SRCSB Motion to Dismiss Complaint

8/14/2019 SRCSB Motion to Dismiss Complaint

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MINOR I. DOE, through parentPARENT I. DOE; MINOR II. DOE,

through parent PARENT II. DOE,

Plaintiffs,

Case No.: 3:08-cv-361-MCR-EMT

v.

SCHOOL BOARD FOR SANTA

ROSA COUNTY, FLORIDA; JOHN

ROGERS, in his official capacity as

Superintendent of the School District ofSanta Rosa County, Florida; H. FRANK

LAY, in his official capacity as

Principal of Pace High School,

Defendants.

/

DEFENDANTS MOTION TO DISMISS PLAINTIFFS COMPLAINT

AND SUPPORTING MEMORANDUM OF LAW

Defendants, SCHOOL BOARD FOR SANTA ROSA COUNTY, FLORIDA and

JOHN ROGERS, in his official capacity as Superintendent of the School District of

Santa Rosa County, Florida, (Defendants), by and through the undersigned counsel, and

pursuant to Fed.R. Civ. P. 12(b)(6) and 12(b)(1), andN.D. Fla.Loc.R. 7.1, move to dismiss

the Complaint filed by Plaintiffs, and in support of the relief requested, state as follows:

1. On or about August 27, 2008, Plaintiffs filed a two-count Complaint in this

Court alleging claims under 42 U.S.C. 1983 (Establishment Clause violation) (Count I) and

the Florida Constitution (No Aid violation) (Count II). (Doc. 1). The Complaint was

served upon Defendants on or about August 29, 2008.


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2. Defendants requested, and were granted, a 30 day extension of time within

which to respond to the Complaint. (Doc. 9).

3. The Complaint should be dismissed for several reasons. First, Plaintiffs Minor

I. Doe (Doe I) and Minor II. Doe (Doe II) have failed to meet their burden to plead

sufficient facts to establish the irreducible constitutional minimum of standing for the

alleged United States constitutional violations occurring at District Schools other than Pace

High School, the school which they attend. Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992). More specifically, Plaintiffs have failed to allege that they suffered a concrete

and particularized injury in fact, much less one that was sufficiently personal and

individual to satisfy the standing requirements of Article III of the United States

Constitution. See,Lujan 504 U.S. at 561 n1. Moreover, because neither Plaintiffs Doe I nor

Doe II has established their standing to bring claims alleging constitutional violations at

Santa Rosa County Schools other than Pace High School, they may not seek relief on their

own behalf or for any other member of the class who may have suffered constitutional

infringement at these other schools. See, OShea v. Littleton, 414 U.S. 488, 494 (1974).

Because Plaintiffs have failed to establish this threshold jurisdictional prerequisite, there is

no active case or controversy, and therefore this Court lacks standing to hear these claims.

City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983); see also,Doe v. Duncanville Ind.

School Dist., 70 F.3d 402, 408 (5th Cir. 1995).

4. Basic standing principles under Florida law also require that Plaintiffs claims

under the No Aid provision of the Florida Constitution be dismissed. Like their claims


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under the Establishment Clause, Plaintiffs cannot establish standing to assert their claims

under the No Aid provision. As with principles of standing applicable under Federal law,

under Florida law, a litigant must demonstrate that he has standing to invoke the power of a

court to determine the merits of an issue.E.g., Keehn v. Joseph C. Mackey and Co., 420 So.

2d 398, 399 n.1 (Fla. 4th DCA 1982). Standing depends on whether a party has a sufficient

stake in a justiciable controversy, with a legally cognizable interest which would be affected

by the outcome of the litigation.Nedeau v. Gallagher, 851 So. 2d 214, 215 (Fla. 1st DCA

2003) (citations omitted).

5. Accordingly, because Plaintiffs Doe I and Doe II do not have standing to

assert claims for alleged violations of the United States and Florida Constitutions, an

absolute predicate to the establishment of subject matter jurisdiction, this Court lacks the

authority to hear these claims, and therefore the Complaint should be dismissed.

6. Additionally, this Court should exercise its discretion and dismiss Plaintiffs

Count II claim brought under the No Aid provision of the Florida Constitution. This claim

raises novel and unsettled issues of state law on which Florida courts have not passed. 28

U.S.C. 1367(c)(1). Further, under the exceptional circumstances prong of 28 U.S.C.

1367(c)(4), and based upon principles of comity and deference to Florida courts, this issue

should be decided in state court rather than in the case sub judice.

MEMORANDUM OF LAW

I. Applicable Standards of Review

In considering a motion to dismiss, the Court must accept the allegations set forth in


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the complaint as true.Lotierzo v. A Womans World Med. Ctr., 278 F. 3d 1180, 1182 (11th

Cir. 2002); seealso, Olmstead v. Defosset, 205 F. Supp. 2d 1316, 1319 (M.D. Fla. 2002)

(citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974)). Additionally, all

reasonable inferences are to be drawn in favor of the plaintiff. Omar ex. Rel. Cannon v.

Lindsey, 334 F. 3d 1246, 1247 (11th Cir. 2003) (per curiam).

Notwithstanding the standard to be applied in adjudicating a motion to dismiss, the

plaintiff must still meet some minimal pleading requirements.Rumler v. Department of

Corrections, 546 F. Supp. 2d 1334, 1338 (M.D. Fla. 2008) (citing Jackson v. Bellsouth

Telecomms., 372 F. 3d 1250, 1262-63 (11th Cir. 2004)). Indeed, the [f]actual allegations

must be enough to raise a right to relief above the speculative level. Bell Atlantic Corp. v.

Twombly, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007). Further, to survive dismissal a

plaintiff must allege enough facts to state a claim to relief that is plausible on its face. Id.

at 1974.

Moreover, a district court need not accept factual claims that are internally

inconsistent, facts which run counter to facts of which the court can take judicial notice,

conclusory allegations, unwarranted deductions or mere legal conclusions asserted by a

party.Ellen S. v. Florida Board of Bar Examiners, 859 F.Supp. 1489, 1492 (S.D. Fla. 1992).

Nor may a plaintiff merely label claims to survive a motion to dismiss. Olmstead, 205 F.

Supp. 2d at 1319 (citing Blumel v. Mylander, 919 F. Supp. 423, 425 (M.D. Fla. 1996)).

When, on the basis of a dispositive issue of law, no construction of the factual allegation

will support the cause of action, dismissal of the complaint is appropriate. Id. (citing


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Executive 100, Inc., v. Martin County, 922 F. 2d 1536, 1538 (11th Cir. 1991), cert. denied,

502 U.S. 810, 112 S. Ct. 55 (1991)).

With respect to issues of standing, to state a claim in federal court, the complaint

must allege an actual case or controversy. Flast v. Cohen, 392 U.S. 83 94-101 (1968).

Plaintiffs in the federal courts must allege some threatened or actual injury resulting from

the putatively illegal action before a federal court may assume jurisdiction. OShea, 414

U.S. at 493. An abstract or hypothetical injury is simply not enough; the Plaintiff must

allege an actual injury or the immediate threat of some direct injury. Id.

II. Introduction and Background Facts

Plaintiffs filed their two-count Complaint alleging claims against the Santa Rosa

County School Board, its Superintendent, John Rogers in his official capacity, and Principal

Frank Lay, in his official capacity as the Principal of Pace High School. Count I asserts

District-wide violations of the First and Fourteenth Amendments; specifically that the

Defendants violated the Establishment Clause of the United States Constitution. Count II

asserts violations of the Florida Constitution; specifically that the Defendants violated

Floridas No Aid provision enumerated in Article 1, Section 3 of the Florida Constitution,

which generally prohibits the use of public funds for the promotion of religion. The

Complaint alleges four general categories of violations

1. School sponsored prayer at school events, including graduation;

2. School sponsored baccalaureate services;

3. School sponsored events held at places of worship where suitable


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School District facilities existed; and

4. Allowing staff and outsiders to proselytize to students and promote

their personal religious beliefs during classes and other school-

sponsored events.

(Doc. 1, Complaint, p. 2, 1).

More specifically, Plaintiffs allege school sponsored or approved prayer took place at

the following events:

Central High Schools 2005, 2006, and 2008 graduation ceremonies Jay High Schools 2004, 2005, 2006, 2007, and 2008 graduation

ceremonies

Santa Rosa Learning Academys 2005,2006, and 2007 graduationceremonies

Milton High Schools 2004, 2005, 2006, 2007, and 2008 graduationceremonies

Navarre High Schools 2005, 2006, 2007, and 2008 graduationceremonies

Pace High Schools 2004, 2005, 2007, and 2008 graduationceremonies

Santa Rosa Adult Schools 2007 graduation ceremonies(Doc. 1, Complaint, pp. 12-14, 23-30).

Plaintiffs also allege the following schools held religious baccalaureate services:

Central High School and Jay High School held school sponsoredbaccalaureate services in 2005, 2006, 2007, and 2008

Milton High School held a school sponsored baccalaureate service in2008


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Pace High School held a school sponsored baccalaureate service in2008

(Doc. 1, Complaint, pp.16-19, 40-44).

Plaintiffs contend the following events were held at places of worship when suitable

School District facilities were available:

Bagdad Elementary Schools 2004 fifth-grade graduation programwas held at the First Assembly of God Church of Bagdad instead of

Avalon Middle School1

Central High Schools 2006 PRIDE ceremony was held at ImmanuelBaptist Church in Pace instead of Central High School

Holley-Navarre Middle Schools 2004, 2005, 2006, and 2007Christmas concerts were held at Navarre United Methodist Church

instead of Navarre High School

Milton High Schools 2006 and 2008 football-cheerleader banquetswere held at the First Baptist Church in Milton instead of Milton

High School

Oriole Beach Elementary Schools 2006 fifth-grade graduation washeld at First Baptist Church of Gulf Breeze instead of Woodlawn

Beach Middle School

Pace High Schools 2008 Senior Academic Awards was held atEmmanuel Baptist Church instead of Pace High School

Pea Ridge Elementary Schools 2005, 2006, 2007, and 2008 fifthgrade graduations, and the schools 2008 fifth-grade awards

ceremony were held at Pace Assembly of God Church instead of Pace

High School

1This and other 2004 allegations fall outside of the four-year statute of limitations and are

most likely time barred. However, because this defense is not readily apparent on the face of

the Complaint, Defendants do not move to dismiss on this ground.


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(Doc. 1, Complaint, pp. 19-21, 45-52).

Plaintiffs allege the following promotion of personal religious beliefs and

proselytizing of students:

Pace High Schools teachers attend and participate in studentreligious organizations to include preaching to students

Pace High School allows clergy members to speak to studentreligious groups

Pace High School faculty promotes their personal religious views,assign religiously oriented school work and encourage participation

in religious clubs

Pace High School teacher has preached to cross-country students andother students before school

Pace High School faculty and staff compose and give prayers orinvite students or outside leaders to lead prayers before or during

various sporting events

(Doc. 1, Complaint, pp. 21-22, 53-58).

Plaintiff Doe I is enrolled at Pace High School in the Santa Rosa County School

District. (Doc. 1, Complaint, p. 5, 7). Doe 1 alleges that he2 has attended in the past and

plans to attend in the future a number of school functions within the School District and

Pace High, including Doe 1s graduation ceremony in which prayer was offered, including

Pace High Schools 2006, 2007 and 2008 graduation ceremonies. Id.(Doc. 1, Complaint, p.

6, 10). Although generally asserting attendance at school events other than Pace High

School, Doe 1 has not identified any other events he attended in which the Establishment

2The identities of Plaintiffs Doe I and Doe II are unknown, and therefore the use of the


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Clause was allegedly violated.

Plaintiff Doe II is enrolled at Pace High School in the Santa Rosa County School

District. (Doc. 1, Complaint, p. 7, 12). Doe 2 alleges he has attended in the past and plans

to attend in the future a number of school functions within the School District and at Pace

High, including Doe 2s graduation ceremony. Id. Doe generally asserts that he has been

regularly subjected to the Districts policies, practices, and customs promoting religion.

(Doc. 1, Complaint, p. 8, 15). Although generally asserting attendance at school events

other than Pace High School, Doe II has not identified any other events he attended in which

the Defendants allegedly violated the Establishment Clause.

In Count II, Plaintiffs allege that Defendants violated the No Aid provision of the

Florida Constitution because: (1) employee time has been used to plan senior baccalaureate

services; and (2) School District funds have been used to print the programs used at certain

baccalaureate services. (Doc. 1, Complaint at p. 28, 83-84).

III. Argument and Authority - Bases for Dismissal

A. Plaintiffs Lack Standing to Assert Establishment Clause Claims for Alleged

Acts Occurring Outside of Pace High School

Although Plaintiffs Doe I and Doe II generally assert they have attended school

events other than those at Pace High School, they have not specifically alleged that they

were subjected to the alleged constitutional violations at other enumerated District school

events. Additionally, they have not alleged any facts to show they are at imminent risk of

suffering future harm at District schools other than Pace High School. Because they have

masculine pronoun is for convenience only.


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not alleged personal injury traceable to the Defendants allegedly unlawful conduct at

schools other than Pace High School and that such conduct is likely to be redressed by the

instant lawsuit, they lack standing to pursue such claims. Accordingly, Plaintiffs

Establishment Clause claims arising from conduct at District Schools other than Pace High

School should be dismissed.3

1. The Court Has Jurisdiction only when There is an Actual Case or

Controversy

The authority of the United States District Courts is limited by Article III of the

United States Constitution. Valley Forge Christian College v. Americans United for

Separation of Church and State, 454 U.S. 464, 470 (1982). More specifically, those who

seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement

by Article III of the Constitution by alleging an actual case or controversy. City of Los

Angeles v. Lyons, 461 U.S. 95, 101 (1983). Plaintiffs in the federal courts must allege some

threatened or actual injury resulting from the allegedly unlawful conduct before a federal

court may assume jurisdiction. OShea v. Littleton, 414 U.S. 488, 493 (1974). A plaintiff

bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992).

Additionally, the authority of federal courts under Article III is not an unconditioned

authority to determine the constitutionality of legislative or executive acts. Valley Forge

Christian College, 454 U.S. at 471. Indeed, federal courts do not have the authority to seek

3For the purposes of this motion only, Defendants concede Does I and II have standing to

assert claims regarding past and future school sponsored activities at Pace High School.


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out and strike down any governmental act that they deem to be repugnant to the Constitution.

Rather, federal courts sit solely, to decide on the rights of individuals. Jay F. Hein ,White

House Office of Faith-Based and Community Initiatives v. Freedom from Religion

Foundation, Inc., 127 S. Ct. 2553, 2562 (2007). No principle is more fundamental to the

judiciarys proper role in our system of government than the constitutional limitation of

federal-court jurisdiction to actual cases or controversies.Id. With respect to Establishment

Clause cases specifically, the Supreme Court has refused to relax basic standing

requirements. Valley Forge Christian College, 454 U.S. at 488.

Inherent in these requirements is the prudential limitation that parties generally may

not raise claims on behalf of third persons not before the court. Singleton v. Wulff, 428 U.S.

106, 113-114 (1976). This limitation is based upon two overarching principles: first, that

courts should not adjudicate such rights unnecessarily; and, second, that the actual parties

in interest are the most effective advocates of their own rights.Id.

2. Plaintiffs Have Not Alleged A Cognizable Personal Injury RegardingTheir Allegations Other than Those at Pace High School, and Therefore

There is No Actual Case or Controversy arising from those Claims

A plaintiff establishes a case or controversy for Article III standing purposes where

he has suffered an injury in fact, an invasion of a legally protected interest which is

concrete and particularized and actual or imminent, not conjectural or hypothetical. Lujan,

504 U.S. at 560. This requirement is satisfied where the injury affects the plaintiff in a

personal and individual way. Id. at 561 n 1. Simply stated, abstract injury is insufficient.


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It must be alleged that the plaintiff has or is immediately in danger of sustaining some

direct injury as a result of the challengedofficial conduct. OShea, 414 U.S. at 494; see

also, Valley Forge Christian College, 454 U.S. at 472 (stating that to establish standing, a

plaintiff must show that he haspersonally suffered some actual or threatened injury.).

Although, at this early stage in the litigation, the court may presume that general

allegations embrace those specific facts that are necessary to support the claim, the plaintiff

must make general factual allegations of injury. Id. at 561. As the Supreme Court noted in

Lujan:

[The elements establishing standing] are not mere pleading requirements but

rather an indispensable part of the plaintiffs case, each element must be

supported in the same way as any other matter on which the plaintiff bears

the burden of proof, i.e., with the manner and degree of evidence required at

the successive stages of the litigation.

Id. Although the Plaintiffs burden is slight, the [f]actual allegations must be enough to

raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 127 S. Ct.

1955, 1965 (2007). Further, to survive dismissal a plaintiff must allege enough facts to state

a claim to relief that is plausible on its face.Id. at 1974. Plaintiffs have failed to meet their

burden in this regard.

More specifically, Plaintiffs have asserted more than forty (40) incidents of alleged

violations of the Establishment Clause occurring at District Schools other than Pace High

School. Yet, there is not a single factual allegation suggesting Doe I or II attended or were

exposed to any of these alleged violations, or that they would be exposed to them in the

future. Plaintiffs general statements that they attended some school events occurring at


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schools other than Pace High School, requires the Defendant and this Court to speculate as to

whether they suffered an injury in fact regarding these other school events, and therefore

Plaintiffs have failed to meet their pleading burden. See,OShea, 414 U.S. at 494 (plaintiffs

must allege they have suffered or are in immediate danger of suffering some direct injury as

a result of the challenged conduct).

The Complaint is silent as to any personal involvement of the Plaintiffs, much less

direct injury or threat thereof, as a result of the alleged practices at District Schools other

than Pace High School. Their failure to allege facts setting forth their personal involvement

with respect to these alleged violations renders their Complaint deficient and subject to

dismissal.

3. Plaintiffs Have Not Alleged A Cognizable Personal Injury Regarding

Their Allegations Other than Those at Pace High School, and Therefore

They May Not Seek Relief on Behalf of Those Who May Have Suffered an

Actual Injury

Plaintiffs failure to allege an actual injury and resultant failure to establish a case or

controversy regarding alleged constitutional violations at District Schools other than Pace

High School also precludes them from seeking relief on behalf of a class of persons who may

have suffered an actual injury. OShea, 414 U.S. at 494. [I]f none of the named plaintiffs

purporting to represent a class establishes the requisite of a case or controversy with the

defendants, none may seek relief on behalf of himself or any other member of the class.Id.

Accordingly, Plaintiffs may not salvage their claims by contending they represent a class of

persons who allegedly suffered constitutional injury because they personally did not allege

an individual injury.


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B. Plaintiffs Lack Standing to Assert Claims Under the No Aid Provision of the

Florida Constitution for Alleged Acts Occurring Outside of Pace High School

Plaintiffs supplemental state law claim under the No Aid provision of the Florida

Constitution Article I, Section 3 also fails for the same reason. 4 As with principles of

standing applicable under Federal law, under Florida law, a litigant must demonstrate that he

has standing to invoke the power of a court to determine the merits of an issue.E.g., Keehn

v. Joseph C. Mackey and Co., 420 So. 2d 398, 399 n.1 (Fla. 4th

DCA 1982). Standing

depends on whether a party has a sufficient stake in a justiciable controversy, with a legally

cognizable interest which would be affected by the outcome of the litigation. Nedeau v.

Gallagher, 851 So. 2d 214, 215 (Fla. 1st

DCA 2003) (citations omitted). The interest cannot

be conjectural or merely hypothetical.Id. (citation omitted). Additionally, the claim should

be brought by, or on behalf of, the real party in interest.Id. (citing Kumar Corporation v.

Nopal Lines Ltd., 462 So. 2d 1178 (Fla. 3d DCA), rev. denied, 476 So. 2d 675 (Fla. 1985).

Further, where, as here, a declaratory judgment is sought, principles of standing require that

before declaratory relief is provided, all persons who have an actual, present, adverse and

antagonistic interest in the subject matter should be before the court. Fla. Dept. of

Education v. Glasser, 622 So. 2d 944, 948 (Fla. 1993) (quotingMay v. Holley, 59 So. 2d

636, 639 (Fla. 1952)).

Here, Plaintiffs are not the real parties in interest to pursue alleged violations of the

No Aid provision of the Florida Constitution allegedly occurring at schools other than

4 Should this Court decline supplemental jurisdiction over Plaintiffs No Aid claim [(See,

Argument III(C)], infra , then any analysis of standing with respect to this claim is obviously


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Pace High School. Their interests, if any, with respect to activities occurring at other schools

within the Santa Rosa County School District are grounded in conjecture and speculation

and are, at best, hypothetical. Because there is no jusiticiable controversy between the parties

with respect to events occurring outside of the school actually attended by Plaintiffs, their

No Aid claims also fail for want of standing.

C. The Court Should Decline Supplemental Jurisdiction over Plaintiffs State

Constitutional Claim and Dismiss Count II

The grounds for a federal court exercising supplemental jurisdiction over a state law

claim are codified in 28 U.S.C. 1367. Section 1367(a) provides, in pertinent part:

Except as provided in subsections (b) and (c) or as expressly provided

otherwise by Federal statute, in any civil action of which the district courts

have original jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims in the action

within such original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution.

28 U.S.C. 1367(a).

The factors that are applied in determining whether a federal court should decline

supplemental jurisdiction were enumerated in United Mine Workers of America v. Gibbs,

383 U.S. 715 (1966). These factors are now codified at 28 U.S.C. 1367(c). The principles

announced in Gibbs are still utilized by courts in determining whether to exercise

supplemental jurisdiction under 1367(c). See, e.g., Palmer v. Hospital Authority of

Randolph Cty., 22 F.3d 1559, 1569 (11th Cir. 1994) (noting a federal district courts

discretion not to exercise supplemental jurisdiction was originally articulated in Gibbs).

moot.


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In Gibbs, the Supreme Court explained that pendent (now supplemental) jurisdiction

is a doctrine of discretion, not of plaintiffs right, and that a federal court should hesitate to

exercise jurisdiction over state law claims based on the considerations of judicial economy,

convenience and fairness to litigants. Id. at 726. The Court also noted that needless

decisions of state law should be avoided both as a matter of comity and to secure a

definitive reading of applicable law, thereby promoting justice between the parties. Id.

Finally, the Court determined that if a state law claim substantially predominates or

constitutes the real body of a case, the state claim may be fairly dismissed without

prejudice and left for resolution by state courts. Id. at 727.

Subsection (c) of 28 U.S.C. 1367 provides four grounds upon which a district court

may decline to exercise supplemental jurisdiction: (1) if the state claim raises a novel or

complex issue of State law; (2) if the state claim substantially predominates over the

claim over which the Court has original jurisdiction; (3) if the district court has dismissed all

claims over which it has original jurisdiction; or (4) in exceptional circumstances, where

there are other compelling reasons for declining jurisdiction. 28 U.S.C. 1367(c)(1)-(4).5

5Inasmuch as Plaintiffs federal law claims under the Establishment Clause have not been

dismissed with prejudice, 1367(c)(3) is not applicable here. Further, it would appear that

the second factor under 28U.S.C. 1367(c) is also not implicated.


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alleged practices are part of an overall preference for a particular religious sect or for

advancing religion generally, thereby militating in favor of hearing their federal and state

constitutional claims in a single action. However, because the question of whether the

alleged practices violate Floridas No Aid provision has never been decided by a Florida

court, this Court is respectfully urged to exercise its discretion and decline supplemental

jurisdiction over this claim. These issues of first impression should be decided by Florida

courts because they are issues of public importance requiring construction of Article I,

Section 3 of the Florida Constitution. Any convenience associated with the litigation of both

claims in this action is outweighed by the principles of comity and deference to state court

decisions embodied in 28 U.S.C. 1367(c)(1) and discussed in Gibbs.

The decisions of several district courts and the Ninth Circuit Court of Appeals are

instructive. InLaJoie v. Connecticut State Bd. of Labor Relations, 837 F. Supp 34 (D. Conn.

1993), a group of deputy sheriffs brought an action challenging a Connecticut state statute

that prevented them from forming a labor union and to recover for violation of civil rights

under various federal statutes.Id. at 37. The district court declined to exercise jurisdiction

over the state law claim directed to the issue of whether the state could be compelled to pay

for substitute counsel upon withdrawing from representation of public officials sued in their

individual capacity. The court found that this claim raised a novel or complex issue of state

law. Id. at 38. Importantly, the plaintiffs inLaJoie did not bring to the courts attention, nor

was the court able to find, any decision of a Connecticut court squarely addressing the state

law issues.Id. The court found that this hotly contested state law issue, which implicates


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vital issues of state policy appeared to lack any state precedent or direction. Id. As a

result, the court held that resolution of this state law question would be, at best, a prediction

of subsequent state law developments, and therefore declined to exercise jurisdiction over

the claim. Id.

Similarly, in Support Ministries for Persons with AIDS, Inc. v. Village of Waterford,

799 F. Supp. 272 (N.D.N.Y. 1992), the district court refused to exercise supplemental

jurisdiction over state law claims notwithstanding the fact that the federal claims arose out of

the same set of operative facts and would have involved the same proof at trial. Id. at 280.

Invoking its discretion under 28 U.S.C. 1367(c)(1), the court declined to exercise

supplemental jurisdiction over all of the state law claims, finding that there was no reason for

it to embroil itself in a dispute and make a novel and potentially extremely significant

interpretation of state law.Id. The court rejected the plaintiffs argument that supplemental

jurisdiction should be retained in the interests of judicial economy, noting that the judicial

economy factor should not be the controlling factor.Id.(quoting Kidder, Peabody & Co. v.

Maxus Energy Corp., 925 F.2d 556, 564 (2d Cir.), cert. denied, 501 U.S. 1218 (1991)).

Additionally, in reaching its decision, the court found that a district court should refrain

from reaching out forissues, thereby depriving state courts of opportunities to develop and

apply state law. Id.

Borges v. City of West Palm Beach, 858 F. Supp. 174 (S.D. Fla. 1993) is also

instructive. There, the court declined to exercise supplemental jurisdiction over state law

claims pertaining to the publication of an arrest because it raised a novel issue of Florida


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state law. Id. at 177. The plaintiff in Borges relied upon a particular case which itself

appeared to be unique. Id. The court held that whether and how the case on which the

plaintiff relied would be extended to the facts at bar was a novel issue of state law best

decided by a state court. Id. According to the court, the various legal and policy

considerations at issue (powers and immunities of municipal governments and privacy rights

of citizens under state law) are precisely those that 1367(c)(1) allows the district court to

decline to adjudicate.Id. The court also noted that the benefits of a consolidated case were

outweighed by considerations of submitting unique and novel claimsto state court

determination.Id.

A Ninth Circuit case is factually analogous. InHarris v. Joint School District No.

241, 41 F.3d 447 (9th Cir. 1994), a group of students challenged the constitutionality of the

inclusion of prayer in an annual high school graduation ceremony. The students claimed that

the prayers violated the Establishment Clause as well as the Religion Clauses contained in

the Idaho State Constitution, which contains a similar No-Aid provision as the Florida

Constitution [Article IX, section 5 of the Idaho Constitution]. Id. at 448. The Ninth Circuit

held that the importance of the state constitutional issues raised made it appropriate for those

issues to be resolved by the courts of the State of Idaho. Id. Relying on 28 U.S.C

1367(c)(1) and (3), the court determined that whether graduation prayers violate the Idaho

Constitution is a novel and complex issue of first impression.Id. Additionally, the court

found that because the state constitutional provisions at issue did not resemble those found in

the First Amendment, dismissal of the state law claims was not an abuse of discretion. Id.;


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see also, OConnor v. State of Nevada, 27 F.3d 357, 363 (9th Cir. 1994) (finding that

construction of Nevada Constitution was the type of novel state law issue justifying the

denial of supplemental jurisdiction).

While Florida courts have decided cases involving the No-Aid provision, the issue

of whether the use of employee time to plan a school baccalaureate program violates the No

Aid provision has not been decided in any reported case of which Defendants are aware.6

Similarly, the issue of whether expenditure of public funds for printing programs for these

kinds of events violates the No Aid provision has also not been adjudicated in any reported

decision. Simply put, whether the de minimus costs associated with these alleged

expenditures rises to the level of constitutional concern under Article I, Section 3 of the

Florida Constitution raises unsettled and undecided questions of state law, and is a dispute

best left to Florida Courts to decide. LaJoie, 837 F. Supp. at 38; seealso,Baggett v. First

Ntl. Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997) (Resolution of Plaintiffs

state law claims depends on determinations of state law. State courts, not federal courts,

should be the final arbiters of state law.).

6Reported decisions from Florida courts interpreting the No Aid provision include: Bush

v. Holmes , 886 So. 2d 340 (Fla. 1st DCA 2004); Bush v. Holmes, 919 So. 2d 392 (Fla.

2006); Johnson v. Presbyterian Homes of the Synod of Fla., Inc., 239 So. 2d 256 (Fla.

1970); Koerner v. Borck, 100 So. 2d 398 (Fla. 1958); Nohrr v. Brevard County Educ.

Facilities Auth., 247 So. 2d 304 (Fla. 1971); Rice v. Florida, 754 So. 2d 881 (Fla. 5th DCA

2000); Southside Estates Baptist Church v. Board of Trs., 115 So. 2d 697 (Fla. 1959);.

Floridians Against Expanded Gambling v. Floridians for a Level Playing Field, 945 So. 2d

553 (Fla. 5th DCA 2006); and City of Boca Raton v. Gidman, 440 So. 2d 1277 (Fla. 1983).


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Even though this Court is clothed with [the] license to adjudicate Plaintiffs No

Aid claim [Weissinger, 733 F.2d at 807], as the district court found in Support Ministries,

supra, there is no reason for the court to embroil itself in a dispute and make a novel and

potentially extremely significant interpretation of state law when Florida courts have not

decided the issues presented in Count II. Support Ministries, 799 F. Supp. at 280. To do

otherwise would deprive Florida courts the opportunity to interpret and develop the law as it

relates to the scope of the No Aid provision.Id. Accordingly, Count II of the Complaint

should be dismissed without prejudice.

2. The Exceptional Circumstances Prong of 28 U.S.C. 1367(c)(4) also

Provides Grounds for Dismissing Count II

The final ground in 28 U.S.C. 1367(c) is a catchall provision which permits a

district court to decline to exercise supplemental jurisdiction in exceptional circumstances

where there are other compelling reasons for declining jurisdiction. 28 U.S.C. 1367(c)(4).

In addition to issues involving the interpretation of novel or complex issues of state law,

federal courts have declined supplemental jurisdiction under subsection (c)(4) based upon

principles of comity and where the subject of a pending state court proceeding and over

claims that would require the federal courts intrusion on the operation of local government.

E.g., Polaris Pool Sys. v. Letro Prods. Inc., 161 F.R.D. 422, 425 (C.D. Cal. 1995) (pending

state court action); Women Prisoners of D.C. Correct. V. Dist. Of Columbia, 93 F. 3d 910,

923(D.C. Cir. 1996) (order for relief involved judicial micromanagement of prison system).


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Respectfully submitted,

/s/ Robert J. Sniffen

ROBERT J. SNIFFEN

Florida Bar Number: 0000795SNIFFEN LAW FIRM, P.A.

211 East Call Street

Tallahassee, Florida 32301

E-mail address: [email protected]

Telephone: (850) 205-1996

Facsimile: (850) 205-3004

/s/ J. David Marsey

J. DAVID MARSEY

Florida Bar Number: 0010212

SNIFFEN LAW FIRM, P.A.211 East Call Street



Telephone: (850) 205-1996

Facsimile: (850) 205-3004

/s/ Terry J. Harmon

TERRY J. HARMON

Florida Bar Number: 0029001SNIFFEN LAW FIRM, P.A.

211 East Call Street



Telephone: (850) 205-1996

Facsimile: (850) 205-3004

and

/s/ Paul Green

PAUL GREENFlorida Bar No.: 127448

JOHNSON, GREEN and MILLER, P.A.

6850 Caroline Street

Milton, FL 32570

E-Mail Address: [email protected]

Telephone: (850) 623-3841

Facsimile: (850) 623-3555

COUNSEL FOR DEFENDANTS

SCHOOL BOARD OF SANTA ROSA

COUNTY, FLORIDA and JOHNROGERS, IN HIS OFFICIAL

CAPACITY AS SUPERINTENDENT

OF THE SCHOOL DISTRICT OF

SANTA ROSA COUNTY, FLORIDA
mailto:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 20th day of October, 2008, I electronically filed

Defendants Motion to Dismiss Plaintiffs Complaint and Supporting Memorandum of Law,

in the United States District Court for the Northern District of Florida, Tallahassee Division,by using the CM/ECF system which will send a notice of electronic filing to the following

counsel of record:

Counsel For Plaintiffs:

Benjamin James Stevenson

American Civil Liberties Union

Foundation of Florida

Post Office Box 12723

Pensacola, Florida 32591-2723

Glenn M. Katon



Post Office Box 18245

Tampa, Florida 33679

Randall C. Marshall

Maria Kayanan



4500 Biscayne Boulevard, Suite 340Miami, Florida 33137

Daniel Mach

Heather L. Weaver

ACLU Program on Freedom of

Religion and Belief

915 15th Street, NW

Washington, DC 20005

Co-Counsel for Defendants Santa Rosa

County School Board and John Rogers:

Paul Green

Johnson, Green and Miller, P.A.

6850 Caroline Street

Milton, FL 32570

Counsel for Defendant H. Frank Lay:

Christopher Barkas

Carr Allison

305 South Gadsden Street


/s/ J. David Marsey

J. DAVID MARSEY

Documents

SRCSB Motion to Dismiss Complaint