McCarthy v. Town of Windermere
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McCarthy v. Town of Windermere is a public records lawsuit filed by attorney J. Andrew McCarthy, Jr. on May 31, 2009 against the Town of Windermere, Florida. The suit, filed in Orange County, Florida alleges that the defendant violated the Florida Public Records Act.
McCarthy is seeking declaratory relief; a writ of mandamus; and temporary and permanent injunctive relief, to compel the Town of Windermere to comply with the Public Records Act.
The suit is before the Florida 9th Circuit Court and the Florida Fifth District Court of Appeal. Judge John Marshall Kest is the presiding judge.
Parties
- Plaintiff/Appellant
- James McCarthy, pro se
- Defendant/Appellee
- Town of Windermere, represented by James A. Wilkinson, John Conner, Lamar D. Oxford, Scott Pendley, and William E. Lawton of Dean, Ringers, Morgan & Lawton, P.A., Orlando, Florida
Background
On February 9, 2009, attorney J. Andrew McCarthy, Jr. submitted a Public Records Request to Windermere Town Manager, Cecilia Bernier, requesting:
- All documents that refer or relate to drainage conditions on West Second Avenue in Windermere, FL.
- All documents that refer or relate to the asphalt berm, the swale, or the drain located along West Second Avenue in front of or on 915 West Second Avenue or 903 West Second Avenue.
- All documents or communications that refer or relate to James Andrew McCarthy, Jr.
- All documents that refer or relate to Faye Hood Stanford.
- All documents that were delivered to or sent from James Andrew McCarthy, Jr.
- All communications between Cecelia Bernier and Betty Randolph.
- All communications with Gregory Winters.
- All communications with Cherry Winters.
- All communications with Randal Alligood.
- All communications with Jennifer Alligood.
- Documents that refer or relate to Windermere's legal fees during 2008 or 2009.
On June 23, 2009, Windermere filed a Motion for Protective Order seeking to preclude McCarthy from attempting to communicate or from communicating directly with officers and employees of Windermere, i.e. government officials, regarding the subject matter of any pending lawsuit with Windermere. The Motion for Protective order argued, given McCarthy’s status as a lawyer, that Rule 4-4.2 of the Florida Rules of Professional Conduct operates to preclude him from communicating his grievances to government officials to the extent those grievances are the subject of representation by the Town’s attorney. In its Motion for Protective Order, Windermere made various factual and legal allegations and assertions. In support of its factual allegations, the Town filed a pair of affidavits, which affidavits were refuted point for point by a counter affidavit filed by McCarthy. The Town also filed transcripts of public records inspections by the Appellant.
After filing suit, McCarthy’s communications with the Town, its employees and elected officials were limited to: communications regarding service of process, communications regarding delivery of motions prior to the filing of a notice of appearance by counsel for the Town, and communications involving the submission of additional Public Records Requests. The Motion for Protective Order cites those communications as evidence that McCarthy knowingly and willingly acted in direct contravention of Rule 4-4.2 in communicating directly with Town officials and employees regarding the substance of the pending litigation.
On July 27, 2009, Judge Stan Strickland of the Florida 9th Circuit Court held a hearing on Windermere’s Motion for Protective Order. During the hearing, the Judge inquired of McCarthy (acting pro se at the hearing) regarding the constitutionality of a limitation on his right to appear before and speak to the Town Council at one of its regularly scheduled monthly meetings (i.e. a noticed public hearing), and asked whether such a limitation might be different from a limitation on Appellant’s right to communicate with government officials in private.
Ruling of the court
On July 30, 2009, the trial court entered an Order Granting Windermere’s Motion to Preclude Plaintiff from Contacting Employees and Agents of Defendant, which Order was drafted by Windermere’s counsel. The relief granted by the Order went beyond that requested by the Motion for Protective Order in that it enjoined McCarthy from attempting to communicate or communicating directly with Windermere officials and specifically required McCarthy to direct all inquiries or communications to Windermere's officials through Windermere’s counsel. An appeal to the Florida Fifth District Court of Appeal followed and is still pending. In the appeal, McCarthy argues the Order violates the First Amendment to the United States Constitution and Article I, Section 5 of the Florida Constitution.
Associated cases
See also
External links
- Ninth Circuit Case Docket
- Fifth DCA Case Docket
- Windermere Faces 2 Court Challenges (dead link), West Orange Times, June 30, 2009
- Florida public records statute
- Open Government Guide to Florida
- Town of Windermere Website
Footnotes
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