Rules package to codify remote proceedings argued
Judge Lisa Munyon
A sweeping rules petition designed to promote permanent, broader access to remote court proceedings won’t jeopardize the rights of rural or low-income Floridians or Baker Act respondents, the chair of a Supreme Court COVID-19 Workgroup told justices.
At February 8 oral arguments, Ninth Circuit Judge Lisa Munyon, chair of the “Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19,” said the 18-member panel carefully considered the more than 100 comments the proposal generated after it was filed July 1.
“I will be the first to acknowledge that these rules aren’t perfect,” Judge Munyon said. “The workgroup did the best it could with this complicated subject.”
Judge Munyon addressed concerns ranging from the potential impact on prose litigants and Baker Act respondents, to concerns that the proposal doesn’t go far enough to promote a remote option for routine criminal proceedings.
The Supreme Court chose the remote technology proposal, in which 11 attorneys shared more than an hour of debate, to debut a “hybrid” format that permitted attorneys to appear in person or via videoconference. An inevitable technical glitch forced a few momentary interruptions, with some justices complaining that they had trouble hearing one participant.
“This is the first-time we’ve done hybrid proceedings,” said Chief Justice Charles Canady. “If the volume is turned up all the way, then the volume is turned up all the way…we’ll just have to proceed.”
Mostly drawn to Rule of General Practice and Judicial Administration 2.530 (Communications Technology), the petition encompasses six other rule sets: Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Procedure.
(At the workgroup’s suggestion, Justice Canady ordered the Steering Committee on Families and Children in the Court to develop technology-related amendments for delinquency, dependency, and family law matters on a separate track.)
The Florida Bar, Bar sections, and procedural rules committees all expressed general support for the concept of incorporating more remote hearings into permanent court operations, with the Miami-Dade Bar, the Traffic Court Rules Committee and the Small Claims Rules Committee urging adoption of the proposed amendments as they were originally filed.
Judge Munyon reminded the justices that the workgroup considered all comments and made revisions where appropriate.
“We considered the comments very carefully and tried to make adjustments to the proposals to address the concerns expressed, where we could do so and maintain the fidelity of the rules that we’re proposing,” Judge Munyon said.
Civil legal aid groups expressed some of the most strenuous objections, warning that the proposal would deny access to justice to low-income and rural Floridians who lack technical expertise or reliable access to the internet.
The workgroup recommended amendments to Rule 2.516 that would require self-represented litigants to designate a primary email address for service by electronic mail, unless the SRL declares, under penalty of perjury, that they are in custody, do not have an email account, or do not have regular access to the internet, Judge Munyon told the court.
In its response to advocate concerns, the workgroup proposed creating three forms in the Rules of General Practice and Judicial Administration that self-represented litigants could fill out, on penalty of perjury, and declare a lack of an email address or lack of internet access.
Court clerks could verify that the opt-out forms were properly filled out, and self-represented litigants could fill out an alternate form if they disagree with a clerk’s determination, Judge Munyon said.
“The workgroup made changes and provided forms based on their feedback, however the workgroup does disagree with many of the comments on this issue,” she said. “Because a straightforward process is provided” to be excused from email service, “there is no access issue,” Judge Munyon said.
Justice Alan Lawson noted that Judge Munyon serves on the Florida Courts Technology Commission and referred to a concern advocates raised about internet security.
“Do you think that there is a legitimate concern about security?” Justice Lawson asked.
The e-filing Portal just celebrated a 10-year anniversary without a major incident, Judge Munyon said.
“There are more than 350,000 accounts at the Portal, and of those, more than 243,000 accounts are self-represented litigants,” Judge Munyon said. “If there were security concerns, we would have known it by now.”
Anthony Musto told the justices that the Florida Civil Legal Aid Association that he represents generally supports the workgroup proposals but continues to have concerns about the opt-out provision.
“Those of us who are on one side of the digital divide, the side where the internet is inextricably woven into the fabric of our lives, can very easily lose sight of the fact that there are millions of people…on the other side of the divide, people who face significant hurdles in their lives, because of their lack of access to the internet,” he said.
The opt-out provision would require pro-se litigants to obtain the necessary forms online, Musto noted.
Tony Musto
“This proposal creates a ‘Catch 22’ for these litigants, because the only ones who are going to want to opt out are the ones who don’t have internet access,” Musto said. “But how do you get the form? You go to the court’s website.”
Musto said going to the courthouse to obtain the forms represents a “burden” for pro-se litigants, many of whom, advocates say, lack paid time off or transportation.
Musto urged the justices to consider another solution — adding a provision to Rule 2.515(b), which “deals with the information that self-represented litigants are required to put in their pleadings.”
Pro-se litigants could indicate their lack of an email address by not providing one in the space provided, Musto said.
Justice Ricky Polston, who hails from Northwest Florida, acknowledged that internet access is a concern in rural parts of the state.
“In my neck of the woods, where I come from, there’s no McDonald’s,” he said. “I see those as the most problematic in terms of having access to the internet.”
But Justice Canady asked if the workgroup was concerned that the advocates’ proposal would invite abuse.
“What’s wrong with what Mr. Musto suggested?” Justice Canady asked. “Are you afraid that people who actually have an email address are just not going to want to play in email world?”
“Absolutely,” Judge Munyon said. “I do have concerns that there will be gamesmanship.”
“Help me understand the gamesmanship,” Justice John Couriel asked.
Judge Munyon suggested that litigants could use it as a delaying tactic.
“I don’t want to provide my email address…I want to slow down the proceedings and have that five-day rule,” she said.
Adopting the advocates’ proposal would be “short-sighted,” and allow one pro-se litigant to deny the other parties the ability to appear remotely, Judge Munyon argued.
She cited the Supreme Court’s use of hybrid proceedings for oral arguments in the rules petition. Some circuits have set up kiosks that allow litigants who lack internet access to appear remotely, Judge Munyon said.
“We have gotten pretty creative during the pandemic,” she said. “If a self-represented litigant wants to come to court, that’s great, but it should not stop others who can effectively participate virtually, from participating virtually.”
Judge Munyon addressed a provision that drew intense criticism from advocates for Floridians who are being treated for mental illness.
The workgroup recommended that the Supreme Court reconsider a previous ruling in Doe v. State, 217 So. 3d 1020, 1032 (Fla. 2017), and permit Baker Act proceedings to be conducted remotely.
Judge Munyon acknowledged the recommendation was unusual.
“I can tell you it gives me a bit of angst to be up here asking the court to revisit something like that in a rules petition,” she said.
In the 2017 ruling, justices held that a judicial officer must be physically present to preside over a Baker Act commitment hearing, “subject only to the consent of the patient to the contrary.”
The Florida Public Defender Association, the Ninth Circuit Public Defender, the Citizens Commission on Human Rights of Florida, Disability Rights Florida, and 69 members of the public filed comments opposing the proposal.
“I would respectively submit that simply because something can be done does not mean that it should be done,” wrote 10th Circuit Public Defender Rex Dimming. “It is important to remember that these proceedings involve the most vulnerable people who appear before our courts.”
Eleventh Circuit Assistant Public Defender John Eddy Morrison, representing the Florida Public Defender Association, urged justices not to overturn Doe.
“Although video hearings are often useful and helpful and a good option, they should never be the only option when liberty is at stake,” he said. “That is the fundamental heart in the decision at Doe.”
But the 2017 ruling was based largely on a 1999 report from the Supreme Court’s “Commission on Fairness,” Judge Munyon argued.
“Many of those recommendations in the 1999 report have never been realized,” she said. “A lot has happened in the technology arena in those past 20 years.”
Justice Jorge Labarga agreed.
“When we considered Doe, that was back in 2017, long before this pandemic came around, and we started using Zoom, and all these technologies, and things seem to be a lot better now,” said Labarga, asking also about Munyon’s “comfort level” with “Baker Acting somebody through a television set?”
Judge Munyon acknowledged that remote proceedings wouldn’t be appropriate for every Baker Act proceeding, but she said the proposed amendments provide “a very robust framework” for determining if remote proceedings “serve the interest of justice.”
“It will depend upon the facility and the technology available at the facility,” she said. “If the facility has a laptop that they pass around from one person to the next, would I feel comfortable with that? No.”
Justice Alan Lawson appeared to be impressed with the efficiencies the workgroup cited in its petition. Remote proceedings, among other things, promote safety and security and require less travel, according to the petition.
“Do you think it would be possible to put together a Baker Act hearing room?” Justice Lawson asked. “It seems like given the savings of having judges drive across the county…we could come up with something that could be even better than what we have right now.”
But Caitlyn Clibbon, a public policy analyst for Disability Rights Florida, argued that Baker Act respondents require special protections.
“These are incredibly vulnerable folks who are unable to advocate for themselves effectively,” she said. “We ask you not to just treat them as any hearing.”
Criminal law practitioners urged justices not to adopt the proposed revisions to Rules of Criminal Procedure 3.180(a)(3) and 3.220(o)(1). Regarding pretrial criminal proceedings, the revision states, in part, “A judge may, upon the court’s own motion or upon the written request of any party, direct that communication technology be used by one or more parties for attendance at a pretrial conference….”
Under the proposal, the defendant or defendant’s counsel would be required to waive the defendant’s physical attendance at the pretrial conference. The judge would be required to provide notice to the parties and consider any objections they may have to the use of communications technology.
The workgroup rejected a revision backed by the Criminal Law Section, the Criminal Procedure Rules Committee, and the Florida Association of Criminal Defense Lawyers. The revision states, “A court official must grant a motion to use communications technology for a non-evidentiary proceeding scheduled for 30 minutes or less, unless the court official determines that good cause exists to deny the motion.”
Jason Blank
Jason Blank, chair of the Criminal Law Section, an officer of the Florida Association of Criminal Defense Lawyers, and a member of the Criminal Procedure Rules Committee, told the justices he was arguing on behalf of all three entities.
The proposal promotes greater use of remote proceedings for routine criminal matters, and judges would still retain “a safety valve,” Blank argued.
“Much as Judge Munyon noted, if the [defendants] wish to be represented remotely, why should they not?” Blank asked.
Justice Couriel had questions.
“Why are we in a better world if we’ve taken away that discretion from judges?” he asked.
Many judges still prefer not to employ remote proceedings, Blank said.
“What we are seeing is that some judges just don’t like change,” he said. “Maybe they’re not comfortable with it, maybe they just like to have the social aspect of having lawyers appear before them, and that’s understandable.”
Justice Labarga asked Blank about the “bad behavior” and general lack of decorum that many judges say remote proceedings encourage.
“There seems to be this attitude that all formality with court proceedings is just out the window,” Justice Labarga said.
Blank said judges always have the authority to discipline attorneys.
“That also happens in court, doesn’t it?” Justice Canady quipped.
The oral arguments were presented in Case No. 21-990.
