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Supreme Court adopts rules for remote proceedings

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Florida Supreme CourtThe Florida Supreme Court has adopted, with notable exceptions, a sweeping COVID-19 Workgroup proposal regarding remote court proceedings.

“The proposed amendments, which we adopt with modifications, provide permanent and broader authorization for the remote conduct of certain court proceedings,” Chief Justice Carlos Muñiz stated in a unanimous, July 14 opinion.

The court formed the “Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19” in April 2020 to help guide the court’s response to the pandemic.

Chaired by Ninth Circuit Chief Judge Lisa Munyon, the 18-member panel was also directed to “identify whether certain proceedings, due to efficiencies beneficial to stakeholders, could continue to be conducted remotely when COVID-19 no longer represents a significant risk to public health and safety.”

The Workgroup’s July 1, 2021, rules petition was mostly drawn to Rule of General Practice and Judicial Administration 2.530 (Communication Technology), and encompassed six other rule sets: Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Procedure.

At the Workgroup’s request, the Supreme Court directed the Steering Committee on Families and Children in the Court to address technology issues related to delinquency, dependency, and family law matters. The Supreme Court addressed those proposed rule amendments in a separate opinion, In Re Amendments to Florida Rules of Juvenile Procedure, Florida Family Law Rules of Procedure, & Florida Supreme Court Approved Family Law Forms, Case No. SC22-1. (See story here.)

The Workgroup’s petition generated more than 100 comments, with The Florida Bar, Bar sections, and procedural rules committees all expressing general support for the concept of incorporating more remote hearings into permanent court operations.

During oral arguments in February, Munyon addressed concerns that ranged from the potential impact on pro se litigants and Baker Act respondents, to complaints the proposal doesn’t go far enough to promote a remote option for routine criminal proceedings.

“I will be the first to acknowledge that these rules aren’t perfect,” she said. “The Workgroup did the best it could with this complicated subject.”

The justices generally agreed with many of the Workgroup’s proposals. The amendments take effect October 1.

“A general authorization for court proceedings through communication technology now appears in Florida Rule of General Practice and Judicial Administration 2.530 (Communication Technology) and applies unless another rule of procedure or general law governs,” the opinion states.

The Justices declined to adopt a Workgroup recommendation that they reconsider a 2017 Supreme Court opinion that barred the use of remote technology in Baker Act proceedings.

“However, contrary to the Workgroup’s recommendation, we exclude Baker Act hearings from this general authorization to ensure that court procedure reflects this Court’s constitutional holding in Doe v. State, 217 So. 3d 1020, 1026 (Fla. 2017), that ‘[t]he right to be present at an involuntary commitment hearing is a fundamental due process right,” the opinion states.

Responding to advocate concerns that pro se litigants lack regular access to the internet, 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.

The Supreme Court adopted the forms, with minor changes.

“New forms are adopted for non-represented parties to request to be excused from e-mail service, to designate an e-mail address, and to change a mailing address or e-mail address,” the justices wrote. “We modify the Workgroup’s proposals to automatically excuse non-represented parties in custody from the requirements of e-mail service.”

In the 59-page opinion, the justices said they wanted to “discuss” some of the “significant amendments” as well as the “significant changes to the Workgroup’s proposals.”

They wrote that the new Rule of General Practice and Judicial Administration 2.530, “defines communication technology and allows a court official to authorize its use upon a party’s written motion or at the discretion of the court official.”

The opinion goes on to note that a party may file an objection in writing within 10 days or within a period directed by the court official.

“But the court official is required to grant a motion to use communication technology for non-evidentiary proceedings scheduled for 30 minutes or less absent good cause to deny it.”

Under the amendments to Rule 2.530, the opinion continues, “a motion to present testimony through communication technology is required to set forth good cause and specify whether each party consents to the form requested.”

It continues, “However, only the audio-video communication technology (as opposed to audio communication technology) is authorized for the testimony of a person whose mental capacity or competency is at issue,” the opinion states.

A new Florida Rule of Criminal Procedure 3.116 (Use of Communication Technology) addresses the use of communication technology in criminal proceedings “with delineated exceptions covered by other criminal rules,” the justices wrote, adding that except for its definitions of communication technology, Rule 2.530 doesn’t apply to criminal proceedings.

“Upon the court’s own motion or upon a party’s written request, rule 3.116 authorizes a judge to direct that communication technology may be used by one or more parties for pretrial conferences, but the defendant or defendant’s counsel must waive the defendant’s physical attendance at pretrial conferences pursuant to rules 3.180(a)(3) and 3.220(o)(1).”

If all parties consent, and the defendant waives any otherwise applicable confrontation rights, Rule 3.116 authorizes the judge to allow the taking of testimony through communication technology, the justices noted.

Justices also noted that new Florida Rule of Civil Procedure 1.430(d) (Juror Participation Through Audio-Video Communication Technology), “allows prospective jurors to participate in voir dire and empaneled jurors to participate in civil trials through audio-video communication when stipulated by the parties in writing and authorized by the court.”

Depositions can be taken via communication technology under Florida Rule of Civil Procedure 1.310 (Depositions Upon Oral Examination), “when ordered by the court or without leave of the court if stipulated by the parties,” the justices wrote.

“And the use of communication technology is authorized in mediation and arbitration by stipulation of the parties or by court order under Florida Rule of Civil Procedure 1.700 (Rules Common to Mediation and Arbitration).”

Justices also highlighted technology-related amendments to rules governing small claims and appellate oral arguments.

“We thank the Workgroup for its hard work and dedication in addressing this important matter,” the justices wrote. “We also extend our appreciation to the commenters for their insight and assistance.”

The opinion, 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. SC21-90, can be found here.

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