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CAT CAY YACHT CLUB, ET AL. V. DIAZ, ET AL.

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Cat Cay Yacht Club, Inc. v. Diaz, 3D18-2368

264 So.3d 1071

CAT CAY YACHT CLUB, INC. , et al., Petitioners ,

v. Manuel C. DIAZ , et al., Respondents .

No. 3D18-2368

District Court of Appeal of Florida, Third District .

Opinion filed January 30, 2019

Akerman LLP , and Gerald B. Cope, Jr. , and Michael B. Chavies ; Marko & Magolnick, P.A. , and Joel S. Magolnick , and Veronica M. Rabinowitz , for petitioners .

Kozyak Tropin & Throckmorton, LLP , and Dyanne E. Feinberg , Javier A. Lopez , and Stephanie M. Gomez , for respondent Manuel C. Diaz .

Before SALTER , LOGUE and LINDSEY , JJ.

SALTER , J.

Cat Cay Yacht Club, Inc. ( " CCYC " ) , and fourteen current and former members of CCYC's board of directors 1 (collectively, the "Director Defendants " ) , petition the Court to issue a writ of certiorari quashing a circuit court order granting a motion by Manuel C. Diaz ( " Diaz " ) for leave to file a fifth amended complaint adding claims for punitive damages to his lawsuit. The underlying lawsuit, commenced in 2012 , involves allegedly improper actions taken to oust Mr. Diaz from a private social and recreational club in the Bahamas.

Concluding that the order authorizing amendment to add claims for punitive damages (a) departs from the essential requirements of the applicable Florida statute 2 and controlling precedent and (b) is not a matter adequately remediable in a subsequent, plenary appeal, we grant the petition and quash the order.

Diaz, his wife, and his family have visited the island of Cat Cay in the Bahamas, and fished in the surrounding waters, for some forty years. As their interest in the island and CCYC grew, Diaz joined CCYC (initially as a summer member) , and purchased an oceanfront home, vacant lots, and a dock at the Cat Cay Marina. Later he built several oceanfront homes or villas on the island.

CCYC is a Florida corporation organized under the Florida Not For Profit Corporation Act , section 617.01011, et seq. , Florida Statutes ( 2018 ) . CCYC's bylaws "may contain any provision for the regulation and management of the affairs of the corporation not inconsistent with law or the articles of incorporation." § 617.0206, Fla. Stat. ( 2018 ) .

Diaz's fifth amended complaint alleges that he contributed funds and services to CCYC over a course of years, including charitable fundraising to restore island facilities after Hurricane Andrew in 1992 and later storms. He served as president of CCYC for several years. Following the election of one of the defendants to the office of president in 2009 , however, Diaz alleges that various disputes arose. These issues percolated by 2011 into a "scheme to justify the firing of [CCYC's then manager] and the expulsion of Diaz from CCYC," according to Diaz.

Diaz alleges that this scheme was then executed in the form of a faulty audit of accounts (by a CPA from an independent accounting firm) , defamatory comments by the Director Defendants , and the CCYC board's unanimous vote to expel Diaz as a member of CCYC in February 2012 . Diaz's expulsion occurred pursuant to a board resolution reciting that Diaz had engaged in "actions prejudicial to the Club" and rendering him "undesirable as a Member," grounds for expulsion under Section 2.20 of the CCYC bylaws.

In May 2012 , an appellate committee of the board denied Diaz's appeal from the expulsion resolution. All of these actions, Diaz maintains, were undertaken by CCYC and the Director Defendants "in bad faith and with malicious purpose, in a manner exhibiting a willful disregard of Diaz's rights and property rights." In January 2014 , Diaz filed his initial "Verified Complaint for Damages and Equitable Relief" seeking money damages (including treble damages for certain claims) , a mandatory injunction restoring his membership in CCYC, an accounting, punitive damages "upon a proper showing under Florida law," and other relief.

The complaint was dismissed and the injunctive claim was dismissed with prejudice by a predecessor judge. Amendments and additional dismissals followed, with Diaz ultimately moving to amend his fourth amended complaint to add the claims for punitive damages.

During the trial court hearing on the proposed amendment and the alleged basis for punitive damages, the trial court stated that CCYC and the Director Defendants had not "challenged the evidence," and the court entered no written findings identifying any evidence considered to constitute a "reasonable basis" ( section 768.72 (1) ) for the recovery of punitive damages. The order granted the motion to amend without elaboration, and without any differentiation among CCYC and any of the fourteen Director Defendants . The petition for certiorari followed.

To obtain relief in this case , the petitioners must establish that the trial court departed from the essential requirements of law, causing material injury to the petitioners for which there is no adequate remedy on appeal. Allstate Ins. Co. v. Langston , 655 So. 2d 91, 95 ( Fla. 1995 ) . Review of an order granting a motion to amend to add a punitive damages claim requires us to consider "whether a trial judge has conformed with the procedural requirements of section 768.72 ..." , but the scope of review is "not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry." Globe Newspaper Co. v. King , 658 So.2d 518, 519 ( Fla. 1995 ) .

We consider in turn: (1) the conduct of the trial court 's hearing inquiring into the "reasonable basis for recovery of such damages" ; and (2) the legal impediments to claims for punitive damages in the case at hand.

A review of the transcript of the hearing on Diaz's motion to amend discloses that counsel for the parties provided the trial court with a "whole box" of documents relating to Diaz's motion to amend . The crux of the fourth amended complaint and the seven counts within it is the expulsion of Diaz from the social club, CCYC, based on his disagreement with the board's decision to fire a general manager and on "credits" claimed by Diaz for landscaping and other contributions of services in lieu of cash contributions or payments. The Director Defendants , like Diaz himself, were highly-successful and financially prosperous individuals with, the pretrial discovery makes clear, strong opinions they were not reluctant to express.

In the language of the motion to amend and much of the hearing , this is styled a "witch-hunt" against Diaz based on a motto to "expel first and ask questions later." A board member/ defendant is said to have wanted to control the island of Cat Cay and to have called other members "spoiled brats and little wimps." It is also argued that documents mysteriously disappeared.

Following the board's decision to expel Diaz from membership in CCYC, the appeal board constituted pursuant to the club by-laws "rubber stamped" the board action. Allegedly the board also moved the location for burning the island's trash to a location next to Diaz's property, causing the property to become unsaleable and Diaz to incur substantial financial losses. 3

Although the trial court asked several questions, it made no findings identifying the evidence it considered sufficient to provide a statutory "reasonable basis" for granting the motion to amend . The court did not do so during the course of the hearing or in the pre-printed form order with the handwritten, one-word notation, "Granted" after identifying the motion to amend . In a seven count fourth amended complaint, with "a box" of pretrial evidence presented, and fifteen separate defendants , 4 this procedure was a departure from applicable law. Fetlar, LLC v. Suarez , 230 So.3d 97, 99 ( Fla. 3d DCA 2017 ) . Bare allegations are insufficient to support a punitive damages claim. Espirito Santo Bank v. Rego , 990 So.2d 1088, 1090 ( Fla. 3d DCA 2007 ) .

The hearing, argument of counsel , and colloquy in the present case stand in sharp contrast to the procedure detailed in our recent opinion denying certiorari to quash an order allowing a punitive damages amendment :

[ Plaintiff 's] motion to amend contained a detailed table outlining the record evidence and sworn declarations that provided the basis for his punitive damages claim. Moreover, the trial court conducted two hearings on the motion and requested supplemental memoranda as to the evidentiary basis for punitive damages against the corporate defendants . Further, [ defendants ] presented their arguments against [ plaintiff 's] motion to amend in their

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260 So.3d 259 (2018)

CAT CAY YACHT CLUB, INC. v. DIAZ

CAT CAY YACHT CLUB, INC., et al., Appellant(s)/Petitioner(s), v. Manuel C. DIAZ, Appellee(s)/Respondent(s),

District Court of Appeal of Florida, Third District. https://leagle.com/images/logo.png

September 25, 2018.

DECISION WITHOUT PUBLISHED OPINION

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Cat Cay Yacht Club, Inc. v. Diaz

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No. 3D18-2368

Akerman LLP, and Gerald B. Cope, Jr., and Michael B. Chavies; Marko & Magolnick, P.A., and Joel S. Magolnick, and Veronica M. Rabinowitz, for petitioners. Kozyak Tropin & Throckmorton, LLP, and Dyanne E. Feinberg, Javier A. Lopez, and Stephanie M. Gomez, for respondent Manuel C. Diaz.

TORTS — NEGLIGENCE — DAMAGES — Pleading in civil actions; claim for punitive damages

— BUSINESS ORGANIZATIONSCORPORATIONS NOT FOR PROFIT — Short title

— BUSINESS ORGANIZATIONSCORPORATIONS NOT FOR PROFIT — Bylaws

— BUSINESS ORGANIZATIONSCORPORATIONS NOT FOR PROFIT — Termination, expulsion, and suspension

• Cat Cay Yacht Club, Inc. v. Diaz Third District Court of Appeal State of Florida Jan 30, 2019
• Subsequent References
• CaseIQ (AI Recommendations)

Not final until disposition of timely filed motion for rehearing. Lower Tribunal No. 14-2379 A Writ of Certiorari to the Circuit Court for Miami-Dade County, David C. Miller, Judge. Akerman LLP, and Gerald B. Cope, Jr., and Michael B. Chavies; Marko & Magolnick, P.A., and Joel S. Magolnick, and Veronica M. Rabinowitz, for petitioners. Kozyak Tropin & Throckmorton, LLP, and Dyanne E. Feinberg, Javier A. Lopez, and Stephanie M. Gomez, for respondent Manuel C. Diaz. Before SALTER, LOGUE and LINDSEY, JJ. SALTER, J.

Cat Cay Yacht Club, Inc. ("CCYC"), and fourteen current and former members of CCYC's board of directors (collectively, the "Director Defendants"), petition the Court to issue a writ of certiorari quashing a circuit court order granting a motion by Manuel C. Diaz ("Diaz") for leave to file a fifth amended complaint adding claims for punitive damages to his lawsuit. The underlying lawsuit, commenced in 2012, involves allegedly improper actions taken to oust Mr. Diaz from a private social and recreational club in the Bahamas.

One defendant and member of the board of directors, Scott Morrison, passed away in 2016. His estate was substituted as a defendant, but punitive damages have not been sought against the estate. Diaz also named Maylene Jimenez, a comptroller of CCYC, as a defendant, but has not served her.

Concluding that the order authorizing amendment to add claims for punitive damages (a) departs from the essential requirements of the applicable Florida statute and controlling precedent and (b) is not a matter adequately remediable in a subsequent, plenary appeal, we grant the petition and quash the order.

§ 768.72, Fla. Stat. (2018) .

Background and Pertinent Facts

Diaz, his wife, and his family have visited the island of Cat Cay in the Bahamas, and fished in the surrounding waters, for some forty years. As their interest in the island and CCYC grew, Diaz joined CCYC (initially as a summer member), and purchased an oceanfront home, vacant lots, and a dock at the Cat Cay Marina. Later he built several oceanfront homes or villas on the island.

CCYC is a Florida corporation organized under the Florida Not For Profit Corporation Act, section 617.01011 , et seq. , Florida Statutes (2018). CCYC's bylaws "may contain any provision for the regulation and management of the affairs of the corporation not inconsistent with law or the articles of incorporation." § 617.0206, Fla. Stat. (2018) .

Diaz's fifth amended complaint alleges that he contributed funds and services to CCYC over a course of years, including charitable fundraising to restore island facilities after Hurricane Andrew in 1992 and later storms. He served as president of CCYC for several years. Following the election of one of the defendants to the office of president in 2009, however, Diaz alleges that various disputes arose. These issues percolated by 2011 into a "scheme to justify the firing of [CCYC's then manager] and the expulsion of Diaz from CCYC," according to Diaz.

Diaz alleges that this scheme was then executed in the form of a faulty audit of accounts (by a CPA from an independent accounting firm), defamatory comments by the Director Defendants, and the CCYC board's unanimous vote to expel Diaz as a member of CCYC in February 2012. Diaz's expulsion occurred pursuant to a board resolution reciting that Diaz had engaged in "actions prejudicial to the Club" and rendering him "undesirable as a Member," grounds for expulsion under Section 2.20 of the CCYC bylaws.

In May 2012, an appellate committee of the board denied Diaz's appeal from the expulsion resolution. All of these actions, Diaz maintains, were undertaken by CCYC and the Director Defendants "in bad faith and with malicious purpose, in a manner exhibiting a willful disregard of Diaz's rights and property rights." In January 2014, Diaz filed his initial "Verified Complaint for Damages and Equitable Relief" seeking money damages (including treble damages for certain claims), a mandatory injunction restoring his membership in CCYC, an accounting, punitive damages "upon a proper showing under Florida law," and other relief.

The complaint was dismissed and the injunctive claim was dismissed with prejudice by a predecessor judge. Amendments and additional dismissals followed, with Diaz ultimately moving to amend his fourth amended complaint to add the claims for punitive damages.

During the trial court hearing on the proposed amendment and the alleged basis for punitive damages, the trial court stated that CCYC and the Director Defendants had not "challenged the evidence," and the court entered no written findings identifying any evidence considered to constitute a "reasonable basis" ( section 768.72(1) ) for the recovery of punitive damages. The order granted the motion to amend without elaboration, and without any differentiation among CCYC and any of the fourteen Director Defendants. The petition for certiorari followed.

To obtain relief in this case, the petitioners must establish that the trial court departed from the essential requirements of law, causing material injury to the petitioners for which there is no adequate remedy on appeal. Allstate Ins. Co. v. Langston , 655 So. 2d 1196, 1199 (Fla. 1995). Review of an order granting a motion to amend to add a punitive damages claim requires us to consider "whether a trial judge has conformed with the procedural requirements of section 768.72 . . . ", but the scope of review is "not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry." Globe Newspaper Co. v. King , 658 So. 2d 518, 519 (Fla. 1995).

We consider in turn: (1) the conduct of the trial court's hearing inquiring into the "reasonable basis for recovery of such damages"; and (2) the legal impediments to claims for punitive damages in the case at hand.

(1) Conduct of the Hearing; Ruling

A review of the transcript of the hearing on Diaz's motion to amend discloses that counsel for the parties provided the trial court with a "whole box" of documents relating to Diaz's motion to amend. The crux of the fourth amended complaint and the seven counts within it is the expulsion of Diaz from the social club, CCYC, based on his disagreement with the board's decision to fire a general manager and on "credits" claimed by Diaz for landscaping and other contributions of services in lieu of cash contributions or payments. The Director Defendants, like Diaz himself, were highly-successful and financially prosperous individuals with, the pretrial discovery makes clear, strong opinions they were not reluctant to express.

In the language of the motion to amend and much of the hearing, this is styled a "witch-hunt" against Diaz based on a motto to "expel first and ask questions later." A board member/defendant is said to have wanted to control the island of Cat Cay and to have called other members "spoiled brats and little wimps." It is also argued that documents mysteriously disappeared.

Following the board's decision to expel Diaz from membership in CCYC, the appeal board constituted pursuant to the club by-laws "rubber stamped" the board action. Allegedly the board also moved the location for burning the island's trash to a location next to Diaz's property, causing the property to become unsaleable and Diaz to incur substantial financial losses.

We are left to wonder how this requires or permits intervention by a Florida court. CCYC is not a sovereign with complete authority over the island. Governmental regulation of trash burning and nuisance is subject to enforcement by Commonwealth of The Bahamas.

Although the trial court asked several questions, it made no findings identifying the evidence it considered sufficient to provide a statutory "reasonable basis" for granting the motion to amend. The court did not do so during the course of the hearing or in the pre-printed form order with the handwritten, one-word notation, "Granted" after identifying the motion to amend. In a seven count fourth amended complaint, with "a box" of pretrial evidence presented, and fifteen separate defendants, this procedure was a departure from applicable law. Fetlar, LLC v. Suarez , 230 So. 3d 97, 99 (Fla. 3d DCA 2017). Bare allegations are insufficient to support a punitive damages claim. Espirito Santo Bank v. Rego , 990 So. 2d 1088, 1090 (Fla. 3d DCA 2007).

Asked by counsel which counts and which defendants were to be subject to claims in the fifth amended complaint (which, as noted, had not been filed or provided to the defendants), the trial court stated "in all respects." --------

The hearing, argument of counsel, and colloquy in the present case stand in sharp contrast to the procedure detailed in our recent opinion denying certiorari to quash an order allowing a punitive damages amendment:

[Plaintiff's] motion to amend contained a detailed table outlining the record evidence and sworn declarations that provided the basis for his punitive damages claim. Moreover, the trial court conducted two hearings on the motion and requested supplemental memoranda as to the evidentiary basis for punitive damages against the corporate defendants. Further, [defendants] presented their arguments against [plaintiff's] motion to amend in their written opposition, during both hearings, and in their response to [plaintiff's] court-ordered supplemental memorandum. It is also clear from the record that the trial court applied the correct law. The court, in its order granting the motion to amend, found—based on [plaintiff's] motion, the supplemental memoranda, and the arguments presented during the two hearings—that [plaintiff] "made the requisite showing by evidence in the record or proffered by plaintiff that would support a reasonable basis for

recovery of punitive damages as required by Fla. Stat. § 768.72 against defendants . . . ."

(2) Legal Impediments Unaddressed by Diaz

The trial court apparently did not consider during the hearing or address in its order the legal insufficiency issues raised by CCYC and the Director Defendants. Specifically, Florida law ordinarily defers to the right of social organizations to regulate their own membership and rules for expulsion. See, e.g. , Everglades Protective Syndicate, Inc. v. Makinney , 391 So. 2d 262, 266 (Fla. 4th DCA 1980) ("Neither due process nor concepts of fundamental fairness compel the conclusion that an individual is entitled to the association of one or more other individuals against their will.")

Diaz's claims for reversal of the expulsion and reinstatement to membership were dismissed by a predecessor judge in 2014. That being so, the consequences of expulsion were not untangled from Diaz's other claims—interference with property rights, for example—for purposes of the amendment seeking punitive damages. Artful pleading after numerous amendments is not necessarily curative. The denial of a motion to dismiss subsequently rewritten allegations is not a green light to add punitive damage claims without following the procedure mandated by section 768.72 (in which the legislature expressly required a more rigorous assessment).

Diaz is correct that the member of a voluntary association is entitled to legal protection when the member's contractual or property rights, and not merely continued membership, are harmed, citing McCune v. Wilson , 237 So. 2d 169 (Fla. 1970). What remains unclear is the naked allegation that expulsion somehow caused a forfeiture of Diaz's equity shares in CCYC or rendered his real estate unsaleable or less valuable. The bylaws say otherwise. The statutory procedure obligates a trial court to do more than just accept allegations as true. Bistline v. Rogers , 215 So. 3d 607, 610 (Fla. 4th DCA 2017). See also Fla. Hosp. Med. Servs., LLC v. Newsholme , 255 So. 3d 348 (Fla. 4th DCA 2018).

Second, the petitioner/defendants raised below and here the one-year statute of limitations applicable under the Florida Not For Profit Act: "Any proceeding challenging an expulsion, suspension, or termination, including a proceeding in which the defective notice is alleged, must be commenced within 1 year after the effective date of the expulsion, suspension, or termination." § 617.0607(3), Fla. Stat. (2018) . Diaz and the trial court did not address this bar, though it is uncontroverted that Diaz's circuit court lawsuit was filed well after that one-year limitations period. Diaz's motion to amend and presentation at the hearing on that motion failed to differentiate the barred expulsion claims from those based on other, unrelated actions of CCYC or any individual Director Defendant.

The procedure employed by the trial court in the present case was a departure from the essential requirements of law. The prospect of intrusive financial discovery following a trial court's authorization for an amendment to add a claim for punitive damages is the irremediable injury constituting the second element required for this Court's exercise of its certiorari jurisdiction. TRG Desert Inn Venture, Ltd. v. Berezovsky , 194 So. 3d 516 , 520 n.5 (Fla. 3d DCA 2016) (describing amendments to add punitive damage claims as a "game changer" in litigation, and urging "the Florida Bar's Appellate Court Rules Committee to review rule 9.130(a)(3) of the Florida Rules of Appellate Procedure to consider whether to include in the rule's catalogue of appealable, non-final orders a trial court's order granting a motion for leave to add a punitive damages claim"); Levin , 43 Fla. L. Weekly at D2426 n.4 (same); WG Evergreen Woods SH, LLC v. Fares , 207 So. 3d 993, 997 (Fla. 5th DCA 2016).

We grant the petition and quash the order granting the motion to amend.

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Cat Cay Yacht Club in ‘self-imposed lockdown’

As of Wednesday, February 24, 2021

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By TANYA SMITH-CARTWRIGHT

[email protected]

CAT Cay Yacht Club’s manager says the community is in “self-imposed lockdown” after a spike of COVID-19 cases emerged last week.

John McCranie told The Tribune COVID cases have now increased to 20 in number.

Over the weekend, the Ministry of Health reported 16 cases on the small island just off Bimini and home to the Cay Yacht Club — an exclusive members-only residential area and marina.

According to Mr McCranie, since this announcement the numbers have climbed slightly.

He said: “We did an entire island-wide test, yesterday (Monday), as part of what we are doing. And we identified four (cases) that came out of yesterday’s testing. That brings our total to 20.

“That information has been reported to the Ministry of Health. Now it does take the Ministry 24 hours to verify and take a look at the information that we send them. So, there is a little lag time, but the Ministry of Health has really been outstanding to work with as we negotiate this. Dr Bartlett has been particularly wonderful.”

Asked how he thinks the outbreak began, Mr McCranie said due to quick action of contact tracing it was discovered the origin came from a Bahamian who travelled recently.

“We are such a tiny cay so everyone is fairly close to each other,” he said. “We had a staff member travel to the United States and then while there he took his COVID test and all of the other steps to re-enter the country. He is a Bahamian gentleman.

“Then on his fifth day back he is required to do a rapid antigen test and the test came back positive. So right then and there we started the process of doing mandatory testing across the island and that is where we identified the cases that we have. So we immediately went into lock down.

“We believe that the Ministry of Health and Prime Minister Minnis has been very effective with regards to if you have a situation and act swiftly and completely then you can really mitigate the spread fairly quickly.”

Luckily for Cat Cay residents, the cases appear to be asymptomatic for the most part. And, there is a doctor on the island who specialises in the COVID-19 virus. The doctor is monitoring all positive cases.

“Fortunately, all of our cases are pretty much asymptomatic,” Mr McCranie continued. “Maybe some sniffles or a little scratchy throat, but no serious conditions from any of our positive cases. “Fortunately for Cat Cay we have a doctor that is dedicated just to COVID response. His name is Dr Atul Gupta.

“The lockdown is a 24-hour lockdown, but it doesn’t stop after 24 hours. Again, we are a small cay so we really have to control people’s movements so that we can, not just flatten the curve, but really chop it off. The Club paid for the tests. Our entire population agreed to the testing because they understand how important it is for us to know who has it and who doesn’t. And, quite frankly they appreciate the Club going through that effort.”

Mr McCranie noted that the idea is to remain on lockdown and continue testing until there are no new cases on the island and until those who tested positive have recovered.

He continued, “We have been focusing our efforts on enforcing the lockdown and then on having the island wide testing. We want to get down to zero cases as quickly as possible.

“Part of our lockdown is that there are no guests on the island. We informed our members that we were closed and that we will let them know when we are open and they have been very supportive. Everyone understands that it is in everyone’s best interest for us to get through the lockdown, continue the testing and then back down to a COVID-free environment.”

Mr McCranie said some of the staff members have pre-existing conditions and this is all the reason why it is so important to protect them through the lockdown. Management at the Cat Cay Yacht Club are also making sure that the needs of the staff are met.

“COVID is scary and we have some staff members who have some health issues so we take it very seriously,” he explained. “That’s why we felt that completely shutting down our business and shutting down access to the island for guests and members and then doing multiple testing. “We are providing meals that are made in the kitchen and then we deliver directly to everyone’s house. This would be people in quarantine and people in isolation.

“We also have a market here so everyone in either quarantine or isolation can call the market and then the club will deliver to them. Any staff members that find themselves without funds, we’re taking care of that and working through that concern for them.”

This is not the first time Cat Cay has had COVID cases. It would appear that management of the island, along with medical assistance, have been successful in curtailing further spreads.

Meanwhile, the Ministry of Health reported six new COVID cases overall on Monday. The cases are all in New Providence.

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Three Residents File Lawsuit against Moscow City Officials for Unlawful Arrests

Moscow, Idaho–Gabriel Rench and Sean and Rachel Bohnet announced at a press conference on Wednesday that they are filing a lawsuit against Moscow city officials for violating their First Amendment rights. 

The lawsuit is directed at the City of Moscow, the police chief, arresting law enforcement officers, and the prosecuting attorney. 

Rench and the Bohnets were arrested last year for not wearing masks during an outdoor church song service.

The federal case, filed this week by the Thomas More Society, asserts that the city violated its own ordinance, Amended Public Health Emergency Order 20-03. The order allows the mayor to issue public health emergency orders but exempts core political speech activities protected by the United States and Idaho Constitutions. The filing also contends that Moscow violated Idaho state law protecting the free exercise of religion.

Rench and the Bohnets seek damages for the violation of their constitutional rights and punitive damages for the reckless indifference to their protected core political and religious rights. The lawsuit also seeks to curtail the reach of the city’s amended ordinance so as not to restrict core political and religious activities.

At the press conference, Sean Bohnet said, “Our rights were carelessly ignored.”

Rench also commented that the city council should have publicly recognized the city’s failure to protect their rights.

“Instead, the city council revised its order to target myself and others who would exercise their constitutional rights,” Rench stated. “The council’s actions have fragmented Moscow and increased hostility in the broader community.”

The lawsuit does not seek pecuniary benefits other than reimbursing legal fees. 

Special Counsel Michael Jacques explained that they are not suing for money. He said, “The point of this is not necessarily pecuniary gain. It is to make a point with the government agencies that they can’t ignore their limitations and they need to prioritize our first amendment rights.”

The lawsuit names as defendants the City of Moscow, City Chief of Police James Fry, Law Enforcement Officers Will Kasselt, Jake Lee and Carlee Brown and Prosecuting Attorney Elizabeth Warner.

Read the full complaint here . 

On September 23, 2020, Gabriel Rench, and Sean and Rachel Bohnet were arrested while participating in a “Psalm Sing” sponsored by Christ Church in the Moscow City Hall parking lot. 

Read more of that story: Three People Arrested At Psalm Sing, Multiple Others Cited

Months later, the Moscow prosecuting attorney moved to dismiss the charges. 

Read more here: City of Moscow Admits Mistake in Arresting People at Church Singing Event

The city attorney revealed to the court that, while city codes allow the mayor to issue public health emergency orders, exemptions, unless specifically prohibited, include “any and all expressive and associative activity protected by the U.S. and Idaho constitutions, including speech, press, assembly, and/or religious activity.”  

“The city violated its own ordinance when law enforcement wrongly arrested Gabriel Rench and Sean and Rachel Bohnet,” said Special Counsel Michael Jacques. He added that law enforcement officers “demonstrated reckless indifference to the defendants’ First Amendment rights.”  

After the arrests, Moscow City Council amended the ordinance regarding public health emergencies to apply to all persons and activities in Moscow, including political speech. 

Jacques explained that with the amendment, the ordinance now violates the First Amendment and should be declared unconstitutional.

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Jesse Sumpter

Jesse Sumpter lives in Moscow, Idaho with his wife and daughter.

The plaintiffs are making a huge mistake. ALWAYS SEEK MONETARY COMPENSATION FROM ALL PARTIES WITHOUT EXCEPTION!! Failure to exact financial penalties from government gangsters and their supporters tells them that there are no serious consequences for violating our civil rights. So unless you’re going to criminally prosecute and jail them, it’s important to sue the bastards into bankruptcy.

The first step is to win, the second step is to get a permanent injunction, the third step is to then have other plaintiffs step forward and sue them for economic damages.

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Nathan D. Wilson v. City of Moscow, Idaho

On December 7, 2022, the American Freedom Law Center filed a federal civil rights complaint against the City of Moscow, Idaho, and several of its officials, including three police officers.  The lawsuit was filed on behalf of Nathan Wilson, and his two sons, Rory and Seamus.  Seamus is a minor.

The City of Moscow (appropriately named) is a blue dot in the largely red (freedom-loving conservatives) state of Idaho.  Within this tyrannically liberal City is a conservative, Christian community, many of whom belong to Christ Church.  The pastor of this church is Douglas Wilson, the father of Nathan Wilson.  And, of course, Nathan and his children are active members of this Christian community.

Like most tyrannical liberals, during this past COVID crisis, the City of Moscow imposed severe and absurd lockdowns on liberty.

For example, in early September 2020, Nathan’s son Rory was threatened with arrest by City police officers because he was allegedly standing too close to his cousin without a mask.  Rory and his cousin were outdoors at the time.

On September 23, 2020, Rory and his brother Seamus participated in an outdoor Psalm sing organized by their grandfather, Douglas Wilson, the pastor of Christ Church.

Members of the Christ Church engaged in the Psalm sing to protest the City’s draconian COVID-19 lockdown orders, which were issued without public consent while ignoring public input.  The Psalm sing protest took place in the outdoor parking lot of the Moscow City Hall.

Despite the fact that the City’s COVID-19 orders exempted religious activities, City police officers arrived and began making arrests.  Charges were filed against the arrested participants, but they were later dropped.

The City established a slogan to justify its crackdowns, and City officials posted that slogan on signs around the City.  The City’s slogan was “ ENFORCED BECAUSE WE CARE .”

Before all charges against the Psalm-sing participants were dropped, Nathan Wilson assisted with creating decals to protest the City’s draconian COVID-19 orders and their enforcement, including the arrests made at the Psalm sing because of these orders.  Nathan and his business partner paid for the decals because his partner’s brother was one of the Psalm-sing participants arrested.

The decals were small (most were 3 inches in size and some were 8 inches), made of vinyl, and were non-damaging.  That is, they were the type of decals that could be applied and removed easily without causing any damage or leaving any residue.

Some of the decals created stated, “ SOVIET MOSCOW ,” and they included a hammer and sickle.  The majority of the decals bore an image of the hammer and sickle and stated, “ SOVIET MOSCOW: ENFORCED BECAUSE WE CARE ,” in protest to the City’s draconian and tyrannical COVID-19 orders (collectively referred to as “Soviet Moscow protest decals”).  A copy of a Soviet Moscow protest decal appears below:

On October 6, 2020, Rory and Seamus posted Soviet Moscow protest decals on City property, particularly at locations where other decals, stickers, and handbills were or have been posted in the past.  These locations include City light poles, parking poles, and signs.  Rory and Seamus engaged in this expressive activity to protest the City’s tyrannical COVID-19 orders.

It is an accepted and routine practice in the small university City to post messages, specifically including commercial messages, political messages, and messages on matters of public interest, on poles and other City property throughout the City.  The City permits this practice and has created a forum for speech by doing so.

Consequently, many poles in the City display hundreds of various decals and fliers expressing various messages.  In addition to permitting the use of the poles for expressing various messages, the City permits the posting of thousands of yard signs, lost pet fliers, and handbills with political and other public-issue messages at various public locations on a regular basis.

These practices have been permitted by the City for decades.  Below are pictures of the Soviet Moscow protest decals placed alongside other postings in the City, and these Soviet Moscow protest decal postings served as a basis for the arrests and/or prosecutions of the Wilsons.

Other examples of permitted postings appear in the images below:

On October 6, 2020, the City Police Department received a call reporting two people placing decals on poles and signs.  Two officers (defendants in this case) responded to the complaint on foot.  One officer (also a defendant in this case) responded in a squad car.

Upon the arrival of the defendant police officers, Rory and Seamus were walking on the public sidewalk.  The police officers summoned the two boys, and the boys complied and walked to the officers.  Rory and Seamus were respectful, and they did not attempt to flee.

To comply with the “masking” order in effect at the time, Rory and Seamus wore hijabs.  They chose hijabs as their mandated masks because if they were going to be oppressed, they wanted to look oppressed.

Upon the arrival of the defendant police officers, two officers forcefully placed Rory in handcuffs, forced him to the ground, and proceeded to interrogate him.  Rory was not free to leave, and yet the officers did not advise him of his rights required by Miranda before interrogating him.  An image of officers placing Rory in handcuffs (right) while his brother Seamus (left) observes and is interrogated by a City police officer appears below:

In consideration of the alleged crime (posting non-damaging, Soviet Moscow protest decals on poles, a practice long permitted by the City), the threat to the officers (none, as Rory unarmed, and he was obedient and respectful throughout), the fact that Rory was not resisting arrest, and in light of the totality of the circumstances, the force used by the officers against this youth was excessive.

While two officers detained Rory, an officer moved Seamus away from his brother and placed him on the squad car’s brush guard where he was interrogated and threatened with a felony conviction.  For prolonged periods of time, and in an effort to harass and intimidate the juvenile, the officer positioned his tactical flashlight directly in Seamus’s face.  An image of the officer shining his tactical flashlight directly into Seamus’s face during the officer’s interrogation appear below:

When the police officers told the boys that they would be charged with felony destruction of property, the boys offered to remove all of the non-damaging decals, but they were told by the officers that it was now too late.

After detaining the two boys, an officer called Nathan to come pick up his sons.  When Nathan arrived, an officer confronted him, immediately telling Nathan that he didn’t agree with the “messaging” of the decals.  The officer was visibly angry about the messaging.

Nathan told the officer that he wanted to go to his sons, who appeared in distress by their treatment, and the officer told him, “No, we are not done with them.”

Nathan especially wanted to go to his minor son and could not imagine why a parent would not be allowed to approach.

When an officer asked Nathan if he had anything to do with producing the decals, Nathan said, “I’m gonna go ahead and plead the Fifth on that one,” which further angered the officer.

The officers eventually released the boys from their “custody”—the officer’s language—into the custody of their father, informing Nathan and his sons that the City Attorney’s office would be apprised of the incident.

The City later dispatched workers to remove the Soviet Moscow protest decals from the downtown area.  The workers only removed the Soviet Moscow protest decals and left every other decal, sticker, or poster in place, including stickers directly insulting the Wilson’s Christian community.

Some of the insulting stickers included messages such as “F**k Christ Church,” “All Kirkers Are Bastards” on a little blue cross sticker that imitates and thus mocks the church’s logo, and “NSA GET OUT.”  NSA is a Christian college associated with Christ Church, and Kirkers is a local nickname for members of Christ Church.

Some of the insulting stickers that the City workers allowed to remain were placed on the same surfaces/locations as the Soviet Moscow protest decals.  The City also allowed other Left-leaning political messages such as “F**k Trump” and “Immigrants Welcome.”

Months later (March 2021) and following strong public opposition to the City and its officials for selectively enforcing the City’s laws against the Wilsons, the City sent street crews out once again to clean the poles.  But even then, the City chose to leave stickers attacking Christ Church.

Indeed, the discrimination against the Wilsons and their church was so blatant, locals started a “Permitted Signs of Moscow, Idaho” Facebook group, where public members of the group can post pictures of stickers, flyers, and other signs currently allowed in the City.  These “permitted signs” include, among others, “F**k Christ Church,” “Obey the Cult” (with an image of Nathan Wilson’s father, the pastor of Christ Church), and the “All Kirkers Are Bastards,” sticker.

Days after the City dispatched its first group of workers to remove the Soviet Moscow protest decals, a City police officer (one of the defendants) delivered citations to the Wilson’s home, and told Nathan that both of his sons were being charged with 13 misdemeanors each and that he was being charged as an accessory.

The officer added that the crime they were being charged with was the crime most commonly committed by posting “lost cat fliers and yard sale signs.”  More specifically, the officer told Nathan that they were all charged with a violation of a City ordinance which generally forbids the placing of a sign or flier or other advertising matter on a pole without permission.

Nathan asked if City police officers ever handcuffed and interrogated individuals they suspected of having placed a lost cat flier on a pole.  The officer declined to answer.

The fact is that the City has never prosecuted, let alone arrested and handcuffed, anyone under this City ordinance for posting flyers or decals on poles in the City.

The City proceeded with the prosecution of Rory, but charges were eventually dismissed against Nathan and Seamus, after

As set forth in the complaint:

This case seeks to protect and vindicate fundamental rights.  It is a civil rights action brought under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983, challenging Defendants’ unlawful actions and selective enforcement of the law that were motivated by Defendants’ hostility toward Plaintiffs and their political and religious viewpoints and religious beliefs.

The lawsuit seeks declaratory and injunctive relief and damages.

Attachments