Newtown plaintiffs had sought the delay because of concerns about COVID-19 public health crisis
The federal judge presiding over the Sarasota County redistricting lawsuit has agreed to push back the trial date to May 11, as the Newtown plaintiffs had requested because of concerns related to the COVID-19 crisis.
U.S. District Court Judge William F. Jung of the Middle District of Florida, in Tampa, ruled after a 28-minute hearing via telephone on April 10, according to minutes of the proceeding. The bench trial originally was set to begin on April 27.
As The Sarasota News Leader reported last week, the three lead plaintiffs in the class action lawsuit — Fredd Atkins, Michael White and Mary Mack of Newtown — filed an April 2 motion, requesting postponement of the trial until the week of May 4 or May 11. Their attorneys pointed to Gov. Ron DeSantis’ April 1 Executive Order that limited “all activity in Florida to essential services for the next thirty days, to limit the spread of COVID-19 …”
However, the outside counsel representing Sarasota County objected, saying they would prefer the trial be conducted remotely; they cited options available through technology.
The Sarasota Journal, which covered the April 10 hearing, reported this week that Jung told the participants, “I’m uncomfortable at trying a high-level case on a TV screen.”
Lawrence Kellogg of the Miami firm Levine Kellogg Lehman Schneider + Grossman, who has been serving as lead counsel for the plaintiffs, expressed the desire for Jung to physically see and hear the witnesses, which, Kellogg said, would give Jung the best opportunity to weigh their credibility, the Sarasota Journal added. “We prefer not to try this remotely,” Kellogg told Jung.
Representing the county, John Boudet, who works out of the GrayRobinson law firm office in Orlando, countered that he did not believe a delay until mid-May would make a significant difference, given uncertainty over when the novel coronavirus pandemic will ebb significantly to allow people to return to their normal activities. “On balance,” Boudet said, “we … concluded a virtual trial is feasible,” the Sarasota Journal quoted him.
The redistricting complaint was filed on Dec. 12, 2019 in response to the County Commission’s Nov. 19, 2019 adoption of new district lines. Commissioners contended that, thanks to the November 2018 passage of the Single-Member Districts County Charter amendment, the population counts needed to be balanced in each district in advance of the 2020 elections. They pointed out that growth in South County had tipped the districts created in 2011 out of balance.
The Charter amendment allows a voter to cast a ballot only for a candidate for County Commission who lives in the same district as the voter.
However, opponents of the redistricting initiative argued that the board members should await data from the 2020 Census, which even the county’s redistricting consultant acknowledged would be more accurate than estimates the consultant’s subcontractor derived at the “block,” or neighborhood level.
Members of the public also have contended that the redistricting was an effort to try to ensure incumbent Commissioners Michael Moran and Nancy Detert could retain their seats. The new district boundaries moved Newtown from District 1 to District 2. Opponents of that action pointed out that the predominantly African-American community has a record of strong support for Democratic candidates, and former Sarasota Mayor Fredd Atkins already had filed as a Democrat to face Moran for the District 1 seat. All five commissioners are Republicans.
The new district boundaries also put most of the city of Venice in District 3. Previously, Detert — who is a Venice resident — would have been vying for another commission term with significantly more North Port voters in her district.
Points and counterpoints
In their motion seeking a delay in the trial schedule, the plaintiffs’ attorneys pointed out, “The parties have continued to take depositions remotely and are on track to complete discovery as scheduled. However, there is simply not enough time or resources to ensure that the parties can meet their pre-trial deadlines in conjunction with preparing for trial while attempting to learn an entirely new and unknown program in which to try a case.” They were referring to virtual meeting technology.
Underscoring their concern, the attorneys continued, “Since the COVID-19 outbreak, the parties have taken six remote videoconference depositions during which they experienced poor connectivity issues making it difficult to discern the witnesses’ live testimony and body language. … [The plaintiffs’ attorneys] cannot reasonably be expected to call and cross-examine witnesses at trial under these circumstances. Moreover, even if the parties were to find an alternative and more sophisticated [software] program, as [Sarasota County’s attorneys suggest], there is no way to ensure that the witnesses to be called at trial have the technological resources to meet those demands.”
The plaintiffs’ counsel further contended that conducting the trial remotely could “allow a hostile witness to use technological issues as an excuse for misunderstanding questions and changing his or her testimony. This may certainly lead to a biased or unfair advantage to either of the parties.”
They also pointed out that, because of the nature of the spread of COVID-19, “Everyone has had to make adjustments that are inconvenient. Sarasota County is no exception. While Sarasota County may find it to be inconvenient, it likely has the ability to fulfill its electoral duties notwithstanding a brief delay to protect everyone’s safety.”
In their response to the plaintiffs’ motion, the attorneys for the county noted that many courts, “including several divisions of the Middle District of Florida,” anticipate the pandemic lasting at least until the end of May or later. “The Orlando Division has continued all jury trials scheduled to begin before June 30, 2020 … while the Fort Myers and Jacksonville Divisions have continued all jury trials scheduled to begin before May 31, 2020.”
The virtual hearing software the county’s attorneys proposed — Zoom — “would be fully controlled by the Court, with a technician available in the courtroom or in chambers to assist the Court and to carry out its instructions,” the attorneys wrote. “Participants would be kept in a virtual ‘waiting room’ until permitted by the Court to enter the videoconference.”
Their proposed solution, they continued, “prioritizes health and safety, respects judicial decorum, preserves the rights of the litigants, and allows free public and press access to the proceedings in a controlled setting.”
Moreover, the county attorneys stressed, “Unlike most civil cases, this case cannot be postponed for a few months until after the pandemic subsides. This case concerns elections that will take place this year. … Even the [April 27 trial date presented] a logistical challenge for the Supervisor of Elections office,” they pointed out.
The Sarasota County Supervisor of Elections Office notes on its website that the qualifying period for the County Commission seats for Districts 1, 3 and 5 — the only ones up for election this year — will begin at noon on June 8 and end at noon on June 12.
Additionally, the county’s attorneys argued that the plaintiffs’ motion was “simply another attempt to garner more time to prepare their case. Despite asking the Court [in early February] to expedite this case … Plaintiffs have repeatedly lagged behind in compliance with pretrial deadlines. This motion is the latest in an ever-growing line of attempts to manufacture time to prosecute their case.”
Among examples of that alleged lag, the county’s counsel cited the following examples: The plaintiffs sought a 10-day extension of the deadline to make initial expert disclosures, “based on an inaccurate factual representation to the Court concerning the availability of witnesses”; “disclosed a fact witness for the first time three days before the fact deposition deadline”; “and issued a deposition subpoena after the deposition deadline and a trial subpoena to a witness whom Plaintiffs never disclosed,” as required by judicial rules of procedure.
In their reply to the county’s response, the plaintiffs’ counsel took issue with the county’s attorneys’ suggestion that the plaintiffs were trying to “‘pointlessly’ delay trial. … Rather, [the plaintiffs] are attempting to prosecute their claims in an effective, efficient and — most importantly — safe way. Sarasota County’s attempt to suggest otherwise is offensive.”
Further, the plaintiffs’ attorneys contended, while a consultant for the county’s counsel “says that Zoom has addressed security concerns by requiring a password for entry into the virtual courtroom that will be created, this is small comfort in light of the documented shortcomings in the Zoom app’s software encryption that has caused hackers to disrupt Zoom meetings and elementary school virtual classrooms.”