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Rules package promotes greater use of ‘communications technology’

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'The Workgroup determined that permanent, broader authorization for the remote conduct of court proceedings after the pandemic was warranted based on the positive outcomes and efficiencies being observed during the pandemic'

Judge Lisa Munyon

Judge Lisa Munyon

The Florida Supreme Court is extending a public comment period for a rules petition submitted by its COVID-19 workgroup that is designed to promote greater use of “communications technology.”

Centering on a proposed rewrite to Florida Rule of General Practice and Judicial Administration 2.530 (Communications Technology), the package is also drawn to six other rule sets — Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Procedure.

“The main focus of 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,” said Ninth Circuit Chief Judge Lisa T. Munyon, who chairs the workgroup.

On August 24, the Supreme Court granted a request by the Florida Civil Legal Aid Association to extend a deadline for public comments from August 31 to September 30. The workgroup will have until October 21 to file a response.

The rules package reflects the Supreme Court’s extraordinary embrace of remote technology to navigate the COVID-19 pandemic, and was one of many tasks assigned to the “Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19,” as the workgroup is officially known.

After months of deliberation, “The Workgroup determined that permanent, broader authorization for the remote conduct of court proceedings after the pandemic was warranted based on the positive outcomes and efficiencies being observed during the pandemic,” the petition states.

In addition to “significant cost and time savings for litigants, counsel and other stakeholders,” the petition cites increased appearance rates, benefitting public and private employers by lessening the time required for employees to make court appearances and appear for jury duty, reducing courthouse foot traffic and “in turn, potentially reducing costs for facility space, security, and maintenance,” and expanded public access when remote proceedings are live-streamed or taped.

However, the workgroup recognized that remote proceedings “are not appropriate in all circumstances, (e.g., not all participants will have the means to participate in remote proceedings or not all courtrooms will have the technological capability to effectively conduct all types of remote proceedings).”

Which is why, according to the petition, the proposed amendments to Rule 2.530 “require the court official to consider any objections to the use of remote technology and to ultimately approve all use of communication technology.”

In subdivision (b) of Rule 2.530, the amendments provide that communication technology may be used for trial court proceedings as specified in the rule, “unless another rule of procedure or general law governs.”

The same concern prompted the workgroup to propose a new procedural rule to govern the use of communications technology in criminal proceedings.

But the workgroup concluded that it needed “greater subject matter expertise” when it comes to rules governing delinquency, dependency, and family law. Chief Justice Charles Canady ordered the Steering Committee on Family and Children in the Courts to develop amendments to those areas by December 31.

The workgroup’s proposal is largely permissive, Judge Munyon said.

“Remote depositions are here to stay, and I suspect remote mediations are here to stay, and remote hearings are here to stay,” she said. “Whether a particular hearing is so complex that it needs to be in person, or the evidence is such that it needs to be in person, will be treated on a case-by-case basis.”

At the urging of then Florida Bar President Dori Foster-Morales, the COVID-19 Pandemic Recovery Task Force conducted a Bar-wide survey on remote court proceedings earlier this year.

The survey was emailed to 4,000 Bar members from January 13-27 and generated a nearly 34% response rate, which is considered robust.

The survey found that most Bar members would prefer continuing routine and non-evidentiary proceedings after the pandemic subsides, but not trials.

Since it was filed July 1 and noticed in the Bar News August 1, the proposal has generated only a few formal comments from the legal community.

In its request to extend the comment period, the Florida Civil Legal Aid Association said it “reviewed the proposed rules with various community stakeholders, including those serving pro se litigants in other ways throughout the community, and needs additional time to cull their feedback and for them to submit comments of their own should they so choose.”

The group wrote that the Self Represented Litigants Network intends to file a comment, and others could possibly come from the ABA, the National Legal Aid and Defender Association, and the United Way.

Most comments have come from a handful of members of the public who are strongly opposed to conducting Baker Act hearings remotely.

“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 workgroup noted in the petition that “Baker Act proceedings have not been expressly excluded from the proposed amendments for subdivision (c)(2) [to Rule 2.530] based on Doe v. State.”

In the 2017 opinion, the court majority held, among other things, that “the right to be present at an involuntary commitment hearing is a fundamental due process right.…”

The petition “respectfully” asks the court to “reconsider Doe in recognition of the advancements in, and increased judicial and stakeholder experience with, currently available audio-video communication technology.”

Munyon said the workgroup felt that the request, while unusual, was important. The Supreme Court permitted Baker Act hearings to be conducted remotely to accommodate the pandemic, and the experiment has proved successful, Judge Munyon said.

“I recognize that the court doesn’t generally consider overturning cases in a rule petition,” she said. “However, the Doe decision addressed the rule, as well as constitutional issues. And I believe the only way to actually litigate those constitutional issues again is if we don’t have to deal with a rule that prohibits virtual appearance, otherwise, it’s never going to get to the court in a case in controversy to be decided on the constitutional issue.”

The few comments the court received from attorneys have been supportive and suggest only minor changes to make it easier to use communications technology.

“As one of the many who have participated in Zoom mediations and arbitrations during the pandemic, I find general agreement that this has worked very well for all concerned, particularly those who would have to travel considerable distances to attend in person,” wrote Naples attorney Douglas L. Wilson.

“I am concerned that an inadvertent failure to reference the use of communication technology in the referral order may have the unintended consequence of forcing the parties into personal attendance, or alternatively creating a burden on counsel and the court in amending the referral order to permit use of communication technology,” wrote Ft. Myers attorney Simon M. Harrison.

Assembling the package was arduous work, but it would have been much harder to accomplish in a traditional rule-making process, Judge Munyon said.

“It is very difficult when you have discreet committees overseeing a rule set to have a petition that combines many different rules sets for concurrent changes,” she said. “I believe that this will have streamlined the rule-making process, if it is successful.”

The task force represents a broad spectrum of stakeholders, Judge Munyon said, and includes a member of The Florida Bar Board of Governors, a sheriff, a circuit court clerk, the Supreme Court clerk, a district court of appeal chief judge, a district court of appeal marshal, representatives from the public defender and prosecuting attorney associations, a trial court administrator, and a court technology officer.

“Each of these stakeholders reached out to others within their constituencies,” she said. “So, we have heard from literally thousands of people through these representatives.”

Judge Munyon acknowledges that the proposal encompasses so many rule sets that it is unlikely to please everyone.

“As with anything else, change is sometimes difficult, and the legal profession by its very nature is very cautious and doesn’t change quickly,” she said. “However, the pandemic forced us all to change.”

In Re: Amendments to Florida Rules of Civil Procedure, Florida Rules of General Practice and Judicial Administration, Florida Rules of Criminal Procedure, Florida Probate Rules, Florida Rules of Traffic Court, Florida Small Claims Rules, and Florida Rules of Appellate Procedure, Case No. SC21-990, can be found here.

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