Federal judge could award approximately $20,000, county’s outside counsel says
It took less than 8 minutes of discussion on May 20 before Sarasota County Commission Chair Michael Moran told County Attorney Frederick “Rick” Elbrecht to proceed with filing for about $20,000 in court costs that Elbrecht said he believed a judge would award the county in the redistricting lawsuit the county won early this month.
During that discussion, however, Commissioner Nancy Detert called the federal complaint filed against the county on Dec. 12, 2019 “not only a frivolous lawsuit but a very insulting lawsuit, where we were basically all called racist.”
In a memorandum provided to the commission in advance of the regular meeting this week, Elbrecht explained, “As prevailing parties, the Defendants can seek to recover litigation costs from the Plaintiffs who brought the lawsuit.” Recoverable costs in federal court, Elbrecht added, “are limited to certain out of pocket expenses directly related to the litigation.”
In regard to the class action complaint involving the board’s redrawing of new district lines, Elbrecht noted in the memo, “[M]ost of the litigation costs are related to deposition expenses including court reporter fees and deposition transcripts. Our trial counsel, Andy Bardos of the Gray Robinson law firm [in Tallahassee], estimates [those] costs to be approximately $20,000.”
In a 31-page order issued on May 4, U.S. District Court Judge William F. Jung of the Middle District of Florida, in Tampa, dismissed the case, writing that he found “race was not the predominant motive” in the establishment of the new districts.
“For Plaintiffs to prevail under the controlling law,” Jung wrote, “race must not only have been a motive, it must have been the predominant motive [emphasis in the document].”
Jung added, “There is no genuine issue of fact in this record …”
On Nov. 19, 2019, commission voted 3-2 to approve new district boundaries that relocated the traditionally African-American community of Newtown, in North Sarasota, from District 1 to District 2. Opponents decried the action, with several pointing out that the new map was designed to keep Newtown citizens from voting in the election this year for the District 1 seat.
Former Sarasota Mayor and City Commissioner Fredd Atkins, a Newtown resident, had filed as a Democrat to challenge District 1 incumbent Michael Moran, a Republican.
Atkins was one of the three lead plaintiffs in the lawsuit; the others were Mary Mack and Michael White.
Because of the November 2018 passage of a Single-Member Districts County Charter amendment, only citizens who reside in the same district as one or more candidates can vote for a candidate for that district seat. The August Primary and November General Election this year will include votes on the seats for Districts 1, 3 and 5. As a result, Newtown residents will not be able to participate at all in the 2020 election.
Requesting direction
After addressing the topic during his report to the board on May 20, County Attorney Elbrecht asked for direction about whether to pursue the recovery of the court costs.
When the county prevails in a legal challenge, Elbrecht explained,
“The normal practice of our office is to attempt to recover whatever we can on behalf of the county taxpayers …”
“The judgment would be obtained against the plaintiffs,” he added, “and we could seek to collect on that judgment.”
“I would say that you should proceed in our usual manner,” Commissioner Detert responded — the first board member to offer a comment on the issue.
Detert also was the first board member to call for redistricting last year, instead of awaiting the results of the 2020 Census. She and her colleagues contended that, because of significant population growth in South County, the districts approved by the County Commission in 2011 probably were out of balance. It would not be fair, board members argued, to have an unequal distribution of the population, in light of the passage of the Single-Member Districts amendment.
Continuing her May 20 comments, Detert pointed out that it was necessary for the county to hire outside counsel to fight the redistricting lawsuit, and those attorneys had to travel to Tampa to handle facets of the litigation.
Addressing Elbrecht, she said, “We have year-round, salaried employees to handle legal issues. … But because of this lawsuit, we were put to an extra expense …”
She added, “I don’t think the people who participated in this lawsuit should be surprised to lose,” and they should not be surprised to learn the commission would agree to the pursuit of the judge’s award of costs. “We’re not being vindictive or punitive.”
Detert also referenced accusations that the redistricting initiative was characterized as a political move to enable Commissioner Moran to keep his District 1 seat. (Some opponents of the new districts contended that the shift of the lines also would facilitate Detert’s re-election. Before the new districts were approved last year, Detert — who lives in Venice — would have been seeking re-election in District 3, which had far more North Port residents — and North Port candidates. The new lines put most of the city of Venice in District 3.)
On May 20, Detert also criticized the Sarasota City Commission for voting unanimously on a resolution that called for the County Commission to halt its 2019 redistricting initiative. “That was signed by all of them and their attorney,” Detert said of the city board members. “I consider that pretty political, too.”
“I tend to agree,” Moran responded.
“I see no reason to deviate from your normal legal process,” Moran also told Elbrecht. “My personal feelings aside, this is taxpayer money, and I think we are fiduciary of that.”
“Seeking costs is almost a given,” added Commissioner Charles Hines, an attorney.
Then Hines voiced frustration over the board discussion that day. “We’re dancing around this because of a claim of racism. There was no evidence of that vote being racist,” he said of the approval of the new district boundaries.
Hines and Commissioner Christian Ziegler cast the “No” votes. Ziegler had argued that the board should wait for the new Census data. However, Hines indicated that he could not support the map that had been proposed with the new boundaries. Not only did it move Newtown into District 2, but the basis for the map was a submission from Siesta Key resident Robert Waechter. In 2013, Waechter — a former chair of the Republican Party of Sarasota — admitted guilt to a misdemeanor charge involving his contributions, in the name of Siesta resident Lourdes Ramirez, to Democratic candidates running for office in 2012. Ramirez, a Republican, claimed that the action was designed to besmirch her reputation as she was preparing to run for the District 4 seat in 2014; she subsequently lost in the Republican Primary to Commissioner Alan Maio.
During the May 20 discussion, Hines talked about the fact that, “very early on” in the litigation, the plaintiffs in the redistricting lawsuit were able to get copies of public records and then take depositions, which, Hines maintained, showed “there was no evidence that that [redistricting] vote was based upon race. At that point, those costs could have been stopped.”
“To suddenly ask us to do things differently because of race,” Hines continued, would make the commissioners appear “to be racist.”
After Hines concluded his remarks, Moran summed up the discussion for Elbrecht as board consensus for pursuit of the costs. “Go forward, Rick.”