Case 4:23-cv-00163-AW-MJF Document 49 Filed 06/26/23 Page 1 of 27

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

WALT DISNEY PARKS AND RESORTS U.S., INC.,

Plaintiff,

v. No. 4:23-cv-163-AW-MJF

RON DESANTIS, in his official capacity

as Governor of Florida, et al.,

Defendants.
______________________________________/

STATE DEFENDANTS’ MOTION TO DISMISS

AND INCORPORATED MEMORANDUM OF LAW

In 1967, a sweetheart deal with the State vested Walt Disney Parks and

Resorts (Disney) with unprecedented power to govern itself. That year saw the

creation of the Reedy Creek Improvement District (RCID), a local-government

entity that governed Disney’s territory in central Florida. The District’s governing

structure exploited Disney’s status as the majority landowner by giving

landowners—mainly of course Disney—one vote per acre of land for each seat on

RCID’s governing board. The result was that Disney had the pleasure of selecting

every member of RCID’s board from 1967 to present—“as clear a case” of corporate

capture “as this Court is ever likely to see.” DE25 ¶ 10.

Special districts in Florida typically operate for limited governmental

purposes—water-management services, for example. RCID’s powers, however,

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gave Disney carte blanche to govern itself. Local taxes? Disney set them. Building

and safety codes? Disney set those, too. Caps on land development? Disney made

the final call. Disney could exercise eminent domain, permitting it to annex territory

even outside the District’s borders, all without legislative approval. It could build

and operate an airport, or even a nuclear power plant.

In 2022, the Legislature passed, and the Governor signed, a tandem of bills

reining in RCID’s outsized authority and reconstituting it as a new entity—the

Central Florida Tourism Oversight District (CFTOD), the governing board of which

would be selected not by a California corporation, but by the People’s elected chief

executive—the Governor—and confirmed by the People’s representatives in the

Senate.

In the waning days of its corporate kingdom, Disney rushed through a series

of collusive agreements between itself and its puppet RCID board. The agreements

purported to bequeath to Disney much of the power that the State itself had given

RCID. The newly appointed CFTOD Board announced that it would not comply

with Disney’s contracts because they were void under Florida law. For good

measure, the State also enacted a law barring CFTOD from complying with the

agreements in any event.

Its last-ditch power grab having been foiled under state law, Disney now turns

to federal constitutional law to sue the Governor, the Secretary of the Florida

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Department of Economic Opportunity, the CFTOD Board, and CFTOD’s

Administrator. Its claims are meritless for many reasons, not least of which is that a

special district cannot bind the State to transfer a portion of its sovereign authority

to a private entity.

But first things first. The Court lacks jurisdiction over at least two

defendants—the Governor and the Secretary—who are also immune from suit.

Although Disney has grabbed headlines by suing the Governor, Disney—like many

litigants before it who have challenged Florida’s laws 1—has no basis for doing so.

Neither the Governor nor the Secretary enforce any of the laws at issue, so Disney

lacks standing to sue them, see City of S. Miami v. Governor of Fla., 65 F.4th 631,

643 (11th Cir. 2023); Support Working Animals, Inc. v. Governor of Fla., 8 F.4th

1198, 1201–02 (11th Cir. 2021); Jacobson v. Fla. Sec’y of State, 974 F.3d 1236,

1253 (11th Cir. 2020), and they are improper defendants under Ex parte Young, see

Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 534 (2021); cf. Jacobson, 974

F.3d at 1257. The Governor also is entitled to legislative immunity, which shields

1
See, e.g., Falls v. DeSantis, No. 4:22-cv-166, 2022 WL 19333278, at *1 (N.D. Fla. July
8, 2022) (dismissing Governor from challenge to law he did not enforce); Dream Defs. v. DeSantis,
553 F. Supp. 3d 1052, 1078–79 (N.D. Fla. 2021) (same); Namphy v. DeSantis, 493 F. Supp. 3d
1130, 1137 (N.D. Fla. 2020) (same); Support Working Animals, Inc. v. DeSantis, 457 F. Supp. 3d
1193, 1209 (N.D. Fla. 2020) (same); see also Equal. Fla. v. Fla. State Bd. of Educ., No. 4:22-cv-
134, DE92 (N.D. Fla. July 27, 2022) (in which plaintiffs eventually dismissed their claims against
the Governor).

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“both governors’ and legislators’ actions in the proposal, formulation, and passage

of legislation.” In re Hubbard, 803 F.3d 1298, 1308 (11th Cir. 2015).

STATEMENT OF THE CASE

1. In Florida, “[s]pecial districts” are local-government entities that

generally administer one or more discrete governmental functions in a “limited

geographic” region. Fla. Stat. § 189.012(6); see, e.g., Fla. Stat. §§ 298.001, 298.005

(describing water-management districts). Like all “[l]ocal governments,” special

districts are “creatures of the State without any independent sovereignty.” Fried v.

State, 355 So. 3d 899, 908 (Fla. 2023). Accordingly, the State may create, modify,

or dissolve them—powers it exercises often. 2

In 1967, the State determined that an undeveloped, 43-mile tract of land in

central Florida would benefit from a special district. To that end, it modified a

judicially created special district already operating in the area (the Reedy Creek

Drainage District) and rebranded it under a new name: the Reedy Creek

Improvement District. Ch. 67-764, § 1, Laws of Fla. (1967). From the start, Disney

2
See, e.g., Gulf Coast Transp., Inc. v. Hillsborough Cnty., 352 So. 3d 368, 372–73 (Fla.
2d DCA 2022) (in which the State dissolved a special transportation district in Hillsborough
County).

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has been RCID’s supermajority landowner, owning roughly 69% of the District’s

territory. 3

The revamped District was unusual. Unlike most districts—which typically

provide a particular government service—RCID had a lofty mandate to

“experiment[]” with “new and advanced concepts” to “create favorable conditions”

for a “recreation-oriented community” that would both cement Florida’s “leadership

as a tourist state” and encourage “newcomers [to] mak[e] Florida their permanent

home.” Ch. 67-764 at 5. To achieve those ends, RCID was given “broad powers

typically reserved for municipal and county governments.” OPPAGA Report at 3.

For just a few examples, RCID had virtually “exclusive authority [over] the

construction of public roads within the District,” Ch. 67-764 at 2, “superced[ing]”

that “of the State Road Department of Florida and of any other agency or authority

of the State,” id. § 10(2).4 It could exercise eminent domain even outside the

District’s “territorial limits”—including “without limitation [upon] property owned

by any other political body”—and was shielded from the eminent-domain power of

other state entities. Id. § 9(5). It was exempt from the State’s building and safety

codes and could instead adopt codes of its choosing (called the “EPCOT Codes”).

3
Office of Program Policy Analysis & Government Accountability, Central Florida’s
Reedy Creek Improvement District Has Wide-Ranging Authority 2 (Dec. 2004),
https://oppaga.fl.gov/Documents/Reports/04-81.pdf (OPPAGA Report); see also DE25 ¶¶ 35–36.
4
The State Road Department is now part of the Florida Department of Transportation. See
Fla. Dep’t of Transp. v. Clipper Bay Invs., LLC, 160 So. 3d 858, 864 (Fla. 2015).

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Id. § 23(2)–(3); OPPAGA Report at 4. It could use public funds to advertise

“attractions within the District,” Ch. 67-764, § 9(15), and could stretch its boundaries

without any authorization from the Legislature, id. § 64(1). It could build and own

airports and develop “novel and experimental [transportation] facilities, such as

moving platforms and sidewalks.” Id. § 9(16). It could even generate and transmit

“power through nuclear fission,” and develop “other new and experimental sources”

of energy. Id. § 9(17).

RCID’s sweeping authority was not its only oddity. Its five-member board of

supervisors was elected not by RCID’s citizens, but by “landowners” in the District,

id. § 4(5), and each landowner could cast one vote for roughly “every acre of land”

it owned in RCID in every board-member election, id. As a result, Disney—RCID’s

vast-majority landowner—had an electoral monopoly for every board seat,

empowering the corporation to hand-select its local regulator. And indeed, since

RCID’s creation, Disney’s chosen candidate has won every board election. See

OPPAGA Report at 2.

2. In 2022, the State determined that RCID was an anomalous entity long

overdue for reform. It thus passed SB 4C in April 2022, which set RCID and several

other antiquated districts for dissolution effective June 2023. See Ch. 2022-266,

§ 1(2), Laws of Fla. Later, however, the State concluded that the best course was not

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to dissolve RCID, but to reform it—just as the State had reformed the Reedy Creek

Drainage District to pave way for RCID years before. See Ch. 67-764, § 1.

The Legislature thus passed HB 9B. See Ch. 2023-5, Laws of Fla. (2023).5

That bill renamed RCID the “Central Florida Tourism Oversight District” and

eliminated the District’s land-based electoral scheme in favor of a governing board

appointed by the Governor. Id. §§ 1, 4. The bill also eliminated RCID’s exemption

from Florida’s building and safety codes, id. § 10; its near-exclusive control over in-

district roadways, id. § 9; its abnormal eminent-domain powers, id. § 8(5); its

capacity to build airports and “novel” transportation facilities, id. § 8(14); its right

to transform its boundaries without State approval, compare Ch. 2023-5, with Ch.

67-764 § 64(1); its power to use public funds to advertise “attractions” within the

District, compare Ch. 2023-5, with Ch. 67-764, § 9(15); and its permission to

generate and transmit nuclear power or other “experimental” energy sources, Ch.

2023-5 § 8(15).

On February 27, 2023, the Governor signed HB 9B into law and appointed

the CFTOD Board members. DE25 ¶ 128. The bill took effect immediately.

5
All references to HB 9B in this motion refer to sections of the amended CFTOD charter,
not to the section numeration in HB 9B itself.

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3. While the Legislature was deliberating over HB 9B, but before the law

took effect, RCID’s outgoing board undertook to surrender to Disney much of

RCID’s governmental power through a series of development contracts.

By way of background, development in a special district is governed by a

“comprehensive plan.” Fla. Stat. §§ 163.3161, 163.3177. Special districts must re-

evaluate their plans and consider possible amendments every seven years. Fla. Stat.

§ 163.3191(1). RCID began its most recent evaluation in 2018, proposing modest

amendments to the existing plan that focused on de-annexing certain land and

updating the plan to comply with Florida’s Administrative Code. See CFTOD Decl.

¶ 24.6 After their initial introduction, though, RCID left the amendments dormant

for nearly four years. See id. ¶ 25; DE25 ¶¶ 45–46.

Then, just a month after the State scheduled RCID for dissolution, DE25 ¶ 46,

RCID’s board approved radically altered versions of the amendments that

aggrandized Disney’s power to develop property within the District. See CFTOD

Decl. ¶ 27. Among other things, the new amendments skyrocketed the permitted

densities and intensities of private development within RCID and called for

construction of sizeable public-works projects funded by local taxes. Id.7 RCID

6
Meeting Package, Central Florida Tourism Oversight District Board of Supervisors 9–
24 (April 26, 2023), https://www.rcid.org/wp-content/uploads/2023/04/CFTOD-4-26-23-BOS-
Packet-FINAL-revised-4-24-23.pdf (containing CFTOD Declaration).
7
See also, e.g., RCID Comprehensive Plan 2032 9B1–45 (July 15, 2022),
https://www.rcid.org/wp-content/uploads/2023/02/2032-RCID-Comprehensive-Plan.pdf.

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introduced and adopted the new amendments in the same meeting, DE25 ¶ 46, even

though it never attached the amendments’ text to the adoptive resolution, CFTOD

Decl. ¶ 25; see Fla. Stat § 166.041 (requiring that the text be provided), and even

though adopting the altered amendments flouted a detailed procedural process that

localities must follow when passing ordinances, see, e.g., Fla. Stat. § 166.041.

Alongside all that, on the same day the Legislature passed HB 9B, RCID

executed two contracts with Disney—a set of restrictive covenants and a

development agreement. DE25-1, 25-2. Both contracts purport to assign Disney

substantial governmental authority. The development agreement, for example,

assigns to Disney exclusively all development rights in the District. DE25-1 at 6. In

other words, the agreement precludes any other entity—even the District—from

developing property without Disney’s say-so. The agreement also empowers Disney

to set the maximum height of any building constructed in the District, id. at 3;

mandates that the District issue new general-obligation bonds financed by local

property taxes to fund future development, id.; and obligates RCID to let Disney

pursue the greatest development density and intensity available under the

comprehensive plan, id. at 4–6.

The restrictive covenants, in turn, hinder the District’s ability to use its own

property contrary to Disney’s commands. The covenants, for instance, restrict the

District to using its property solely for those uses existing on February 8, 2023 (or

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as contemplated in the comprehensive plan), DE25-2 at 3; bar the District from

altering its property without Disney’s consent, id. at 3–4; and even hamper the

District from speaking out against Disney or promoting any entity besides the

District on the District’s own property, id. at 3.

4. After HB 9B took effect and the CFTOD Board assumed office, the

Board determined and declared that both the contracts and the comprehensive plan

were riddled with legal deficiencies and were thus void under Florida law. DE25

¶ 155–56, 158 (the CFTOD Declaration); see also supra n.6.

The Legislature also enacted SB 1604, which “preclude[s]” an independent

special district “from complying with the terms of any development agreement, or

any other agreement for which the development agreement serves” as

“consideration,” when the agreement “is executed” three months before “the

effective date of a law” changing the electoral structure of a district from election to

appointment or vice versa. Ch. 2023-31, § 5, Laws of Fla. (2023). The bill requires

the newly installed governing board to review the agreement “within 4 months of

taking office” and decide “whether to [readopt the] agreement.” Id.

5. Disney subsequently filed this lawsuit against the Governor and the

Secretary of the Department of Economic Opportunity (the State Defendants), along

with the new CFTOD Board and CFTOD’s Administrator (the CFTOD Defendants).

Disney claims that all Defendants are liable for violating the Contract Clause (Count

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I), the Takings Clause (Count II), substantive due process (Count III), and for First

Amendment retaliation based on purportedly rendering the contracts void (Count

IV) and reorganizing RCID (Count V). CFTOD has also sued Disney in Florida state

court, seeking a declaration that the contracts are void and unenforceable on

numerous state-law grounds, including failure to comply with various contractual

and procedural requirements. See No. 2023-CA-11818, Cent. Fla. Tourism

Oversight Dist. v. Walt Disney Parks and Resorts U.S., Inc. (Fla. Cir. Ct.).

LEGAL STANDARD

In deciding a motion to dismiss a complaint, the Court must “assume the

veracity of well-pleaded factual allegations” but must not credit mere “labels and

conclusions.” Newbauer v. Carnival Corp., 26 F.4th 931, 934 (11th Cir. 2022)

(cleaned up). The well-pleaded allegations, “accepted as true,” must be sufficient “to

state a claim to relief that is plausible on its face.” Id. (cleaned up). The alleged facts

must be “more than merely possible, and a plaintiff’s factual allegations that are

merely consistent with a defendant’s liability will not be considered facially

plausible.” Id. (cleaned up; emphasis in original). A claim is plausible only “when

the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Id. (citing Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009)).

ARGUMENT

For the reasons set forth in the CFTOD Defendants’ contemporaneously filed

motion to dismiss, the amended complaint fails to state a claim on which relief can

be granted. This motion raises several other independent bases for dismissal: Disney

lacks standing to sue the Governor and Secretary, who are also immune from suit.

I. DISNEY LACKS STANDING TO SUE THE STATE DEFENDANTS.

The amended complaint fails to plead that Disney has standing to sue the State

Defendants. Support Working Animals, Inc. v. Governor of Fla., 8 F.4th 1198, 1201

(11th Cir. 2021). To show standing, Disney must establish “(1) an injury in fact that

(2) is fairly traceable to the challenged action of the defendant and (3) is likely to be

redressed by a favorable decision.” Jacobson v. Fla. Sec’y of State, 974 F.3d 1236,

1245 (11th Cir. 2020) (citation omitted). Because “standing is not dispensed in

gross,” Disney must demonstrate standing “for each claim that [it] press[es] and for

each form of relief that [it] seek[s].” TransUnion LLC v. Ramirez, 141 S. Ct. 2190,

2208 (2021).

Disney challenges two general types of state action: (1) the rejection of its

contracts (Counts I–IV), and (2) the reorganization of RCID (Count V). Any alleged

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injuries that might flow from those acts, however, are not traceable to the State

Defendants, and enjoining the State Defendants would not provide Disney relief.

A. The contract claims (Counts I–IV)

For its contract claims, Disney asks this Court to “enjoin[] Defendants from

enforcing” the CFTOD Declaration and SB 1604 because each has supposedly

caused Disney to lose the purported benefit of its contracts. DE25 ¶¶ 205–06, 209.

But to establish traceability and redressability, Disney must show that the State

Defendants have “the authority to enforce the particular provision[s] that [Disney]

has challenged, such that an injunction prohibiting enforcement would be effectual.”

Support Working Animals, 8 F.4th at 1201 (citation omitted). Because neither the

Secretary nor the Governor enforces SB 1604 or the CFTOD Declaration, Disney

cannot meet its burden. See id.8

The Secretary makes for short work, as she has no connection at all to SB

1604, the CFTOD Declaration, or the putative contracts. Disney complains only of

her duty to “maintain the Official List of Special Districts,” including the formerly

titled RCID. DE25 ¶ 22. But that duty has nothing to do with the alleged contracts

or the acts related to them, which explains why Disney never mentions the Secretary

8
Disney also seeks a “[d]eclar[ation] that the Contracts remain in effect and [are]
enforceable,” DE25 at 79, but that does not change the analysis. The “Declaratory Judgment Act
does not enlarge the jurisdiction of the federal courts,” so Disney must still establish standing to
sue the State Defendants. Wendy’s Int’l, Inc. v. City of Birmingham, 868 F.2d 433, 435 (11th Cir.
1989). For the reasons stated in the text, Disney cannot do so.

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or her duties in any of its contract-related counts. Id. ¶¶ 176–209. No causal chain

links the Secretary to Disney’s loss of its contractual benefits, Cordoba v. DIRECTV,

LLC, 942 F.3d 1259, 1272 (11th Cir. 2019), nor would an order enjoining the

Secretary from enforcing SB 1604 and the CFTOD Declaration “be effectual,”

Support Working Animals, 8 F.4th at 1201 (citation omitted).

Disney similarly identifies no authority for the Governor to enforce Disney’s

contracts, the CFTOD Declaration, or SB 1604. Nothing in either the contracts or

the CFTOD Declaration9 purports to endow the Governor with any power. And SB

1604 “preclude[s]” CFTOD “from complying with the terms of” the contracts, but

mentions nothing of the Governor. Ch. 2023-31, § 5. Rather, the Board is

“independent[ly] oblig[ed] to follow” the Legislature’s command. City of S. Miami

v. Governor of Fla., 65 F.4th 631, 643 (11th Cir. 2023). That statutory structure

makes this case much like the many others in which plaintiffs lacked standing to sue

a state official for laws enforced by local officials or private parties. In City of South

Miami, for instance, plaintiffs lacked standing to sue the Governor for a law that,

independent of the Governor’s action, required local officials to cooperate with

9
In fact, no one enforces the CFTOD Declaration. The Declaration does not have
freestanding legal force. It merely recognizes that the contracts are void under background
principles of Florida law. See, e.g., CFTOD Decl. ¶ 9 (“Because the District failed to comply with
163.3225(2)(a), the development agreement is void and unenforceable.”). The Declaration, in
other words, does not purport to render the contracts void by its own operation—it is simply a
statement reflecting CFTOD’s belief that independent sources of state law render the contracts
void. It is not an independently enforceable state action.

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federal immigration authorities. 65 F.4th at 640–44. Similarly in Jacobson, plaintiffs

lacked standing to sue the Florida Secretary of State for an election law administered

by local election supervisors. 974 F.3d at 1253. And in Lewis v. Governor of

Alabama, plaintiffs lacked standing to sue Alabama’s Attorney General for a law

preempting local minimum wage laws that had no state enforcement scheme. 944

F.3d 1287, 1301 (11th Cir. 2019) (en banc); see also Whole Woman’s Health v.

Jackson, 142 S. Ct. 522, 532 (2021) (no standing to sue state actors that did not

enforce state abortion law, which was instead enforced by private actors). In all

relevant respects, this case is no different. The only entities that arguably enforce SB

1604 are the special districts that must comply with it, and they must do so regardless

of the Governor’s actions.

Nor does it matter that Florida’s Constitution empowers the Governor to

suspend board members for failing to follow state law. See Fla. Const. art. IV, § 7.

In both Lewis and Jacobson, the Eleventh Circuit rejected the argument that a state

official “enforced” a challenged law because it had general authority to sue local

officials for disregarding that law. Lewis, 944 F.3d at 1301 (Alabama Attorney

General); Jacobson, 974 F.3d at 1253 (Florida Secretary of State). And in City of

South Miami, the Eleventh Circuit held that the Governor’s power to suspend local

officials for refusing to follow the law did not allow him to “enforce”—for standing

purposes—a law requiring local cooperation with federal immigration officials. 65

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F.4th at 642–43. Any other view would “prove[] entirely too much,” because it

would make the Governor, through his suspension power, “a proper party defendant

under innumerable provisions of the [Florida] Code.” See id. at 643 (quoting Lewis,

944 F.3d at 1300).

Disney also cannot claim that the Governor enforces SB 1604 just because he

signed it. When the Governor signs a bill, he acts in a legislative, not executive,

capacity, see Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998), and the Eleventh Circuit

has explained that a plaintiff may not “challenge a law by suing the legislators who

enacted it instead of the officials who execute it,” Jacobson, 974 F.3d at 1257. The

Eleventh Circuit reinforced that idea in Support Working Animals when it

recognized that the Florida Attorney General’s role “in crafting [the challenged]

legislation” did not “satisfy the traceability requirement.” 8 F.4th at 1204. The

Governor’s legislative role in signing SB 1604 therefore cannot establish that

Disney’s alleged contractual losses are traceable to or redressable by him.

B. The reorganization claim (Count V)

Disney also asks this Court to “enjoin[] Defendants from enforcing” Senate

Bill 4C and House Bill 9B—the laws reorganizing RCID and reinstituting it as

CFTOD—and to declare those laws unenforceable because Disney purportedly

“faces concrete, imminent, and ongoing injury as a result of CFTOD’s new powers

and composition.” DE25 ¶¶ 214, 220. As with its contract claims, Disney cannot

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show that those alleged harms are traceable to, or redressable by, the State

Defendants.

Neither SB 4C nor HB 9B give the Secretary any authority over CFTOD’s

new powers or CFTOD’s new board. The only connection Disney identifies is the

Secretary’s ministerial duty “to maintain the Official List of Special Districts.” DE25

¶ 22 (citing Fla. Stat. §§ 189.061, 189.012). But that mine-run bookkeeping act does

not animate CFTOD or affect its powers. Rather, CFTOD’s existence and powers

are governed by SB 4C and HB 9B—neither of which meaningfully implicate the

Secretary’s job duties. Cf. Whole Woman’s Health, 142 S. Ct. at 533 (ministerial

actors cannot be sued under Ex parte Young).

The same is true of the Governor. His sole connection to CFTOD is his

authority to appoint CFTOD’s Board. See Ch. 2023-5, § 4. But an official’s

appointment power is not even enough to satisfy Ex parte Young’s more-relaxed

“some connection” standard,10 let alone Article III’s more-stringent traceability

requirement. See Falls, 2022 WL 19333278, at *1 (“[T]he Ex parte Young analysis

is, if anything, more lenient than Article III’s traceability requirement . . . .”).

10
See, e.g., Peter B. v. Sanford, No. 6:10-cv-767, 2010 WL 5684397, at *3 (D.S.C. Dec.
6, 2010) (collecting cases holding that appointment power does not satisfy Ex parte Young), report
and recommendation adopted, No. 6:10-cv-767, 2011 WL 347019 (D.S.C. Feb. 1, 2011); see also
Equal. Fla., 2022 WL 19263602, at *8 & n.8; Denton v. Bd. of Governors, No. 4:22-cv-341, DE65
at 3–4.

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II. DISNEY’S CLAIMS AGAINST THE STATE DEFENDANTS ARE BARRED BY

SOVEREIGN IMMUNITY.

The Eleventh Amendment bars federal-court litigation against the State unless

the immunity is waived or validly abrogated by Congress. Grizzle v. Kemp, 634 F.3d

1314, 1319 (11th Cir. 2011). Under Ex parte Young, 209 U.S. 123 (1908), there is

an exception for suits seeking prospective injunctive relief against individual state

officials who “enforce the law . . . at issue in the suit.” Grizzle, 634 F.3d at 1319.

But as described above (at 12–17), neither the Governor nor the Secretary enforces

SB 1604, the CFTOD Declaration, SB 4C, or HB 9B. Those acts are enforced, at

most, by the Board, either as a party to alleged contracts or as the entity animated by

the tandem of SB 4C and HB 9B.

Disney’s attempts to link the State Defendants to those laws are unpersuasive.

Disney mainly focuses on the Governor’s role in signing SB 1604, SB 4C, and HB

9B, see DE25 ¶ 21, but again, signing a law is not “enforcing” a law, cf. Jacobson,

974 F.3d at 1257; Support Working Animals, 8 F.4th at 1204, and the Governor is

entitled to absolute legislative immunity for that act in any event, infra 19–23. Nor

does the Governor’s power to appoint CFTOD Board members establish an adequate

connection to the challenged acts, supra n.10 (collecting cases holding that the

power to appoint enforcing officials does not make the appointing official an Ex

parte Young defendant); see also Equal. Fla. v. Fla. State Bd. of Educ., No. 4:22-cv-

134, 2022 WL 19263602, at *8 & n.8 (N.D. Fla. Sept. 29, 2022) (observing that an

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official’s appointment power did not suffice to make him an Ex parte Young

defendant, and that the plaintiffs had specifically “withdr[awn] their claims against

the Governor because of Eleventh Amendment immunity, even though the

Governor” had appointment power); Denton v. Bd. of Governors, No. 4:22-cv-341,

DE65 at 3–4. The Governor’s general power to suspend local officials, too, does not

establish a sufficient enforcement connection under Ex parte Young. See Women’s

Emergency Network v. Bush, 323 F.3d 937, 949 (11th Cir. 2003) (“A governor’s

‘general executive power’ is not a basis for jurisdiction in most circumstances.”).

Nor is the Secretary’s clerical role of jotting CFTOD’s name in the state record the

type of enforcement responsibility that waives sovereign immunity. Cf. Whole

Woman’s Health, 142 S. Ct. at 533 (ministerial actors do not enforce laws).

The Court should dismiss the claims against the State Defendants on

sovereign-immunity grounds.

III. DISNEY’S CLAIMS AGAINST THE GOVERNOR ARE BARRED BY

LEGISLATIVE IMMUNITY.

Disney’s claims against the Governor turn on his “call[ing] on the Legislature

to pass bills to punish Disney for its speech” and “sign[ing]” those bills into law.

See, e.g., DE25 ¶ 21. Because those acts are “legislative” in character, Disney’s

claims against the Governor run square into his legislative immunity. Bogan, 523

U.S. at 54–55.

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In Section 1983 cases, state officials are absolutely immune from suit for

actions taken “in the sphere of legitimate legislative activity.” Tenney v. Brandhove,

341 U.S. 367, 376 (1951). The doctrine “shields from suit not only legislators, but

also public officials outside of the legislative branch when they perform legislative

functions.” Baraka v. McGreevey, 481 F.3d 187, 195–96 (3d Cir. 2007)

(citing Bogan, 523 U.S. at 54). The question is whether the challenged governmental

act “is legislative” in character, and that “turns on the nature of the act, rather than

on the motive or intent of the official performing it.” Bogan, 523 U.S. at 54–55.

“[S]tripped of all considerations of intent and motive,” id. at 55, the acts that

Disney rests its claims on were the proposal of, advocacy for, and execution of

legislation—core legislative roles expressly assigned to the Governor by the Florida

Constitution, see Fla. Const. art. III, § 8 (“veto” or “approval” of legislation); id. art.

IV, § 1(e) (“propos[al]” and “recommend[ation]” of legislation). Disney cannot

argue, as others have tried, that “legislative immunity does not apply because . . .

these are political, not legislative, activities.” Baraka, 481 F.3d at 196. Courts—

from the Eleventh Circuit to the Supreme Court—have rejected that argument

because “[t]he privilege protects the legislative process itself” and therefore “covers

both governors’ and legislators’ actions in the proposal, formulation, and passage of

legislation.” In re Hubbard, 803 F.3d 1298, 1308 (11th Cir. 2015); see also Women’s

Emergency Network, 323 F.3d at 950 (“Under the doctrine of absolute legislative

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immunity, a governor cannot be sued for signing a bill into law.” (citing Sup. Ct. of

Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 731–34 (1980))).

In Bogan, for example, a unanimous Supreme Court held that legislative

immunity protected a city mayor in his proposing, and signing into law, the city’s

budget. 523 U.S. at 55. The same is true for the Governor of the Nation’s third-

largest state in his proposing, advocating, and signing into law SB 4C, HB 9B, and

SB 1604. “[W]hen a governor and a governor’s appointee advocate bills to the

legislature, they act in a legislative capacity,” even if their advocacy rises to the level

of “orchestrat[ing] and direct[ing]” the passage of legislation, as Disney alleges

here. Baraka, 481 F.3d at 196–97 (citing Tenney, 341 U.S. at 376).

Disney’s allegations of retaliatory intent do not change the analysis. The claim

in Bogan was that the enactment of the city’s budget was motivated by racial animus,

as well as by an illicit desire to eliminate the plaintiff’s position in retaliation for her

First Amendment protected activity. 523 U.S. at 46–48. The Supreme Court still held

the claim barred by legislative immunity, explaining that “[t]he privilege of absolute

immunity ‘would be of little value if [officials] could be subjected to the cost and

inconvenience and distractions of a trial upon a conclusion of the pleader, or to the

hazard of a judgment against them based upon a jury’s speculation as to

motives.’” Id. at 54–55 (quoting Tenney, 341 U.S. at 377). Thus, “the nature of the

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act” is dispositive, and “the motive or intent of the official performing it” is

irrelevant. Id. at 54.

It may well be that the “formally legislative character” of the bills “is alone

sufficient to entitle [the Governor] to legislative immunity.” Id. at 55. The Supreme

Court reserved that question in Bogan because there the challenged acts were

legislative “in substance” as well. Id. (emphasis in original). The Court explained

that the challenged bills “reflected a discretionary, policymaking decision

implicating . . . budgetary priorities” and “services the [government] provides to its

constituents.” Id. at 55–56. The same is true here: The bills Disney complains of

“have prospective implications that reach well beyond the particular” agreements at

issue “in a field where legislators traditionally have power to act.” Id. at 56

(citing Tenney, 341 U.S. at 379). SB 4C and HB 9B, after all, reflect the State’s

sovereign prerogative to reorganize a local government that provides services and

levies taxes in a major metropolitan region. And SB 1604 reflects the State’s

sovereign prerogative to ensure that such reorganization is given effect and not

undermined by poison-pill agreements. These acts, in short, are exactly the kind of

legislative decisions that legislative immunity protects.

That is no less true even if the bills targeted RCID and “the Contracts

specifically.” DE25 ¶ 162. Legislative immunity shields even “very narrow actions.”

Cmty. House, Inc. v. City of Boise, 623 F.3d 945, 973–74 (9th Cir. 2010) (Kozinski,

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C.J., concurring). In Community House, for example, the city “establish[ed]” a

community shelter, leased it to the plaintiff organization, and “eventually took over,”

“closed the shelter and evicted everyone,” “then leased the building for a dollar a

year to a [different organization] with an option to purchase at a below-market

price.” Id. at 973. The city council “monitor[ed] [and] administer[ed]” the lease by

adopting ordinances targeted at the lease, and those actions were shielded by

legislative immunity because they reflected a decision about the disbursement of

public resources. Id. at 960–62 (majority op.); see also Young v. Mercer Cnty.

Comm’n, 849 F.3d 728, 734 (8th Cir. 2017) (“[T]he district court correctly ruled the

Commissioners are entitled to legislative immunity for their termination of the

Agreement and cessation of rent payments.”). In short, it is the act’s character, not

its scope, that makes it legislative.

The Eleventh Circuit has likewise held that “[u]nlike the termination of an

individual employee,” which “generally [is] administrative,” eliminating the

individual’s public employment position “through traditional legislative functions

such as policymaking and budgetary restructuring” falls squarely within the scope

of the privilege. Bryant v. Jones, 575 F.3d 1281, 1306 (11th Cir. 2009). “[T]he

decision to abolish the position . . . is properly construed as embodying a policy

decision with prospective implications.” Id. at 1306–07. That is so even if the “facts

obviously suggest an improper motive” or the decision was “an artifice for what was

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in fact a retaliatory personnel decision.” Id. at 1307, 1303. As the Supreme Court

has made clear, “[t]he claim of an unworthy purpose does not destroy the

privilege.” Id. at 1307 (quoting Tenney, 341 U.S. at 377). The Governor’s legislative

immunity therefore bars Disney’s claims here.

IV. DISNEY FAILS TO STATE A CLAIM.

Finally, the State Defendants adopt and incorporate the additional arguments

raised in the CFTOD Defendants’ motion to dismiss.

CONCLUSION

For these reasons, the Court should dismiss the amended complaint, or at

minimum, dismiss all claims against the State Defendants.

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Dated: June 26, 2023 Respectfully submitted,

ASHLEY MOODY
Attorney General of Florida

JOHN GUARD (FBN 374600)

Chief Deputy Attorney General

JAMES H. PERCIVAL (FBN 1016188)

Chief of Staff

/s/ Henry C. Whitaker

HENRY C. WHITAKER (FBN 1031175)
Solicitor General

DANIEL W. BELL (FBN 1016188)

Chief Deputy Solicitor General

DAVID M. COSTELLO (FBN 1004952)

Deputy Solicitor General

OFFICE OF THE ATTORNEY GENERAL

The Capitol, PL-01
Tallahassee, FL 32399
(850) 414-3300
henry.whitaker@myfloridalegal.com

Counsel for Governor DeSantis and

Secretary Ivey

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CERTIFICATE OF COMPLIANCE

This motion complies with the requirements of Local Rule 7.1(F) because it

contains 5,598 words.

/s/ Henry C. Whitaker

Solicitor General

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CERTIFICATE OF SERVICE

I hereby certify that on June 26, 2023, a true and correct copy of the foregoing

was filed with the Court’s CM/ECF system, which will provide service to all parties.

/s/ Henry C. Whitaker

Solicitor General

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