Seen Around: Kennedy lawsuit continues after death

The following article appeared in yesterday’s Daytona Beach News-Journal and was contributed by Staff Writer, Jay Stapleton

Court to rule on public’s right to speak

Two years ago, a civil rights legend with deep roots in Central Florida was not permitted to speak at a public hearing about a water treatment plant on the St. Johns River.

William Stetson Kennedy, who died earlier this year at the age of 94, wanted to voice his disapproval of the project. It was, after all, his right as a Florida citizen.

Or was it?

Although Kennedy didn’t live to see the court case he started come to its resolution, he and his widow are now at the center of a dispute over the public’s right to be heard at public meetings.

“This is the number one complaint to us by citizens,” said Barbara Petersen, president of the Florida First Amendment Foundation. “They are deeply offended when their elected officials don’t want them to speak.”

Many consider it their right to be heard at meetings that deal with matters of public importance, like those of school districts, city councils and zoning boards.

Lawyers for governments have argued they agree public comments are important. But they say, as in the case of the hearing at which Kennedy didn’t get to speak, that comments must sometimes be limited for the sake of efficiency. Otherwise, they say, meetings could drag on for days.

Petersen said the Florida Supreme Court has recognized the public’s right to be heard. “The government is of the people, by the people,” she said. “That we wouldn’t have a right to speak is mind boggling.”

Last year, the 1st District Court of Appeal in Tallahassee issued a ruling that said Floridians did not have a right to speak at meetings.

“That was a huge shock,” Petersen said, “because we’ve had a 40-year history of having a right to speak.”

But legal experts say that right isn’t made crystal clear in the law. A pending legislative action is also seeking to add language to current law emphasizing the right to speak at meetings.

An appeal filed by Kennedy and his widow, Sandra Anne Parks, in the St. Johns case also seeks to make the right to be heard more clear.

Here are the scenarios: The 5th District Court of Appeal in Daytona Beach could agree with the 1st District and not having a right to speak would be governing law; or if the 5th District disagrees, the law giving citizens a mandatory right to speak at meetings could be enforced in the counties of the district, which includes Volusia and Flagler.

The matter will very likely go before the Florida Supreme Court, legal experts said.

In April 2009, Kennedy and his wife drove to a public meeting of the St. Johns Water Management District in Palatka. An environmental group called the St. Johns Riverkeepers had called for the meeting, hoping to voice opposition to the water plant project.

Opposition was voiced, though not by all who wanted to speak, court records show.

Last year, Kennedy and his wife filed a lawsuit against the St. Johns River Management District.

In that lawsuit, Kennedy’s lawyers argued Kennedy and others should have been permitted to be heard, as was their right.

The water district disagreed, citing an earlier appeals court.

They argued that the crowd was large and every effort was made to have the opponents of the project represented. But no law was violated, they said.

When the circuit judge ruled in the water district’s favor, Kennedy filed the appeal.

“This case presents a perfect opportunity to confirm that open-to-the-public includes the right to be present and heard,” Michael L. Howle, the attorney representing Kennedy, wrote in his appeal. “Every case interpreting the Sunshine Law must begin with a presumption in favor of the public.”

But lawyers for the water management district and Seminole County have countered that Kennedy and his wife were just unhappy with the outcome. The water plant was approved and now is nearly operational.

“There is no basis for this court to rewrite the entirety of the Sunshine Law merely because the appellants are unhappy with the outcome,” wrote Seminole County Attorney Robert McMillan.

The appeal, he said, carries “considerable risk of placing this court in direct conflict with other courts on the Sunshine Law.”

Richard A. Harrison, an attorney in Tampa who teaches government law at Stetson University College of Law, said he doesn’t think the current state law says “anyone has a right to speak at public meetings.”

“Almost universally,” Harrison said, all public meetings, from local governments to water districts, give “some period for public comment.” But for the sake of time management, there is usually a limit to how much can be said.

“You don’t need to hear 300 people say the same thing,” he said. Still, Harrison agreed with the argument that public comment “makes government better.”

“However you feel about it, I’m sure it does make government better, to talk things out,” he said. “But that’s not the same thing as saying you have a right to speak whenever you feel like it.”

© 2011 The Daytona Beach News-Journal