VERO BEACH — Vero Beach City Councilman Brian Heady received in Friday’s mail a copy of the City of Vero Beach’s May 27 response to his lawsuit filed in U.S. District Court and says he plans to countermand the city’s claim that the federal court should dismiss the complaint.
“They filed a motion to dismiss based on a claim that the court lacks subject matter jurisdiction,” Heady said. Based on the information contained in Heady’s complaint and the city’s assertions, the court will need to decide if Heady in fact has standing to file this particular suit in federal, not state court.
The freshman councilman is acting as a pro se litigant in the case, but it is not his first time being in that position. Heady has sued numerous public entities before, in both state and federal court.
Heady said he’s confident that his claim that Mayor Kevin Sawnick and other council members infringed on his right to freedom of speech under the U.S. Constitution is clearly a federal issue. Other elements of the complaint, Heady conceded, are probably state issues, but that they are integral to the complaint as a whole.
He claims that the reason why the city didn’t want him to speak cannot be divorced from the allegation that they made repeated efforts to “stifle” his right to speak. Heady has claimed that the city has tried to stop him from discussing matters related to the electric contract with the Orlando Utilities Commission and that the city has illegally kept documents out of the public eye.
“The court will not bifurcate the case and send some issues back to the state,” Heady said, adding that the statement was his opinion of the law. “So a federal court will rule on what may be state issues once it accepts jurisdiction.”
The case has been assigned to U.S. District Court Judge Kevin Michael Moore and the City of Vero Beach has retained local trial attorney and mediator H. Randal “Randy” Brennan to handle its defense. Brennan has stated that the city has a very good chance of getting the case dismissed.
Brennan said Judge Moore could rule about the jurisdiction — and about the legal sufficiency of the complaint itself — in as little as two weeks, or longer, depending on his caseload.
Based on what he’s read in the city’s motion to dismiss, Heady said he’s not so sure.
“If that’s their best hope of getting out of this, I think they’re in trouble,” Heady said.
While the case is pending, Brennan has advised the staff and council not to discuss issues relevant to the complaint in public meetings, as to avoid any inappropriate comments being made.
City Attorney Charles Vitunac and his staff were advised by the Florida Bar to hire outside counsel, as members of the city’s legal staff would most likely be subpoenaed should the case go to trial.