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Comments rolling in on COVID-19 Workgroup’s proposals for greater use of remote technology

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Jury selectionA Maitland attorney concerned about loss of decorum, and a magistrate judge who raises the specter of Ebola are the latest to file comments to a Supreme Court workgroup rules petition regarding communications technology.

“While remote dispute resolution proceedings have been effective during the pandemic, participation by phone and videoconferencing is not ideal,” wrote attorney Michelle Jernigan.

“I believe there are certain instances in which the courts, litigants, and public can benefit from having greater judicial consistency as it relates to the use of remote technology,” wrote 11th Circuit General Magistrate Alvan Balent, Jr.

The Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19, otherwise known as the COVID-19 Workgroup, filed the petition July 1.

The extensive package centers on a proposed rewrite to Florida Rule of General Practice and Judicial Administration 2.530 (Communications Technology) and encompasses six additional rule sets — Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Procedure.

Chief Justice Charles Canady has given the Steering Committee on Family and Children in the Courts until December 31 to develop similar rule amendments addressing delinquency, dependency, and family law proceedings.

Ninth Circuit Chief Judge Lisa T. Munyon, who chairs the COVID-19 Workgroup, said the proposed amendments are largely permissive.

“The main focus on our rule package was to permit virtual rules to continue, to provide for virtual oaths to be administered remotely, and to authorize the use of virtual hearings under many circumstances.”

The Supreme Court on August 24 granted a Florida Civil Legal Aid Association request and extended the comment period until September 30. Responses are due October 21.

So far, most comments have come from Florida residents opposed to remote Baker Act hearings.

In its petition, the COVID-19 Workgroup urged justices to reconsider Doe v. State, 217 So. 3d 1020, 1026 (Fla. 2017), a decision that essentially bars the use of videoconferencing in Baker Act proceedings.

“The recent sustained and widespread use of this technology to conduct virtually all types of court proceedings strongly suggests that Baker Act proceedings can now effectively be conducted remotely while meaningfully preserving individual rights,” the petition states.

Most of the comments strongly disagree.

“I can assure you allowing Baker Act hearings remotely will open the door to the most egregious harm of individuals by watering down and demolishing their human rights,” wrote Kathy Sweigart, who identified herself only as a Florida citizen. “Involuntary psychiatric commitment is not a light matter.”

The few Bar members who have commented so far have been supportive or suggested minor changes.

Jernigan, the Maitland attorney, urges the COVID-19 Workgroup to consider making in-person proceedings a priority for mediations, where she suggests decorum plays a significant role.

“Often the mediation process is the only opportunity a litigant may have to ‘tell their story,’ receive the satisfaction of being heard, and participate in the resolution of their lawsuit,” Jernigan wrote. “The decorum associated with in-person mediation lends itself to a process more likely to be seen as important and valuable.”

Judge Balent, the 11th Circuit chief magistrate, supports the proposal and wants the COVID-19 Workgroup to go even further.

Judge Balent suggests adding committee notes to Rule 3.250 that encourage the use of remote technology in three specific situations, including “cases involving infectious diseases such as, but not limited to, tuberculosis proceedings under Ch. 392 or a habeas writ challenging a mandatory quarantine like there were in other states during the 2014 Ebola outbreak.”

The other two situations involve inmates appearing in civil proceedings, or witnesses who would be otherwise required to travel 50 miles or more to reach the courthouse.

“While these scenarios are covered in the proposed rule’s multiple factors, they are ones — and there are possibly others — where additional guidance is likely to greatly assist judicial officers when exercising the broad discretion they will have under the new Rule 2.530,” he wrote.

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