The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

Memorial Hospital-West Volusia, INC. vs News-Journal Corporation etc.


MR. CHIEF JUSTICE: GOOD MORNING AND WELCOME TO OUR THURSDAY ORAL ARGUMENT CALENDAR AT THE FLORIDA SUPREME COURT. WE ARE PLEASED TO HAVE, FROM KISER COLLEGE, A CLASS ON PARALEGAL EDUCATION. THEIR TEACHER, MS. PAIGE McGIVERS. SO WE ARE PLEASED TO HAVE YOU JOIN US AND BE HERE FOR THE ORAL ARGUMENT THIS MORNING. THE FIRST CASE WE HAVE, ON THE CALENDAR THIS MORNING, IS MEMORIALco HOSPITAL-WEST VOLUSIA, VERSUS NEWS-JOURNAL CORPORATION. MR. ENGLAND.

MAY IT PLEASE THE COURT. MY NAME IS ARTHUR ENGLAND, AND WITH ME AT COUNSEL TABLE IS LARRY STOUT, ON BEHALF OF MEMORIAL HOSPITAL-WEST VOLUSIA. YOUR HONORS, WE ARE HERE ON APPEAL FROM THE FIFTH DISTRICT COURT OF APPEAL, WITH REGARD TO THE RETROACTIVE APPLICATION AND THE STATUTE AS TO WHETHER OR NOT LEASING PUBLIC HOSPITAL FACILITIES. ONE PRIOR TIME, IN THIS CASE, IN 1999, YOU SAID THAT THE STATUTE IS NOT RETROACTIVE, AND WE HAVE INDICATED IN OUR BRIEF FOUR REASONS WHY WE DID NOT THINK THAT WAS A BINDING PRECEDENT, AND, OF COURSE, THE DISTRICT COURT OF APPEAL, INSERTFYING THE MATTER HERE, WANTED TO GIVE YOU AN OPPORTUNITY TO CONSIDER THAT, PARTICULARLY IMPORTANT ON THAT ASPECT ARE JUST TWO PRINCIPLES THAT SOMETHING MENTIONED IN A FOOTNOTE OF A BRIEF, AS WAS THE RETRO ACTIVITY ISSUE THE LAST TIME, IS NOT, REALLY, RAISED ON APPEAL, AND THINGS WHICH ARE NOT BRIEFED AND ARGUED, EVEN THOUGH TALKED ABOUT IN AN OPINION, ARE BASED ON PRECEDENT FROM THIS COURT AND ARE GENERALLY NOT CONSIDERED BINDING. I DON'T WANT TO DWELL ON THAT, BECAUSE IN THE FINAL ANALYSIS, YOU ARE GOING TO DECIDE WHAT YOU INTENDED BY THAT STATEMENT, AND YOU HAVE ACCEPTED, AT LEAST FOR THE TIME BEING, THE CERTIFICATION OF THE COURT TO BE HERE, TO ARGUE THE RETRO ACTIVITY AND WHETHER THAT INVOLVES THE CONSTITUTIONAL RIGHT, AND SO I THINK YOU WANT TO HEAR THAT, AND I AM GOING TO MOVE AHEAD TO THOSE AREAS.

WE HAVE THE AUTHORITY TO RECEDE FROM THAT STATEMENT, IN ANY CASE.

ABSOLUTELY, AND, IN FACT, ONE OF THE PRECEDENTS WE TALKED ABOUT, IN THIS CASE, IS THE RUFF CASE, WRITTEN BY THE COURT IN 1982 AND MADE THE COMMENT THAT THE TAM AGE CASE, TWO YEARS -- THE TALMADGE CASE, TWO YEARS EARLIER, WAS OVERLY BROAD, AND YOU HAVE TO DECIDE WHETHER YOU WANT TO FOLLOW THAT OR NOT.

REALIZING THAT WE HAVE SERIOUS CONSTITUTIONAL ISSUES AND HIGH INTELLECTUAL ARGUMENTS HERE, CAN YOU SORT OF GIVE US A PRACTICAL ANSWER OR ANSWER THE PRACTICAL QUESTION AND PRACTICAL APPLICATION, RETROACTIVE TO A STATUTE LIKE THIS, IN A SITUATION, WHERE WE ARE GOING FROM ONE DAY PEOPLE MAY BE ENTITLED TO SEE RECORDS AND TO ATTEND PROCEEDINGS, AND THEN THE VERY NEXT DAY, THOSE SAME PROCEEDINGS THAT THEY ASKED FOR AND WERE ENTITLED TO SEE OR WHATEVER, LIKE A CURTAIN COMES DOWN. NOW, PART OF THE PROBLEM, HERE, IS A PRACTICAL PROBLEM, IT SEEMS TO ME, ND SO WOULD YOU ADDRESS THAT ASPECT OF IT, THAT EVEN IF WE DID FIND A RETROACTIVE INTENT, HERE, HOW IT COULD WORK, BOTH CONSTITUTIONALLY, WHICH IS THE MAIN THING, BUT, HOW IT, ALSO, COULD WORK AS A PRACTICAL MATTER.

JUSTICE ANSTEAD, I DON'T THINK THE PROBLEM IS GOING TO BE THAT DIFFICULT IN THIS CASE, BECAUSE THERE HAS NEVER BEEN ACCESS TO THE RECORDS WE ARE TALKING ABOUT. THIS LEASE CAME ABOUT, RIGHT AFTER THE LEGISLATURE, IN 1983, PASSED A STATUTE TO MAKE IT POSSIBLE FOR PUBLIC HOSPITALS TO LEASE THEIR FACILITIES TO PRIVATE CORPORATIONS. THE RECORDS WERE NEVER OPEN. THE MEETINGS WERE NEVER ATTENDED.

DON'T WE HAVE, HERE, THOUGH, A MORE OR LESS SELF-EXECUTING CONSTITUTIONAL PROVISION, GIVING THE RIGHT OF ACCESS?

THE WORDS "SELF EXECUTING" ARE IN THERE, BUT IT DOESN'T ADDRESS THAT. THE NEWS-JOURNAL, IF I MAY GIVE MY ANSWER, CAME IN, THE YEAR THAT MEMORIAL HOSPITAL STARTED BUSINESS, AND SAID YOU ARE ACTING IN A PUBLIC HOSPITAL. WE WANT TO SEE YOUR RECORDS. TO DATE THEY DON'T HAVE THE PUBLIC RECORDS OF THEIR ACTIVITY. SO IN THIS CASE, THERE IS NO PRACTICAL CONCERN WHATSOEVER. EVERYBODY HAS BEEN OPERATING AS IF THE EXEMPTION TO THE PUBLIC RECORDS AND THE OPEN MEETINGS LAW APPLIED. AND THE NEWS-JOURNAL WANTS TO CHANGE. THAT SO THERE IS NO PRACTICAL CURTAIN HERE. IT WOULD BE LIFTING --

ISN'T THAT ALMOST LIKE A GOSSAMER THING THAT SAYS, WE ARE RIGHT, BUT IF YOU LIVE LONG ENOUGH, WE CAN GET THE LEGISLATURE TO PASS A RETROACTIVE LAW AND MAKE IT VERY CLEAR, AND IF YOU HOLD OFF LONG ENOUGH, WE HAVE PRESENTED YOU FROM -- PREVENTED YOU FROM GETTING WHAT YOU WERE ENTITLED TO.

NO, YOUR HONOR, BECAUSE THAT IS PRESUMING ENTITLEMENT, AND THAT ISN'T THE CASE. LET ME GET TO THE CONSTITUTION, IF I MAY. THE CONSTITUTION SAYS, IN ARTICLE I, SECTION 24,=n THAT EVERYBODY HAS A RIGHT OF ACCESS, EXCEPT AS PROVIDED IN ARTICLE I, SECTION 24, AND IN THAT SECTION, SUBSECTION C, SAYS THE LEGISLATURE CAN EXEMPT. OF COURSE RECOGNIZE THAT, THERE IS NO DISPUTE THAT THE LEGISLATURE IS AUTHORIZED, BY THE CONSTITUTION, TO WRITE EXEMPTIONS, SO WHAT CAN THEY DO? THAT IS A TEST OF RETRO ACTIVITY. BY THE WAY, WE THOUGHT THE CASE WAS ALWAYS EXEMPTED, AND, YES, YOU CAN ALWAYS RETRO ACTIVELY, IF.

BUT WE DETERMINED THAT YOU DID NOT.

THAT IS THE QUESTION I RUSHED BY, BECAUSE YOU SAID THAT, AND THE QUESTION IS, IF YOU HAVE ALREADY DECIDED THAT, OBVIOUSLY THAT IS THE END OF THE CASE. WE ARE HOPING THAT YOU HAD US HERE, TODAY, TO TALK ABOUT WHETHER IT WAS RETROACTIVE, IN FACT, AND IF SO, WHETHER A CONSTITUTIONAL ISSUE --

WAS THERE ANY INDICATION AS TO WHETHER THIS SHOULD BE APPLIED RETRO ACTIVELY?

ABSOLUTELY. AS STRONG AN INDICATION AS YOU POSSIBLY HAVE. THE LEGISLATURE PASSED A STATUTE THAT SAID WE ARE EXEMPTING PUBLIC RECORDS IN OPEN MEETINGS LAW, FOR THESE INSTITUTIONS, AND IT SAID, IN 1998, THE AMENDMENT WE ARE INTERESTED HERE, TO EXISTING LEASES. THAT MEANS THOSE IN THE PAST, AND THEN THE ENTIRE LEGISLATIVE HISTORY OF THAT STATUTE IS DEVOTED TO WE ARE DOING THIS BECAUSE THE FIFTH DISTRICT COURT OF APPEAL, WHICH SAID YOU ARE NOT EXEMPT, IS WRONG, ANDE WANT TO CORRECT THEM, AND WHAT WAS THE FIFTH DISTRICT CASE? THE FIFTH DISTRICT CASE WAS MR. KANEY'S SUIT, STARTING IN '94, IN DECEMBER, AND RUNNING UP TO THE DATE OF THE STATUTE. THE LEGISLATURE SAID EXISTING LEASES FROM MEMORIAL HOSPITAL NECESSARILY MEANT, IN THIS CASE, IT WAS THE RETROACTIVE APPLICATION, BECAUSE THAT IS WHAT THE CASE WAS ABOUT. AND SO THE LEGISLATURE --

LET ME ASK THIS. THE CONSTITUTIONAL AMENDMENT, ITSELF, SAYS THAT IT SHOULD BE SELF EXECUTING.

IT DOES?

NOW, IT, ALSO, SAYS THAT THE LEGISLATURE, BY GENERAL LAW, CAN EXEMPT CERTAIN RECORDS. NOW, THERE WAS A PERIOD OF TIME, BETWEEN PASSAGE OF THIS AND IT GOING INTO EFFECT.

THE '98 STATUTE, CORRECT.

ENOUGH, BETWEEN THE TIME THAT THE CONSTITUTION WAS PASSED. IT WENT INTO EFFECT.

OH, SURE.

RIGHT. AND SO MY RECOLLECTION IS CORRECT, THE COURT ENTERED SOME ORDERS, AND THERE WAS SOME LEGISLATION PASSED DURING THAT INTERIM PERIOD. ISN'T THAT CORRECT?

YES. BUT IT WASN'T AN EMPTY VOID BEFOREHAND, YOUR HONOR. THIS CONSTITUTION WAS IN EFFECT IN 1983, WHEN THE LEGISLATURE PASSED 5155.40, THAT SAID THIS IS THE SITUATION WE ARE GOING TO ALLOW. PRIVATE ENTITIES CAN LEASE FROM PUBLIC FACILITIES, TO OPERATE THEIR HOSPITALS, AND EVERYBODY OPERATED UNDER EXEMPTION, BECAUSE THEY SAID IN THERE, AND THEY, THEN, AGAIN, REPEATED, IF YOU WILL, IN THE '98 STATUTE, WHAT WE ALWAYS MEANT WAS TO EXEMPT IT FROM THE PUBLIC RECORDS LAW.

BUT HERE, PRELIMINARY TO MY TRYING TO GET THIS UNDERSTANDING IN MY MIND, BECAUSE IT SEEMS TO ME THAT, AFTER THE CONSTITUTION AMENDMENT WENT INTO EFFECT, THEN WE HAVE A SITUATION WHERE THE CONSTITUTION IS SELF-EXECUTING. THE LEGISLATURE, THEN, CAN ENACT BY ENRAL LAW, EXEMPTION, BUT THE ISSUE AS TO WHETHER THE EXEMPTIONS ARE CONSTITUTIONAL OR NOT IS HOW -- WHETHER THEY MEET THE EXACT PRESCRIPTION, WITHIN THIS CONSTITUTIONAL PROVISION, AS TO WHAT THAT SHALL BE, WHETHER IT IS BROAD OR TOO BROAD, NO BROADER THAN NECESSARY, TO ACCOMPLISH THE STATED PURPOSE. THAT IS THE CONSTITUTIONAL QUESTION.

NOT IN THIS CASE.

WELL, BUT, THAT IS THE CONSTITUTIONAL QUESTION THAT IS FRAMED BY THIS PROVISION, IS KIND OF WHAT I WOULD -- BUT, SO, WHAT I AM, HIM REACHING FOR, IS TRYING TO UNDERSTAND THAT, IF THAT IS THE CONSTITUTIONAL TEST OF WHAT THE LEGISLATURE IS DOING, THEN IT IS DOING IT AS TO THINGS THAT ARE, MAYBE, EXISTING LEASES, BUT HOW CAN THAT EXEMPTION GO INTO EFFECT THAT WOULD COVER SOMETHING BEFORE THE EXEMPTION CAME INTO BEING, AND THAT BE A CONSTITUTIONAL TEST? I MEAN, I THINK THAT --

LET ME SEE IF I CAN ANSWER YOUR QUESTION, JUSTICE WELLS. THIS CONSTITUTIONAL PROVISION WAS ENACTED IN 1992. THE LEGISLATURE CREATED THIS PRIVILEGE, FOR MEMORIAL HOSPITAL AND OTHER LEASES, IN '83. IT EXISTED. THE CONSTITUTION CAME INTO EFFECT. THE CONSTITUTION SAYS, JUST AS CLEAR AS IT CAN, EVERY PERSON HAS THE RIGHT TO INSPECT, EXCEPT AS PROVIDED HERE. THIS SENTENCE SAYS IT SHALL BE SELF-EXECUTING. THE LEGISLATURE SHALL, HOWEVER, MAY PROVIDE, BY GENERAL LAW, FOR EXEMPTION, AND THERE ARE OTHER TESTS THAT THE LEGISLATURE HAS TO PRESENT. WE ASKED, AT EARLIER PROCEEDING, TO BRING THIS ISSUE OF RETRO ACTIVITY, ALONG WITH THE CONSTITUTIONALITY THAT WOULD TEST THOSE TWO FACTORS, TO SEE IF THE LEGISLATURE DID WHAT IT WAS SUPPOSED TO. THE NEWS-JOURNAL OPPOSED THAT, AND YOU DENIED OUR MOTION, SO THE CONSTITUTIONALITY IS SITTING DOWN IN THE CIRCUIT COURT AND HASN'T BEEN DETERMINED. REMEMBER, YOU DECLINED TO RULE ON THAT, IN THE '99 CASE.

RIGHT. DIDN'T OUR OPINION STAND FOR THE PROPOSITION THAT THE CONSTITUTIONALITY ISSUE REVOLVES AROUND THIS SPECIFIC EXEMPTION LANGUAGE, WHEREAS THE RETRO ACTIVITY AND WHETHER IT EXISTS, UP UNTIL THE TIME THE LEGISLATURE ACTED, IS SOMETHING THAT WE DECIDED.

YOUR HONOR, THE ANSWER TO THAT QUESTION IS, IF THAT IS WHAT YOU INTENDED, THAT IS WHAT YOU INTENDED, AND I CAN'T SECOND-GUESS THAT. I CAN ONLY LOOK AT WHAT YOU SAID AND THE RULES THAT THE COURT HAS ALWAYS ADOPTED, THAT CASES THAT AREN'T ARGUED AND BRIEFED TO US ARE NOT DECIDED BY US. THAT IS WHAT THE GIFT DISTRICT SAID, WHEN THEY CERTIFIED IT -- THAT IS WHAT THE FIFTH DISTRICT SAID, WHEN THEY CERTIFIED IT. AND IF THAT IS WHAT WAS INTENDED, OBVIOUSLY WE ARE NOT GOING TO WIN THIS CASE, BUT WE THINK IT IS AN OPEN CASE. WE ARE HERE, TODAY, ARGUING THE MERITS OF RETRO ACTIVITY AND CONSTITUTIONAL RIGHTS, BECAUSE YOU WANTED THAT ISSUE AIRED HERE. I REGRET THAT THE CONSTITUTION, MEGGS, HERE, AND THE LEGISLATURE ACTED, ARE NOT HERE, BUT HERE WE ARE, FOR WHATEVER REASON, AND THE QUESTION DEVOLVES ONLY ON WAS THERE AN EXPRESSION OF RETRO ACTIVITY?

ISN'T THAT, ALSO, THE CONSTITUTIONAL QUESTION, AS A SECOND PRONG, HE HAVE TEN THE LEGISLATURE INTENDED FOR THIS TO APPLY RETRO ACTIVELY, THAT THERE, STILL, A CONSTITUTIONAL ISSUE, AS TO WHETHER THERE WERE EXISTING RIGHTS THAT HAVE BEEN AFFECTED AND HAVE BEEN ALTERED, AND THAT GOES BACK TO THE QUESTION AS TO WHETHER THE NEWS-JOURNAL EVER HAD THE RIGHT TO THESE RECORDS, TO BEGIN W.

ABSOLUTELY, AND THAT IS, SORES OF COURSE, THE SECOND AND -- THAT IS, OF COURSE, THE SECOND AND, PERHAPS, THE MORE DIFFICULT OF THE ISSUES. WHAT DOES THE NEWS-JOURNAL HAVE? THEY HAVE THE RIGHT OF THE CONSTITUTION. THE CONSTITUTION DOESN'T GIVE THAT, IF THE LEGISLATURE TAKES IT AWAY, AND THE LEGISLATURE HAS DONE THAT, BACK IN '83, SO WHERE DOES THEIR RIGHT COME?

DIDN'T, IN THAT RESPECT, OUR PRIOR DECISION, SAY THEY HAD THE RIGHT?

THAT IS BACK TO YOU SAID IT, AND DID YOU MEAN IT. YEAH. AGAIN, I AM STUCK WITH THE FACT THAT YOUR PRIOR DECISION SAID, IN ANY EVENT, WE DECIDE THAT THE STATUTE IS NOT RETROACTIVE. IF THAT IS THE END OF THE CASE, IT IS THE END OF THE CASE, BUT I THINK, AGAIN, WE ARE HERE TO EXPLORE WHETHER THAT IS SOMETHING LIKE INDICATIVE.

THE -- IS SOMETHING LIKE DICTIVE.

I AM TRYING TO DECIDE WHETHER THE THRUST OF THE HOLD HOLDING, REGARDLESS OF THE EFFECT THAT, AFTER THIS LEGISLATION BEGAN, THE NEWS-JOURNAL, UNDER THE PUBLIC RECORDS LAW, HAD A RIGHT TO THESE RECORDS. ISN'T THAT WHAT THE CONSTITUTION STANDS FOR?

YES. WE APPLIED A TOTALITY OF FACTORS, AND WE FOUND THAT MEMORIAL HOSPITAL IS ACTING ON BEHALF OF A PUBLIC BODY. ABSOLUTELY. THAT IS WHAT THE FIFTH DISTRICT SAID, ALSO.

HAVING DETERMINED THAT THAT RIGHT EXISTED BEFORE THE STATUTE WENT INTO EFFECT.

NO, IT DIDN'T. THAT WAS AFTER, YOUR HONOR. THE STATUTE WAS FIRST. THE DECISION ON THE SCHWAB APPLICATION OF MAKING MEMORIAL HOSPITAL SUBJECT TO PUBLIC RECORDS WAS NOT DECIDED IN THE TRIAL COURT, BECAUSE THE TRIAL COURT SAID NO, IT IS NOT. THE DISTRICT COURT, FIFTH DISTRICT, SAID, YES, IT IS, AND BEFORE YOU RENDERED A DECISION WHICH MADE THAT FINAL, THE LEGISLATURE SAID, PLEASE, WE DON'T AGREE WITH THE FIFTH DISTRICT, AND WE HAVE THE LEGISLATIVE PREROGATIVE FROM THE ONSTTUTION.

ARE YOU SAYING THAT WAS A CLARIFYING AMENDMENT, AS OPPOSED TO CHANGE THE LAW?

ABSOLUTELY. AND AS YOU SAID IN THE CHASE FEDERAL CASE, ANYTHING PASSED IN THE MIDDLE OF LEGISLATION -- PARDON ME -- LITIGATION, WHERE A COURT IS TAKING SOMETHING, AND THE LEGISLATURE IS DISAGREEING, CAN BE DEEMED CLARIFYING. THAT IS EXACTLY WHAT YOU SAID IN CHASE FEDERAL. THAT IS EXACTLY WHAT HAPPENED HERE, AND BEFORE THEY GOT A RIGHT OF ACCESS, THIS IS A VESTED ISSUE, THE LEGISLATURE HAD DECLARED THEY DIDN'T, SO WHAT RIGHT DO THEY HAVE? THEY HAD AN EXPECTATION. THEY DIDN'T HAVE A VESTED RIGHT, IN ANY SENSE OF THE CASE LAW.

JUSTICE SHAW HAS A QUESTION.

CUSTOMARILY WE REQUIRE BRIEFING ON AN ISSUE THAT WE TEND TO RESOLVE, BUT DO YOU ARGUE WITH THE PROPOSITION THAT, ONCE WE TAKE THE CASE, WE CAN, WITHOUT BRIEFING, WE CAN PARTICULARLY GO AHEAD AND ENTER AN OPINION ON AN ISSUE INVOLVING A CASE? DO YOU QUARREL WITH THAT AT ALL?

NO, YOUR HONOR, I DON'T QUARREL WITH THAT, BUT I HAVE THE PRECEDENT THAT SAYS THE WAY THIS CAME UP, WE NEVER ARGUED A BRIEF, AND JUSTICE SHAW DIDN'T THINK IT WAS BINDING.

THAT BEING THE CASE, ONCE YOU HAVE GOT THE CASE, YOU CAN DO WHAT YOU WANT. YOU AGREE TO ACCEPT IT UNDER ITS MERITS, AND I HOPE I CAN PERSUADE. I AM IN MY REBUTTAL TIME.

MAY IT PLEASE THE COURT. I AM WITH MY CO-COUNSEL, WHO IS COUNSEL FOR THE AMICUS BRIEF. YOUR HONORS, WE DO THINK THAT THE COURT DECIDED THIS CASE IN THE FIRST DECISION, AND MEMORIAL DID DECIDE THIS ISSUE, AND, IN A SENSE, IN ORDER TO OPEN THE ISSUES, WE CONCEDE, AS WE ALL DO, THIS IS THE SUPREME COURT, AND EVEN THE DOCTRINE OF DECISIVE OR THE CASE WOULD NOT PREVENT THE COURT FROM REARGUING THE ISSUE, BUT THAT, ESSENTIALLY, IS WHAT IS BEING ASKED HERE IS THAT YOU RECONSIDER, AND I WOULD SUGGEST THAT THAT IS NOT A DECISION THAT YOU WOULD LIGHTLY TAKE, AND WE DO WANT, TO BEGIN WITH THE POINT THAT THE FULCROM OF THE DECISION, IN THE FIRST CASE, IS THAT THE EXEMPTION, THE '98 EXEMPTION, IS NOT, SHOULD WE REJECT THE CONTENTION THAT THE NEW ACT SHOULD BE APPLIED RETROSPECTIVELY. IF THAT HAD NOT BEEN THE COURT'S DECISION, WE WOULD BE LOOKING AT AN ENTIRELY MOOT ACADEMIC EXERCISE IN THE COURT'S DECISION-MAKING PROCESS. THIS WOULD HAVE BEEN A VERY NICE, IN MAY OPINION, ESSAY ON HOW THE TOTALITY OF FACTORS TEST, UNDER SCHWAB, APPLIES TO THESE CONTRACTORS, BUT IT WOULD HAVE A MEANING, AND THAT, BY VIRTUE OF THE POSITION TAKEN BY THE HOSPITAL, IT HAS HAD NO MEANING, AS COUNSEL HAS SAID. WE HAVE NOT SEEN A RECORD. WE HAVE NOT SEEN ANYTHING. THE POSITION ARGUED BELOW WAS, UNTIL THE SECOND ROUND OF LITIGATION REGARDING THE CONSTITUTIONALITY AND VOTE ROW ACTIVITY OF THE NEW ACT IS RESOLVED, THE SUPREME COURT'S OPINION, IN MEMORIAL ONE, HAS NO FORCE OR EFFECT. I TRY NOT TO SPUTTER, WHEN I START DEALING WITH THAT IDEA, BUT IT SEEMS TO ME THAT THERE IS NO -- THERE IS, PERHAPS, A POINT THAT COULD BE MADE, HERE, ON THE DICTA POINT, AND THAT IS THE COURT HAS NEVER FOUND IT NECESSARY TO MAKE IT CLEAR TO THE BAR THAT WE ARE NOT TO READ YOUR OPINIONS AS IF THEY WERE OOT. CERTAINLY THE COURT CAN DECIDE A MOOT CASE, BUT I HAVE NEVER SEEN OR HEARD OF THIS COURT DECIDING A MOOT CASE SUBSALANTE. THERE ARE A LOT OF PARALLELS, HERE, THE SECOND ACT, THE ISSUE OF CONSTITUTIONALITY PASSED IN 1990, IF AN ACT PASSED IN '91 WERE CONSTITUTIONAL, THE '90 ACT ISSUE WOULD BE MOOT, AND THE COURT SAID, WELL, WE RECOGNIZE THIS COULD BE AN EXERCISE IN FUTILITY, BUT WE THINK IT IS IMPORTANT ENOUGH WE INVOKE AN EXCEPTION AND RENDER IT MOOT.

DOESN'T IT APPEAR, THOUGH, THAT THE LEGISLATURE DID NOT INTEND FOR OR DID INTEND FOR THIS ENACTMENT, IN 1998, TO APPLY RETRO ACTIVELY, AND, IN FACT, APPLIED TO THIS PARTICULAR CASE? JUST AS FAR AS THE FIRST PRONG OF THE ISSUE? ISN'T IT -- ISN'T THERE EVERY INDICATION THAT THE LEGISLATURE INTENDED FOR THIS TO APPLY RETROACTIVELY?

THERE ARE TWO PARTS TO THE FIRST PRONG. CHASE FEDERAL, AS THE COURT LAID IT OUT THERE, AND, JUSTICE PARIENTE, AS YOU DID, THE FIRST POINT IS, IS THERE AN EXPRESS STATEMENT. THERE IS THIS REFERENCE, IN THE ACT, THAT APPLIES TO EXISTING LEASES. IT DOES, AND THERE IS, BEYOND THE FACTS OF THE MEMORIAL CASE, THERE ARE OTHER HOSPITALS OUT THERE THAT, IN CONSTRUING THE ACT, YOU LOOK AT ITS FACE AND HOW IT WOULD OPERATE OPERATE IN THE UNIVERSE OF COVERED ACTIVITY. THE HOSPITAL SAYS WE ARE BOUND, BY CONTRACT, TO ABIDE BY FLORIDA'S OPEN GOVERNMENT LAW. THAT FACT, AMONGST NUMEROUS FACTORS THAT QUALIFY, IN A HOSPITAL, FOR EXEMPTION, IT ENUMERATES AS ONE BUT ONLY ONE OF THE FACTORS. THE FACT THAT YOU HAVE A CONTRACT THAT REQURES YOU TO COMPLY WITH THE SUNSHINE LAW, SO IN AN EXISTING LEASE, IT WOULD BE A QUESTION, AND I THINK THE REFERENCE TO AN EXISTING LEASE IS AMBIGUOUS. DOES IT MEAN LEASES, LIKE INDIAN RIVER, CAN, NOW, HAVE THEIR CONTRACTUAL CLAUSE ABROGATED AND BE EXEMPT GOING FORWARD, OR DOES IT MEAN ALL RECORDS CREATED, PURSUANT TO EXISTING LEASES IN THE PAST, AND SINCE THERE ARE TWO READINGS OF EXISTING LEASES, I THINK THAT IS AMBIGUOUS. IT TIPTOES ON THIS ISSUE, AND THE STAFF REPORTED A ADVISED THE LEGISLATURE THAT THEY HAD A PROBLEM WITH RETRO ACTIVITY. IT CITED, TO THEM, THE CASE LAW, WHICH IS IN OUR BRIEF. THEN YOU LOOK AT THE STRUCTURE AND PURPOSE AND THE INFERENCE OF INTENT FOR RETRO ACTIVITY, AND THERE YOU GET INTO THE FACT THAT THE LEGISLATURE DIDN'T, QUITE CLEARLY, DIDN'T THINK THE FIFTH DISTRICT GOT THE LAW RIGHT, BUT WHAT THEY ARE DOING, THERE, IS CLARIFYING THE LAW, ALMOST AS IF THEY WERE FILING AN AMICUS IN OUR PENDING CASE, BUT THEY ARE NOT. THEY DO NOT EVER SAY THAT, IN ORDER TO ACHIEVE THE PURPOSE OF THE ACT, IT MUST HAVE RETROACTIVE EFFECT. THE INTENT TO OVERRULE FIFTH DCA'S MEMORIAL DECISION, YES, BUT IT, STILL, REMAINS THE QUESTION, RETROSPECTIVELY OR PROSPECTIVELY? THERE ARE STATEMENTS THAT THE FIFTH HAD THE LAW WRONG, TURN OUT TO BE INCORRECT, AND THIS COURT HAS, ALREADY, SAID THAT LEGISLATION WHICH IS -- COUCHED IN THE FORM OF A CLARIFICATION OF THE PRIOR LEGISLATURE BEFORE IT, CANNOT ACHIEVE RETRO ACTIVITY THROUGH THE GUISE OF CLARIFYING, AND THAT, I THINK, SO WHAT I THINK YOU GET INTO, THERE, IS YOU GET INTO A MUDDLE, AND THEN WHAT I CALL THE MET A PHYSICAL PROBLEM, WHICH IS THE PRACTICAL PROBLEM THE JUDGE MENTIONED. HOW DO YOU RETROACTIVELY CLOSE THE MEETING? TO BE SURE, NO MEETING OF THIS PARTICULAR HOSPITAL HAS BEEN OPEN, BUT, AGAIN, THERE IS NDIAN RIVER AND OTHER HOSPITALS. THEY HAVE HAD PUBLIC MEETINGS, AND IN THAT COUNTY YOU CAN BE SURE THERE ARE PEOPLE THERE, MAKING PRESENTATIONS TO THEM. HOW, AS A PRACTICAL MATTER, DO YOU CONSTRUE THIS STATUTE, AS INTENDED TO DEAL WITH, REALLY, THE MET A PHYSICAL ISSUE OF HOW YOU CAN RETROACTIVELY CLOSE A MEETING. THAT IS WRONG, AND NEITHER THE ACT NOR THE HISTORY OF THE ACT GIVES ANY GUIDANCE FOR HOW THE COURT WOULD RESOLVE THAT QUESTION. WHAT OF ACCESS, AS A CITIZEN, TO THE TAPE RECORDING OF A PRESENTATION MADE AT A MEETING THAT HAS BEEN RETROSPECTIVELY CLOSED? IS THAT NOW A SECRET? WHAT IF THE RESIDENT HAS ALREADY OBTAINED IT AND HAS A TAPE OF HIS SPEECH TO THE MEMORIAL HOSPITAL, AND THAT IS EXEMPT.

IS THE CONSTITUTIONALITY APPLIED TO RECORDS THAT WOULD BE DEVELOPED THE DAY AFTER IT WAS ENACTED? IS THAT BEING CHALLENGED SEPARATELY?

YES, YOUR HONOR. JUDGE WILL, IN THE CIRCUIT COURT OF VOLUSIA COUNTY, WE EXPECT, AS SOON AS WE GET A RULING FROM HIM, WE ARE GOING TO TRY TO GET IT TO THIS COURT AS SOON AS POSSIBLE, BECAUSE THEY DO AGREE AND THEY REFLECT ON EACH OTHER, BUT AT THIS POINT, THE CONSTITUTIONAL PRONG, THEN, I HAVE A LOT OF PROBLEMS CONTINUING ANSWERING YOUR QUESTION, WITH THE IDEA THAT THE LEGISLATURE EFFECTIVE EFFECTIVELY ENUNCIATED AN INTENT, UNDER THE CHASE FEDERAL PRONG, TO CREATE A RETROACTIVE STATUTE, BUT IF YOU ASSUME ARGUE END-THAT THEY HAD -- ARGUENDO THAT THEY HAD, THEN YOU APPLY THE STATUTE, WHICH IS SEPARATE FROM THE ARTICLE I, SECTION C STANDARD, GIVEN THE EXEMPTION, AND IF THE EXEMPTION MEETS THAT TEST, THEN IT IS A DISTINCT QUESTION, JUST AS IT WOULDBE, IF THE LEGISLATURE WERE TAKING AWAY THAT RIGHT TO SEIZE -- TO RECEDE FROM A REASONABLE SEARCH AND SEIZURE, IF IT PERTAINS TO A CONSTITUTIONAL AMENDMENT, BUT THE COURT SAYS, THERE IS AT LARGE, IN THE STATE OF FLORIDA, VESTED IN EVERY CITIZEN, A RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURE, AND THAT RIGHT DID NOT DEPEND ON SOMEONE HAVING THE RIGHT OF THE MOTION TO SUPPRESS, IN THE SENSE OF VESTING IT. THAT RIGHT IS A RIGHT OF THE CITIZENS, A FUNDAMENTAL CONSTITUTIONAL RIGHT, AND THIS COURT WOULD NOT APPLY THE CONSTITUTIONAL AMENDMENT WHICH HAD OCCUR OBTAINED -- CURTAILED ITS PREVIOUS POSITION ON JURISPRUDENCE PROCEDURE, RETROSPECTIVELY. I HAVE ARTICULATED, AND I AM SURE MY FRIEND WOULD AGREE, THAT IT IS AN HONOR TO BE IN THIS COURT, TODAY, WHERE THE SUN ALWAYS SHINES. WE ARE PROUD OF THAT, BUT IN OUR CONSTITUTION, WE HAVE VESTED EVERY CITIZEN WITH THAT RIGHT TO ACCESS TO GOVERNMENT. IT IS NOT A COMMON LAW RIGHT. IT IS A FUNDAMENTAL ATTRIBUTE OF CITIZENSHIP, AND LIKE THE RIGHT TO BE FREE FROM A CERT, WHICH IS THE CLOSEST ANALYSIS WE CAN FIND, DEALING WITH FUNDAMENTAL RIGHTS AND A RETROSPECTI HAVE ATTACK ON IT, SO I BELIEVE THE COURT INTENDED TO SAY YOU CAN'T GO BACK, UNDER THE DUE PROCESS LAWS, AND DIVEST THE CITIZENS OF FLORIDA OF THEIR VESTED RIGHT OF ACCESS TO RECORDS AND MEETINGS OF GOVERNMENT. AGAIN, THE MEETING THING REMINDS ME OF THE MET A PHYSICAL PROBLEM, BUT YOU CAN'T GO BACK, WITHOUT -- THIS IS A VESTED RIGHT, INSOFAR AS RIGHTS ARE CONSIDERED TO BE VESTED, FOR PURPOSES OF RETROSPECT I HAVE.

YOU ARE SAYING THAT WE NECESSARILY HAD TO DECIDE THE RETRO ACTIVITY, BECAUSE IF IT WAS RETROACTIVE, THEN YOU COULDN'T HAVE FOUND IN YOUR FAVOR, BECAUSE THE LEGISLATION WOULD HAVE SAID, NO, YOU DON'T HAVE THE RIGHT TO SEAL RECORDS.

THAT'S CORRECT, YOUR HONOR. 9 ONLY WAY WE CAN CONCLUDE THAT THE COURT HASN'T ALREADY DECIDED THE CASE IS TO DEFER TO THE COURT AND A MOOT DECISION. JUST IN CASE THIS QUESTION COMES UP IN THE LEGISLATURE, JUST IN CASE THIS IS HELD UNCONSTITUTIONAL OR NONRETROACTIVE, HERE IS WHAT WE WOULD THINK, IF THE CASE WERE BEFORE US, AND I THINK THE COURT CAN USEFULLY SAY WE TELL YOU WHEN WE INTEND TO RENDER A MOOT OPINION. IT IS NOT FOR TEDIOUS ARGUMENTATION BY LAWYERS WHO CONCUR WITH THE MANDATE, AND THAT DOES, PERHAPS, SOUND A BIT LIKE BUTTERING, BUT AT THIS POINT, I THINK THAT IS AN ISSUE, AND THIS COURT HAS NEVER SAID THAT. IN FAIRNESS AND GOOD FAITH, HERE, WHICH I DON'T QUESTION, THE COURT HAS NEVER SAID YOU CAN'T SUPPLY YOUR OWN INTERPRETATION OF OUR RULING AND COME TO THE CONCLUSION THAT WE HAVE RENDERED A MOOT OPINION. SO THAT, YOUR HONOR, IS CREDIBLE. IT SEEMS TO BE, WITH TIME ON THE CLOCK, SEEMS TO BE ABOUT THE GIST OF IT. INDULGE, IF YOU CAN, THE REVIEW OF IT. THE QUESTION OF WHETHER THE COURT DECIDED OR NOT, I THINK THE COURT DID DECIDE IT. DON'T DISPUTE THE COURT TO RECEDE, BUT I THINK IT ON THE NOT TO RECEDE, UNLESS THERE IS SOME EXEXTRAORDINARY REASON, UNDER SOME CIRCUMSTANCES, BUT IN ANY EFFECT, THE COURT GOT IT RIGHT, IN REGARD TO THE RETRO ACTIVITY. I DON'T BELIEVE THAT THERE IS A GOOD ARGUMENT, NOTWITHSTANDING THE LEGISLATURE IS IMPATIENT WITH THE RULING IN THE FIFTH, FOR AN INTENT TO APPLY RETROSPECTIVELY, AND IT IS VERY SIMPLE, IF YOU GET ALL THE WAY TO THE END OF THE LINE. IS THIS A RIGHT THAT CAN BE REVISED, RETROSPECTIVELY BY THE LEGISLATURE, OR IS IT AfzX RIGHT, A FUNDAMENTAL CONSTITUTIONAL RIGHT WITH ITS OWN UNIQUE CONSTITUTIONAL STANDARD IN THE TEXT, BUT NEVERTHELESS A RIGHT THAT EXISTS, UNTIL IT IS TAKEN AWAY BY -- REFRESH MY RECOLLECTION. WHEN WE HAD THIS CASE HERE, BEFORE, WE ARRIVED AT A POINT. DID WE -- WE SENT OUT FOR ADDITIONAL BRIEFING ON 1245998 STATUTE. AM I CORRECT?

THAT'S CORRECT, YOUR HONOR.

AND THE ISSUE THAT WAS PRESENTED, WAS ARGUED AT THAT TIME, WAS WHETHER WE SHOULD DEAL WITH THE CONSTITUTIONALITY OF THE QUESTION AT THAT POINT. AND THE DETERMINATION WAS MADE, THEN, BASED UPON THAT ADDITIONAL BRIEFING, THAT WE WOULD NOT -- WE WOULD ALLOW THE CONSTITUTIONALITY TO COME UP IN THE COURSE. AM I RIGHT?

THAT IS CORRECT.

IS THAT THE REASON IT BACKED OUT OF THE DISTRICT, THE CIRCUIT COURT?

THE HOSPITAL, ON THAT ISSUE OF SECTION 24-C STANDARD, WE COUNTERED THAT AND WE FRAMED THAT AND SUBMITTED THAT FULLY.

AND THE ISSUE WHICH WAS PRESENTED TO US, AS TO THE ISSUE OF CONSTITUTIONALITY, WAS WHETHER THE STATUTE FOLLOWS THE -- WITHIN THE SPECIFICITY AND BROADNESS REQUIREMENT OF THE CONSTITUTIONAL AMENDMENT.

THAT'S CORRECT, YOUR HONOR, AND THE BRIEFING ISSUE, IN A SENSE, TO THE EXTENT THERE IS A QUESTION ABOUT WHAT THE COURT MEANT, COUNSEL HAS A SHARE OF THAT RESPONSIBILITY. MY EFFORT WAS TO CONVINCE THE COURT THAT THERE WAS A HEAD ON COLLISION BETWEEN THE NEW STATUTE AND THE CASE, AND TO CONVINCE YOU TO REACH THAT FACIAL ISSUE, ALL IN ONE SWEEP, AND SO WE DID NOT, BEYOND THAT ONE FOOTNOTE, WE DID NOT SUPPLY THE COURT WITH THE KIND OF BRIEFING THAT HAS, NOW, BEEN EXCHANGED, ON THE RETRO ACTIVITY ISSUE, SO TO THE EXTENT THAT THERE IS A DEFICIT IN THE BRIEFING, IT IS COUNSEL'S RESPONSIBILITY FOR BEING, TRYING TO REACH A WHOLE RANGE.

AGAIN, I WANT TO MAKE SURE, THE SUPPLEMENTAL BRIEFING TRIED TO ADDRESS THE FACIAL CONSTITUTIONALITY. TALKING ABOUT THE TWO PRONGS, THE BRIEF, HERE, THAT IS THAT THE LEGISLATURE INTENDED FOR THE ACT, WITH CONSTITUTION.

IN OUR BRIEF, THERE WAS NO MEN'S MENTION AT ALL. IN OUR BRIEF, IMPOSING TO THE COURT THE PROBLEM THAT WE NEEDED TO REACH THE FACIAL ISSUE, YOU POINTED OUT THAT THE ACT RAISED THE QUESTION OF ITS RETROSPECT I HAVE --.

IF THIS ACT IS UPHELD, YOU DON'T GET ANYMORE RECORDS.

THAT'S CORRECT, AND WE URGE THE COURT TO REACH THAT FACIAL ISSUE, BUT IT DID CITE TO THE CASE AND WAS A PROBLEM, AND WE ARGUED THAT IT OUGHT TO BE IN A FOOTNOTE. IT SHOULDN'T, IN ANY EVENT, BE GIVEN RETROSPECT I HAVE APPLICATION -- RETROSPECT I HAVE APPLICATION -- RETROSPECTIVE INDICATION -- APPLICATION. BUT AS I READ, THE REASONING OF THE COURT, WELL, IF THE ACT IS NOT RETROACTIVE, THERE FOR WE ARE NOT IN A HEAD-ON COLLISION WITH THE FACIAL ISSUE. WE CAN DECIDE THIS CASE, BASED ON THE ISSUE THAT WAS POSED IN THE COMPLAINT, WHICH IS PREENACT. RECORDS, AND -- PREENACTMENT RECORDS, AND SEND IT BACK DOWN AND WAIT FOR A CASE TO BE FILED AND PURSUED, TO BRING UP THE FACIAL ISSUE SEPARATELY, AND THAT, I THINK, IS HOW THE COURT GOT TO WHERE IT WAS. THE THIS IS NOT THE FIRST OR THE ONLY TIME THE COURT HAS BEEN INVOLVED IN UNUSUAL PROCEEDINGS THAT INVOLVE VAST, CHANGING DEVELOPMENTS, ON EACH SIDE OF THE PARK OUT HERE, BUT THAT IS SORT OF ONE OF THE REASONS WE GOT INTO THAT PECULIAR ANGLE THERE. AND AS I SAY, I WILL NEVER, IN MY LIFE, CONCEDE THE FACT THAT I HAVE TIME ON THE CLOCK, BUT I AM SURE THE COURT WOULD APPRECIATE IT IF I SIT DOWN, IF YOU HAVE NO FURTHER QUESTIONS. THANK YOU VERY MUCH.

THANK. MR. ENGLAND.

WOULD YOU ADDRESS THE FUNDAMENTAL CONCEPT THAT WE ACCEPT THIS CASE WAS NOT INTENDED TO BE DECIDED BEFORE, AND TO STEP BEYOND THIS FUNDAMENTAL CLASH BETWEEN A RETROACTIVE STATUTE, ATTEMPTING TO ALTER THE VESTED FUNDAMENTAL CONSTITUTIONAL RIGHT THAT COUNSEL HAS SUGGESTED. WHAT IS THE ANALYTICAL STEP THAT YOU MUST GO THROUGH, TO DEFEAT THAT?

DEMONSTRATE TO THAT YOU IT IS NOT A FUNDAMENTAL CONSTITUTIONAL RIGHT, AND I USE, AS MY TEXT, AN EXAMPLE. THE BEST EXAMPLE THAT MR. KANEY CAME UP WITH WAS THAT CASE. I SUGGEST TO YOU THE CONSTITUTION HAS ALL OF THE DIFFERENCE IN THE WORLD BETWEEN THAT. THERE IS NOTHING, IN THE RIGHT, TO FREEDOM FROM UNREASONABLE SEARCHES, EXCEPT, AND I AM READING FROM THE CONSTITUTION, AS THE LEGISLATURE MAY EXEMPT. THIS IS NOTHING. IT IS A CONDITIONAL RIGHT OF ACCESS. THIS IS A COMPROMISE POSITION, UNLIKE THE FUNDAMENTAL FIRST TEN AMENDMENTS.

AND SO THEREFORE IT WOULD NOT EXIST AT ALL, SHOULD THIS EXEMPTION BE ENACTED, 30 YEARS AFTER THE CONSTITUTIONAL AMENDMENT.

CORRECT. IT -- THIS IS PROSPECTIVE. THE LEGISLATURE HAS TO ACT, TO IMPLEMENT THIS. THERE WAS NO CONSTITUTIONAL PROVISION BEFORE, AND IT WAS ACTING, AND IF THEY ACTED, OBVIOUSLY THEIR LEGISLATION MEANT SOMETHING, BY GENERAL LAW, PROVIDED THEY MET THE TEST. WE AGREE WITH THAT, WHICH IS BEING DECIDED BY JUDGE WILL, AND SO THE ANSWER IS THERE IS NO VESTED RIGHT IN THE NEWS-JOURNAL OR ANY OTHER, IF THE LEGISLATURE EXEMPTED. THEN IT IS JUST A RIGHT, AN EXPECTANCY WHICH THEY HAD, IF THE LEGISLATURE DIDN'T ACT. THAT IS HOW WE PUT IT. TWO MORE POINTS. JUSTICE, YOU DIDN'T GET A YES OR NO ANSWER TO YOUR QUESTION, BUT I WANT TO ANSWER IT FOR MR. KANEY. THE LEGISLATURE INTENDED WE ACT. WE KNOW THEY DID, BECAUSE THEY SAID SO. WE KNOW THEY DID -- THAT IT APPLIED TO THE LANGUAGE, AND DO YOU AGREE THERE WOULD AND REASONABLE INTERPRETATION OF THAT? WHY DO THE EXISTING RECORDS DEVELOP AFTER THE EFFECTIVE DATE OF THE ENACTMENT?

JUSTICE PARIENTE, FOR YOU TO SAY THAT IS TO WRITE THE WORDS INTO THE STATUTE, AND IN CHASE FEDERAL YOU SAID WE CAN'T REWRITE A STATUTE, TO PARCEL IT INTO TWO PARTS. THERE IS NO WAY TO READ THAT AS SOME EXISTING LEASES. THE FIFTH DISTRICT WAS WRONG IN ALLOWING THEM EARLIER ACCESS.

I THINK IT APPLIED TO ALL EXISTING LEASES, BUT TO RECORDS OR MEETINGS, IN OTHER WORDS, IF YOU HAVE -- LET'S JUST GO OVER THE MEETING SITUATION.

SURE.

ALL RIGHT. CLEARLY THEY COULDN'T -- MEETINGS THAT WERE OPEN BEFORE, THEY COULDN'T SAY, WELL, THOSE ARE CLOSED. THAT HAS ALREADY HAPPENED IN THE PAST. BUT THEY CAN SAY THAT MEETINGS AND EXISTING LEASES TO THE FUTURE CAN BE OPEN. ISN'T THAT A DISTINCTION? OR YOU DON'T --

I AM SURE THAT IS A DISTINCTION, BUT THAT IS NOT OUR CASE, AND OUR CASE IS A CLOSED MEETING, AND WHY WOULD THEY NOT REACH CLOSED MEETINGS, WHEN THEY HAD BEEN TRYING TO GET ACCESS BEFORE THE STATUTE WAS ENACTED. THE LEGISLATURE SAID WE DISAGREE WITH THE ALLOWANCE OF THAT ACCESS, IN THAT, IN THIS CASE FOR THEM --

WHAT IS THE PRACTICAL EFFECT? THE MEETINGS WEREN'T OPEN, SO YOU CAN'T RETRO ACTIVELY OPEN THE MEETINGS, ANYWAY.

THE MINUTES OF THE MEETING IS WHAT THEY ARE AFTER. THAT IS WHAT IT IS ALL ABOUT.

THE MINUTES OF THE MEETING.

JUST A LAST POINT. THE LEGISLATURE, AGAIN, IN RESPONSE TO YOUR QUESTIONS, DID IT REALLY MEAN IT, THEY HAVE BEEN AT THIS SINCE 1983, AND BEFORE A SPECIAL ACT, AND IN A DECISION FROM THE FOURTH DISTRICT COURT OF APPEAL, AFTER YOUR DECISION LAST YEAR, IN INDIAN RIVER, THE CASE THEY RELY ON, THERE IS AN ANALYSIS, A LONG DISCUSSION OF HOW THE LEGISLATURE HAS STRUGGLED TO KEEP THESE PRIVATE, THESE PUBLIC HOSPITALS IN BUSINESS AND VIABLE, AND ALL THIS HISTORY ABOUT LEASING, AND AT THE END OF THAT, IT SAYS, AS DEMONSTRATED, THE LEGISLATURE SEEKS TO ENCOURAGE PRIVATIZATION, AND THEN I, QUOTE, LEASES BETWEEN THE EXECUTED PARTIES, ARE PUBLIC POLICY. THIS IS THE PUBLIC POLICY THE LEGISLATURE HAS TRIED TO GET. IT IS THE ONE AUTHORIZED BY THE CONSTITUTION AND STANDS ON AN EQUAL FOOTING WITH THE QUESTION OF WHETHER THEY HAVE ACCESS, BECAUSE THE CONSTITUTION SAYS SO, AND THE QUESTION IS WHETHER THE LEGISLATURE OR THE COURT MAKES THE FINAL DECISION. YOU AID THE LEGISLATURE. THANK YOU FOR YOUR ATTENTION.