: In essence, Judge, I 15 wasn't concerned with the zone itself, that is 16 clearly marked by lines. But where the 17 confusion came in is when it was going to be 18 enforced. It is not enforced twenty-four hours 19 a day, and this is where the confusion was.
20 Chief Kline and the people at the top at 21 Clearwater indicated when that zone would be in 22 affect -- 23 THE COURT: Here is what I would like.
24 I would like your side and this side to name 25 the hours of operation. And I don't want any 17 1 hanky panky of bringing the buses, start to 2 drive the buses there every half hour on the 3 half hour just so it is in affect twenty-four 4 hours a day. If you do I want proof you're 5 serving grit or food in there. Okay. Only 6 when -- all I'm concerned is, just like it said 7 in the cases egress, in and ingress out, that 8 is all I'm trying to do, move those buses so 9 that the buses are -- look, if I make a turn 10 and I want to go down Waterson Street, I don't 11 want to have to wait two hours while there is a 12 confrontation and the bus is backed up and 13 we're backed up on to Cleveland Street. Move 14 it.
15 MR. POPE: Your Honor, I understand the 16 narrow scope as it applies to a handful of 17 people and one corporation. I can draft the 18 order that says that and specifies the time 19 zone and there should be no ambiguity about it 20 whatever.
21 I do have one other question, however, 22 for clarification. It is my understanding when 23 I, when the Court signs its order adding 24 Mr. Prince, Mr. Bunker and Ms. Moore and the 25 corporation, that the injunction at the time 18 1 they're served -- 2 THE COURT: Wait a minute. Wait a 3 minute. I left one off. I'm sorry. Grady 4 Ward, because I looked at that stuff and Grady 5 Ward was involved.
6 MR. POPE: So we have four individuals 7 in the corporation and -- 8 MR. DEVLAMING: Three. Three.
9 THE COURT: Three. Mr. Minton is 10 already there.
11 MR. POPE: You said Moore instead of 12 Ward.
13 THE COURT: I'm sorry. Grady Ward, Mark 14 Bunker and Jessie Prince.
15 MR. POPE: I'm sorry. I got it. I 16 misunderstood. The question is, here.
17 THE COURT: And the corporation.
18 MR. POPE: Here's the question, here is 19 the way I'm drafting this order is that the 20 Court grants the motion to add the corporation 21 and the three individuals. I serve them with 22 the process. At that time they're subject to 23 the outstanding injunction as you have modified 24 subject to their right to come in and move to 25 dissolve or alter or what have you.
19 1 THE COURT: I would say they would have 2 notice of the injunction, yes. Now, they 3 certainly have a right to answer or come in and 4 say that it does not apply to them.
5 MR. POPE: Fine.
6 THE COURT: But, other than that I'm not 7 saying that they are enjoined. I want -- I 8 want that real clear. That is a delicate line 9 there.
10 About the most you can draw from that is 11 they would have notice of the injunction.
12 MR. POPE: They will be parties to the 13 action.
14 THE COURT: Yes, sir. That is what, 15 that is my intent according to the Second 16 District, the way I interpret Judge Donahey's 17 opinion.
18 MR. POPE: I understand.
19 THE COURT: Now, Ms. Rivellini, you 20 still have that look that the St. Pete Times 21 said I had on when I got on the bench Monday.
22 MS. RIVELLINI: I don't know if I'm 23 flattered or offended.
24 THE COURT: No. Go ahead. I'll 25 admit -- 20 1 MS. RIVELLINI: By specifying in the 2 order it will make it clear, but the 3 frustration that I think you don't get a full 4 feel for is the Clearwater Police out on the 5 street are the ones enforcing those lines. And 6 there is miscommunication between what is 7 intended to be enforced and what is actually 8 being done on the street. So the problem that 9 Mr. Minton has come in contact with, as well as 10 the people associated with it, is they walk up 11 to the area and be told different things, not 12 just on a daily basis but hourly basis about 13 what is going to be enforced and when. And tie 14 them that in with the problem -- 15 THE COURT: The white lines at the given 16 time, let's say for hypothetical purposes from 17 11:00 to 1400 hours.
18 MR. POPE: Your Honor, this order itself 19 will clarify the problem.
20 THE COURT: Okay. Let me -- just a 21 minute. Just given that time, Mr. Minton, that 22 ambiguous language I have there other than the 23 ones I make. Stay out of it. Stand at the 24 very edge with the signs or whatever, but don't 25 go in there. Then, as soon as it is past, one 21 1 minute past two o'clock in the afternoon, if 2 that is the time, they can walk up and down the 3 sidewalk or stay within, whatever my prior 4 ruling was. But all I'm trying to do right now 5 is get people in and out.
6 Now, to make it any clearer for the 7 Clearwater Police Department as to who is whom 8 I would have to enter some order that said that 9 members of the Church of Scientology had to be 10 in uniform at all times and the members of the 11 Minton organization must wear concrete uniforms 12 of a different color. And they all must carry 13 ID badges and have the ID badge on them 14 otherwise the police can't touch them. Now 15 that is absurd. This is the United States of 16 America. That is why I said a few minutes ago 17 that with the brilliance of the attorneys and 18 the present I think they can explain to their 19 clients that picket chicken is unwelcome in 20 this circuit. Now take that hat somewhere 21 else.
22 Now let's live together, and you'll have 23 a right to exercise your constitutional rights 24 and there is a gazillion ways to do it.
25 MR. POPE: Your Honor, I will represent 22 1 to the Court that with this order as our new 2 framework for dealing with each other that we 3 will make every effort in the world to 4 negotiate out our difficulties rather than drop 5 them into your lap.
6 THE COURT: These people are going to 7 get confused about the orange dots. I'll tell 8 you, to heck with the white lines. Come on.
9 What else can I do? I mean, what other 10 questions do you have?
11 MR. POPE: I think you have covered it, 12 Your Honor.
13 THE COURT: Good luck with this. Now, 14 listen, you want me to go ahead and ask 15 Ms. Barbara to set aside an hour each Friday 16 for a couple weeks just in case? I'll do it.
17 Let me do it just in case you can't hammer out 18 that order.
19 MR. POPE: Make the first one two weeks 20 from now. If we can't get this done there is 21 something wrong with us.
22 THE COURT: Did you all get that down?
23 Please, show that to the public would you. Bye 24 everybody.
25 (THEREUPON THE PROCEEDINGS WERE CONCLUDED.)
23 1 2 CERTIFICATE OF REPORTER 3 STATE OF FLORIDA ) 4 COUNTY OF PINELLAS ) 5 I, DEBORAH M. WILLIAMS, Court Reporter, Notary Public, State of Florida at Large:
6 7 DO HEREBY CERTIFY that the foregoing proceedings were taken before me at the time and 8 place set forth in the caption thereof; the proceedings were stenographically reported by me in 9 shorthand, and the foregoing pages, numbered 1 through 23, inclusive, constitute a true and correct 10 transcript of my said stenographic report.
11 I FURTHER CERTIFY that I am not a relative 12 or employee or attorney or counsel of any of the parties hereto, nor a relative or employee of such 13 attorney or counsel, nor do I have any interest in the outcome or events of this action.
14 15 IN WITNESS WHEREOF, I have hereunto affixed my official signature this 10th day of February, 16 2000, at Clearwater, Pinellas County, Florida.
17 _______________________________ DEBORAH M. WILLIAMS 18 Court Reporter Sixth Judicial Circuit 19 Notary Public, State of Florida
