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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 4:20-cv-10076-JLK/BECERRA

KEY WEST BAR PILOTS ASSOCIATION, 

Plaintiff,

v. 

R. JOYCE GRIFFIN, in her official capacity as 

SUPERVISOR OF ELECTIONS FOR MONROE

COUNTY, FLORIDA; the CITY OF KEY WEST,

FLORIDA, a municipal corporation of the State of 

Florida; and KEY WEST COMMITTEE FOR SAFER,

CLEANER SHIPS, INC., a Florida non-profit

corporation, 

Defendants.

_____________________________________________/ 

REPLY MEMORANDUM IN FURTHER SUPPORT OF THE 

KEY WEST COMMITTEE’S MOTION FOR SUMMARY JUDGMENT

 

Peter W. Homer, Esq. Matthew P. Farmer, Esq.

HOMER BONNER JACOBS & ORTIZ, P.A. FARMER & FITZGERALD, P.A.

Fla. Bar No. 291250 Fla. Bar No. 0793469 

1441 Brickell Avenue 400 N. Tampa St., Suite 2840 

1200 Four Seasons Tower Suite Tampa, FL 33602 

Miami, FL 33131 (813) 228-0095 

(305) 350-5100 fax (813) 224-0269 

fax (305) 372-2738 MattFarmer1@aol.com

phomer@homerbonner.com 

Counsel for Defendant Key West 

Committee for Safer, Cleaner Ships, Inc. 

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Plaintiffs brought this action in federal court seeking pre-election invalidation of three (3) 

Key West citizen ballot Initiatives. Those citizen Initiatives seek to invoke the City of Key West’s 

10th Amendment police power to protect the adequacy of its easily overwhelmed health 

infrastructure, and the health, safety and well-being of its citizenry. Plaintiffs failed, however, to 

appreciate that federal courts are courts of limited jurisdiction, able to exercise power only “in the 

last resort, and as a necessity.” Allen v. Wright, 468 U.S. 737, 752 (1984). As a consequence of 

Article III’s constitutional boundaries, federal courts are required to rigorously self-examine their 

jurisdiction, DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006), which includes assessing 

standing of each plaintiff on each asserted claim; addressing only disputes “ripe” for decision; 

avoiding advisory opinions; abstaining from unnecessarily deciding federal constitutional issues; 

and declining to exercise supplemental jurisdiction where appropriate under 28 U.S.C. §1367. 

These constitutional and prudential limitations on federal court power are why federal 

courts rarely if ever grant pre-election declaratory or injunctive relief challenging the 

constitutionality of proposed legislation or voter initiatives or referendums.

1 It also explains why 

in their opposition (the “Opposition”) to the Committee’s motion for summary judgment, Plaintiffs 

do not cite a single federal court decision granting pre-election declaratory relief disallowing a 

1 See, e.g., United States v. Then, 56 F.3d 464, 466 (2d Cir. 1995) (“Just as we ordinarily do not 

issue advisory opinions, we should not suggest to Congress that it ought to adopt proposed 

legislation. Our role is limited to interpreting and applying the laws that Congress passes[.]”); Ajax 

Gaming Ventures, LLC v. Brown, No. 06-cv-336 S, 2006 WL 2302192, at *2-3 (D.R.I. Aug. 8, 

2006) (declining to pass on legality of proposed legislation where “the electorate may vote it down 

in November”); Coleman v. Alcolac, Inc., 888 F. Supp. 1388, 1404 n.6 (S.D. Tex. 1995) 

(“[F]ederal courts may not advise . . . on the constitutionality of proposed legislation.”); Jones v. 

Deutsch, 715 F. Supp. 1237 (SDNY 1989) (holding that until local incorporation petition was 

certified, and voter approval also obtained, plaintiffs’ claims of threatened harm were not ripe and 

too imaginary to support Article III standing).

 

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voter-sponsored initiative or referendum on constitutional grounds. That is because federal courts 

generally stay their hand; avoid premature adjudications on “contingent future events that may not 

occur as anticipated, or indeed may not occur at all,” Thomas v. Union Carbide Agricultural 

Products Co., 473 U.S. 568, 581 (1985); allow voters to vote; and depending on the outcome, then 

and only then engage in post-election assessment of the voter approved ballot initiative.

2

Florida state circuit courts, in contrast to federal courts, do not operate under the robust 

limitations Article III imposes on federal court jurisdiction. Plaintiffs know this. The Florida 

Supreme Court recognized this fundamental jurisdictional difference over a quarter century ago:

Unlike the federal courts, Florida’s circuit courts are tribunals of plenary 

jurisdiction. Art. V, § 5, Fla. Const. They have authority over any matter not 

expressly denied them by the constitution or applicable statutes. Accordingly, the 

doctrine of standing certainly exists in Florida, but not in the rigid sense employed 

in the federal system. We thus are not persuaded by the federal standing cases cited 

by the State. 

Department of Revenue v. Kuhnlein, 646 So.2d 717, 720 (Fla. 1994). 

Florida is not alone in this distinction, evidenced by opinions3 from courts of numerous 

sister states holding that state court jurisdiction is not subject to the rigors of Article III. 

2 Jones, 715 F. Supp. at 1242-48 (“should the incorporation petition be certified” and if “voter 

approval be obtained” then a “party with standing may seek at that time to enjoin ... and, if that 

party can meet the requirements for an injunction, prevent whatever imminent harm is 

threatened.”) 

3 See, e,g., Sekura v. Krishna Schaumburg Tan, Inc., 115 N.E.3d 1080, 1097 n.8 (Ill. App. Ct. 

2018) (“when reading a federal decision, we must keep in mind the differences, such as that federal 

courts are subject to article III in the federal constitution, while [Illinois] state courts are not”); 

Weatherford v. City of San Rafael, 395 P.3d 274, 278 (Cal. 2017) (“Unlike the federal Constitution, 

our state Constitution has no case or controversy requirement imposing an independent 

jurisdictional limitation on our standing doctrine.”); Weld v. Glaxo Wellcome Inc., 746 N.E.2d 

522, 529 (Mass. 2001) (“State courts, however, are not burdened by the[] [federal court’s] 

jurisdictional concerns and, consequently, may determine, particularly when class actions are 

involved, that concerns other than standing in its most technical sense may take precedence”).

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Conveniently ignoring this crucial difference (and failing to discharge their required duty of candor 

to this Court), Plaintiffs devote nearly a page and a half of their Opposition to a block quotation 

from a Florida 3rd DCA opinion, and a lengthy string citation of other Florida state appellate court 

opinions4

, deciding the pre-election legality of a voter initiative or referendum. ECF No. 52 at 5-

6. None of the cited cases was issued by a federal court. The explanation why is straight-forward—

federal courts of limited jurisdiction do not decide cases where, as here, the plaintiff lacks required 

standing, the dispute is not ripe for adjudication or calls for an advisory opinion, or federal 

constitutional issues can be avoided by abstention. Each of these factors, as well as the fact that all 

cruise ship operations into Key West have been suspended until at least October 31, 2020, 

foreclose Plaintiffs’ request for federal court relief before the November 3rd election.

I. Plaintiffs concede they seek a constitutionally improper advisory opinion and 

premature adjudication of a matter not “ripe” for decision. 

Plaintiffs’ Opposition does not even address, and their non-response therefore concedes, 

that this case seeks a constitutionally disfavored advisory opinion and the requested declaratory 

and injunctive relief is not “ripe” for decision. As the Committee’s motion for summary judgment 

demonstrated, Plaintiffs seek a “premature adjudication” before the November 3rd election even 

takes place, which constitutionally should be avoided. The request for declaratory and injunctive 

relief also threatens to entangle this Court “in abstract [constitutional] disagreements,” and 

Plaintiffs can demonstrate no “hardship” if the Court withholds consideration, if any, until the 

4 One of the state court cases cited by Plaintiffs actually ruled that,”[i]n their discretion, ..., the 

courts may make an initial determination as to whether or not the substantive provisions of the 

proposed amendments, are facially constitutional and are within the powers of the enacting body.” 

Gaines v. City of Orlando, 450 So.2d 1174, 1178 (Fla. 5th DCA 1984) (emphasis added). Many 

of Plaintiffs’ other cited state court cases merely authorize pre-ballot challenges to procedural 

deficiencies. See, e.g., City of Miami Beach v. Herman, 346 So.2d 122, 123 (Fla. 3d DCA 1977). 

There is no asserted procedural deficiency or challenge made by Plaintiffs here.

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November 3rd election actually takes place. Abbott Laboratories v. Gardner, 387 U.S. 136, 149 

(1967). The undisputed fact that all cruise line operations into Key West have been suspended until 

at least October 31, 2020—a mere three (3) days before the November 3, 2020 election—further 

emphasizes that Plaintiffs will suffer no hardship from awaiting the outcome of the ballot 

Initiatives. This conceded lack of ripeness and the advisory opinion nature of the requested 

declaratory relief, without more, warrants summary judgment in favor of the Committee. Plaintiffs 

will not be prejudiced by such a result. If some or all of the Initiatives receive Key West voter 

approval and become effective, and if enforcement efforts were imminent or occurring, a court of 

appropriate jurisdiction could then, upon a proper showing by a constitutionally aggrieved party 

with standing, stay any enforcement efforts pending a determination on the merits. 

II. Neither Plaintiff has made the required individualized showing of standing to 

assert each separate asserted claim for relief.

Each Plaintiff bears an individualized burden of demonstrating its standing to assert each 

separate asserted claim for relief. That burden must be met with factual support not, as Plaintiffs 

attempted to do, a page of general legal principles from appellate cases, mere reliance on its 

pleadings, and a conclusory statement that Plaintiffs have met their burden. Having failed to 

individually meet that burden with respect to each asserted claim for relief, all of Plaintiffs’ claims 

should be dismissed for lack of standing. 

III. Prudential reasons warrant this Court’s non-involvement at this juncture. 

There are variants of abstention. Here, however, abstention is proper under Railroad 

Commission v. Pullman Co., 312 U.S. 496 (1941) because there are i) issues of unsettled state law

(in Counts III and IV); ii) the determination of which may avoid the necessity to decide the federal 

constitutional issues (in Counts I and II). Plaintiffs do not, because they cannot, dispute that if they 

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were ultimately able to succeed on the unsettled state law claims in Counts III and IV, there would 

be no need for this Court to decide Plaintiffs’ federal constitutional claims in Counts I and II. In 

these circumstances, under Pullman, the correct response is to abstain. 

Even if the Court was disinclined to abstain, the Committee’s summary judgment motion 

also demonstrated there is no independent jurisdictional basis for Counts III and IV and why the 

Court should employ its discretion not to exercise supplemental jurisdiction under 28 U.S.C. 

§1367(c)(3). As subsections (c)(1) and (c)(2) of §1367 respectively indicate, supplemental 

jurisdiction should be exercised sparingly where as in Count III a “novel or complex issue of State 

law” is involved or where as in Count IV the Florida law claim “predominates over” the asserted 

federal claims. The Opposition does not respond in any meaningful way to this supplemental 

jurisdiction argument; therefore, Plaintiffs should be deemed to have conceded the argument. 

IV. Plaintiffs have not demonstrated exigencies or undue hardships warranting an 

expedited disposition of this case. 

The U.S. Supreme Court has repeatedly described questions of Article III justiciability as 

a “threshold” issue, see, e.g., Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 

(2019); Horne v. Flores, 557 U.S. 433, 445 (2009). It is an “irreducible constitutional minimum,” 

Lujan, 504 U.S. at 560, that can be raised at any time, even on appeal for the first time. See Frank 

v. Gaos, 139 S. Ct. 1041 (2019). Plaintiffs, in superficial fashion, try to skip over this “threshold” 

issue, arguing that “resolving disputes such as this, pre-ballot printing, and pre-election, is the 

preferred course in a democracy.” ECF No. 52 at 8. But as demonstrated above, when it comes to 

federal (as opposed to state) courts, Plaintiffs cite no support for that bold (and incorrect) 

statement. Indeed, a careful review of federal court decisions reveals just the opposite. Sensitive 

to concerns about justiciability and separation of powers (in an Initiative, voters are after all acting 

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in a legislative capacity), and careful to avoid advisory opinions and unnecessary constitutional 

decisions, federal courts generally stay their hand, avoid premature adjudications, allow voting to 

go forward which (to use Plaintiffs’ chosen words) “is the [true] preferred course in a democracy,” 

and then and only then decide whether a voter initiative or referendum is constitutionally or 

statutorily flawed.

To persuade the Court that it should proceed in hyper-speed fashion, Plaintiffs try to create 

some appearance of urgency. But they cannot demonstrate any exigencies to justify a hurried 

summary judgment decision or an August 12, 2020 trial on the merits. The election will not take 

place until November 3, 2020—almost three (3) months from now. Cruise ship operations in the 

U.S. and specifically into Key West ceased in mid-March and have been continuously suspended 

until “at least October 31, 2020” because of the COVID-19 pandemic. And that suspension will in 

all likelihood be further extended. Even if that suspension is lifted on October 31, 2020, it is unclear 

which cruise lines will survive the economic chaos caused by the COVID-19 pandemic; when 

surviving cruise lines will resume operations; whether surviving cruise lines will re-commence 

service into Key West; and what will be the frequency and magnitude of that service, if any. 

Nor is there any remaining concern about the Supervisor of Elections incurring some 

additional cost if the three (3) Initiatives (which will be at the end of the ballot) cause the length 

of the November 3rd ballot to extend to an additional page. The Committee has reached an 

agreement to post a $10,000 bond with the Supervisor of Elections to cover that cost if an Initiative 

that caused the additional page length to the ballot is subsequently determined to be unenforceable.

Thus, the reason the Court cited for expedited treatment of this matter has been rendered moot. 

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Having no meaningful response to the Committee’s demonstration that there are no exigent 

circumstances warranting an expedited disposition of this case, Plaintiffs resort to hyperbole and 

denigrating voter intelligence. Plaintiffs claim that voters will be “delude[d] and deceive[d]” if the

Initiatives are included on the ballot, that voters will “be misled into thinking that their votes are 

meaningful,” and that “[p]rinting a ballot that deceives voters, creates a loss in trust in

government.” ECF No. 52 at 7. 

Those concerns are ones that Plaintiffs, if they choose, can make without any meaningful 

hardship in opposing the Initiatives by traditional political means. The only “hardships” Plaintiffs 

are enduring are the costs incurred in opposing the Initiatives politically and as parties in this 

judicial proceeding. “These are the normal costs we as a society are prepared to recognize as a 

consequence of the democratic and statutory processes implicated here; they are not the kind of 

‘hardships’ that would militate in favor of court intervention in what is an otherwise premature 

action.” Jones, 715 F. Supp. at 1245. Key West’s population is slightly over 24,000 and the number 

of registered voters is only approximately 15,000. Plaintiffs and other businesses or individuals 

with concerns about the economic impact of the Initiatives will undoubtedly politically campaign 

on those economic issues, as well as the constitutional and statutory issues that are the very subject 

of this lawsuit. This is after all a contested election, and as the court in Jones observed:

As New Yorkers should well know in light of Governor Thomas Dewey’s “upset 

loss” in the 1948 presidential election, no vote is certain. We think voters can 

comprehend constitutional arguments made in the context of a referendum 

campaign, and preempting voters from making an electoral judgment on that score 

is a course to be traversed most warily it seems to us. 

715 F. Supp. at 1245 n.14 (emphasis added). 

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V. That there is no factual dispute material to the disposition of the Committee’s 

jurisdictionally-specific summary judgment motion does not equate to no 

material factual disputes on the supposed merits of Plaintiffs’ claims.

Two additional aspects of Plaintiffs’ Opposition require brief discussion. 

First, in its moving papers, the Committee was clear that there is no genuine dispute as to 

the salient facts material to the disposition of its summary judgment motion. However, that motion 

does not seek a disposition of Plaintiff’s claims on their merits (or the lack thereof). Rather, that 

motion sought summary judgment on jurisdictional grounds that do not require an examination of 

every fact material to a disposition of Plaintiffs’ claims on their supposed merits. 

Plaintiffs, in an attempted sleight of hand, twice say in their Opposition (ECF No. 52 at 6 

and 7) that the Committee concedes there is no genuine or disputed factual issues at all. That is a 

misrepresentation. The Committee agrees there are no salient facts in dispute material to the 

disposition of the Committee’s jurisdictionally based motion for summary judgment. However, as 

will be shown in opposition to Plaintiffs’ recently filed motion for summary judgment which seeks 

a substantive decision on Plaintiffs’ federal and state constitutional and statutory claims (ECF Nos. 

40 and 41), there are numerous facts genuinely in dispute that are material to the disposition of 

Plaintiffs’ substantive summary judgment motion. The Court should not be misled by Plaintiffs’ 

conflation of that important distinction. 

Second, Plaintiffs challenge the Committee’s entitlement to a jury trial. Plaintiffs are 

wrong. Because of page constraints applicable to this reply memorandum, the jury issue will have 

to be separately fleshed out in more detail. For now, though, the Committee notes that Rule 57,

Fed. R. Civ. P., explicitly contemplates a jury in a declaratory judgment action. It states in pertinent 

part that “These rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C. 

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§ 2201. Rules 38 and 39 govern a demand for a jury trial.” And the Committee believes that Beacon 

Theatres, Inc. v. Westover, 359 U.S. 500 (1959) is dispositive, and each of the cases cited by 

Plaintiffs is distinguishable. 

CONCLUSION

The Committee’s motion for summary judgment is predicated on four (4) independent but 

interrelated bases. If the Court agrees with any one, Plaintiffs’ Complaint must be dismissed. 

Plaintiffs themselves created the grounds for dismissal. In an apparent rush to get into federal court 

and prevent Key West citizenry from voting on the Initiatives, Plaintiffs either minimized or 

ignored their burden of demonstrating a justiciable controversy sufficient to satisfy the 

requirements of Article III. Instead, they prematurely initiated litigation in this Article III court of 

limited jurisdiction—without the requisite standing over a dispute not yet “ripe” for decision, and

sought relief amounting to a constitutionally disfavored advisory opinion. And they now try to 

sidestep the other substantial, prudential reasons that warrant this Court’s abstention or 

discretionary non-exercise of supplemental jurisdiction. 

Plaintiffs’ opposition to the Committee’s summary judgment motion is not only superficial

and lacks meaningful analysis; it is demonstrably wrong as an undisputed matter of fact and law.

The Committee appreciates the Court’s attention to this dispute but mere interesting issues -- even 

those wrapped in a constitutional cloak -- do not, for the reasons described herein, satisfy the 

justiciability requirements of Article III. Summary judgment dismissing the claims against the 

Committee is therefore warranted as an undisputed matter of both fact and law. 

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Dated: August 10, 2020 

Respectfully submitted,

/s/ Peter W. Homer

Peter W. Homer, Esq. 

HOMER BONNER JACOBS & ORTIZ, P.A.

Fla. Bar No. 291250 

1441 Brickell Avenue 

1200 Four Seasons Tower Suite 

Miami, FL 33131 

(305) 350-5100 

fax (305) 372-2738 

phomer@homerbonner.com 

/s/ Matthew Farmer

Matthew P. Farmer, Esq.

FARMER & FITZGERALD, P.A.

Fla. Bar No. 0793469 

400 N. Tampa St., Suite 2840 

Tampa, FL 33602 

(813) 228-0095 

fax (813) 224-0269 

MattFarmer1@aol.com

Counsel for Defendant Key West 

Committee for Safer, Cleaner Ships, Inc. 

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CERTIFICATE OF SERVICE

 

I hereby certify that on this 10th day of August 2020, a true and correct copy of the 

foregoing REPLY MEMORANDUM IN FURTHER SUPPORT OF THE KEY WEST 

COMMITTEE’S MOTION FOR SUMMARY JUDGMENT was filed electronically via the 

CM/ECF system, which will send a notice of electronic filing to the following counsel of record:

Bart Smith, Esq.

Bart@SmithHawks.com 

Christopher Deem, Esq. 

Chris@SmithHawks.com 

Ashley Sybesma, Esq. 

Ashley@SmithHawks.com 

Nicola Pappas, Esq. 

Nikki@SmithHawks.com 

Robert Shillinger, Esq. 

Shillinger-Bob@monroecounty-fl.gov 

Peter Morris, Esq.

Morris-Peter@monroecounty-fl.gov 

Patricia Eables, Esq.

Eables-Patricia@monroecounty-fl.gov 

Charles Jonathan Benner, Esq. 

jbenner@thompsoncoburn.com 

Bruce Rogow, Esq. 

brogow@rogowlaw.com 

Tara Campion, Esq. 

tcampion@rogowlaw.com 

Shawn Smith, Esq. 

sdsmith@cityofkeywest-fl.gov

By: /s/ Peter W. Homer 

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