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Proposed remote court appearance rules could hamper low-income parties

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Florida Sheriffs Association and Public Defenders Association also voice some reservations

Florida courtsBar sections and procedural rules committees have expressed support for rule amendments to incorporate more remote hearings and other proceedings into court operations, but representatives for low-income and self-represented parties said that could be a disadvantage for Floridians without sufficient online access or technical knowledge.

In addition, the Florida Sheriffs Association said steps should be taken to ensure that during remote depositions, video recordings or still images are not taken of active law enforcement personnel, particularly those working undercover, and of victims and witnesses protected under the state’s Marsy’s Law constitutional amendment. And the Florida Public Defenders Association called for changes to make remote depositions in criminal cases easier and to guarantee defendants the right to personally appear in any court proceeding in their case.

The filers were reacting to proposed rule changes from the Supreme Court’s Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19. The workgroup helped the court manage changes needed to keep courts operating during the COVID-19 pandemic and now has proposed some of those changes should be kept or modified to help streamline court operations.

The proposed amendments are designed to facilitate greater use of remote proceedings and center on a proposed rewrite to Florida Rule of General Practice and Judicial Administration 2.530 (Communications Technology). The petition also encompasses six other rule sets — Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Practice.

Deadline for comments was September 30, and the final days brought a flurry from several procedural rules committees, two Bar sections, the Florida Public Defenders Association, the sheriffs, The Florida Bar Foundation, and other interested parties.

The Foundation joined observations made by the Florida Civil Legal Administrators Association, which is made up of legal aid executives from across the state, in saying the rule amendments could hurt low-income residents.

“Florida’s most vulnerable populations lack the means and wherewithal to obtain the necessary technology in order to comply with mandatory e-service, e-filing, the creation of email addresses, and virtual appearances for hearings. Requiring someone unable to afford, use or understand a technological tool in order to access the justice system could literally close the courthouse doors for those unable to cross the technological threshold,” the Foundation said in its comment. “Secondly, the proposed rule is likely to result in increased defaults or dismissals entered against persons with meritorious claims or defenses, but who lack the means or aptitude to comply with the proposed technological requirements.”

That in turn would cause delays in proceedings, dismissals of meritorious claims, and more judicial and staff time to handle cases, including motions to set aside defaults or to refile claims, the Foundation said, and for making accommodations for parties without access to technology.

The Self-Represented Litigant Network, a nationwide collaboration aimed at helping pro se parties with their court needs, said that while most Floridians have online access and technology to participate in remote court proceedings, the best data from internet providers, government agencies, and technology companies shows many do not.

“[T]he data also unequivocally demonstrates that nearly three million Floridians do not have access to the necessary technology and that this burden of digital exclusion falls disproportionately on Black and Brown households, as well as the elderly,” the Self-Represented Litigant Network said, adding others with access don’t know how to use the technology and/or face a language barrier in using it.

Aside from access issues, the Self-Represented Litigant Network said in its lengthy comment that the rule amendments raise questions about due process, equal protection, and neutrality issues; place administrative burdens on judges, clerks, and lawyers in dealing with parties without access to technology; and impose cyber security risks for the public and lawyers. The organization called for changes to the proposed amendments and in some instances more study.

The Florida Sheriffs Association said it had concerns about workgroup proposals on allowing remote depositions, which it said would inevitably be recorded.

That could cause problems as state laws limit the photographing of law enforcement personnel, with extra protections for those working undercover. It also raises concerns about victims and witnesses whose identity and other information is protected under the Marsy’s Law constitutional amendment.

“Sheriffs oppose any videotaping of law enforcement personnel in civil depositions and in criminal depositions,” the association said in its comment. “We also oppose videotaping of depositions of all witnesses in criminal cases with the exception of minors or sensitive witnesses. Where permitted, we urge controls be placed on the dissemination of the videotape. If videotapes are allowed, they should not be of right but instead upon a showing of good cause being found by the court. We also oppose any image of a case deponent being ‘screen shot’ or otherwise memorialized and seek clear authorization to allow the facial images of undercover personnel appearing for depositions to be protected.”

The association proposed changes to the workgroup’s rules that would prevent audio/visual recordings of law enforcement personnel appearing in their official capacity or any picture taken of them during the deposition. Depositions taken under Fla. R. Crim. P. 3.220 should limit recording of depositions and require those videotaped to be held under seal and not be disseminated without approval of the court. Undercover law enforcement personnel would also be able to shield their faces during the recorded deposition, under those amendments.

The Florida Public Defender Association said it was guided by three principles: remote technology should be an option for procedural and informational proceedings; “[r]emote technology should not be used in substantive proceedings where liberty is at stake;” and an individual should always have the right to appear in person at any court proceeding in his or her case.

The Florida Public Defender Association proposed that counsel seeking a deposition should be able to use remote technology without a stipulation or court order as a way of streamlining depositions and saving court time. If the opposing attorney disagreed, that counsel could file for a protective order and witnesses without access to remote technology could also request an in-person deposition.

Since attorneys, parties, and court reporters could all be in different places, the rule should be changed to no longer designate a “location” for the deposition, the FPDA said. And parties should have the option of deciding how to record a deposition rather than requiring it be done before a court reporter.

The public defenders also objected to the workgroup’s recommendation to reconsider Doe v. State, 217 So. 3d 1020 (Fla. 2017). The association said it is not a rule but a substantive law issue and should wait for a suitable case in controversy since it affects the holding of in-person proceedings in important matters affecting an individual’s liberty.

“With such stakes, there is no substitute for gathering in person to resolve the issue. Anything else trivializes the importance of what is occurring,” the FPDA said.

The latest filings from Bar sections and procedural rule committees generally supported the workgroup.

The Criminal Law Section filed comments endorsing the amendments, saying it “is urging all courts throughout the State of Florida to utilize virtual court proceedings for non-essential, non-evidentiary criminal court filings.” That, the section said, creates a safer and more efficient court system.

The section noted the Rules of General Practice and Judicial Administration Committee, in its amendments to Rule 2.530 on remote communications, left a “carve-out” for criminal proceedings from the requirement to normally use remote hearings for non-evidentiary hearings. The section said the carve-out is not needed.

The Bar’s Alternative Dispute Resolution Section said it supports continued use of remote technology in mediation and arbitrations but suggested some technical changes to the workgroup’s proposed ADR rules.

The section said a survey of its members found 79% believe remote mediations were effective; 66% said the settlement rate was higher in virtual sessions; 63% did not believe the settlement rate would have been higher in live mediations; 70% received positive feedback on remote sessions from lawyers and pro se clients; and “85% were in favor of the Court continuing/ordering virtual mediations in the future.”

But further consideration is needed on some issues, including whether mediations should be by phone only; whether one party could attend by phone only while another party attends by video’ ensuring that unseen third parties aren’t coached or provided signals when appearing remotely; and determining the role of the mediator in ensuring such fair and equal access concerns. The section made several technical recommendations to the workgroup’s proposed rules.

The Appellate Court Rules Committee endorsed the workgroup’s proposed appellate mediation rules (9.700, 9.720, and 9.740) but proposed a revision to its proposed Rule 9.320 on oral arguments.

“[T]he majority [of the rules committee] does not believe it is necessary that the rule be amended to encompass subsections detailing motions practice before the appellate courts with respect to the discretionary use of communications technology or its possible malfunction in any given case,” the committee said. “The appellate courts already possess the discretion to grant remote argument based on motion or their own initiative and have done so for over a year as they continue to address the ongoing pandemic…. It may also be premature to impose rule-based uniformity of practice on the appellate courts, given the developing and unique circumstances to which the district courts of appeal must routinely respond.”

The committee proposed a much shorter Rule 9.320.

The Probate Rules Committee endorsed the changes proposed by the Rules of General Practice and Judicial Administration on Rule 2.530, with one technical change to add “mental capacity” to mental competency as being at issue for a request to use audio-visual technology for remote testimony.

The committee endorsed the workgroup’s changes to Fla. Prob. R. 5.080, as long as Rule 2.530 is adopted and Rule of Civil Procedure 1.451, which would no longer be needed with the changes, is deleted.

The Criminal Procedure Rules Committee supported workgroup proposals on several criminal rules: 3.116 (Use of Communication Technology), 3.130 (First Appearance), 3.160 (Arraignment), 3.130 (Presence of Defendant), 3.191 (Speedy Trial), 3.220 (Discovery), and 3.851 (Collateral Relief After Death Sentence Has Been Imposed and Affirmed on Direct Appeal).

And citing support from the Criminal Law Section and the Florida Association of Criminal Defense Lawyers, the committee supported requiring judges in Rule 3.116 to allow motions for remote evidentiary hearings unless the court finds good cause to reject the request.

The Florida Public Defender Association and the Alternative Dispute Resolution Section requested oral argument on the workgroup’s proposed rule changes.

All the comments can be found on the docket page for Case No. SC21-990.

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