Case 4:23-cv-00163-AW-MJF Document 98 Filed 10/30/23 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

WALT DISNEY PARKS AND RESORTS,

U.S., INC.,
Plaintiff,

v.

RONALD D. DESANTIS, in his official

Case No. 4:23-cv-00163-AW-MJF
capacity as Governor of Florida;
MEREDITH IVEY, in her official capacity
as Acting Secretary of the Florida
Department of Economic Opportunity;
MARTIN GARCIA, in his official capacity
as Board Chair of the Central Florida
Tourism Oversight District; MICHAEL
SASSO, in his official capacity as Board
Member of the Central Florida Tourism
Oversight District; BRIAN AUNGST, JR.,
in his official capacity as Board Member
of the Central Florida Tourism Oversight
District; RON PERI, in his official
capacity as Board Member of the Central
Florida Tourism Oversight District;
BRIDGET ZIEGLER, in her official
capacity as Board Member of the Central
Florida Tourism Oversight District; and
GLENTON GILZEAN, JR., in his official
capacity as Administrator of the Central
Florida Tourism Oversight District,

Defendants.

PLAINTIFF’S OPPOSITION TO STATE DEFENDANTS’ MOTION TO

DISMISS SECOND AMENDED COMPLAINT
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TABLE OF CONTENTS
Page
INTRODUCTION .................................................................................................... 1
LEGAL STANDARD ............................................................................................... 3
ARGUMENT ............................................................................................................ 4
I. DISNEY HAS STANDING TO SUE THE STATE DEFENDANTS
ACTING IN THEIR OFFICIAL CAPACITIES TO EXECUTE THE
CHALLENGED LAWS ................................................................................. 4
A. Governor DeSantis Has A Direct Role In Implementing The
Unconstitutional Restructuring Of The District ................................... 6
B. The Secretary Has A Direct Role In Implementing The
Unconstitutional Restructuring Of The District .................................14
II. DISNEY’S CLAIM IS NOT BARRED BY SOVEREIGN
IMMUNITY .................................................................................................18
III. DISNEY’S CLAIM AGAINST GOVERNOR DESANTIS IS NOT
BARRED BY LEGISLATIVE IMMUNITY ...............................................19
IV. THE SAC STATES A CLAIM AS TO THE FIRST AMENDMENT
VIOLATION ASSERTED ...........................................................................20
CONCLUSION .......................................................................................................20

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TABLE OF AUTHORITIES
Page(s)
Cases
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,
512 U.S. 687 (1994) ...............................................................................................8
Bd. of Pub. Educ. for City of Savannah & Cnty. of Chatham v. Georgia,
1990 WL 608208 (S.D. Ga. 1990) .......................................................................16
Bennett v. Spear,
520 U.S. 154 (1997) .............................................................................................13
Church of Scientology of Cal. v. United States,
506 U.S. 9 (1992) .................................................................................................10
City of S. Miami v. Governor of Fla.,
65 F.4th 631 (11th Cir. 2023) .................................................................................7
Cordoba v. DIRECTV, LLC,
942 F.3d 1259 (11th Cir. 2019) ............................................................................18
Denton v. Bd. Of Governors,
No. 4:22-cv-00341-RH-MAF, Dkt. 65 (N.D. Fla. 2023) .......................................7
Dep’t of Com. v. New York,
139 S. Ct. 2551 (2019) .........................................................................................13
Dream Defs. v. Governor of Fla.,
57 F.4th 879 (11th Cir. 2023) .............................................................................4, 5
Equality Fla. V. Fla. State Bd. Of Educ.,
2022 WL 19263602 (N.D. Fla. 2022) ....................................................................7
Equality Florida v. Florida State Bd. of Educ.,
2022 WL 19263602 (N.D. Fla. 2022) ..................................................................11
Ex parte Young,
209 U.S. 123 (1908) .............................................................................................16
Falls v. DeSantis,
2022 WL 19333278 (N.D. Fla. 2022) ..................................................................19
Finberg v. Sullivan,
634 F.2d 50 (3d Cir. 1980) ...................................................................................16
Ga. Latino All. for Human Rts. v. Governor of Ga.,
691 F.3d 1250 (11th Cir. 2012) ..............................................................................4

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TABLE OF AUTHORITIES
(Continued)
Page(s)
Garcia-Bengochea v. Carnival Corp.,
57 F.4th 916 (11th Cir. 2023) ...............................................................................10
Grizzle v. Kemp,
634 F.3d 1314 (11th Cir. 2011) ............................................................................18
Hunt v. Aimco Properties, L.P.,
814 F.3d 1213 (11th Cir. 2016) ..............................................................................3
Jacobson v. Fla. Sec’y of State,
974 F.3d 1236 (11th Cir. 2020) ............................................................................17
Kilbourn v. Thompson,
103 U.S. 168 (1880) ...................................................................................... 16, 17
Los Angeles County Bar Association v. Eu,
979 F.2d 697 (9th Cir. 1992) ..................................................................................9
Luckey v. Harris,
860 F.2d 1012 (11th Cir. 1988) ............................................................................19
Miller v. Johnson,
515 U.S. 900 (1995) .............................................................................................20
Peter B. v. Sanford,
2010 WL 5684397 (D.S.C. 2010) ..........................................................................7
Renfroe v. Nationstar Mortg., LLC,
822 F.3d 1241 (11th Cir. 2016) ..............................................................................4
Socialist Workers Party v. Leahy,
145 F.3d 1240 (11th Cir. 1998) ..............................................................................5
State v. Becerra,
544 F. Supp. 3d 1241 (M.D. Fla. 2021) ...............................................................10
Support Working Animals, Inc. v. Governor of Fla.,
8 F.4th 1198 (11th Cir. 2021) .................................................................................5
Tellabs, Inc. v. Makor Issues & Rts., Ltd.,
551 U.S. 308 (2007) ...............................................................................................4
Uzuegbunam v. Preczewski,
141 S. Ct. 792 (2021) ...........................................................................................10

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TABLE OF AUTHORITIES
(Continued)
Page(s)
Whole Woman’s Health v. Jackson,
142 S. Ct. 522 (2021) ...........................................................................................17
World Holdings, LLC v. Fed. Republic of Germany,
613 F.3d 1310 (11th Cir. 2010) ..............................................................................4
Statutes
Fla. Stat. § 189.01 ....................................................................................................15
Fla. Stat. § 189.016 ..................................................................................................15
Fla. Stat. § 189.019 ..................................................................................................15
Fla. Stat. § 189.061 ..................................................................................................15
Fla. Stat. § 189.062 ..................................................................................................15
Fla. Stat. § 189.063 ..................................................................................................15
Fla. Stat. § 189.064 ..................................................................................................15
Fla. Stat. § 189.065 ..................................................................................................15
Fla. Stat. § 189.066 ..................................................................................................15
Fla. Stat. § 189.067 ..................................................................................................15
Fla. Stat. § 189.069 ..................................................................................................15
Other Authorities
Ariel Zilber, Universal Studios Gets Special Tax District After DeSantis Took It
Away From Disney, N.Y. POST (Oct. 13, 2023, 2:59 P.M.),
https://nypost.com/2023/10/13/ universal-studios-gets-special-tax-district-after-
desantis-stripped-disney/ ........................................................................................5

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INTRODUCTION

It is a foundational rule of America’s constitutional order that states cannot

force government-approved political orthodoxy on the citizenry by punishing

individuals and businesses who express political views that depart from official

state doctrine. The Defendants in this case—especially Governor Ron DeSantis—

reject that bedrock constitutional rule.

In the Governor’s view, corporations must remain “merely economic actors”

that do not “become political,” and if they “cross the line” by publicly disagreeing

with official state doctrine, government leaders are free to weaponize official state

powers to punish and control their speech. Second Amended Complaint for

Declaratory and Injunctive Relief ¶¶ 47, 89, ECF No. 87 (“SAC”). The merits of

that remarkable position are addressed in Disney’s opposition to the broader

motion to dismiss filed by the CFTOD Defendants and joined by the State

Defendants. See Opp. to CFTOD Mot. to Dismiss 3-4, 17-32.

The State Defendants’ own motion addresses a distinct but related point.

Having publicly boasted about orchestrating a secret plan to punish Disney for its

comments on public affairs and to exercise continuing control over its

entertainment programming, the Governor now seeks desperately to avoid any

official responsibility for those acts. According to the Governor, his connection to

the state’s ongoing efforts to regulate Disney’s speech is analogous to comments

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from a “lobbyist” voicing support for new laws. That assertion is farcical, as

anyone vaguely familiar with Florida government will readily recognize. More

importantly, it is directly contrary to the SAC’s allegations, which are assumed

true at this stage. On the facts alleged in SAC, the Governor and the Secretary of

Commerce are proper defendants who can and must be held liable in their official

capacities for the executive functions they perform in implementing the State’s

anti-Disney speech-control program.

Under settled standing and sovereign immunity rules, a plaintiff claiming

constitutional injury from a state law may proceed in federal court against any of

the state executive officers responsible for implementing, administering, or

enforcing the law. Article III and official-capacity requirements are satisfied in

such suits because the injury is traceable to those executive acts and redressable

by a judicial order enjoining their performance.

As set forth more fully in Disney’s response to the Defendants’ broader

motion to dismiss, the SAC alleges—and the State Defendants do not dispute—

that the challenged laws have caused Disney concrete injuries and that these

serious harms are ongoing. Disney’s alleged injuries arise from a scheme that the

Governor, by his own account, intentionally orchestrated in secret to ensure no

public input or even awareness as it was developed and implemented. SAC ¶ 50.

Again according to the Governor and other State leaders, the Governor instigated

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the enactment of laws to punish Disney’s speech and exert continuing control over

its political comments and programming. See Opp. to CFTOD Mot. to Dismiss 8-

16. To achieve those objectives, the State eliminated Disney’s voting rights in the

governing body that regulates the use of its property, replacing the landowner-

elected body with a Governor-appointed “state receivership” board explicitly

charged with using its land-use powers to control Disney’s speech. Id. at 10-14.

The injuries from elimination of its voting rights and the institution of a de facto

speech-control board in turn give rise to Disney’s claim challenging the laws

reorganizing the District—SB 4C and HB 9B—by replacing the landowner-elected

Reedy Creek Improvement District (“RCID”) with the Governor-controlled

Central Florida Tourism Oversight District (“CFTOD”).

As explained in this memorandum, Disney’s claim plainly implicates the

State Defendants’ executive responsibilities under the challenged laws, foreclosing

the standing or sovereign immunity objections the State Defendants now assert.

LEGAL STANDARD

On a motion to dismiss under Rule 12(b)(6), the Court must “accept[] the

allegations in the complaint as true and constru[e] them in the light most favorable

to the plaintiff.” Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221 (11th Cir.

2016). “To survive a motion to dismiss, a complaint need only present sufficient

facts, accepted as true, to state a claim to relief that is plausible on its

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face.” Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1243 (11th Cir. 2016)

(quotations omitted). In ruling on the motion, the Court may consider not only the

complaint itself but also “documents incorporated into the complaint by reference,

and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor

Issues & Rts., Ltd., 551 U.S. 308, 322 (2007).

Similarly, in a jurisdictional challenge under Rule 12(b)(1), the court

evaluates whether the complaint has sufficiently alleged a basis for subject-matter

jurisdiction upon “constru[ing] the complaint in the light most favorable to the

plaintiff and accept[ing] all well-pled facts alleged in the complaint as true.”

World Holdings, LLC v. Fed. Republic of Germany, 613 F.3d 1310, 1312 n.1 (11th

Cir. 2010).

ARGUMENT

I. DISNEY HAS STANDING TO SUE THE STATE DEFENDANTS

ACTING IN THEIR OFFICIAL CAPACITIES TO EXECUTE THE
CHALLENGED LAWS
To establish Article III standing to sue a state officer in his official capacity,

a plaintiff must establish (1) an injury-in-fact, that is (2) traceable to the officer’s

execution of the challenged law, and that (3) can be redressed by an order

enjoining continued execution. See, e.g., Dream Defs. v. Governor of Fla., 57

F.4th 879, 888-89 (11th Cir. 2023); Ga. Latino All. for Human Rts. v. Governor of

Ga., 691 F.3d 1250, 1257 (11th Cir. 2012); Socialist Workers Party v. Leahy, 145

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F.3d 1240, 1244 (11th Cir. 1998). The State Defendants do not dispute that the

challenged laws have caused—and will continue to cause—Disney multiple

concrete injuries, as summarized above. See supra at 2-3.1 The State Defendants

instead challenge only the latter two standing requirements—“traceability” and

“redressability.”

“To establish traceability and redressability in a lawsuit seeking to enjoin a

government official from enforcing [an allegedly unconstitutional] law, a plaintiff

must show ‘that the official has the authority to enforce the particular provision

[being] challenged, such that [the] injunction prohibiting enforcement would be

effectual.’” Dream Defs., 57 F.4th at 888-89 (quoting Support Working Animals,

Inc. v. Governor of Fla., 8 F.4th 1198, 2001 (11th Cir. 2021)) (first alteration

1
In repeated public comments, the Governor declared that the laws do not
injure Disney because they simply make the company subject to the same
regulatory structure applicable to all other Florida businesses, thereby creating a
“level playing field.” That contention is an outright falsehood. In fact, a special
district was established just this month to regulate the land encompassing
Universal’s new Epic Universe theme park in Orange County—with its inaugural
board of supervisors comprising only Universal employees. See Ariel Zilber,
Universal Studios Gets Special Tax District After DeSantis Took It Away From
Disney, N.Y. POST (Oct. 13, 2023, 2:59 P.M.), https://nypost.com/2023/10/13/
universal-studios-gets-special-tax-district-after-desantis-stripped-disney/. Further,
most businesses and other property owners in Florida are regulated by elected,
politically-accountable municipal bodies. Few Florida businesses are subject, as
Disney now is, to governance by a special district with a Governor-controlled
board that closely regulates the use of private property with no accountability to
local property owners and taxpayers. In any event, what matters with respect to
the pending motion to dismiss is that the challenged laws indisputably eliminate
Disney’s rights and impose new burdens, thereby creating an injury-in-fact.

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added); see State Defs.’ Mot. to Dismiss and Incorporated Mem. of Law at 9, ECF

No. 94 (“State Defs.’ Mem.”). None of the Defendants denies that the CFTOD

Defendants have the kind of responsibilities under the challenged laws that make

Disney’s injuries both traceable to CFTOD and redressable by a judicial order

declaring the laws invalid and enjoining CFTOD’s operations under those laws.

The State Defendants argue only that Disney lacks standing to advance its case

against the State Defendants in particular.2

That argument is incorrect. As explained below, Disney’s constitutional

injuries are directly traceable to the State Defendants’ executive duties under the

challenged laws, and they would be redressed by an order declaring the laws

unconstitutional and enjoining Defendants from continuing to implement and

enforce them.

A. Governor DeSantis Has A Direct Role In Implementing The

Unconstitutional Restructuring Of The District

The Governor contends that Disney’s injuries are not traceable to any of his

executive actions or redressable by an order enjoining those actions. State Defs.’

Mem. 10. The Governor is wrong in two respects.

First, a state governor’s power to appoint allegedly unlawful executive

officers itself establishes traceability and redressability where—as here—the claim

2
The CFTOD Defendants do not assert standing or other jurisdictional
objections.

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challenges the very fact of the appointments themselves. The Governor cites cases

in which courts rejected standing theories based solely on a governor’s

appointment power, State Defs.’ Mem. 10 & n.6, but in those cases the injuries and

claims arose from the actions of the relevant state agency, and the only alleged

connection to the governor was his power to appoint the officials who committed

the injurious acts. See Equality Fla. v. Fla. State Bd. of Educ., 2022 WL

19263602, at *8 n.8 (N.D. Fla. 2022); Peter B. v. Sanford, 2010 WL 5684397, at

*3 (D.S.C. 2010); Denton v. Bd. of Governors, No. 4:22-cv-00341-RH-MAF, ECF

No. 65 at 1, 3-4 (N.D. Fla. 2023); see also City of S. Miami v. Governor of Fla., 65

F.4th 631 (11th Cir. 2023). In this case, Disney’s claim challenges the governing

structure of the District Board itself, including the statutory provision making all

Board members Governor-appointed rather than landowner-elected. HB 9B’s

reorganization of the District violated Disney’s First Amendment rights because,

among other things, it replaced the locally-elected Board with a new Board

appointed by the vindictive Governor and accountable only to him, rather than to

District landowners, for unlawful retaliatory reasons. As Disney’s complaint

further details, the Governor’s appointees were publicly charged with using their

land-use powers to undermine Disney’s interests and thereby exercising continuing

control over Disney’s speech. As examples, the Governor declared that his Board

could approve the use of property adjacent to Disney’s to construct a state prison

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or develop a rival theme park. SAC ¶ 103. The injuries caused by exercising

unlawful appointment power plainly would be redressed by a court order

invalidating the reorganization laws and directing the Governor to rescind his

legally impermissible appointments.

To be clear, Disney’s claim is not that the U.S. Constitution prohibits a state

from establishing special districts with governor-appointed boards. The

Constitution does, however, prohibit states from allocating government benefits

and burdens on impermissible bases, including race, religion, and retribution for

protected speech. See Opp. to CFTOD Mot. to Dismiss 3-4. In other words,

Florida cannot allocate rights and privileges to special districts expressly to punish

(or favor) their residents’ political viewpoints—just as it could not do so expressly

to punish (or favor) their residents’ race or religion. See, e.g., Bd. of Educ. of

Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994) (state violated First

Amendment’s religious neutrality command by creating special school district

along lines of particular religious community). Because the Governor’s

appointments directly implement the allegedly unlawful scheme eliminating

District voting rights and local representation in favor of a Governor-controlled

“state receivership,” SAC ¶ 88, a challenge to those appointments properly names

the Governor in his official capacity.

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The causation analysis in Los Angeles County Bar Association v. Eu, 979

F.2d 697 (9th Cir. 1992), is instructive. In that case, the plaintiff challenged a

statute prescribing the number of judges on the Superior Court for Los Angeles

County. Id. at 699. The plaintiff sued various state officers including the

governor, who sought to be dismissed on the ground that he lacked a sufficient

enforcement connection to the statute. Id. at 704. The Ninth Circuit disagreed,

explaining that because the governor had “a duty to appoint judges to any newly-

created judicial positions,” the allegedly unlawful statute was “being given effect

by” him. Id. The same logic applies here.

The State Defendants contend that Eu incorrectly found standing, and that its

discussion of the governor’s immediate role in appointments focused not on

standing at all, but on sovereign immunity. State Defs.’ Mem. 12. Defendants

miss the point. What matters—and what Defendants do not contest—is Eu’s

substantive recognition that where a plaintiff’s claimed injury derives from the

exercise of the challenged appointment power itself, the appointing officer has a

“specific connection to the challenged statute.” 979 F.2d at 704. That connection

is precisely what standing rules require, and it is precisely why Disney has

standing here to challenge the Governor’s exercise of appointment power under a

statute alleged to be unlawful. Defendants may quarrel with the other reasons the

Eu court ultimately found standing, but they cannot deny that the Governor’s

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appointment power is directly connected to the statute under which he acts to

exercise that power. That connection establishes Disney’s standing to sue him in

his official capacity for those executive acts.

Apart from misstating Eu’s relevance, the Governor asserts that even if his

exercise of allegedly unlawful appointment power caused part of Disney’s claimed

injuries, Disney also claims injury from the elimination of landowner-voting

rights, so an order enjoining only his unlawful appointments could not provide

complete relief. State Defs.’ Mem. 9-11. The Governor is wrong: “[F]or standing

purposes the relief sought need not be complete.” Garcia-Bengochea v. Carnival

Corp., 57 F.4th 916, 927 (11th Cir. 2023). As the Supreme Court has explained

time and again, “the ability ‘to effectuate a partial remedy’ satisfies the

redressability requirement.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801

(2021) (quoting Church of Scientology of Cal. v. United States,

506 U.S. 9, 13 (1992)). Accordingly, “even if other ‘variables’ contribute to [a

plaintff’s] injury,” standing exists so long as the challenged conduct “accounts for

some of, or aggravates, [the plaintiff’s] injury.” State v. Becerra, 544 F. Supp. 3d

1241, 1255 (M.D. Fla. 2021) (citing cases). At a minimum, the Governor’s

District Board appointments seriously aggravated the injury caused by the

elimination of RCID. For example, absent the unlawful governance structure

implemented by the Governor’s exercise of appointment power, the elimination of

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RCID’s electoral system would have left the regulation of Disney’s property in the

hands of locally-accountable elected leaders at the city and county level, rather

than the unelected members now on the District’s Board who are accountable only

to the Governor. Thus, a judicial order addressed solely to the Governor’s exercise

of appointment power under HB 9B thus would provide very meaningful redress

for Disney. No more is required for standing.

In arguing that Disney lacks standing because it challenges more than just

his alleged unlawful appointments, the Governor mistakenly invokes Equality

Florida v. Florida State Bd. of Educ., 2022 WL 19263602 (N.D. Fla. 2022), for the

proposition that the cause of Disney’s injuries is “not the Governor’s ‘enforcement’

of HB 9B’s appointment provision, but the ‘very existence’ of HB 9B’s repeal

provision.” State Defs.’ Mem. 10-11 (quoting Equality Florida, 2022 WL

19263602, at *2). As just discussed, Disney claims injury from the Governor’s

exercise of appointment power, not only from HB 9B’s elimination of the RCID

electoral system and other preexisting rights and benefits. But Equality Florida

was also different in another key respect. The plaintiffs there only alleged injury

from anti-LGBTQ “sentiment” that pervaded the challenged law and would

embolden discriminatory behavior by others—injuries that “flowed from

something other than the law’s enforcement.” 2022 WL 19263602, at *2. By

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contrast, Disney’s alleged injuries flow directly from the statutes’ actual

implementation by the Governor.

Second, and in any event, the Governor’s connection to Disney’s injuries is

not limited to appointment of the District Board members. The SAC alleges—

based on repeated, explicit public statements—that the Governor is affirmatively

controlling the District Board to impose new burdens and costs on Disney to

retaliate against its political speech and to exercise continuing control over its

political speech and even its entertainment programming. SAC ¶ 77 (Board

“operate[s] under the Governor’s thumb”); ¶ 79 (Board is “state-controlled”); ¶ 85

(Governor boasting that he is “new sheriff in town” to regulate Disney); ¶ 88

(Governor spokesperson stating that HB 9B places District into “state

receivership”); ¶ 95 (new Board would oversee “the type of entertainment” Disney

produces and stop Disney from “trying to inject woke ideology” into children’s

entertainment); ¶ 103 (Governor proposing “prison” and other potential uses for

District land adjacent to Disney, and announcing that Board would take “additional

actions” to increase Disney’s burdens). The Governor has claimed ownership over

his self-proclaimed “war” with Disney, SAC ¶ 90, declaring that “ultimately we’re

going to win on every single issue involving Disney” and, through his appointed

Board, “make sure Disney is held accountable,” SAC ¶¶ 101-02 (emphasis added).

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These allegations and public admissions concerning the Governor’s control

over the District Board easily satisfy Article III, which “requires no more than de

facto causality.” Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019)

(internal quotation marks omitted). An official-capacity defendant’s actions need

not be “the very last step in the chain of causation” to the plaintiff’s injury; Article

III can be satisfied where the injury is “produced by determinative or coercive

effect upon the action of someone else.” Bennett v. Spear, 520 U.S. 154, 168-69

(1997). In other words, traceability can arise from “the predictable effect of

Government action on the decisions of third parties.” Dep’t of Commerce, 139 S.

Ct. at 2566.

This case thus differs from those holding that the appointment power alone

cannot satisfy standing’s traceability requirement. Unlike the plaintiffs in those

cases, Disney plausibly alleges that the Governor is affirmatively using his control

over the District to implement his oft-declared goal of punishing Disney for

disfavored speech and controlling its future political comments and entertainment

choices. By announcing that the District henceforth would be “state-controlled”

and a “state receivership,” the Governor and his allies made abundantly clear that

the Governor—the self-proclaimed “new sheriff in town”—would be functionally

in charge of the new weaponized bureaucracy. SAC ¶¶ 77, 79, 85, 88.

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The Governor’s only response is to misconstrue Disney as arguing that

“mere political influence is sufficient to support standing,” such that “a plaintiff

could drag anyone—lobbyists for example—with no relevant enforcement

authority into countless lawsuits simply by claiming that they hold informal sway

over those who do.” State Defs.’ Mem. 13-14. Disney argues no such thing. The

SAC’s allegations do not assert “mere political influence” or “informal sway”—

they assert the Governor exercises actual control over the District Board’s actions,

which operates as a “state receivership” under the “Governor’s thumb” to use land-

use powers to hold Disney “accountable” for political comments and entertainment

programming the Governor finds objectionable. See supra at 12. At this stage,

those allegations must be accepted as true. Perhaps discovery will show that—

contrary to the Governor’s own repeated public characterization of who is in

charge—Board members actually operate free from supervision or influence by the

Governor’s office. But until the evidence is developed and the facts are found, the

Governor’s alleged and admitted control over the entity that regulates Disney’s

property suffices to establish standing to sue him for exercising that control to

punish and control Disney’s speech.

B. The Secretary Has A Direct Role In Implementing The

Unconstitutional Restructuring Of The District

The State Defendants also contend that the Secretary lacks any relevant

responsibility with respect to the dissolution and restructuring of the District.

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According to the State Defendants, the Secretary’s only connection to this

litigation is the duty to “maintain the Official List of Special Districts,” which they

say is a “ministerial duty” that does not establish traceability or redressability.

State Defs.’ Mem. 17. They err on both fronts.

At the outset, the parties agree that the Secretary is charged with maintaining

the Official List of Special Districts (the “Official List”), which includes all special

districts in Florida. Id.; SAC ¶ 18 (citing Fla. Stat. §§ 189.061(1)(a), (2),

189.012(1)). The State Defendants concede that municipalities and special

districts exist only by virtue of the State, State Defs.’ Mem. 4, and that the

Secretary is in charge of overseeing that relationship. See Uniform Special District

Accountability Act, Fla. Stat. §§ 189.01 et seq. The “Official List” is not merely a

“list” in the colloquial sense; by formally recognizing special districts’ legal status

as such, it gives them the State’s official imprimatur and triggers myriad reporting

and qualification requirements—which the Secretary likewise oversees. See, e.g.,

id. §§ 189.016, 189.019, 189.061-189.067, 189.069.

As already discussed, Disney’s claim is that the laws reorganizing the

District violate Disney’s constitutional rights. If that claim is correct, then the

Secretary cannot include the District on the Official List as a lawfully constituted

special district. Put differently, Disney’s injuries are directly traceable to the

Secretary’s executive determination that CFTOD is a valid special district with

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lawful authority to regulate Disney’s use of its own property. That determination

would be redressed by a judicial order invalidating the reconstituted District and

enjoining the Secretary from treating it as a legitimate state entity. Removing it

from the Official List would constitute a necessary formal declaration that CFTOD

no longer exercises the power of a government entity. Because the Secretary is the

officer empowered to revise the Official List, the Secretary is a proper defendant.

Not only do the State Defendants err in treating the Official List as

essentially a ministerial recordkeeping nuisance, the legal premise of their

argument is wrong: a purely ministerial function in implementing an allegedly

unconstitutional law to the plaintiff’s detriment suffices for the traceability and

redressability elements of standing in official-immunity suits under Ex parte

Young, 209 U.S. 123 (1908). In fact, the exercise of ministerial duties is frequently

the basis for official-immunity suits. Courts “often have allowed suits to enjoin the

performance of ministerial duties in connection with allegedly unconstitutional

laws.” Finberg v. Sullivan, 634 F.2d 50, 54 (3d Cir. 1980); see Bd. of Pub. Educ.

for City of Savannah & Cnty. of Chatham v. Georgia, 1990 WL 608208, at *5

(S.D. Ga. 1990) (“The ministerial nature of [a state officer’s] duties does not

render their connection to the unlawful act insufficient.”). In the leading case of

Kilbourn v. Thompson, 103 U.S. 168 (1880), for example, the Supreme Court held

that while the Speech and Debate Clause protected members of Congress from suit

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for ordering a false arrest, the House sergeant-at-arms could be sued in his official

capacity for performing the ministerial function of executing the arrest order. Id. at

196-205. More recently, the Eleventh Circuit held that the proper defendants in a

suit challenging ballot format were the individual county Supervisors of Elections,

because they exercised the purely ministerial function of printing and distributing

the challenged ballots. Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1253, 1258

(11th Cir. 2020).3

At base, the State Defendants’ standing arguments rest on the notion that the

Secretary’s role is simply not significant enough to establish traceability or

redressability. But their argument of degree is ill-suited to the standing context.

Standing is not a question of how traceable or how redressable Disney’s harm is

3
The State Defendants appear to abandon their previous reliance on Whole
Woman’s Health v. Jackson, 142 S. Ct. 522 (2021), for their contention that a state
executive officer’s performance of a ministerial duty under an allegedly unlawful
statute cannot establish traceability and redressability. But they do cite Whole
Woman’s Health in their sovereign immunity discussion. State Defs.’ Mem. 20.
To be clear, Whole Woman’s Health does not hold that executive officers with only
ministerial duties cannot be proper defendants under Ex parte Young. The standing
issue in that case involved a judicial employee’s performance of the clerical duty
to accept litigation filings. 142 S. Ct. at 532-33. Unlike “executive officials,” the
Court explained, court clerks—like the judges they serve—do not enforce state
laws and do not function as “adversaries” in litigation. Id. Nowhere did the Court
suggest that where, as here, the suit names an executive officer responsible for
implementing an allegedly unconstitutional law, the assertedly ministerial nature of
the officer’s duty precludes a finding that the plaintiff’s injury is traceable to
performance of the duty or redressable by a judicial order enjoining that
performance.

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with respect to a given officer-defendant. See, e.g., Cordoba v. DIRECTV, LLC,

942 F.3d 1259, 1271 (11th Cir. 2019) (“[e]ven a showing that a plaintiff’s injury is

indirectly caused by a defendant’s actions satisfies the fairly traceable

requirement”). As shown above, even partial relief satisfies standing requirements.

See supra at 10. Disney is not obligated to sue only the officer with the closest

enforcement connection to the challenged law. Rather, to enable the fullest relief

possible, Disney had and exercised the right to bring claims against each of the

actors whose duties—ministerial or not—include implementing the challenged

laws. Because each Defendant has distinct and relevant enforcement duties,

Disney has standing to sue any and all of them.

II. DISNEY’S CLAIM IS NOT BARRED BY SOVEREIGN IMMUNITY

The State Defendants’ sovereign-immunity defenses fail for the same

reasons their standing objections fail.

As the Supreme Court established in Ex parte Young, a state’s sovereign

immunity does not apply to a “suit alleging a violation of the federal constitution

against a state official in his official capacity for injunctive relief on a prospective

basis,” because such an official-capacity suit “is not a suit against the state, and,

accordingly, does not violate the Eleventh Amendment.” Grizzle v. Kemp, 634

F.3d 1314, 1319 (11th Cir. 2011). To satisfy Ex parte Young, “it is sufficient that

the state officer sued must, by virtue of his office, have some connection with the

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unconstitutional act or conduct complained of.” Luckey v. Harris, 860 F.2d 1012,

1015-16 (11th Cir. 1988) (internal quotation marks and brackets omitted).

As the State Defendants admit, the “some connection” requirement of Ex

parte Young is more lenient than the traceability and redressability requirements of

Article III. State Defs.’ Mem. 10 (citing Falls v. DeSantis, 2022 WL 19333278, at

*1 (N.D. Fla. 2022)). Accordingly, for the same reasons the State Defendants’

enforcement responsibilities make them proper defendants under Article III, they

are necessarily proper defendants under Ex parte Young as well, precluding any

assertion of sovereign immunity.

III. DISNEY’S CLAIM AGAINST GOVERNOR DESANTIS IS NOT

BARRED BY LEGISLATIVE IMMUNITY
Governor DeSantis—but not the Secretary—further contends that the claim

against him is barred “to the extent Disney challenges the Governor’s legislative

acts.” State Defs.’ Mem. 21. It is true, as the Governor appears to recognize, that

the bases for standing and Ex parte Young relief rest on the Governor’s executive

responsibilities under legislation being challenged, as those doctrines require. The

legislative immunity doctrine accordingly is irrelevant here. But there should be

no misunderstanding: Disney’s claim substantively challenges laws that violate

the Constitution and injure Disney, and the Governor’s statements and actions

orchestrating the enactment of those laws are absolutely relevant to the merits of

that claim, just as the statements and actions of legislative and executive actors are

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relevant to any otherwise-cognizable claim alleging that a law was enacted for an

impermissible purpose. See, e.g., Miller v. Johnson, 515 U.S. 900, 916 (1995)

(plaintiff in racial gerrymandering case may rely on “direct evidence going to

legislative purpose”).

IV. THE SAC STATES A CLAIM AS TO THE FIRST AMENDMENT

VIOLATION ASSERTED

The State Defendants “adopt and incorporate the additional arguments raised

in the CFTOD Defendants’ motion to dismiss.” State Defs.’ Mem. 21. Disney

likewise adopts and incorporates the arguments in its response to the CFTOD

Defendants’ motion. For the reasons explained therein, the CFTOD Defendants’

motion lacks merit.

CONCLUSION

The State Defendants’ motion to dismiss should be denied.

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Dated: October 30, 2023 Respectfully submitted,

ALAN SCHOENFELD /s/ Daniel M. Petrocelli _

(pro hac vice)
New York Bar No. 4500898 DANIEL M. PETROCELLI
WILMER CUTLER PICKERING (pro hac vice)
HALE AND DORR LLP California Bar No. 97802
7 World Trade Center O’MELVENY & MYERS LLP
250 Greenwich Street 1999 Avenue of the Stars
New York, NY 10007 Los Angeles, CA 90067
Tel. (212) 937-7294 Tel. (310) 246-6850
[email protected] [email protected]

ADAM COLBY LOSEY JONATHAN D. HACKER

LOSEY PLLC (pro hac vice)
Florida Bar No. 69658 District of Columbia Bar
1420 Edgewater Drive No. 456553
Orlando, FL 32804 STEPHEN D. BRODY
Tel. (407) 906-1605 (pro hac vice)
[email protected] District of Columbia Bar
No. 459263
O’MELVENY & MYERS LLP
1625 Eye Street, NW
Washington, DC 20006
Tel. (202) 383-5285
[email protected]

Attorneys for Plaintiff Walt Disney Parks and Resorts, U.S., Inc.

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CERTIFICATE OF WORD COUNT

Pursuant to Northern District of Florida Rule 7.1(F), the undersigned

counsel hereby certifies that the foregoing Plaintiff’s Opposition to State

Defendants’ Motion to Dismiss Second Amended Complaint, including body,

headings, quotations, and footnotes, and excluding those portions exempt by Local

Rule 7.1(F), contains 4,594 words as measured by Microsoft Office for Word 365.

Respectfully submitted,

/s/ Daniel M. Petrocelli _

DANIEL M. PETROCELLI