Sarasota attorney tells News Leader he expects plenty of debate in lawsuit over ‘discovery’ access to documents individual commissioners might have had that full board did not see
Just before 3:30 p.m. on Dec. 18, Sarasota County was served with a federal lawsuit filed on Dec. 12, in response to the 3-2 County Commission vote on Nov. 19 to adopt new district lines.
That was the information The Sarasota News Leader received from Bethany Higgins, public records specialist with the county.
The summonses give the county 21 days to respond to the complaint.
Earlier this week, Kim Francel, the county’s public records coordinator, told the News Leader in an email, “It’s my understanding that it could be up to 90 days before we are served.”
Even before the formal service, the County Commission had approved the hiring of outside counsel to handle the case. That action took place on Dec. 13, during the board’s annual retreat, Media Relations Officer Drew Winchester reported to the News Leader.
The law firm of GrayRobinson will represent the county, Winchester added. GrayRobinson has offices in Tampa and Fort Myers, among other locations around the state.
Additionally, related action has been underway in the U.S. District Court for the Middle District of Florida, in Tampa, where the suit was filed.
For example, the News Leader learned this week that the federal judge assigned to the case formally has designated it a “track 2” proceeding, meaning a jury trial is likely unless a settlement can be reached.
The judge presiding over the class action complaint is William F. Jung, a Republican. He was nominated to the court by President Donald Trump on Dec. 21, 2017, according to Jung’s biography on the website of the U.S. District Court for the Middle District of Florida, in Tampa.
Jung won U.S. Senate confirmation on Sept. 6, 2018; then, he received his commission on Sept. 10, 2018, the website notes.
Previously, Presidents George W. Bush and Barack Obama had nominated Jung to the federal bench, Wikipedia reports, but both nominations expired without action as the respective sessions of Congress ended. The Bush nomination came on July 10, 2008, Wikipedia says, while the Obama nomination came on April 28, 2016.
A native of Belvoir, Va., Jung is a magna cum laude graduate of Vanderbilt University and a summa cum laude graduate of the University of Illinois College of Law. He served as a law clerk for U.S. Supreme Court Justice William Rehnquist from 1984 to 1985, the federal court website notes.
Jung was an assistant U.S. attorney assigned to the U.S. District Court for the Middle District of Florida from 1990 to 1993, the court website says. Prior to that — from 1987 to 1990 — he was an assistant U.S. attorney with the U.S. District Court for the Southern District of Florida.
On Dec. 16, the federal court docket noted that the summonses in the lawsuit had been issued for all the defendants. Along with the county, the suit names Commissioners Nancy Detert, Alan Maio and Michael Moran, as each of them voted on Nov. 19 to adopt new County Commission district lines that moved the Newtown into District 2.
As multiple speakers had pointed out before that vote — and during a special, Oct. 30 County Commission meeting on redistricting — the district shift effectively disenfranchised the voters in the traditionally African-American community in North Sarasota. Instead of being able to participate in the 2020 election for the District 1 seat, they will have to wait at least until the 2020 election to vote again. That fact is a result of voters’ passage in November 2018 of the Single-Member Districts County Charter amendment. It says that only citizens in a district may vote for candidates for County Commission who live in the same district. Previously, all board members were elected countywide.
Commissioner Moran represents District 1, while Commissioner Detert holds the District 3 seat. Both their seats are up for re-election in 2020, though only Detert has said she plans to run again.
The District 5 seat held by commission Chair Charles Hines also will be open, as Hines is having to step down because of term limits.
All five of the commissioners are Republicans; members of the public repeatedly have pointed out in past months that no Democrat has served on the board for about 50 years.
Speakers at commission meetings also pointed out that Newtown voters are predominantly Democrats.
Prior to the passage of the new county district lines, former Sarasota Mayor and City Commissioner Fredd Atkins, a Democrat, had filed to run for the District 1 seat. He lost to Moran in the 2016 election.
However, as redistricting opponents have stressed, Atkins beat Moran in Newtown precincts in that race. For example, Atkins won 1,331 votes in Precinct 103, compared to Moran’s 484. That precinct’s polling place is the Betty J. Johnson North Sarasota Library on Newtown Boulevard.
For a second example, Atkins won 3,002 votes to Moran’s 577 in Precinct 115, whose polling place is the Robert L. Taylor Community Complex in North Sarasota.
Atkins is one of the three plaintiffs in the class action lawsuit, all of whom are Newtown residents. As the complaint makes clear, Atkins no longer is eligible to run for County Commission — unless the federal court rules that the new district lines violate the U.S. Voting Rights Act and the 14th Amendment to the Constitution, as the complaint contends.
Insights into the lawsuit
On Dec. 13, the News Leader interviewed Morgan Bentley of the Bentley & Bruning law firm in Sarasota, to ask about facets of the federal lawsuit.
First, in response to a question about Commissioners Detert, Moran and Maio having been named individually in their capacity on the board, Bentley said such individual summonses were not at all unusual in a voting rights case,
Asked whether that action could open up the discovery process. Bentley replied, “That’s a really good question,” adding that discovery case law “is complex at best.”
“The courts go back and forth on whether or not discovery should be allowed [in complaints like this],” Bentley continued. The crux of the issue is that a decision has been made by the collective body — in this case, the County Commission. However, he said, a “layer of confusion” revolves around whether the plaintiffs’ attorneys are entitled to see what ended up in individual commissioners’ hands. Some case law, he added, concurs with the school of thought that if one commissioner had documents that the others had not seen, “Then there is no privilege.” In other words, those documents would be open to discovery.
The big question is how can one prove that an individual commissioner had documents that the others never saw.
“Here,” Bentley said, “I can guarantee you there’s going to be some arguments around legislative privilege.”
His expectation, he continued, “is there’s probably going to be some cross filing [of motions over] how much discovery can go on.”
In any matter regarding what the court considers “protected classes,” Bentley added, “These issues are going to come up. … This is a very serious complaint.”
He also talked briefly about the fact that the attorneys have sought class action status for the complaint. “Just because you ask for class action,” Bentley said, “it doesn’t mean you get it.”
With this case, he pointed out, a related critical question for the court will be, “Are these particular plaintiffs adequate representatives of that class? I would think so.”
Even if it is not certified as a class action, suit, he said, it can proceed.
Making their voices heard once more
During a Dec. 13 rally at Phillippi Estate Park, where the County Commission was holding its annual retreat, multiple speakers again criticized the commission’s disenfranchisement of Newtown voters.
In addition, New College political science professor Frank Alcock talked about the fact that map the commissioners adopted was a revised version of one that former Sarasota County Republican Party Chair Robert Waechter of Siesta Key submitted to the county in October under the nom de plumeof Adam Smith.
Opponents of redistricting expressed even greater outrage after Waechter admitted first to the Sarasota Herald-Tribune and then to the News Leader that he had drawn the original version of the map. The county’s Tallahassee redistricting consultant modified it to balance the district populations.
Waechter pleaded guilty in late 2013 to trying to besmirch the reputation of a fellow Siesta Key resident and Republican, Lourdes Ramirez, who was looking ahead to a run for the County Commission. Waechter admitted to having bought a gift card to use making contributions in her name to Democratic candidates in 2012 races. Ramirez unsuccessfully brought a civil suit against Waechter, alleging that his actions had made it impossible for her to have a fair chance at winning the District 4 seat on the County Commission.
During the Dec. 13 rally, Alcock said the board’s adoption of the new map “only makes sense to me if this is one act in a two- or three-act play.”
He would not be surprised, he added, if the commissioners made an effort in 2020 to remove the Single-Member District amendment from the County Charter. It would not be that difficult for them to do, he emphasized, given the Charter guidelines for board-initiated amendments.
Former Sarasota Mayor Atkins, who was among the rally participants, called out, “They did it before!”
Dan Lobeck, president of the nonprofit organization Control Growth Now, has reminded the public that in the early 1990s, a Single-Member District initiative was implemented. However, Lobeck has said that developers were responsible for getting rid of that system two years later.
“This is a long struggle, a long battle,” Alcock told the rally attendees. “Don’t think that [the commissioners’] brazenness has any limits.”
Kindra Muntz, president of the Sarasota Alliance for Fair Elections (SAFE), which worked to get the Single-Member Districts amendment on the November 2018 ballot, called the approval of the new commission district lines “a blatant attempt by the commissioners to bypass the will of the people.”
The goal of the amendment, she pointed out, is “to have more direct representation and accountability from our elected officials. Now, out of fear of losing control over our commissioners, a handful of power brokers are gerrymandering the districts prior to the 2020 Census and disenfranchising an entire community …”
The organizers of the rally, Muntz said, were Control Growth Now, the Sarasota County chapter of the NAACP, the Sierra Club’s Manatee-Sarasota Group chapter, and a new organization called Citizens for District Power.
The latter group had sent a letter to the commissioners in advance of the Dec. 13 retreat, making seven requests. Among them were the following:
“1. Single Member Districts: We urge you to produce clear simple voting directions, with detailed maps showing all precincts with updated boundaries, so that all citizens will be clear about where they will vote in primaries and general elections.
“2. We strongly advise against consideration of any amendment to overturn the Single Member District decision approved by a clear bi-partisan majority of voters in 2019.”