UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-24156-BLOOM/Torres

RENÉ GARCIA, 

Plaintiff, 

v. 

KERRIE J. STILLMAN, et al., 

Defendants. 

___________________________/ 

ORDER GRANTING PLAINTIFFS’ MOTION FOR INDICATIVE RULING 

THIS CAUSE is before the Court upon Plaintiffs’ René Garcia and Javier Fernández’s 

(“Plaintiffs”) Motion for Indicative Ruling Regarding the Final Summary Judgment Order, ECF 

No. [128] (“Motion”). Defendants Kerrie Stillman, John Grant, Glenton Gilzean, Jr., Michelle 

Anchors, William Cervone, Don Gaetz, William Meggs, Ed Moore, Wengay Newton, Sr., Jim 

Waldman, Ashley Moody, and Jimmy Patronis (“Defendants”) filed a Response in Opposition, 

ECF No. [129], to which Plaintiffs filed a Reply, ECF No. [130]. The Court has considered the 

Motion, all opposing and supporting submissions, the record, the relevant law, and is otherwise

fully advised. For the reasons that follow, Plaintiffs’ Motion is granted. 

I. BACKGROUND

On August 9, 2023, the Court granted summary judgment in favor of Plaintiff René Garcia

on his claim that Article II, § 8(f)(2) of the Florida Constitution (the “In-Office Restrictions”) 

violates the First Amendment. See generally ECF No. [110] (“Summary Judgment Order”). The 

Court held that the In-Office Restrictions amount to a content-based restriction on speech and the 

Court invalidated the In-Office Restrictions pursuant to the First Amendment overbreadth 

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doctrine. Id. Accordingly, the Court granted final judgment in favor of Plaintiffs and permanently 

enjoined Defendants, “their officers, agents, servants, employees, and attorneys[]” from enforcing 

the In-Office Restrictions. Id. at 38. Defendants thereafter filed an appeal. ECF No. [116].

On November 30, 2023, the Eleventh Circuit Court of Appeals entered an order staying the 

application of the Court’s permanent injunction to public officers other than Plaintiff René Garcia

while the appeal is pending.1 See Garcia v. Exec. Dir., Fla. Comm’n on Ethics (11th Cir. Aug. 15, 

2023), No. 23-12663, ECF No. [36] (“Order Staying Injunction”). In a concurring opinion joined 

by Judge Pryor, Judge Jordan noted that he would have denied Defendants’ Motion for Stay 

Pending Appeal “[h]ad the district court ruled that the Florida constitutional provision failed under 

[the] First Amendment overbreadth doctrine.” Id. at 4. Judge Jordan interpreted the Summary 

Judgment Order as ruling only “that the [In-Office Restrictions] violated the First Amendment 

because it was content-based, and under strict scrutiny was not narrowly tailored to achieve a 

compelling state interest.” Id. at 5.

On December 11, 2023, Plaintiffs filed a Motion for Reconsideration of the Eleventh 

Circuit’s Order Staying Injunction. See Garcia v. Exec. Dir., Fla. Comm’n on Ethics (11th Cir. 

Aug. 15, 2023), No. 23-12663, ECF No. [37]. Therein, Plaintiffs request that the Eleventh Circuit 

reconsider its decision to partially stay the permanent injunction. See generally id. Alternatively, 

Plaintiffs requests that the Eleventh Circuit stay Defendants’ appeal of the Summary Judgment 

Order and remand the case to this Court for the limited purpose of clarifying the Summary 

Judgment Order. Id. 

Plaintiffs’ Motion requests that the Court issue an indicative ruling pursuant to Federal 

Rule of Civil Procedure 62.1. Plaintiffs specifically request an indicative ruling providing that,

1 This Court previously denied Defendants’ Motion to Stay as to the Scope of Permanent Injunction 

Pending Appeal, ECF No. [113]. See ECF No. [118].

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should the Eleventh Circuit remand this case to enable the Court to clarify its Summary Judgment 

Order, the Court will confirm that the Summary Judgment Order held that the In-Office 

Restrictions violated the First Amendment overbreadth doctrine and permanently enjoined 

Defendants from enforcing the In-Office Restrictions on that basis. See generally Motion. 

II. LEGAL STANDARD

“[A] federal district court and a federal court of appeals should not attempt to assert 

jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional 

significance – it confers jurisdiction on the court of appeals and divests the district court of its 

control over the aspects of the case involved in the appeal.” Griggs v. Provident Consumer 

Discount Co., 459 U.S. 56, 58 (1982) (per curiam). 

Federal Rule of Civil Procedure 62.1(a) provides that “[i]f a timely motion is made for 

relief that the court lacks authority to grant because of an appeal that has been docketed and is 

pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either 

that it would grant the motion if the court of appeals remands for that purpose or that the motion 

raises a substantial issue.” Fed. R. Civ. P. 62.1(a).

III. DISCUSSION

The Court was divested of jurisdiction to clarify its Summary Judgment Order when 

Defendants appealed the Final Judgment, ECF No. [111]. Plaintiffs accordingly do not move for 

the Court to clarify its Summary Judgment Order, as the Court lacks jurisdiction to do so. Instead, 

Plaintiffs seek an indicative ruling that, upon a limited remand, the Court will clarify that its 

Summary Judgment Order held that the In-Office Restrictions are overbroad and permanently 

enjoined its enforcement on that basis. Defendants contend that an indicative ruling is 

inappropriate because the Summary Judgment Order did not rule that the In-Office Restrictions 

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were unconstitutionally overbroad. Defendants also argue that an indicative ruling is procedurally 

improper because (1) “[n]one of the circumstances that can justify an indicative ruling ... [are] 

present in this case[,]” and because (2) Plaintiffs “seek to use the indicative-ruling procedure to 

relitigate their case.” ECF No. [129] at 2-3. 

A. An indicative ruling is procedurally proper

As a threshold matter, Defendants are incorrect that issuing an indicative ruling is 

procedurally improper in this context. Rule 62.1(a) permits the Court to exercise its discretion to 

issue an indicative ruling regarding “relief that the court lacks authority to grant because of an 

appeal that has been docketed and is pending” so long as the motion in question is timely. See Fed. 

R. Civ. P. 62.1(a). Plaintiffs attest that they filed their Motion seeking an indicative ruling on the 

Summary Judgment Order—rather than moving for the Court to clarify its Summary Judgment 

Order—due to the procedural posture of the case. Motion at 4-5. Plaintiffs accordingly request that 

the Court interpret their Motion as incorporating an underlying motion for clarification. Id. at 5 

n.4. Defendants do not argue that the Motion is procedurally improper due to the absence of an 

underlying motion for clarification. Nor could they, as “[e]ven if [Plaintiffs] did not file a predicate 

motion, courts frequently construe a motion for an indicative ruling as an underlying motion.” In 

re Zantac (Ranitidine) Prod. Liab. Litig., No. 20-MD-2924, 2023 WL 2325536 (S.D. Fla. Mar. 2, 

2023) (collecting cases). Accordingly, the absence of an underlying motion for clarification does 

not preclude the issuance of an indicative ruling. Id. 

As noted, Rule 62.1(a) permits the issuance of an indicative ruling if Plaintiffs’ Motion is 

timely. The Court construes Plaintiffs’ Motion as a request for clarification pursuant to Federal 

Rule of Civil Procedure Rule 60(b)(1).2 Rule 60(b)(1) provides that a court “may relieve a party 

2 The Court does not construe the Motion as a request for clarification pursuant to Rule 60(a). Rule 

60(a) is limited to corrections of clerical, non-substantive errors. See, e.g., Weeks v. Jones, 100 F.3d 124 

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or its legal representative from a final judgment, order, or proceeding” when such relief is 

appropriate due to “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). 

Rule 60(c)(1) provides that such motions “must be made within a reasonable time ... and [] no 

more than a year after the entry of the judgment or order or the date of the proceeding.” Fed. R. 

Civ. P. 60(c)(1). 

Here, Plaintiffs filed the instant Motion less than two weeks after the Eleventh Circuit 

partially stayed the permanent injunction, and within a year of the Court’s entry of final judgment 

on August 9, 2023. ECF No. [111]. Plaintiffs’ Motion is therefore timely. Rule 62.1(a) accordingly 

permits the issuance of an indicative ruling if the Court deems such a ruling is appropriate. The 

cases on which Plaintiffs rely—and that Defendants attempt to distinguish from this action—do 

not suggest otherwise. See ECF No. [129] at 2-3. Moreover, Defendants’ assertion that Plaintiffs’ 

Motion constitutes an attempt to relitigate the issue of whether the In-Office Restrictions are 

overbroad is unavailing. Plaintiffs’ request that the Court clarify the basis for issuing the permanent 

injunction—specifically, to clarify whether the Court held that the In-Office Restrictions are 

overbroad and enjoined their enforcement on that basis, or if the Court did not so hold. Regardless 

of how the Court clarifies the Summary Judgment Order, the Motion does not request that the 

(11th Cir. 1996) (“While the district court may correct clerical errors to reflect what was intended at the 

time of ruling, “[e]rrors that affect substantial rights of the parties ... are beyond the scope of rule 60(a).”) 

(quoting Mullins v. Nickel Plate Mining Co., 691 F.2d 971, 973 (11th Cir. 1982) (footnote call number 

omitted)). As discussed below, the Summary Judgment Order held that the In-Office Restrictions violate 

the First Amendment’s overbreadth doctrine. The Court accordingly does not construe the instant Motion 

as a motion to reconsider the Summary Judgment Order pursuant to Rule 59(e). However, because the 

Court interprets the Eleventh Circuit’s Order Staying Injunction as stemming from this Court’s failure to 

clearly articulate that the In-Office Restrictions are overbroad, the Court construes Plaintiffs’ Motion as a 

request to correct a legal error—namely, the Court’s failure to unambiguously hold that the In-Office 

Restrictions violate the First Amendment because they amount to a content-based restriction on speech, and 

because they are overbroad.

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Court substantively alter its holding. Defendants are therefore incorrect that issuing an indicative 

ruling pursuant to Rule 62.1(a) is procedurally improper.

B. An indicative ruling is warranted

Having determined that an indicative ruling is procedurally appropriate, the Court must 

determine whether such a ruling should be issued. The Court finds that issuing an indicative ruling 

is warranted. The Order Staying Injunction and Plaintiffs’ Motion demonstrate that the Court’s 

holding and the basis for issuing the permanent injunction are unclear. An indicative ruling can 

alleviate this confusion by confirming the basis for the Court’s holding that the In-Office 

Restrictions violated the First Amendment and the Court’s issuance of the permanent injunction. 

Doing so will also ensure that unnecessary resources are not expended to resolve this issue and

will assist in narrowing the issues on appeal. 

As discussed, Plaintiffs contend that the Summary Judgment Order held that the In-Office 

Restrictions violate the First Amendment’s overbreadth doctrine and permanently enjoined its 

enforcement on that basis. Defendants respond that the Summary Judgment Order did not hold

that the In-Office Restrictions are overbroad, and studiously avoided doing so. Defendants are 

incorrect. The Summary Judgment Order found that Plaintiffs “demonstrated ‘from the text of the 

law’ that the In-Office Restrictions are content-based, overbroad restrictions on speech.” Summary 

Judgment Order at 39 (quoting Tracy v. Fla. Atl. Univ. Bd. of Trs., 980 F.3d 799, 810 (11th Cir. 

2020)). The Court further explained that “a statute found to be overbroad is totally forbidden until 

and unless a limiting construction or partial invalidation so narrows it as to remove the seeming 

threat or deterrence to constitutionally protected expression.” Id. (quoting FF Cosmetics FL, Inc. 

v. City of Miami Beach, 866 F.3d 1290, 1300 (11th Cir. 2017) (internal quotation marks omitted)). 

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The Court concluded that “[n]o reasonable limiting construction is apparent in this case[]” and 

accordingly “permanently enjoin[ed] enforcement of the In-Office Restrictions.”3 Id. 

The Court therefore agrees with Plaintiffs that the Summary Judgment Order should be 

amended to clarify that the In-Office Restrictions violate the First Amendment’s overbreadth 

doctrine—in addition to constituting a content-based restriction on speech—and that the Court 

issued the permanent injunction based on its holding that the provision is overbroad. Furthermore, 

the Court finds that the Summary Judgment Order should be amended to explicitly state that the 

absence of any legitimate applications of the In-Office Restrictions to local officials demonstrates 

that “a substantial number of the statute’s applications are unconstitutional, judged in relation to 

the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010).

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion, ECF No. [128], 

is GRANTED. The Court states that it would clarify its Summary Judgment Order as described 

above if the Eleventh Circuit Court of Appeals remands the matter for this purpose. 

DONE AND ORDERED in Chambers at Miami, Florida, on January 11, 2024.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: 

Counsel of Record

3 As Plaintiffs accurately observe, the Court subsequently reiterated this holding in its Order on 

Motion to Stay. See ECF No. [118] at 2 (“The Court held that the In-Office Restrictions amount to a contentbased restriction on speech and the Court invalidated the In-Office Restrictions pursuant to the First 

Amendment overbreadth doctrine.”)

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