The Florida Center for Government Accountability, Inc., Barfield v. Ziegler, Ziegler

Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

THE FLORIDA CENTER FOR GOVERNMENT ACCOUNTABILITY, INC.; MICHAEL BARFIELD; GANNETT CO., INC.; THE McCLATCHY COMPANY LLC; and SCRIPPS MEDIA, INC.,

Appellants,

v.

CHRISTIAN ZIEGLER; BRIDGET ZIEGLER; OFFICE OF THE STATE ATTORNEY; 12TH JUDICIAL CIRCUIT; and SARASOTA POLICE DEPARTMENT,

Appellees.

No. 2D2024-1806

September 2, 2026

Appeal from the Circuit Court for Sarasota County; Hunter W. Carroll, Judge.

Morgan R. Bentley, David A. Wallace, and Kaylin Humerickhouse of Bentley Goodrich Kison, Sarasota, for Appellant The Florida Center for Government Accountability, Inc.

Michael Barfield, pro se.

James B. Lake, and Mark R. Caramanica of Thomas & LoCicero PL, Tampa, for Appellants Gannett Co., Inc.; The McClatchy Company LLC; and Scripps Media, Inc.

Matthew Sarelson of Dhillon Law Group, Inc., West Palm Beach, for Appellees Christian and Bridget Ziegler.

No appearance for remaining Appellees.

LUCAS, Chief Judge.

The Florida Center for Government Accountability, Inc. (FCGA), Gannett Co., Inc., The McClatchy Company, LLC, Scripps Media, Inc., and Michael Barfield sought public records from the City of Sarasota Police Department (SPD) and the Office of the State Attorney for the Twelfth Judicial Circuit (SAO) for electronic records and data that were obtained from three search warrants issued during a prior criminal investigation of Christian Ziegler. Mr. Ziegler, along with his wife Bridget Ziegler, filed a civil action in circuit court to prevent the disclosure of those records. The circuit court sided with the Zieglers, enjoined SPD and SAO from releasing the requested records, and ordered the destruction of most of the records in SPD and SAO's possession.

We reverse.

I. A.

The circuit court provided extensive factual findings in its final judgment, which, in pertinent part, we will recount below:

Plaintiffs Christian and Bridget Ziegler have been continuously married since 2013. Each is active in local and state politics.[1] . . . [The SPD investigated Mr. Ziegler for sexual battery based on his sexual activity with Jane Doe on October 2, 2023. During its investigation, SPD obtained three separate warrants to search Mr. Ziegler's cellphone, Google Drive, and Instagram account.]

....

[O]n November 1, 2023, Detective Cox sent to the State Attorney's Office via email a proposed warrant for review that sought to search and seize Mr. Ziegler's cellphone. . . .

1 Mr. Ziegler was a former Sarasota County commissioner and

former chair of the Republican Party of Florida; Ms. Ziegler currently serves as a member of the Sarasota County School Board.

3

.... The warrant broadly and without limitation authorized the search of Mr. Ziegler's phone and the seizure of all data contained on the phone, including all communication, contacts, photos, videos, audio files, web history, historical location data, data regarding documents, autofill data, user account data, passwords, PINs, financial transaction records, and credit card numbers.

.... SPD downloaded the entire contents of Mr. Ziegler's cellphone into a program identified as Cellebrite. . . .

....

. . . It took approximately 5 days to download . . . . Detective Cox testified that Mr. Ziegler's cellphone contained more than a terabyte of data, including 30,000 videos and 250,000 photographs. There was also a substantial number of text messages.

.... SPD was not able to locate the Video [which allegedly recorded the October 2nd sexual encounter] on Mr. Ziegler's cellphone. SPD detectives, therefore, prepared another warrant for the purpose of obtaining the Video. This November 13, 2023 warrant was directed to Google, LLC, for the entire contents of Mr. Ziegler's Google Drive since the inception of his account. . . .

.... Google responded to this warrant and provided SPD with all the requested information. . . .

.... Despite now having Mr. Ziegler's Google Drive, SPD still was unable to locate a copy of the Video. SPD contacted Mr. Ziegler to ask for his help. Mr. Ziegler agreed to show SPD how to access the Video, as he had previously offered on November 2. . . .

.... Using the Video's metadata, SPD confirmed that the Video's date and time was consistent with the incident

4

reported by Ms. Doe. SPD ceased investigating Mr. Ziegler for sexual battery; instead, SPD refocused its investigation on an allegation of video voyeurism in violation of sections 810.145(2)(a) and (6)(b), Florida Statutes.

While investigating this new alleged crime, on December 8, 2023, SPD prepared and obtained a third search warrant to serve upon Meta/Instagram. SPD sought to determine if Ms. Doe sent Mr. Ziegler a message in vanish mode after the October 2d [sic] encounter asking Mr. Ziegler if his wife enjoyed the video . . . . Despite this date, the warrant sought all information associated with Mr. Ziegler's account and any other account operated by Mr. Ziegler since its inception . . . .

.... SPD served the third warrant on Meta/Instagram, but Detective Cox testified that it did not produce any evidence relevant to their investigation.

.... On January 19, 2024, SPD referred to the State Attorney's Office a charge of video voyeurism. On March 6, 2024, the State Attorney's Office declined to file a formal charge against Mr. Ziegler for video voyeurism due to insufficient evidence. . . . In its declination memorandum, the State Attorney's Office noted that Ms. Doe did not recall whether she consented for the Video being taken, and she explained that she possibly allowed Mr. Ziegler to film the October 2, 2023, sexual encounter. Presumably because of the Zieglers' public status, there were several public records requests issued to SPD and SAO for records relating to the criminal investigation. Appellants were among those who sought such records.

B.

On March 15, 2024, the Zieglers filed a verified complaint, and on March 19, 2024, a verified amended complaint for declaratory and injunctive relief against SPD and SAO. They sought to "preclude the release and publication" of Mr. Ziegler's web browsing history, text

5

message conversations between Mr. and Mrs. Ziegler, the sex video of Mr. Ziegler and his accuser, "and all other data and media that were downloaded by SPD" from Mr. Ziegler's phone in response to the three warrants.

In the amended complaint the Zieglers argued (1) that the data and electronic information downloaded were not public records simply because they were electronically stored by a public agency; (2) that the public's statutory right to public records did not extinguish their state constitutional and statutory rights of privacy; and (3) that the communications between Mr. and Mrs. Ziegler were protected from disclosure from a public records request because of the spousal privilege under section 90.504, Florida Statutes (2024). They asked for clarification of the applicability of chapter 119 of the Florida Statutes. They sought to limit the documents SPD and the SAO released to only include those relating to communications between Mr. Ziegler and his accuser. They argued that the downloaded contents of Mr. Ziegler's cell phone, Google Drive, and Instagram account did not qualify as public records and were otherwise exempt from disclosure under Florida law.2 What the Zieglers did not assert—or even mention—in either the original or amended complaints was anything about their federal constitutional rights. Nor did either complaint purport to challenge the legal sufficiency of the warrants that yielded the data SPD and SAO obtained during the prior criminal investigation.

Shortly after the filing of the Zieglers' complaint, Appellants filed motions to intervene as defendants; the circuit court granted their motions by order dated March 26, 2024. As the case progressed through

2 The Zieglers also filed a motion for temporary injunction along

with their complaint, which the court granted.

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expedited discovery, the primary advocacy for releasing the investigatory materials came from the intervening defendants (and now Appellants), FCGA, Mr. Barfield, Gannet Co., The McClatchy Co., and Scripps Media.3 A final hearing was scheduled to commence on May 16, 2024. By the time of that final hearing, the Appellants had narrowed the scope of their public records request to the electronically stored information the investigators actually reviewed and deemed relevant to the criminal investigation of Mr. Ziegler.4 The Zieglers, however, attempted to expand the scope of their legal arguments. The day before the final hearing they filed a bench brief, which included arguments that Mr. Ziegler had a Fourth Amendment right to the return of a purported property interest he had in his personal data and that his federal constitutional privacy rights trumped the Florida Public Records Act, codified in chapter 119, Florida Statutes.

The Zieglers pressed their arguments that the three warrants violated Mr. Ziegler's federal constitutional rights during the trial. The intervening defendants, at times, objected to those lines of argument.

3 For example, early on, Mr. Barfield filed a motion to dismiss the

amended complaint, which several intervenors joined, arguing that the Zieglers lacked standing to preemptively prevent disclosure of public records, and that only the custodians of the records could assert such a claim. The circuit court denied his motion.

4 The circuit court did not conduct a comprehensive in camera

inspection of these records (it only reviewed the Zieglers' text messages), but the parties appear to have agreed about the scope of the records being requested, though they disagreed sharply over whether those records should be produced. In their appeal, Appellants reiterate that they only seek "records police specifically flagged in their investigation," not the entirety of the data that was seized and copied. Our opinion and remand directions are, likewise, confined to that agreed upon scope.

7

Indeed, counsel for three of the media defendants began his closing statement with:

I'd like the Court to go back to the complaint. Your Honor has kept reminding us today appropriately, we're here on what's plead. Mr. Barfield alluded to this a little bit. First of all, the complaint, the amended complaint, it doesn't allege any violation of a federal right. It's focused on Florida Law.

C.

On July 1, 2024, the circuit court entered its final judgment in favor of the Zieglers. The court's forty-six page ruling was sweeping, but it was clear from the outset what propelled the court's analysis:

But 250 years ago, our forebears fought a Revolution against the tyrannical policies of King George III, including the allowance of general warrants that permitted unreasonable search and seizure. While today's seizure is not from the entirety of one's home—but 18 square inches of a cellphone and the content of electronic storage media—it is functionally the same. The Fourth Amendment prohibits general warrants like those advanced by law enforcement in this case.

.... This ruling is long. But the short answer is this: Mr.

Ziegler has the constitutional right to recover exclusive control over his personal property seized involuntary [sic] through unconstitutional warrants. His property is not transformed into public record because it was not "made or received pursuant to law" and is outside the "official business of law enforcement." An entire section of the judgment, entitled "Warrants and the Fourth Amendment," described the importance of the Fourth Amendment and its particularity requirement for search warrants. Over the course of nearly twenty pages, the circuit court cited and analyzed an array of search and seizure cases, including Carlton v. State, 449 So. 2d 250, 251–52 (Fla. 1984) ("The requirement that warrants shall particularly describe the things to be seized makes general searches

8

under them impossible and prevents the seizure of one thing under a warrant describing another." (quoting Marron v. United States, 275 U.S. 192, 196 (1927))); Pollard v. State, 287 So. 3d 649, 657 (Fla. 1st DCA 2019) ("[U]nless the state can describe with reasonable particularity the information it seeks to access on a specific cellphone, an attempt to seek all communications, data and images 'amount[s] to a mere fishing expedition.' " (second alteration in original) (quoting G.A.Q.L. v. State, 257 So. 3d 1058, 1064 (Fla. 4th DCA 2018))); United States v. Oloyede, 982 F.2d 133, 138 (4th Cir. 1993) (observing that the particularity requirement "ensures that the search is confined in scope to particularly described evidence relating to a specific crime for which there is probable cause"); and a somewhat recent district court ruling, United States v. Mercery, 591 F.Supp. 3d 1369, 1382 (M.D. Ga. 2022) ("The Instagram Warrant . . . allows officers to search and seize virtually all of the information on Mercery's Instagram account, with no temporal limitations or limitations defined by the crime of possession of a firearm by a convicted felon. Such warrant is akin to a general warrant and therefore violates the Fourth Amendment's particularity clause."). The circuit court then proceeded to detail what, in its view, were each of the three warrant's various shortcomings.

At the end of its analysis, the circuit court concluded that the seizure and retention of Mr. Ziegler's electronically stored data were unlawful. The circuit court also held that SPD and SAO's retention of the unlawfully seized [data] raises constitutional issues distinct from the lawfulness of the underlying warrants and their execution—not the least of which is Mr. Ziegler's right to regain exclusive control over his private information and to be free from a de facto forfeiture without due process or compensation.

9

Like the Fourth Amendment issue, the notion the court seized upon here—that Mr. Ziegler had a protected property interest in the exclusive use of his personal data, which compelled the return and destruction of the data SPD had obtained now that the investigation was concluded—is nowhere to be found in the Zieglers' pleadings.5 The circuit court also provided two "alternative" rulings. First, it held that any electronic records that were retrieved but deemed irrelevant by the investigating law enforcement officers (which, among other things, included the entirety of the information seized under the Google and Meta/Instagram warrants) were not "received or held with the intent of perpetuating or formalizing knowledge in connection with the transaction of official agency business and is not subject to public disclosure." The circuit court quoted State v. City of Clearwater, 863 So. 2d 149, 154 (Fla. 2003) (holding that personal emails between two city employees were not "materials that have been prepared with the intent of perpetuating or formalizing knowledge" and were therefore, not "public records" (quoting Shevin v. Byron, Harless, Schaffer, Reid & Assocs., 379 So. 2d 633, 640 (Fla. 1980))), as support, but then hastened to add that "it is not making an alternative finding that each of the items . . . does or does not constitute a public record" because "the custodian will need to make this determination in the first instance." We interpret this part of the judgment as a decretal statement to the effect that (i) any records that were obtained by SPD but not deemed relevant to the criminal investigation were not "public records" under the Public Records Act; but

5 Beyond their testimony that their data was private, the Zieglers

provided no evidence that the data seized in response to the Google and Meta/Instagram warrants belonged exclusively to Mr. Ziegler. And, as already mentioned, the circuit court only conducted an in camera inspection of the Zieglers' text messages.

10

(ii) since SPD and the SAO had not definitively made that underlying determination, the circuit court would refrain from making a finding in the first instance.6 Second, the circuit court alternatively found that Mrs. Ziegler had standing to assert a spousal privilege over the "more than 1,200 text messages" between her and Mr. Ziegler in response to the Appellants' public records requests. "These communications qualify for protection under section 90.504." As such, the circuit court reasoned, the text messages were exempt from disclosure under article I, section 24(d), of the Florida Constitution and section 90.504 of the Florida Evidence Code.

The circuit court's analysis returned to the Fourth Amendment in the final judgment's conclusion section: "Each of the three warrants violated Mr. Ziegler's Fourth Amendment rights. Those warrants were vastly overbroad." The court held that Mr. Ziegler had a legal right to the return of his property (by which it meant the exclusive use of his electronic data). It further ruled that "Mr. Ziegler's property cannot be considered public record because violating a person's constitutional rights forecloses a finding it was 'made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.' " The circuit court addressed each warrant in turn. As to the cellphone warrant, it ordered the "return" of Mr. Ziegler's data (with the exception of the video Mr. Ziegler had voluntarily provided to SPD, fourteen photographs an investigator took of Mr. Ziegler's cellphone, and

6 There seems to be some internal contradictions as to what,

precisely, the circuit court was or was not alternatively holding here. Since the Appellants have not contested this discrete aspect of the final judgment's alternative holding, we will not address it further, but leave it to the court and the parties to resolve on remand.

11

any data that had been previously produced by SPD or the SAO). It then ordered the "return" of all the data seized under the Google and Meta/Instagram warrants. The circuit court permanently enjoined SPD and the SAO from disclosing any of these records and ordered the defendants to destroy the original and all copies of the data it had seized (subject to the prior limited exceptions).

Appellants now appeal the final judgment and raise five issues for our consideration. First, they maintain that the circuit court granted relief on a basis that was not pled. Second, they argue that the State's constitutional right to privacy did not warrant prohibiting the disclosure of a valid public record request. Third, they maintain that items reviewed by law enforcement and deemed relevant to its investigation were, in fact, official public records. Fourth, Appellants argue that the Zieglers had no standing to seek declaratory relief against the release of public records. And fifth, they claim that the marital privilege under section 90.504 of the Florida Evidence Code is not a Public Records Act exemption.

II.

We review issues of statutory and constitutional interpretation de novo. See Statler v. State, 349 So. 3d 873, 878–79 (Fla. 2022) (citing Richards v. State, 288 So. 3d 574, 575 (Fla. 2020); State v. Adkins, 96 So. 3d 412, 416 (Fla. 2012)). "The determination of what constitutes a public record is a question of law entitled to de novo review." Media Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Jud. Cir., 840 So. 2d 1008, 1013 (Fla. 2003). "[I]t is well settled that the [Public Records] Act must be liberally construed in favor of access, and all exemptions must be limited to their stated purpose." Palm Beach Cnty. Sheriff's Off. v. Sun-Sentinel Co., LLC, 226 So. 3d 969, 972 (Fla. 4th DCA 2017).

12

Whenever we interpret any statute, we apply the supremacy of text principle, which states "that '[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.' " Sheik Island Farm, Inc. v. Covington Farm, Inc., 429 So. 3d 1095, 1098 (Fla. 2d DCA 2026) (alteration in original) (quoting Ham v. Portfolio Recovery Assocs., 308 So. 3d 942, 946 (Fla. 2020)).

III.

The circuit court erred in several respects, though its errors are somewhat interrelated. We address each in turn.

A.

We start with the text of Florida's public records laws, which is enshrined in both our state constitution and statutes.

1.

Article I, section 24, of the Florida Constitution provides: (a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government . . . .

....

(c) This section shall be self-executing. The legislature, however, may provide by general law passed by a two-thirds vote of each house for the exemption of records from the requirements of subsection (a) . . . . The legislature shall enact laws governing the enforcement of this section, including the maintenance, control, destruction, disposal, and disposition of records made public by this section . . . . As the Florida Supreme Court has observed, "open access to public records is both a constitutional right and a cornerstone of our political culture." In re Rep. & Recommendations of the Jud. Mgmt Council of Fla.

13

on Priv. & Elec. Access to Ct. Recs., 832 So. 2d 712, 713 (Fla. 2002). Indeed, the court "has repeatedly acknowledged the strong public policy in this State that allows members of the public to have access to public records." Media Gen. Convergence, Inc., 840 So. 2d at 1020. That public policy is further reflected in how the people of Florida have struck the balance between the state constitutional right to public records and the constitutional right of privacy in favor of the Public Records Act. See Art. I, § 23, Fla. Con. ("This section [the right of privacy] shall not be construed to limit the public's right of access to public records and meetings as provided by law."); Bd. of Cnty. Comm'rs of Palm Cnty. v. D.B., 784 So. 2d 585, 591 (Fla. 4th DCA 2001) ("[I]n Florida the right to privacy is expressly subservient to the Public Records Act." (citing Forsberg v. Hous. Auth. of City of Miami Beach, 455 So. 2d 373, 374 (Fla. 1984); Douglas v. Michel, 410 So. 2d 936, 939 (Fla. 5th DCA 1982); Mills v. Doyle, 407 So. 2d 348, 351 (Fla. 4th DCA 1981))). So regardless of how private or personal a record "received in connection with the official business of any public body" may be, the "general law"—that is, Florida Statutes—determines whether it is a "public record" and, if so, whether it is exempt from disclosure. Accord art. I, § 24, Fla. Const.

Section 119.011(12), Florida Statutes (2024), defines "public records" to mean "all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency." (Emphasis added.) Materials obtained and reviewed by law enforcement agencies in the course of their criminal investigations will almost always fit within section 191.011(12)'s initial definition. See, e.g., Tribune Co. v.

14

Pub. Recs., P.C.S.O. # 79-35504 Miller/Jent, 493 So. 2d 480, 485 (Fla. 2d DCA 1986) ("In other words, whatever information is discoverable becomes a public record when released to arrested persons, defendants or their counsel."); Barfield v. City of Tallahassee, 171 So. 3d 239, 241– 42 (Fla. 1st DCA 2015) (holding that a Facebook post forwarded to the Tallahassee Police Department alleging an FSU football player's involvement in domestic violence was a public record excepted from the "active criminal investigative information" exemption of the Public Records Act); Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991) (noting autopsy photographs and video recording made during a criminal investigation were public records); see also Nat'l Collegiate Athletic Ass'n v. Associated Press, 18 So. 3d 1201, 1208 (Fla. 1st DCA 2009) ("A document that is used in the course of public business is a public record . . . if it was made by a public official or if was received by the official. If it was received, that is enough."); see also Media Gen. Convergence, Inc., 840 So. 2d at 1021 ("[W]hen an individual complains to a chief judge about judicial misconduct involving sexual harassment or sexually inappropriate behavior, any records made or received by the chief judge constitute public records." (emphasis added)).

The data SPD copied, flagged as relevant, and reviewed as part of its criminal investigation into Mr. Ziegler were public records under section 119.011(12). The question then becomes whether those records fell under a recognized exemption. See Media Gen. Convergence, Inc., 840 So. 2d at 1013 ("[I]f the documents constitute public records, we must determine whether the documents are exempt from public disclosure as a result of a constitutional, statutory or rule-created exemption.").

15

Section 119.071 includes a comprehensive list of various exemptions to the Public Records Act. Section 119.071(2)(c)1., for example, exempts records of "[a]ctive criminal intelligence information and active criminal investigative information," but not concluded investigations. Other exemptions, such as section 119.071(2)(h)1.b. and c. would preclude releasing information that "may reveal the identity of a person who is a victim of any sexual offense" and "photograph[s], videotape[s], or image[s] of any part of the body of the victim of a sexual offense." There are several other exemptions found elsewhere in the Florida Statutes. See, e.g., § 119.071(2)(f) (exempting "[a]ny information revealing the identity of a confidential informant or a confidential source"); § 119.0714(1)(i) Fla. Stat. (2024) (exempting from disclosure any social security numbers found in court records); § 394.4615(1), Fla. Stat. (2024) ("A clinical record is confidential and exempt from the provisions of s. 119.07(1).").

There is no statutory exemption for public records that were allegedly obtained in violation of a person's Fourth Amendment rights. Thus, there is no statutory authority to deem such records exempt from the Public Records Act. See Franks v. Davis, 145 So. 2d 228, 231 (Fla. 1962) ("Under established rules of construction, the specification of permissible exemptions will exclude others: expressio unius est exclusio alterius."). Nor does the Fourth Amendment operate as a free-floating, unenacted public records exemption, a point we will explain next.

2.

As has often been observed, the text of the Fourth Amendment 7 is completely silent about remedies for its violation. See Davis v. United

7 See Amend. IV, U.S. Const. ("The right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable

16

States, 564 U.S. 229, 236 (2011) (observing that the Fourth Amendment "says nothing about suppressing evidence"); United States. v. Davis, 84 F.4th 672, 678 (6th Cir. 2023) ("The Fourth Amendment's text does not require any specific remedy when a magistrate issues a warrant lacking probable cause."); United States v. Walker, No. 3:05CR108-J-32MMH, 2005 WL 5949674, at *8 (M.D. Fla. Oct. 5, 2005) ("The text of the Fourth Amendment provides no remedy for violations."); see also Richard M. Re, The Due Process Exclusionary Rule, 127 Harv. L. Rev. 1885, 1889 (2014) ("Fourth Amendment suppression explicitly rests on essentially atextual notions of policy or morality.").

Courts have generally recognized three avenues through which individuals can seek redress when the government violates their Fourth Amendment rights: first, the exclusionary rule, which bars the State from using unlawfully obtained evidence in a criminal trial, see Dinkins v. State, 278 So. 3d 828, 835 (Fla. 5th DCA 2019) ("The exclusionary rule is a 'judicially created remedy designed to safeguard [constitutional] rights generally through its deterrent effect' by preventing the State from taking advantage of evidence obtained through a constitutional violation by excluding the use of such evidence at trial." (alteration in original) (citations omitted) (quoting Shadler v. State, 761 So. 2d 279, 284 (Fla. 2000))); second, a private cause of action under 42 U.S.C. § 1983 ("Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured

searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.")

17

in an action at law, suit in equity, or other proper proceeding for redress . . . ."); and third, in rare instances, criminal prosecution against the state actor who violated a party's Fourth Amendment rights, see, e.g., 18 U.S.C. § 242 ("Whoever, under color of any law . . . willfully subjects any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both . . . ."); § 933.17, Fla. Stat. (2024) ("Any officer who in executing a search warrant willfully exceeds his or her authority or exercises it with unnecessary severity, shall be guilty of a misdemeanor of the second degree . . . .").

The first avenue, the exclusionary rule, is an evidentiary bar that only applies in criminal trials. As the Supreme Court summarized in Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357, 363-64 (1998):

[B]ecause the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its "substantial social costs." United States v. Leon, 468 U.S. [897,] 907 [(1984)]. Recognizing these costs, we have repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials. Id. at 909; United States v. Janis, [428 U.S. 433,]447 [(1976)]. For example, in United States v. Calandra, we held that the exclusionary rule does not apply to grand jury proceedings; in so doing, we emphasized that such proceedings play a special role in the law enforcement process and that the traditionally flexible, nonadversarial nature of those proceedings would be jeopardized by application of the rule. [414 U.S. 338,]343–346 [(1974)]. Likewise, in United States v. Janis, we held that the exclusionary rule did not bar the introduction of unconstitutionally obtained evidence in a civil tax proceeding because the costs of excluding relevant and reliable evidence would outweigh the marginal deterrence

18

benefits, which, we noted, would be minimal because the use of the exclusionary rule in criminal trials already deterred illegal searches. 428 U.S. at 448, 454. Finally, in INS v. Lopez–Mendoza, 468 U.S. 1032 (1984), we refused to extend the exclusionary rule to civil deportation proceedings, citing the high social costs of allowing an immigrant to remain illegally in this country and noting the incompatibility of the rule with the civil, administrative nature of those proceedings. Id. at 1050.

(Emphasis added.) See also Montgomery v. State, 69 So. 3d 1023, 1033 (Fla. 5th DCA 2011) ("[The exclusionary rule] is intended to deter police misconduct, not to remedy the prior invasion of a defendant's constitutional rights.").

The case at bar is not a criminal trial; it is a civil dispute over public records. There is no statute that authorizes, much less directs, the exclusionary rule's application in this kind of civil controversy. So the Fourth Amendment's exclusionary rule should not have had any bearing on this case.

The Florida Supreme Court recently cautioned against expanding Fourth Amendment remedies in the absence of legislative authorization. In State v. Times, 434 So. 3d 986, 988 (Fla. 2026), the court answered a certified question from the First District, whether evidence obtained in violation of Florida Statute section 933.09's knock-and-announce requirement could be suppressed under the exclusionary rule. The court held "[b]ecause section 933.09 does not itself contain an exclusionary rule and section 933.17 prescribes remedies for violations of section 933.09, we do not infer that the remedy of exclusion is available for violations of section 933.09." Id. at 991. The court receded from its prior precedent, explaining it had "misunderstood" its role as a court "first by discounting section 933.17's chosen remedy, and then compounding that error by concluding that we could therefore supply one." Id. at 992.

19

"[T]he remedy for violations of a Florida statute 'fall[s] within the purview of the Legislature.' " Id. at 990. (second alteration in original) (quoting Jenkins v. State, 978 So. 2d 116, 130 (Fla. 2008)).

Thus, the Florida Supreme Court concluded, in a criminal case, that the Fourth Amendment's exclusionary rule could not be applied to remedy a statutory violation that governed criminal investigations. The circuit court's attempt to stretch the exclusionary rule here, in a civil public records dispute, extends well beyond what the Times court just rejected.

The court below justified its conclusion out of its concern that a citizen in Mr. Ziegler's position would not otherwise have access to a court to enforce his constitutional rights, "a stunning proposition," according to the court. In truth, Mr. Ziegler did have a means of seeking redress for any alleged violations of his Fourth Amendment rights. He could bring a 42 U.S.C. § 1983 claim, either in federal or state court. See Crocker v. State, 778 So. 2d 978, 982 n.6 (Fla. 2001) ("A claim under section 1983 may be brought in state court." (citing Maine v. Thiboutot, 448 U.S. 1, 10–11 (1980))).8 Or he could file a criminal complaint against the officers who allegedly violated his civil rights. What he could not do, at least not under the authority of the Fourth Amendment, was thwart a public records request as a third party and obtain extraordinary equitable relief9 in a civil action, under the guise of vindicating his right

8 And it appears the Zieglers have, in fact, filed a civil lawsuit

against the City of Sarasota and two individual defendants in the U.S. District Court for the Middle District of Florida (case no. 8:25-cv-02992- CEH-AAS) regarding the execution of these search warrants. We were so informed by the Zieglers' counsel at oral argument and in a notice of related case filed by the Appellants.

9 See Park Crossing Homeowners Ass'n, Inc. v. Suarez, 415 So. 3d

676, 690 (Fla. 4th DCA 2025) (observing that "entering an injunction is

20

to return the "property" of his copied data. Because this was a civil, not a criminal proceeding, we turn now to the pleading deficiency in the underlying civil case.

B. 1.

The issue of whether the Fourth Amendment or, for that matter, any federal constitutional rights, should apply in this context was never set forth in the Zieglers' pleadings. Nor was it tried by consent. Accord Fla. R. Civ. P. 1.190(b).10 We have reviewed the record carefully. Although there was some discussion during the trial about what, if any, effect the Fourth Amendment might have on the questions before the court, the Appellants never acquiesced to have any unpled issues tried or adjudicated. To the contrary, at the conclusion of the trial, the Appellants insisted that any issues concerning federal constitutional rights were outside the scope of the pleadings. And at one point, the presiding judge expressly acknowledged the boundary set by the parties' pleadings. While admonishing one of the intervenors not to inject irrelevant argument, the court remarked: "We're in a court proceeding framed by pleadings . . . . I

an extraordinary remedy" (quoting SPC Fortebello, LLC v. Catuogno, 343 So. 3d 1276, 1278 (Fla. 5th DCA 2022))).

10 To the extent the Zieglers proffered evidence that could have had

some bearing on the scope of their federal constitutional rights, that same evidence was also relevant to the state claims they raised in their amended complaint. See Derouin v. Universal Am. Mortg. Co., 254 So. 3d 595, 603 (Fla. 2d DCA 2018) ("[I]n order to rely on questions and answers not objected to during trial as evidencing the opposing party's implied consent to try unpled issues, it must be shown that such questions and answers are irrelevant to any pled issues . . . ." (alteration in original) (quoting Bilow v. Benoit, 519 So. 2d 1114, 1116 (Fla. 1st DCA 1988))).

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have to focus on the actual pleadings that were filed and I don't see this lengthy discussion about these other issues that are tangential to the pleadings have anything to do with the pleadings." We also note that the Zieglers never made a motion to conform their pleadings to the evidence under rule 1.190(b). Cf. Goldschmidt v. Holman, 571 So. 2d 422, 424 (Fla. 1990) ("Because no basis for vicarious liability was pled, the jury could consider that claim only if evidence supporting it had been admitted without objection and an appropriate motion to amend the pleadings to conform to the evidence had been made pursuant to Florida Rule of Civil Procedure 1.190(b)."). The only issues the circuit court should have decided were those explicitly set forth in the pleadings.

Yet, most of the court's judgment revolved around the unpled issue of the Fourth Amendment and the three "general warrants" that were issued for Mr. Ziegler's electronically stored information. In so holding,11 the court strayed far beyond the pleadings that were before it. See Derouin v. Universal Am. Mortgage Co., 254 So. 3d 595, 601 (Fla. 2d DCA 2018) ("After all, '[l]itigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are.' " (quoting Bank of Am., N.A. v. Asbury, 165 So. 3d 808, 809 (Fla. 2d DCA 2015))). "An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the

11 Although the circuit court made a passing attempt to decouple

its extensive Fourth Amendment analysis from its ruling ("retention of the unlawfully seized [data] raises constitutional issues distinct from the lawfulness of the underlying warrants and their execution"), there is simply no way to construe the court's judgment as anything other than a novel (and unpled) wedge of the Fourth Amendment's exclusionary rule into the civil context of the Public Records Act.

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court's determination." Gordon v. Gordon, 543 So. 2d 428, 429 (Fla. 2d DCA 1989); see also Athienitis v. Makris, 346 So. 3d 732, 734 (Fla. 2d DCA 2022) ("It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process." (quoting Austin v. Austin, 120 So. 3d 669, 675 (Fla. 1st DCA 2013))).

As the Florida Supreme Court observed: [L]itigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared. Our growing, complex society and diminishing resources mandate the requirement that litigants present all claims to the extent possible, at one time, and one time only.

Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988) (emphasis added).

A court must look to the parties to present the issues and legal arguments they wish to have adjudicated in a civil controversy. Absent consent or waiver, the court must confine itself to work within the parameters of the pleadings. In the "dance" between civil litigation and adjudication, the litigants take the lead. The circuit court erred delving into issues not within the parties' pleadings.

2.

There are sound reasons for this limitation, and this case illustrates them well. Take, for example, the court's conclusion that Mr. Ziegler had a constitutionally protected property interest in the exclusive use of the data contained on his Google, Instagram/Meta and cell phone accounts, and, as such, he was entitled to the data's "return" (i.e., destruction) upon the conclusion of his criminal investigation.

The court construed the protected privacy interest Mr. Ziegler may have had in the contents of his cell phone and social media and search

23

engine accounts as if it were a protected property interest in his data on third party platforms. That latter point is far from settled and highly debatable. See, e.g., Chartrie v. United States., No. 25-112, 2026 WL 1855568, at *8 (U.S. June 29, 2026) ("And so we have long held that 'property rights are not the sole measure' of a constitutional violation; the Fourth Amendment 'protect[s] certain expectations of privacy as well.' " (alteration in original) (first quoting Soldal v. Cook County, 506 U.S. 56, 64 (1992); and then quoting Carpenter v. United States, 585 U.S. 296, 304))); see also Ignacio Cofone, Beyond Data Ownership, 43 Cardozo L. Rev. 501, 522 (2021) ("Data property, which seeks to promote data subjects' control over personal information, has been criticized for pursuing the wrong goal. This is because privacy is about more than individual control." (footnote omitted)); Dalia Wrocherinsky, Finding Rights in the Fine Print: How Terms of Services Agreements Can Turn Consumer Search History into Digital Property, 14 Am. U. Bus. L. Rev. 501, 505 (2024) ("Whether and to what degree one's data is protected by property rights is a fiercely debated topic for which there are no explicit formal resolutions in law."). Indeed, the Supreme Court's Chartrie decision this past term—which dealt with electronically stored location information—featured a sharp disagreement between two of the justices over whether that kind of data was or was not "property." Compare Chartrie, 2026 WL 1855568 at *21 (Gorsuch, J., concurring in the judgment) ("As I see it, Mr. Chatrie's Location History data qualifies as his personal property. . . . And as someone who held that many 'sticks in the bundle of rights . . . commonly characterized as property'— including the 'most treasured' and 'essential' right to exclude—he has a strong claim that the Location History data was his personal property." (quoting Cedar Point Nursery v. Hassid, 594 U.S. 139, 149–150 (2021))),

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with Chartrie, 2026 WL 1855568 at *25 (Alito, J., dissenting) ("Chatrie's claim would therefore fail for a second reason: He possesses no property interest in the information that Google conveyed to the police. To be sure, Chatrie claims a property right in Google's Location History files under a bailor-bailee relationship, and he claims that the execution of the geofence procedure transgressed those rights. This argument radically reconceptualizes the traditional understanding of property rights.").

We mention this simply to point out that even if the Zieglers had standing to assert an unrecognized exemption to the Public Records Act,12 the circuit court's analysis would have greatly benefited from a proper presentation of competing arguments framed by the pleadings and then argued on the merits. The court would have similarly profited from an adversarial evidentiary presentation from both sides, which might have included: (1) the terms of service or underlying agreements that governed Mr. Ziegler's cellphone, Google, and Instagram data; (2) how he used this data; and (3) how, if at all, third parties accessed or utilized the data. Cf. Provenzano v. State, 751 So. 2d 37, 40 (Fla. 1999) (remarking that factual disputes "should be examined and resolved in the crucible of an adversarial proceeding"). And the court could have conducted a full in camera review of the electronic records before it deemed them Mr. Ziegler's "property." Accord Tribune Co., 493 So. 2d at 484 ("It is always better practice, however, to conduct [an in camera] inspection in cases where an exemption to the Public Records Act is asserted.").

12 Arguably, they didn't, for the reasons we will explain in part

III(C).

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To be clear, we are not holding that the data SPD copied when it executed these search warrants might not have constituted some form of a recognized property interest. We are not broaching the existential nature of this data at all. Nor should our opinion today be read for guidance as to what evidentiary or legal points should be presented to resolve such an issue should it arise in some future case. We make these observations only to underscore why the circuit court should have followed the "lead" of the parties' pleadings.

We next address what role, if any, the Zieglers could have had in bringing these issues before the court.

C.

There is a comprehensive mechanism for custodians of public records and requesters of public records to obtain judicial relief when a dispute arises. In that regard, section 119.07 details the rights of the public to inspect public records, as well as what kinds of challenges may be raised in response to such requests:

(1)(a) Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.

....

(d) A person who has custody of a public record who asserts that an exemption applies to a part of such record shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying. (e) If the person who has custody of a public record contends that all or part of the record is exempt from inspection and copying, he or she shall state the basis of the exemption that he or she contends is applicable to the record, including the

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statutory citation to an exemption created or afforded by statute. (f) If requested by the person seeking to inspect or copy the record, the custodian of public records shall state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential. (g) In any civil action in which an exemption to this section is asserted, if the exemption is alleged to exist under or by virtue of s. 119.071(1)(d), (2)(d), (e), or (f), or (4)(c), or s. 119.0725(2)(h), the public record or part thereof in question shall be submitted to the court for an inspection in camera. If an exemption is alleged to exist under or by virtue of s. 119.071(2)(c), an inspection in camera is discretionary with the court. . . . (h) Even if an assertion is made by the custodian of public records that a requested record is not a public record subject to public inspection or copying under this subsection, the requested record shall, nevertheless, not be disposed of for a period of 30 days after the date on which a written request to inspect or copy the record was served on or otherwise made to the custodian of public records by the person seeking access to the record. If a civil action is instituted within the 30-day period to enforce the provisions of this section with respect to the requested record, the custodian of public records may not dispose of the record except by order of a court of competent jurisdiction after notice to all affected parties.

....

(9) After receiving a request to inspect or copy a record, an agency may not respond to that request by filing an action for declaratory relief against the requester to determine whether the record is a public record as defined by s. 119.011, or the status of the record as confidential or exempt from the provisions of subsection (1). This statutory framework addresses potential disputes between parties requesting public records and public records custodians. There is no statutory mechanism for a third party—that is, someone other than a public records custodian or a party seeking public records—to

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challenge the propriety of a public records request. See Tribune Co. v. Cannella, 458 So. 2d 1075, 1078–79 (Fla. 1984) ("The only challenge permitted by the Act at the time a request for records is made is the assertion of a statutory exemption pursuant to section 119.07. The only person with the power to raise such a challenge is the custodian.").

That said, we must acknowledge the Florida Supreme Court's decision in Times Publishing Company v. A.J., 626 So. 2d 1314, 1314–15 (Fla. 1993), where the court answered the following rephrased question of great public importance: Does a non-custodian who is the subject of a public record have standing to assert a custodian's statutory exemption? In A.J., deputies from the Pinellas County Sheriff's Department, after doing a puppet show for the Church of Scientology's Cadet School, observed what they believed was evidence of child neglect or abuse which they reported to the Florida Department of Health and Rehabilitative Services (HRS). Id. at 1315. After HRS found no probable cause, The St. Petersburg Times submitted a public records request for the investigation records. Id. The corporation that operated the Cadet School and several minor students filed motions to impose confidentiality on all the documents related to the investigation. Id. Their arguments relied on specific exemptions governing reports of child neglect or abuse under sections 39.411(4), 119.07(3)(a), and 415.51(1)(a), Florida Statutes (1990). Id.

The trial court denied the third parties' motions, finding they lacked standing, and the Second District reversed. The supreme court approved our court's decision with some clarification.

[W]e hold that Florida's child protection statutes and the accompanying public-records law exceptions give standing to the noncustodian of a public record to assert a statutory exception provided the noncustodian is a member of a class

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the exception was intended to protect. Such is the case here. While we also find that the Cadet School and the corporation that operated it lacked standing under the facts here, it is plain that the minor schoolchildren who raised their own independent objection to the disclosure have standing. The statutes obviously were intended to protect these minors from the precise kind of disclosure contemplated by the trial court's order.

Id. at 1315–16 (footnotes omitted) (citation omitted). But in a footnote, the A.J. court appeared to limit its holding:

Obviously, we are addressing only the factual question of a statutory exception involving alleged child abuse. We do not necessarily hold that our analysis here applies in any other context. Child abuse investigations are a unique problem involving the necessity of state intrusion into matters shielded by the high degree of privacy afforded to family and personal life. If the subject of the public record involved no one other than a politician or other public figure and not children, for example, it is clear that the privacy interests would be considerably diminished.

Id. at 1315 n.1.

While we can't be entirely certain if A.J. drew its holding's demarcation beyond the "unique problem" of child abuse, we can say that the instances when a third party's arguments to shield public records have been recognized are few and far between. See, e.g., Fla. Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32, 34 (Fla. 1988) (recognizing a criminal defendant's objection and affirming court's temporarily sealing pretrial discovery information from public release, remarking "[t]he notion that a defendant has no standing to assert a constitutional right to a fair trial through a motion to control prejudicial pretrial publicity is meritless"). No Florida court has ever held that a third party has standing to contest a public records request by virtue of a purported property right in their digital information that was allegedly obtained in violation of the Fourth Amendment. We are hesitant to be

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the first to do so.13 But assuming without deciding that the Zieglers could properly bring a lawsuit to challenge the release of public records held by SPD and the SAO, our holding does not change: because the copied data does not fall under any recognized statutory exemption under the Florida Public Records Act, and the Fourth Amendment does not provide a free-floating public records exception, we reject the Zieglers' arguments on their merits.

IV.

The remaining, alternative holding set forth in the final judgment can be more easily dispensed. After reviewing more than 1,200 text messages between Mr. and Mrs. Ziegler, the court found that both Mr. and Mrs. Ziegler had a protected spousal privilege under section 90.504 that prohibited the disclosure of these messages as a public record. This was so, the court reasoned, because section 90.504 was adopted prior to July 1, 1993, when article I, section 24(d), of the Florida Constitution became effective. That subsection reads:

All laws that are in effect on July 1, 1993 that limit public access to records or meetings shall remain in force, and such laws apply to records of the legislative and judicial branches, until they are repealed. Rules of court that are in effect on the date of adoption of this section that limit access to records shall remain in effect until they are repealed.

Section 90.504(1) provides:

A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from

13 We note, too, it would be somewhat peculiar to hold that third

parties have standing to bring a declaratory judgment action challenging the release of public records in this context since not only does the Act not recognize such a status, section 119.07(9) expressly prohibits a public records custodian from filing a declaratory relief action against a party making a public records request.

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disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife. Section 90.504 is part of the Florida Evidence Code, which "applies to the same proceedings that the general law of evidence applied to before the effective date of this code." See § 90.103(1), Fla. Stat. (2024). As is evident from section 90.504's text and location within the Florida Evidence Code, the spousal privilege is a law that governs the admissibility of evidence in legal proceedings; it is not a law that "limit[s] public access to records or meetings." Accord art. I, § 24(d), Fla. Const. Indeed, no Florida statute recognizes section 90.504 or "marital communications" as a public records exemption. This rule of evidence had no applicability to the question of whether Mr. Ziegler's copied data was a public record. Cf. State v. Grady, 811 So. 2d 829, 832 (Fla. 2d DCA 2002) (holding that section 90.504 did not apply to a husband's report to Florida Highway Patrol that his wife utilized a false driver's license when she was involved in a car collision and observing, "[n]either of the privileges [spousal or attorney-client], nor the Florida Evidence Code in which they are both codified, addresses whether the voluntary disclosure of otherwise confidential information to law enforcement authorities, outside the context of a testimonial proceeding, somehow taints the investigation or the prosecution of criminal conduct" (emphasis added)); Schwarz v. State, 413 So. 3d 143, 146 (Fla. 4th DCA 2025) (rejecting argument that marital privilege barred evidence obtained from a Ring camera provided by a former wife "because this privilege imposes limitations on one spouse's ability to testify against the other spouse regarding marital communications and does not extend so far as to require exclusion of evidence stemming from such communications").

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Here as well, the circuit court's judgment improperly grafted a new exemption into the Public Records Act that was unsupported by any law. Accord Neu v. Mia. Herald Pub. Co., 462 So. 2d 821, 825–26 (Fla. 1985) (holding that section 90.502(1)(c) of the Florida Evidence Code governing attorney-client communications did not create an exception in the Sunshine Law when a city council and its attorney had scheduled a meeting to discuss pending litigation).14 Perhaps a spousal communication exemption (or, for that matter, a Fourth Amendment violation exemption) to the Public Records Act would be good public policy. Or perhaps it would be a terrible idea. Or perhaps something in between. Regardless, the judiciary has no power to make public policy. As the Neu court succinctly put it "This argument should be addressed to the legislature." Id. at 826 (quoting Wait v. Fla. Power & Light Co., 372 So. 2d 420, 424 (Fla. 1979)). Because we are not the legislature, the court's alternative holding cannot stand. See State v. Estime, 259 So. 3d 884, 889 (Fla. 4th DCA 2018) ("It is not our role to act as the Legislature or to add words to the statute which do not exist." (citing Boulis v. Blackburn, 16 So. 3d 186, 189 (Fla. 4th DCA 2009))).

14 Interestingly, this aspect of Neu's holding was eventually

superseded by a statutory amendment. See Collier Cnty. Pub. Schs. v. Mason Classical Acad., Inc., 342 So. 3d 753, 756 n.3 (Fla. 2d DCA 2022) ("Section 286.011 was amended in 1993, ch. 93–232, § 1, Laws of Fla., and it now provides that certain governing boards and executives of state and local governmental entities 'may meet in private with the entity's attorney to discuss pending litigation to which the entity is presently a party' if certain conditions are met. § 286.011(8)."). This illustrates the proper interplay between the public's right to inspect public records under article I, section 24 and the legislature's retained authority under that provision to craft exemptions to that right.

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V.

In sum, the circuit court machinated unwritten exemptions into the Public Records Act out of unpled, inapplicable Fourth Amendment arguments and an equally inapplicable rule of evidence, all of which were raised by parties with questionable standing. Though we have no doubt the court did so out of genuine concern for the Zieglers' constitutional rights, its rulings were no less erroneous. See News-Press Pub. Co. v. Gadd, 388 So. 2d 276, 278 (Fla. 2d DCA 1980) ("Absent a statutory exemption, a court is not free to consider public policy questions regarding the relative significance of the public's interest in disclosure and the damage to an individual or institution resulting from such [public records] disclosure."). Accordingly, we must reverse the final judgment and remand this case for further proceedings that are consistent with this opinion.

Reversed and remanded with directions.

NORTHCUTT, J., Concurs. VILLANTI, J., Concurs specially with opinion.

VILLANTI, Judge, Specially concurring.

I concur and write separately to note something the majority cannot: my belief that the trial court deserves great credit for attempting to do what it thought was the right thing on these unusual facts of first impression. The 46-page final order reflects great courage and extraordinary effort to arrive at what the court believed was the correct outcome. Unfortunately, doing what seems correct is not permitted when in conflict with the law courts are required to apply. As the majority explains, the Zieglers have an appropriate means to pursue relief, and it was not this action.

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Opinion subject to revision prior to official publication.