In the Circuit Court of the Fourth Judicial Circuit

IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT

IN AND FOR DUVAL COUNTY, FLORIDA

ADAM UNCLE AND

STEVE FARRELL,

Plaintiff,

v. CASE NUMBER:

RONNIE FUSSELL, as Clerk of the Circuit

Courts of Duval County, Florida, in his

official capacity,

Defendant.

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DEFENDANT’S MOTION TO DISMISS

Defendant, RONNIE FUSSELL, as Clerk of the Circuit Courts of Duval County, Florida, in his official capacity, by and through the undersigned attorney, and pursuant to Fla. R. Civ. P. 1.140(b) moves this Court to dismiss Counts I, II, and III of the Plaintiff’s Complaint and states as follows:

STANDARD ON A MOTION TO DISMISS

“A motion to dismiss is designed to test the legal sufficiency of a complaint, not to determine issues of fact. Bolz v. State Farm Mut. Auto. Ins. Co., 679 So. 2d 836, 837 (Fla. 2d DCA 1996). “In considering a motion to dismiss, the trial court is required to confine itself to the allegations contained within the four corners of the complaint.” Id.

COUNT I: VIOLATION OF FREEDOM OF EXPRESSION RIGHTS UNDER THE

FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983)

Count I of the Plaintiff’s Complaint should be dismissed for failure to state a claim upon which relief can be granted. The Plaintiff has attempted to state a cause of action under 42 U.S.C. § 1983, which provides a private cause of action against government officials who violate the constitutional rights of the people. Count I complains of a violation of the right to free speech guaranteed by the First Amendment to the United States Constitution, and contains conclusory allegations to that effect.

However, none of the ultimate facts alleged by the Plaintiff amount to any restriction of the Plaintiffs’ speech whatsoever. The Complaint alleges that the Clerk of Court, at a time past, used to solemnize marriages in the Courthouse, but has chosen to stop offering that service altogether, and that the Clerk’s decision to stop offering marriage solemnizations was a response to a recent Federal decision requiring the State of Florida to recognize same-sex marriages. The Complaint also alleges that marriage is a form of expressive communication, and appears to imply that the Clerk’s decision to no longer offer marriage ceremonies in the Courthouse is a restriction of that communication, and such restriction violates the First Amendment.

Count I of the Plaintiff’s Complaint must fail, as no actual restriction of speech has been alleged. By declining to offer marriage ceremonies in the Courthouse, the Clerk is only limiting its own actions and speech. Although the First Amendment protects citizens from oppressive speech restrictions imposed by the government, it creates no right to demand the speech of another. The plain language of the First Amendment proscribes the government from abridging the freedom of speech; it does not require the government to affirmatively say or do anything in particular.

Although the Plaintiff attempts to characterize the participation in a marriage solemnization as a speech-act of only the married couple, it ignores the reality that the Clerk must itself speak and act in order to solemnize a marriage. The Plaintiff has no recognized or cognizable First Amendment right to demand the Clerk to speak or act. Count I, resting squarely on an illusory First Amendment right to mandate the speech of others, must fail.

COUNT II: VIOLATION OF EQUAL PROTECTION

AND PROCEDURAL DUE PROCESS RIGHTS UNDER THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION

Count II of the Plaintiff’s Complaint should also be dismissed for failure to state a claim. This Count makes conclusory allegations of discrimination, violation of equal protection of the laws, and violation of due process. However, like Count I, the ultimate facts alleged in Count II fail to establish any discriminatory act of the Clerk, foreclosing an equal protection violation, and similarly fail to establish any act of the Clerk which would violate the due process clause. As such, Count II should also be dismissed.

It is alleged in Count II that the Clerk has ceased holding marriage ceremonies altogether, for the purpose of avoiding having to perform same-sex wedding ceremonies. Even accepting that allegation as true for the purposes of this Motion to Dismiss, regardless of the intent or purpose of the Clerk in discontinuing marriage ceremonies, it has discontinued them equally to all classes of people. Having failed to allege any disparate treatment or effect between classes of people, the Complaint fails to identify any discriminatory act falling within the purview of the Fourteenth Amendment’s equal protection clause. As such, to the extent Count II relies on the existence of a violation of equal protection, it must be dismissed.

Count II also cannot survive based on its conclusory allegations of due process violations. The phrase “due process of law” has been interpreted to include a substantive component, which forbids the government to infringe certain “fundamental” liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. See Reno v. Flores, 507 U.S. 292, 301-02 (1993). “Fundamental rights” have been described as those rights “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. at 303. The Complaint alleges that the Clerk, by refusing to hold marriage ceremonies, has denied the Plaintiffs of their fundamental right to marry. That allegation, however, is defeated by paragraph 27 of the Complaint, which states that those unable to be married by the Clerk in the Courthouse will merely face inconvenience and increased ceremony costs as they get married. Although the right to marry is a fundamental right, there is no fundamental right to hold a marriage ceremony in a particular location, or to have it conducted by a certain individual, or to have it conducted with a certain level of convenience or at a certain price. The characterization of the denial of a particular location for a wedding ceremony as a violation of the right to marry at all is simply inaccurate. Finally, with no deprivation of life, liberty, or property alleged in Count II, the procedural due process guarantees of the Fourteenth Amendment are also not implicated by the Clerk’s refusal to perform marriage ceremonies.

Count II fails to allege any discriminatory act or effect to implicate equal protection. It has similarly failed to identify a violated right protected by the due process clause. As such, Count II has failed to state a cause of action and should be dismissed.

COUNT III: NEGLIGENCE

Count III of the Complaint should also be dismissed for failure to state a claim. A claim for negligence in Florida must allege the existence of a duty, breach of that duty, and damages caused by the breach. McCain v. Florida Power Corp., 593 So. 2d 500, 505 (Fla. 1992). Count III has failed to do so as the duty alleged to be owed to the Plaintiffs by the Clerk is not recognized by law. The Plaintiff has alleged that Fla. Stat. §43.26(6) imposes a duty on the Clerk to consult with the Chief Circuit Judge before altering the priority of its court related functions. However, it “is well settled that, absent a special relationship, no duty arises simply where the government owes a duty ‘to the general public, as opposed to an individual person.’” Glenney v. Forman, 936 So. 2d 660, 662 (Fla. 4th DCA 2006) quoting Pollock v. Fla. Dep't of Highway Patrol, 882 So.2d 928, 935 (Fla.2004).

The Complaint fails to allege the existence of a “special relationship” between the Clerk and the Plaintiffs that would give rise to an individual duty owed to the Plaintiffs. Without a duty owed to them, the Plaintiffs cannot maintain an action for negligence. In addition, Count III fails to allege any damages sustained by the Plaintiffs. For these reasons, Count III fails to state a cause of action.

WHEREFORE, the Defendant respectfully requests this Court to Dismiss Counts I, II, and III of the Plaintiffs’ Complaint, and to grant any other relief deemed just and proper.

DATED this 24th day of January, 2015.

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Adam Talley, Esq.

Raymond Gonzalez, Esq.

Todd Hoover, Esq.

Michael Galey, Esq.

Ryan Hittel, Esq.

TEAM MANATEE LAW FIRM

100 N. Tampa St.

Suite 1650

Tampa, FL 33602

(352) 682-6403100 N. Tampa St.
Suite 1650
Tampa, FL 33602 100 N. Tampa St.
Suite 1650
Tampa, FL 33602 100 N. Tampa St.
Suite 1650
Tampa, FL 33602

CERTIFICATE OF SERVICE

I CERTIFY that a true copy of the forgoing has been served via the e-filing portal to the parties listed below on this 24th day of January, 2015:

Shadi Traish, Lindsey Sheppy, Natalie Gonder Jones, Therese Adipietro, Desiree Colson, and Steven Cohen, Pinellas Team East Law Firm, Counsel for the Plaintiffs.