FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA
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No. 1D21-1841
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SCOTT D. HALL, REBEKAH

BASHFORD KERVIN, DR. JESSICA
BRAWNER WEBB, JOHNNY D.
WEBB, AMY WEBB, DANIEL
GRIFFIN, ANGELA SHIRLEY,
CHRIS MAY, et al.,

Appellants,

v.

RAYNE COOKS, et al.,

Appellees.
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On appeal from the Circuit Court for Madison County.

Melissa G. Olin, Judge.

August 3, 2022

MAKAR, J.

Madison County, Florida, the eastern-most county in Florida’s

Panhandle whose northern border abuts Georgia, was established
in 1827 and named after President James Madison, often dubbed
the father of the U.S. Constitution who served as the Nation’s chief
executive from 1809-1817. The county is agrarian, known as part
of the “plantation belt” for its cotton mills (prior to the boll weevil),
as well as its livestock and tobacco production; it recently bucked
ninety years of prohibition, its citizens voting to become a “wet”
county. Its population in 1850 of about 5,000 residents has grown
to just 17,968 as of the 2020 census. Its county seat, also named
Madison, consists of only 2.7 square miles with a population just
shy of 3,000 residents. The county is approximately one-third
African-American; the city is approximately two-thirds African-
American.

In 1909, a life-size sculpture of a uniformed Confederate

soldier standing atop a massive marble pedestal was erected in a
county-owned park to honor those who fought for the Confederate
States of America in the Civil War four decades earlier.

In 1926, the park property was conveyed by the county to the city,
which was required by deed to use the property “only for park
purposes” or return it to the county. 1 As consideration for the deal,

1 The park was commonly known as Central Park at the time

of the 1926 conveyance. It is now known as Four Freedoms Park
due to an eponymous monument placed there in 1944 to honor
Captain Colin P. Kelley—a Madison County native and West Point
graduate—who was one of the first American heroes of World War

2
the city gave up its right to collect a $4,800 debt from the county
for road paving services.

Some people in the Madison County community place value

on the monument because it commemorates their ancestors’
deaths and has historical worth; to them, it is akin to a cenotaph,
meaning an empty tomb that honors the dead. 2 Gardner v. Mutz,

II; he was awarded the Distinguished Service Cross for his valor
in keeping his bomber, which was hit by enemy fire, airborne long
enough for many of his crew to parachute to safety. The monument
depicts four angels signifying four fundamental freedoms (freedom
of speech and expression, freedom of worship, freedom from want,
and freedom from fear) that President Franklin D. Roosevelt
identified in his 1941 State of the Union Address; the city has
branded itself as “The City of Four Freedoms.”

2 The complaint describes the monument as follows:

The Cenotaph is a marble pedestal with a life size Italian

marble sculpture of a uniformed Confederate soldier
standing at parade rest, facing west, braced against a tree
stump. The soldier is wearing a wide-brimmed hat, a
blanket roll across his torso, a percussion cap box, and a
canteen, holding the barrel of a rifle with both hands,
with the butt resting by his feet. The pedestal sits on
three square stepped foundations, the top being a shaft
elevating the sculpture to a height of twenty-three feet.
The faces of the Cenotaph’s second level are decorated
with bas-relief art. The west face is adorned with an
Army of Tennessee battle flag on a broken staff, above the
flag the number “1861” and below it “1865.” Above this
decoration, near the top below the sculpture’s feet are the
letters “C.S.A.” On the north pedestal face is the image of
a cannon on its carriage. On the east pedestal face is the
image of the United Daughters of the Confederacy (UDC)
Southern Cross of Honor that includes a laurel wreath,
an Army of Tennessee battle flag, and the words
“UNITED - DAUGHTERS - CONFEDERACY - TO THE
U.C.V.” On the south pedestal face is a framed design of
two crossed swords pointed downward in front of a

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962 F.3d 1329, 1334 n.2 (11th Cir. 2020). Others see Confederate
monuments, even if cenotaphic, as relics of racial hatred and an
attempt to perpetuate the subjugation of African-Americans. 3

Over a century after its installation, the monument—like

others across Florida and the country—became a focal point of
local controversy. As a result, the city by divided vote (3-2) decided
to remove the monument, which spawned a lawsuit by eight
individuals whose ancestors the monument commemorates (each
has a relative listed as a “Confederate Dead” on a plaque affixed to
the monument’s base); none resides in the city, six live in the
county, and two pay city taxes on businesses they operate in the
city. Two additional plaintiff-associations joined the lawsuit: the
Florida Division of the Sons of Confederate Veterans (SCV) (a
“lineage society for male descendants of Confederate veterans” and
the successor to United Confederate Veterans) and Save Southern
Heritage, Inc. – Florida Chapter (SSH) (a South Carolina non-
profit corporation that “revere[s] the south, southern history and
southern heritage” whose purpose is “historic preservation,
specifically the history of the South for future generations.”). Both
associations have members in Madison County who have used the
park and monument to express their views and “wish to continue
doing so.”

Their lawsuit, as initially filed and later amended, sought to

prevent the removal of the monument, asserting six counts for
relief against the city: 4

landscape. On the first level below the swords is written,

“OUR CONFEDERATE SOLDIERS.”

3 Jess R. Phelps & Jessica Owley, Etched in Stone: Historic

Preservation Law and Confederate Monuments, 71 Fla. L. Rev.
627, 631 (2019) (“Many Confederate monuments dotting the
landscape of the southern United States and beyond are symbols
of white supremacy and were erected not to commemorate the dead
but to subjugate the living.”).

4 A fourth count claimed a violation of section 276.031, Florida

Statutes, by the Florida Division of Historical Resources. This
count was dismissed because a claim against the Florida Secretary

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 Count 1: Removal violates the 1926 deed; and the mayor’s
vote for removal was void because she resides outside the
city.
Count 2: Removal violates the city’s historic preservation
ordinance.
Count 3: Removal violates section 872.02, Florida
Statutes, which criminalizes defacing or destroying
tombstones and monuments.
Count 5: Removal violates the plaintiffs’ state
constitutional rights to free speech and free exercise of
religion.
Count 6: Removal is a breach of the city’s fiduciary duty
to its citizens to protect city assets.
Count 7: Removal breaches implied contracts between
the city and the SCV to continue the monument in the
park as an appurtenance.

In a detailed thirteen-page single-spaced order, the trial court

granted the city’s motion to dismiss the initial complaint with
prejudice as to counts 1, 3, 5, 6 and 7. Count 2 was initially
dismissed without prejudice due to lack of an allegation that the
monument was an official landmark for the purposes of the city’s
historic preservation ordinance; the count was ultimately
dismissed with prejudice when the plaintiffs failed to amend the
count with such an allegation. The plaintiffs now appeal, claiming
each of their six claims against the city is actionable.

Count 1
(Violation of 1926 Conveyance/Mayor’s Vote)

The plaintiffs made two claims in Count 1, one related to the

1926 conveyance and the other regarding the mayor’s vote, each of
which was properly dismissed.

As to the first claim, the trial court properly ruled that the
plaintiffs lack standing to assert a claim under the 1926
conveyance and that even if the plaintiffs have standing, the

of State must be filed in Leon County, Florida, and is not a subject

of this appeal.

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removal of the monument does not violate the terms of the
conveyance. As to standing, the plaintiffs claim they have
sustained sufficient injury, different from the public generally, to
sue the city because they are direct descendants of those
memorialized on a plaque affixed to the monument, which they
view as a gravestone in honor of their ancestors.

The city points out, however, that the plaintiffs were not
parties to the 1926 conveyance; instead, the county and the city—
who both still exist—were the only parties to the conveyance. For
this reason, the plaintiffs are not proper parties and lack standing
to enforce the terms of the conveyance. In addition, they lack
standing because the conveyance was not intended to benefit them
directly or individually, particularly when the plaque honoring the
Confederate Dead was not added until decades later. That they are
descendants of those listed on the plaque does not give them
standing absent some clear and particularized basis for concluding
they have an enforceable legal right arising from the terms of the
conveyance. See, e.g., McMahon v. Fenves, 946 F.3d 266 (5th Cir.
2020). Their ancestral linkage to those memorialized is legally
insufficient to accord them standing to sue to enforce a conveyance
to which they were not a party. As such, the plaintiffs have no
legally enforceable interest in the conveyance, nor are they
“equitable owners” of the park or monument.

Even if the plaintiffs had standing, they fail to explain how

the restriction in the conveyance is violated by the monument’s
removal. The 1926 conveyance of park property states that “said
property shall be used only for park purposes for all time, and in
the event that said property should be used for anything other than
park purposes, the same shall revert to the party of the first part
[the county], its successors and assigns free of all liens and
encumbrances.” (Emphases added). Removal of the monument
from the park, however, does not result in a change to the
property’s use as a park; it is still a park. Notably, the 1926
conveyance does not prohibit the monument’s removal or make its
removal a basis for reverter. The only requirement is that the park
property be used for park purposes, a use that is unchanged.

As to the second claim, the plaintiffs alleged that Madison’s

mayor, who voted for removal, is not a city resident, amounting to

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a violation of a municipal ordinance requiring her to reside in the
district that she represents. Madison, Fla., Code of Ordinances art.
III, § 9 (2020). They claimed to have “taxpayer, residency, and
voter standing” to pursue an “inquiry in the nature of a quo
warranto proceeding” to ensure the ordinance’s requirements are
met. The trial court correctly held, however, that only the Attorney
General or a person claiming title to the office in question has
standing to seek a writ of quo warranto, § 80.01, Fla. Stat. (2022);
Butterworth v. Espey, 523 So. 2d 1278, 1278 (Fla. 2d DCA 1988),
and that the mayor was a de facto officer whose vote was valid, see,
e.g., Kane v. Robbins, 556 So. 2d 1381, 1385 (Fla. 1989). On appeal,
the plaintiffs have not contested the trial court’s rulings on this
point of law and insist—contrary to the language in their
complaint—that they “did not assert a quo warranto claim” in this
proceeding. As such, the plaintiffs have waived this issue and
affirmance is required.

Count 2
(Violation of City’s Historic Preservation Ordinance)

Next, the plaintiffs claim that the city was required to follow
the process set forth in its historic preservation ordinance to
authorize the removal of the monument; this process requires the
issuance of a permit and a certificate of appropriateness and
considers feasible alternatives to demolition, none of which was
done before approval of the monument’s removal. As the trial court
noted, however, the city’s historic preservation ordinance applies
only to “landmarks,” thereby limiting its reach in this case because
the plaintiffs have not asserted the monument is a recognized
landmark for purposes of the ordinance; they were given an
opportunity to do so by amending their complaint, but they did not.
At best, the plaintiffs assert that the monument “is situated in the
geographic boundaries” of a historic district, i.e., the park, but they
fail to allege or show that the monument itself is a “landmark,”
thereby justifying dismissal of their historic preservation claim.

Count 3
(Violation of Section 872.02, Florida Statutes)

In their third claim, the plaintiffs claim the legal right to sue
the city for a purported violation of a statute, section 872.02,

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Florida Statutes, which criminalizes as a third-degree felony the
defacing or destroying of tombstones and monuments. Private
citizens, however, are not empowered to sue under a criminal
statute, which involves an executive function. See, e.g., Merritt v.
Stokes, No. 3:16cv412-LC-CJK, 2019 WL 938405, at *8 (N.D. Fla.
Jan. 25, 2019) (“A private individual cannot bring an individual
action under a criminal statute, as the power to prosecute criminal
cases is vested exclusively in the executive branch of
government.”), report and recommendation adopted by, No.
3:16cv412-LC-CJK, 2019 WL 937929 (N.D. Fla. Feb. 26, 2019).
Criminal statutes by themselves do not authorize civil
enforcement unless a civil remedy is made available. Mantooth v.
Richards, 557 So. 2d 646, 646 (Fla. 4th DCA 1990) (affirming
dismissal of civil claims where statutes at issue concerned “only
criminal violations and do not afford a civil remedy”). Even then, a
plaintiff must have standing to sue and a recognized injury in fact,
which the plaintiffs lack in this case; they claim a right “to sue the
City to prevent it from breaking the law,” but this criminal statute
does not create such a right. As an additional basis for affirmance,
the city points out that the statute’s language appears to limit its
scope to only those structures or sites that contain human skeletal
remains and related artifacts, noting the chapter’s title is
“Offenses Concerning Dead Bodies and Graves.” This point need
not be addressed because dismissal of Count 3 was proper due to
the plaintiffs’ lack of authority to enforce the criminal statute.

Count 5
(Violation of State Constitutional Rights to
Free Speech and Free Exercise of Religion)

The gravamen of the plaintiffs’ state constitutional claims is

that their future visits to the monument to hold ceremonies to
express their views about the Confederate Dead (as they have done
for years) will be infringed because the monument will no longer
exist; the same is true as to their past visits to the monument for
religious purposes to pay their respects to deceased family
members. The trial court dismissed these claims on the basis that
the plaintiffs lack “standing” but its ruling was based on the fact
that removal of the monument would not prevent them from
engaging in either type of expressive activity post-removal. The
court noted that nothing prevents the plaintiffs from gathering

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and engaging in free speech or religiously commemorative
activities as they have done previously, thereby negating their
claims of constitutional harm.

The trial court was correct to dismiss the plaintiffs’ claims

because, whether the plaintiffs have standing or not, their claims
as stated are not actionable. The most recent decision from the
Eleventh Circuit demonstrates this point. In Gardner v. Mutz, in
the City of Lakeland, Florida, the plaintiffs—like those in this
case—alleged that the city’s movement of a monument would
violate their free speech rights. The trial court dismissed the case
based on a lack of standing, which the Eleventh Circuit reversed,
finding that the plaintiffs had met the federal standard for
standing set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992). Gardner v. Mutz, 857 Fed. Appx. 633 (11th Cir.
2021), cert. denied, 142 S. Ct. 762 (2022). The dismissal of the
plaintiffs’ lawsuit was proper, however, because the plaintiffs
failed to state a cognizable claim for relief on the merits. Id. at 635–
36 (“Monuments in public parks, even when funded by private
parties, constitute government speech. Government speech doesn’t
violate the Free Speech Clause of the First Amendment.” (internal
citation omitted)).

For like reasons, the plaintiffs’ free speech and free exercise
claims under the Florida constitution are non-actionable in this
proceeding. The asserted interest at stake in this case is the
plaintiffs’ claim that their free speech and religious freedom rights
will be violated post-removal; but, in reality, nothing prevents
them from gathering, speaking, and commemorating their
ancestors at the park after the monument is gone. It is true that
the plaintiffs will have displeasure and sadness because a
governmentally controlled structure that they venerate will be
gone; the legal question that courts have uniformly answered in
the negative, however, is whether this type of
psychological/emotional harm from removal or relocation of such
monuments is actionable. See, e.g., Ladies Mem’l Ass’n, Inc. v. City
of Pensacola, Fla., 34 F.4th 988, 993 (11th Cir. 2022); Sons of
Confederate Veterans v. Newton Cnty. Bd. of Comm’rs, 861 S.E.2d
653, 657 (Ga. Ct. App. 2021), cert. granted (Mar. 8, 2022). Based on
these precedents, the trial court’s dismissal of the state
constitutional claims was proper.

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 The plaintiffs point out that their allegations would entitle
them to standing in a federal court, which is required to consider
the federal constitutional constraint that a case or controversy
must exist. As an example, the Eleventh Circuit recently held that
the plaintiffs in Gardner had standing because their claim of harm
was concrete and particularized because they alleged that they
“regularly visit the monument and plan to do so in the near future”
and that the city’s relocation of the monument obstructed their
plans. Gardner, 857 Fed. Appx. at 635. What the plaintiffs here
overlook, however, is that the Eleventh Circuit upheld dismissal of
the constitutional claims in Gardner. Moreover, a Florida state
court need not rotely apply Lujan and its progeny, as is required
under article III of the federal constitution, because Florida has no
case or controversy requirement. Instead, Florida has a different
test for standing, one that—unlike the federal standard—melds
together some of the elements of federal standing with the merits
of the asserted claims. The general test for standing is whether a
would-be litigant has a “direct and articulable” interest in a case’s
outcome. See Brown v. Firestone, 382 So. 2d 654, 662 (Fla. 1980)
(“Regarding standing, this Court has long been committed to the
rule that a party does not possess standing to sue unless he or she
can demonstrate a direct and articulable stake in the outcome of a
controversy.”); see Johnson v. State, 78 So. 3d 1305, 1314 (Fla.
2012) (“Thus, standing to bring or participate in a particular legal
proceeding often depends on the nature of the interest asserted.”).
Here, no such interest exists. In sum, the trial court correctly
concluded that the facts alleged did not show a legal basis for a
claim of infringement of any of the free speech or free exercise
rights of the plaintiffs.

Counts 6
(Breach of Fiduciary Duty)

On a different legal theory, the plaintiffs claim that the city’s

removal of the monument breaches a fiduciary duty that the city
has to its “citizens and residents to preserve and protect” publicly
owned assets such as the monument. The trial court dismissed this
claim because the plaintiffs did not allege compliance with pre-suit
requirements for such a claim and, even if they did, a claim against
the city must arise from a claimed breach of duty owed to the

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plaintiffs themselves. On appeal, the plaintiffs directly link their
fiduciary duty claim to their claim that they have the right to
enforce the terms of the 1926 conveyance. As discussed above, the
plaintiffs have no legal right to enforce the terms of the 1926
conveyance and, even if they did, removal of the monument was
not a violation of the conveyance’s terms. Dismissal of this count
was proper.

Count 7
(Implied Breach of Contract)

Finally, the trial court dismissed SCV’s implied contract

claim, which was based on the allegation that by allowing the
monument to be placed in the county’s park in 1909 the county
formed an enforceable, albeit unwritten, contract with SCV’s
predecessors that the monument was a park “appurtenance” that
would never be removed; the plaintiffs make a similar claim about
the placement of the memorial plaque commemorating the
Confederate Dead. As the trial court noted, however, no written
agreement exists, such that principles of sovereign immunity
apply to bar such a claim. Ag. for Health Care Admin v. MIED,
Inc., 869 So. 2d 13, 21 (Fla. 1st DCA 2004) (“[W]aiver of sovereign
immunity in the context of a contract action can only be supported
through an express, written contract.”). Dismissal on this basis
was required.

***

In summary, the trial court correctly dismissed with prejudice

the claims of the plaintiffs, who sought to prevent the city’s
removal of the monument.

AFFIRMED.

BILBREY and KELSEY, JJ., concur.

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 _____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

David R. McCallister, Wesley Chapel, for Appellants.

George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A.,

Madison; Ashley E. Davis, Deputy General Counsel, Department
of State, Tallahassee, for Appellees.

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