ACLU v. City of Sarasota - Transcript June 12 2014

8/12/2019 ACLU v. City of Sarasota - Transcript June 12 2014

1/34

Page 1

1 IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA2 CIVIL DIVISION

3 CASE NO.: 2014-CA-003248-NC45 AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC., and MICHAEL BARFIELD,6 Petitioners,

7 vs.8 CITY OF SARASOTA and MICHAEL JACKSON,910 Respondents.

11 --------------------------------------------/12 STATUS CONFERENCE1314 BEFORE: Honorable Charles E. Williams15 DATE TAKEN: Thursday, June 12, 201416 TIME: Commencing at 9:03 a.m.

17 PLACE: Sarasota County Courthouse 2002 Ringling Boulevard18 Sarasota, Florida 3423719202122 Proceedings reported by:23 Tara Shuck, RPR, FPR Imperial Court Reporting24 P.O. Box 21286 Bradenton, Florida 3420425

Imperial Court Reporting


2/34

Page 2

1 APPEARANCES FOR ACLU2 ANDREA FLYNN MOGENSEN, ESQ. Law Office of Andrea Flynn Mogensen, P.A.

3 200 S. Washington Boulevard, Suite 7 Sarasota, Florida 342364 (941) 955-1066 [email protected] APPEARANCES FOR MICHAEL BARFIELD7 GREGG D. THOMAS, ESQ. Thomas & Locicero8 601 South Boulevard Tampa, Florida 33601369 (813) 984-3060 [email protected] APPEARANCES FOR THE CITY OF SARASOTA12 THOMAS D. SHULTS, ESQ. Kirk Pinkerton, P.A.13 240 South Pineapple Avenue, Floor 6 Sarasota, Florida 3423614 (941) 364-2425 [email protected] and16 ERIC F. WERBECK, ESQ.17 Fournier, Connolly, Warren & Sham 1 South School Avenue, Suite 70018 Sarasota, Florida 34237 (941) 906-119919 [email protected] APPEARANCES FOR THE U.S. DEPARTMENT OF JUSTICE22 SEAN P. FLYNN, ESQ. JOHN F. RUDY, ESQ.

23 U.S. Department of Justice 400 North Tampa Street, Suite 320024 Tampa, Florida 33602 (813) 274-600025 [email protected]



3/34

Page 3

1 * * *

2 I N D E X

3 Page No.4 Proceedings Begin 4

5 Rulings 31

6 Certificate of Court Reporter 34

7

8 * * *9 E X H I B I T S

10 (None marked.)

11

12

13

14

15

16

17

18

19

20

21

2223

24

25



4/34

Page 4

1 P-R-O-C-E-E-D-I-N-G-S

2 THE COURT: Okay. Let's formally go on the

3 record in this case. This is case number4 2014-CA-3248. It is titled -- we'll call it ACLU

5 versus City of Sarasota. What I would like to do is

6 have the attorneys state their names and who they

7 represent for the clerk and court reporter. We'll

8 start with the petitioners.9 MR. THOMAS: Your Honor, Gregg Thomas on behalf

10 of Michael Barfield.

11 MS. MOGENSEN: Andrea Mogensen on behalf of the

12 ACLU.

13 MR. SHULTS: Tom Shults on behalf of the City

14 of Sarasota.

15 MR. WERBECK: Eric Werbeck on behalf of the

16 City of Sarasota.

17 MR. FLYNN: Good morning, your Honor. Sean

18 Flynn, assistant United States attorney, deputy

19 chief of the civil division for the United States

20 Attorney's Office, Middle District of Florida.

21 I'm here today pursuant to 28 U.S.C. 517 to

22 make a limited appearance on behalf of the United23 States to offer a statement of interest in this case

24 without submitting to the jurisdiction of the Court

25 or waiving any defenses.



5/34

Page 5

1 To my right is the assistant United States

2 attorney John Rudy. Thank you, your Honor.

3 THE COURT: Thank you. Let me just4 preliminarily state the reason we are here is not

5 for the merits of the writ but for some procedural

6 questions that the Court had based on the

7 allegations in the writ.

8 I'm going to read to you the pertinent facts9 that the Court took from the writ and then I'm going

10 to read some questions that the Court has, and what

11 I would likely do is to have each side present their

12 answers -- or best answers to the questions that the

13 Court has after reviewing the writ.

14 And this is basically taken from the body of

15 the writ: On May 19, 2014, the petitioners made a

16 request for Sarasota Police Department records

17 relating to cell phone tracking via the use of a

18 stingray device or devices.

19 On May 22, 2014, the plaintiff contacted

20 Detective Jackson to inspect records in his

21 possession. On May 27, 2014, the City stated that a

22 federal agency instructed the City not to release23 the documents requested -- and I'm sort of

24 paraphrasing -- because Detective Jackson was acting

25 as a, quote, special deputy, end quote, with the



6/34


7/34

Page 7

1 That's the gist of what the Court has because

2 obviously the Court has to make a determination as

3 to whether or not it has jurisdiction to hear the4 matters in the writ, and I think we have to get to

5 the root of that. So I would ask the petitioners

6 first to indicate why they feel this Court has

7 jurisdiction, and then I would like to hear the

8 response.9 MR. THOMAS: Good morning. Gregg Thomas again.

10 Your Honor, certainly jurisdiction -- your Honor has

11 jurisdiction under section 119 to analyze whether

12 the records at issue are public records. And the

13 Florida constitution essentially constitutionalized

14 section 119 so that this is the court in which all

15 public records/Sunshine Act matters are litigated.

16 Certainly that's the first response, your Honor,

17 with regard to jurisdiction.

18 THE COURT: Okay. Do you want to add to that?

19 MS. MOGENSEN: Judge, I really don't have

20 anything to add to that except to say that I believe

21 this Court also has jurisdiction in so far as any of

22 the responsive records would be applications to23 state court judges of the 12th Judicial Circuit,

24 and orders signed by those judges, those would be

25 judicial records under the statutes and the rules of



8/34

Page 8

1 judicial administration.

2 And to that extent this Court has jurisdiction,

3 and I think the Court needs to retain jurisdiction4 to make the determination to the answers to the

5 questions that the Court has.

6 THE COURT: Okay. Any response?

7 MR. FLYNN: Your Honor, again, Sean Flynn, the

8 United States attorney. If the Court doesn't mind,9 I would like to take the questions out of order --

10 THE COURT: Sure.

11 MR. FLYNN: -- and address the first question,

12 which is in what capacity was Michael Jackson

13 operating as a custodian of the records in question?

14 Your Honor, Michael Jackson is a special deputy,

15 United States marshal. He has served in that

16 capacity since 2011. He is a member assigned to the

17 Florida/Caribbean Regional Fugitive Task Force.

18 Importantly, your Honor, that task force which

19 was created pursuant to federal law, namely 28

20 U.S.C. 566 E1B, set forth in the Presidential Threat

21 Protection Act of 2000 which states in part, quote,

22 the United States -- excuse me "the Attorney General23 shall" and further states "establish permanent

24 fugitive apprehension task force consisting of

25 federal, state, and local law enforcement



9/34

Page 9

1 authorities in designated regions of the United

2 States to be directed and coordinated by the United

3 States Marshals Service for the purpose of locating4 and apprehending fugitives."

5 As I said, your Honor, Michael Jackson was

6 serving on the task force and in the capacity as a

7 deputy -- special deputy, a United States marshal.

8 He took the oath of office which included stating9 that he would perform the duties of a special

10 deputy, a United States marshal, and he is

11 authorized to seek and execute arrests and search

12 warrants supporting the federal task force.

13 So that is the status of Michael Jackson, your

14 Honor. And because of Michael Jackson's status as a

15 member of a federally-created task force and being

16 duly sworn as a special deputy United States

17 marshal, I respectfully suggest to this Court that

18 this Court does not have jurisdiction over this

19 matter for two reasons and a third reason that I'll

20 address.

21 The first reason is because the United States

22 and its officers are entitled to sovereign immunity.23 An action against an officer in his official

24 capacity in reality is a suit against the officer's

25 agency or the United States.



10/34

Page 10

1 And for authority I would direct the Court to

2 the Supreme Court case of Kentucky v. Graham, 473

3 U.S. 159. It's a 1985 case: And under well-settled4 principles of sovereign immunity, the United States,

5 as sovereign, is immune from suit save as it

6 consents to be sued. For waiver of the federal

7 government's sovereign immunity must be

8 unequivocally expressed and statutory text will not9 be implied.

10 There was no such waiver in this case, your

11 Honor, to subject the United States and the United

12 States' officer to be subject to this lawsuit.

13 With respect to the doctrine of sovereign

14 immunity, the 11th Circuit has noted that an

15 action is won against the United States as a

16 sovereign where the judgment's effect is to compel

17 or strain the government's actions, which is

18 certainly the case here.

19 In addition, your Honor, the Florida Sunshine

20 Laws at issue, at least with respect to the federal

21 government, the federal officers, have been

22 preempted by federal statute. And I would direct

23 your Honor's attention to 5 U.S.C. 301, which is

24 often referred to as the federal housekeeping

25 statute.



11/34

Page 11

1 Pursuant to that statute, the Department of

2 Justice has promulgated regulations, namely 28

3 C.F.R. 16.21 et seq. which prohibit special deputy4 United States Marshal Jackson from disclosing any

5 information or producing any material acquired as

6 part of his performance of his official duties or

7 because of his official status without prior

8 approval from the Department of Justice.9 Special Deputy United States Marshal Jackson

10 has not received authority from the Department of

11 Justice to produce the documents in question. In

12 the Supreme Court case, the United States ex rel.

13 Touhy v. Ragan, which can be found at 340 U.S. 462,

14 the Supreme Court of the United States noted that

15 employees of the Department of Justice have no

16 discretion to honor subpoenas for official

17 information and they are bound to follow the lawful

18 orders of the Attorney General.

19 The Supreme Court case in Touhy is just one of

20 many cases in federal cases that have rejected

21 attempts by litigants to force their own employees

22 to provide testimony or documentary evidence, your

23 Honor.

24 One example closer to home is a 2007 matter

25 that occurred in the state court of Hillsborough



12/34

Page 12

1 County in which the state court judge ordered the

2 FBI agents to produce documents and appear for

3 depositions in a criminal matter.4 My office removed the matter to federal court

5 and the federal judge vacated the order, quote,

6 because the state board lacked jurisdiction to

7 compel the production of documents at deposition

8 testimony.9 Consequently, your Honor, because the

10 Department of Justice has not authorized special

11 deputy of the United States Marshal Jackson to

12 produce the documents in question, this Court has,

13 quote, no power or authority to compel him to do so.

14 Finally, your Honor, I'll address the third

15 question your Honor raised, and that is whether the

16 Sunshine Law even applies to federal actors. And I

17 would submit to your Honor that it does not. I

18 would refer your Honor to Florida Attorney General

19 Opinion 71-191 which stated that federal entities --

20 agencies or entities created under federal law

21 operating within the state do not come within the

22 purview of the state's Sunshine Law.

23 And as I mentioned before, this federal task

24 force was created pursuant to federal law. For

25 example, meetings of a federally-created counsel



13/34

Page 13

1 were found to be not subject to section 286.011.

2 And, again, I'll refer your Honor to the Florida

3 Attorney General Opinion 84-16.4 I would like to refer your Honor's attention to

5 the case of the City of Miami v. Metropolitan Dade

6 County, which can be found at 745 F.Supp. 683.

7 That's a southern district of Florida case in 1990.

8 In that case, the district court found that the9 federal government actions are not governed by

10 Chapter 119 of the Florida statute.

11 And that was not just because, as the Court

12 stated, the actions of the federal government should

13 not be dictated by a Florida statute, but also

14 because of the interpretation of the statute itself.

15 Primarily, your Honor, the definition of agency

16 found in 119.011(2) does not include federal

17 entities. Rather, it refers to agencies created and

18 entities created pursuant to state law.

19 Similarly, your Honor, if you refer to a

20 definition of public records, which can be found at

21 section 119.011(12), that -- it defines public

22 records and refers to documents made, received, et

23 cetera, quote, in connection with the transactions

24 of an official business of any agency.

25 It has -- I previously stated, your Honor,



14/34

Page 14

1 agency, the way it is defined, does not include

2 federal entities. So I would submit to your Honor

3 that based on the Attorney General's opinions and4 the case law, that the Florida Sunshine Law does not

5 apply to federal actors, being the federally-created

6 task force and the special deputy United States

7 marshal.

8 THE COURT: Okay. Anyone else as far as a9 response?

10 MR. SHULTS: Yes, your Honor. On behalf of the

11 City of Sarasota, I would like to refer to paragraph

12 7 of the petition for mandamus in answering your

13 Honor's questions. Paragraph 7 describes the

14 records sought as, quote -- records, quote, made or

15 received certain records relating to applications

16 tendered to the circuit court of the 12th Judicial

17 Circuit in and for Sarasota County and the judicial

18 orders entered pursuant to the provisions of Florida

19 statute 934.32 and 934.33 (the records) or, quote,

20 the requested records, unquote.

21 What the petitioners have described your Honor,

22 are Florida judicial records. And if in fact these

23 records sought are Florida judicial records, this

24 Court does not have jurisdiction under Chapter 119

25 but rather has jurisdiction under the rules of



15/34

Page 15

1 judicial administration, and in particular I believe

2 the rule is 2.240 which underwent a pre-extensive

3 redrafting by the Florida Supreme Court in 2013.4 So if the records are Florida judicial records,

5 there is no jurisdiction under 119. And I can cite

6 to your Honor a case, Morris Publishing Group at 13

7 So.3d 120. That's the 1st DCA, June 2009. However,

8 if they are judicial records, your Honor may have9 jurisdiction under the rules of judicial

10 administration pursuant to rule 2.240.

11 As to the capacity of Michael Jackson, the City

12 has not seen the records that are now in possession

13 of the United States. So we're unable to address

14 what capacity at this stage that Michael Jackson

15 possessed those records without seeing the records.

16 We have been informed that Michael Jackson is

17 represented by the U.S. Attorney's Office. However,

18 for purposes of today, it's my understanding that

19 the U.S. attorney is not making an appearance on

20 behalf of Michael Jackson. So we will -- in answer

21 to question number 2, the City does not know at this

22 stage. We may learn as we get into this.

23 THE COURT: Okay.

24 MR. SHULTS: In answer to question number 3,

25 does Chapter 119 apply to a person acting on behalf



16/34

Page 16

1 of the federal government, I think the answer that

2 is provided by the case law is that, first, Chapter

3 119 does not apply to federal investigations. It4 does not apply to federal criminal investigations.

5 It only applies to state criminal investigations.

6 Whether these records reveal a federal or a

7 criminal investigation, we do not know. But it does

8 appear that the records are state judicial records,9 which would nevertheless take it outside of 119 and

10 put it into the realm of the rules of judicial

11 administration.

12 The other element of answering the question of

13 whether it applies to somebody acting on behalf of

14 the federal government is that if these documents

15 are federal documents as opposed to state documents,

16 then 119 would not apply. I think that addresses

17 your issue, and I don't know if the U.S. attorney

18 wants to add something on the issue of whether or

19 not they're judicial records.

20 MR. FLYNN: Your Honor, if I may. With respect

21 to Michael Jackson was acting in his capacity as a

22 special deputy, a United States marshal, just let

23 the Court know that in creating these applications

24 to be submitted to the Court, they must first be

25 approved by the United States Marshals Service


P 17


17/34

Page 17

1 before he is even authorized to submit them to the

2 Court.

3 So in his capacity as a member of the4 Florida/Caribbean Regional Fugitive Task Force, the

5 procedures in place require you get approval from

6 the supervisor or inspector of the United States

7 Marshals Service prior to the filing.

8 With respect to any orders and applications9 that are under seal that the issuing court returned

10 to Michael Jackson that were in his possession, the

11 United States Marshals Service is prepared to

12 voluntarily return those orders and applications to

13 the issue in court without any further judicial14 proceedings.

15 But as they stand right now, your Honor, they

16 are documents in the possession of the United States

17 and would be covered by the federal housekeeping

18 statute. Thank you.

19 THE COURT: Okay. Any response to that or any

20 rebuttal?

21 MR. THOMAS: Well, I think, your Honor, the

22 assertions by the U.S. attorney, we don't know, just

23 because he was a special deputy, whether in fact --

24 he went to a -- rather than a United States district

25 judge in Tampa, he went to a sitting circuit judge


Page 18


18/34

Page 18

1 in this county and asked for relief for the stingray

2 application.

3 It seems curious that a federal deputy marshal4 would not go to one of the six sitting judges in

5 Tampa to make the application. Your Honor, our

6 biggest concern is it should never be that an order

7 entered by a sitting circuit judge disappears.

8 The process here is what we are most concerned9 about, that is, that an order by one of your Honor's

10 brethren is entered, it never goes to the clerk's

11 office, it never stays in the bosom of the Court

12 here, but it goes away. So our chief concern is

13 that, your Honor.14 And the information about the United States

15 attorneys' participation or the Justice Department

16 or the Marshals office is all new information to us.

17 So as a status conference, your Honor, we're

18 learning a lot, and I think that the briefing that

19 should happen is more than just discussion here. We

20 should have an opportunity to address the issues for

21 your Honor's consideration.

22 THE COURT: Okay.

23 MS. MOGENSEN: I would like to speak.

24 THE COURT: Oh, I'm sorry.

25 MS. MOGENSEN: I think the primary issue for


Page 19


19/34

Page 19

1 today is maintaining the status quo. The records

2 exist. And if the Court has observed the exhibits

3 attached to the pleadings, the public records4 request was very broad. And Chapter 119 applies to

5 all public records in the state of Florida.

6 Irrespective of what records the federal

7 government knows about or makes an assertion about

8 and the City doesn't know about, there needs to be9 judicial oversight because whether or not the

10 Florida Public Records Act applies is determined by

11 the nature of the record.

12 So to the extent that that's the case, although

13 it may be true that some records are exempt pursuant14 to the argument made by the U.S. attorney and it may

15 be that some records are exempt pursuant to other

16 exemptions, this Court needs to retain jurisdiction

17 to make a determination whether it has jurisdiction

18 because it is the nature of the records that makes

19 that determination for this Court.

20 The fact that a number of those records are

21 known to be applications and orders signed by the

22 12th Judicial Circuit judges presumably in 12th

23 Judicial Circuit cases, we know there's a good

24 possibility of that. But the actual request applies

25 to all documents relating to the stingray device


Page 20


20/34

Page 20

1 from the Sarasota Police Department.

2 To the extent that they're custodians of

3 records -- and it was very broad. It included4 e-mails throughout it between state agents and state

5 actors regarding state cases, financial documents

6 regarding anything that agency has spent money on

7 towards that end. It was very broad.

8 So I know that some of the -- you know, the9 urge is to fixate on some of the records that the

10 federal government wants to keep secret, but this

11 Court does potentially have jurisdiction over

12 numerous records. And there's really no way to

13 determine that unless the Court does an in camera14 inspection and reviews them to make that

15 determination.

16 So our primary purpose is to preserve the

17 status quo and give the Court an opportunity to make

18 that determination, whether the act applies, to

19 answer the questions that have been raised.

20 Are there responsive records that Michael

21 Jackson as a detective of the Sarasota Police

22 Department maintained that are responsive to the

23 request? Does state law apply? If there are

24 records to which the federal law applies, it's

25 possible that we can be removed.


Page 21


21/34

Page 21

1 But there's certainly a very good probability

2 given what Mr. Thomas just argued that if state

3 court judges are signing orders and applications are4 being made in the state court, that they're very

5 likely state court issues.

6 THE COURT: All right. So when you say

7 maintaining the status quo, what are you requesting

8 that the Court do?9 MS. MOGENSEN: Well, to the extent -- we've

10 asked that whatever records are responsive not be

11 disposed of and given to the federal government and

12 swept in so that we don't have that opportunity.

13 Because it does create a jurisdictional problem and14 it's very likely that this now will be some kind of

15 bifurcated proceeding because ultimately we're going

16 to have to do that.

17 To the extent that today there are records that

18 the Sarasota Police Department are custodians of

19 that are responsive records to this request, that

20 they be required to follow the mandated Chapter 119

21 and not dispose of those records and transfer them

22 to a place where they can claim an exemption.

23 There is a requirement when a request is made,

24 irrespective of whether an agency contends that

25 those are public records, that they maintain that


Page 22


22/34

Page 22

1 status quo for 30 days. And the City simply said

2 they would not follow that mandate of the statute.

3 They refused to do so and they transferred the4 records in spite of the request and in spite of the

5 fact that that particular portion of the statute was

6 cited to them. They simply said they were going to

7 ignore that.

8 That creates a legitimate concern that9 additional records that they do not want to be

10 disclosed will be swept in. And it's never been the

11 case that the Public -- the Public Records Act is

12 designed to be construed most favorably to

13 transparency and to the right of people to have14 access to the records, and to permit and allow and

15 encourage a government agency that is required to

16 follow Chapter 119 -- to not discourage the practice

17 of sweeping those into a secret place would really

18 pervert the purpose of the law.

19 THE COURT: All right. So you're saying that

20 any records that are currently in the City's

21 possession, I guess through the SPD, be maintained

22 and not transferred to federal custody?

23 MS. MOGENSEN: Right. And I will say too,

24 Chapter 119 does apply. The rules of judicial

25 administration are for the Courts and give mandates


Page 23


23/34

g

1 to the Court on how records should be maintained, et

2 cetera. And when we're pursuing these records from

3 the judiciary, we would be operating under that, but

4 we're not. We're pursuing them from the state

5 government agency, the Sarasota Police Department,

6 and Chapter 119 does apply to the Sarasota Police

7 Department as custodians of whatever records are

8 responsive.9 There may be public records that are exempt.

10 There may be some that are exempted confidential.

11 There may be responsive records that are neither.

12 But without preserving the status quo and having an

13 evidentiary hearing and allowing this Court to do an14 in camera inspection, all we'll have is boldface

15 assertions.

16 And we don't know that any actor or person in

17 this room actually knows whether the whole body of

18 what's been requested -- whether their argument

19 pertains to that. I think it's the Court's

20 responsibility to do an in camera inspection and

21 say, you know, yes, these all are federal records in

22 federal cases. I can see that over the nature of

23 the records. No, these are not.

24 So we would like to preserve the status quo and

25 get an order in place preventing the Sarasota Police


Page 24


24/34

g

1 Department from disposing of any more records,

2 because that is not authorized by law, and allowing

3 the Court to give the judicial oversight that's

4 required by Chapter 119.

5 THE COURT: Okay. Let me hear from the City

6 first.

7 MR. SHULTS: Here is the circumstances before

8 the Court. Mr. Barfield made the very broad public9 records request. The City has responded and is

10 continuing to respond to that public records request

11 by providing documents to Mr. Barfield's counsel.

12 We have already provided about 1900 documents

13 to Mr. Barfield's counsel. We have also provided an14 exemption log to Mr. Barfield's counsel. We have

15 informed counsel that we are continuing to, in good

16 faith, go through our records, and there will be

17 more records that will be provided to Mr. Barfield's

18 counsel along, likely, with more exemption logs.

19 So there's no reason for this order that

20 they're asking for attempting to freeze these public

21 records. In addition to that, they're essentially

22 asking for an injunction, which I think will require

23 an evidentiary hearing and the posting of the bond.

24 But there's no need to do that, your Honor, because

25 we are in the process of producing these records


Page 25


25/34

1 that are nonjudicial records.

2 They are not the records in the possession of

3 the U.S., but they are records that are in

4 possession of the City, which we are going through

5 diligently.

6 On the issue -- if I can back down -- back up

7 to the issue of jurisdiction. We have declared

8 exemptions to certain documents in our possession.9 The law is clear that mandamus is inappropriate to

10 determine exemptions claimed by the government. And

11 I would site the case of Shea v. Cochran, which is

12 at 687 So.2d 628.

13 Moreover, your Honor, they have not -- what14 they have pled in this case in their petition is the

15 documents that are in the possession of the United

16 States. They have not pled a violation concerning

17 the rest of the very broad records requests that we

18 are in fact complying with. That's not an issue

19 before the Court.

20 The issue before the Court is these records

21 that are now in possession of the United States,

22 which based upon statements made here before your

23 Honor this morning and the pleading in the case,

24 appear to be state judicial records. The U.S.

25 attorney has offered to file those records with the


Page 26


26/34

1 Court. The City believes that should happen, that

2 those records should be filed with the Court if they

3 are state judicial records.

4 And then if the plaintiff wants to continue to

5 proceed, to proceed under the rules of judicial

6 administration, which has a very orderly process, to

7 determine confidentiality and whether or not sealed

8 judicial records should be released to the public.9 So there is no need for any other sort of order at

10 this stage, your Honor.

11 THE COURT: Okay.

12 MR. FLYNN: Your Honor, I want to first address

13 this notion that the City transferred documents into14 the possession of the United States or that they are

15 attempting to hide documents with the United States.

16 Nothing can be further from the truth.

17 The documents in question here, again, are

18 documents that were generated and retained in

19 connection with the federally-created task force.

20 The United States has not sought to take any

21 documents outside of the federal task force, nor

22 have they requested that of the City.

23 An injunction would in effect be enjoining the

24 United States from handling their own documents

25 pursuant to their federal task force, which this


Page 27


27/34

1 Court respectively does not have jurisdiction to do

2 so.

3 Secondly, the petitioners have made a point to

4 address that certain applications were made to state

5 courts. I'll remind petitioners and notify your

6 Honor that the United States Marshals Service has

7 jurisdiction to pursue nonfederal fugitives. And as

8 part of the federally-created task force, the United9 States Marshals Service does direct the apprehension

10 of non-federal fugitives. So it does make sense

11 that the federal task force at times does make

12 applications to state courts and pursue non-federal

13 fugitives.14 Finally, your Honor, there is no need for there

15 to be an injunction to protect any documents.

16 Anything that is within the possession of the United

17 States and the United States' federally-created task

18 force would be subject to federal law.

19 And the petitioners haven't had those available

20 for them, as the Court pointed out, the Freedom of

21 Information Act. And to the extent they want to

22 request those documents, the request should be made

23 through the Freedom of Information Act. Thank you,

24 your Honor.

25 THE COURT: Okay. Any further response?


Page 28


28/34

1 MS. MOGENSEN: Judge, I disagree respectfully

2 with counsel for the City. Mandamus is the

3 appropriate remedy for violations of the Public

4 Records Act. That's Smith v. State, 696 So.2d at

5 816. It's not a question of whether or not

6 exemptions apply. It's a question of whether

7 there's been violations to the Public Records Act.

8 To the extent that the City is furnishing9 documents subsequent to the filing of litigation,

10 the litigation is to proceed and determine if there

11 was a violation of the act and litigation was

12 necessary to obtain public records under mandamus.

13 But since both of the opponents believe that14 there is no need for an injunction to prevent

15 further disposition of records, I would expect that

16 there's no objection to that as well. If they

17 intend to comply with the Public Records Act and

18 intent not to dispose of records, I can't imagine

19 why one would object to an order requiring one to do

20 what they intended to do in any case.

21 We do feel it's necessary because Chapter 119

22 was cited as a reason for the City to maintain

23 possession of the records that they had possession

24 of and frankly and candidly told us they were not

25 going to follow that provision of Chapter 119. And


Page 29


29/34

1 that creates a legitimate concern, and I think that

2 we should proceed.

3 I recognize this is a status conference and not

4 an argument on the merits, but we should proceed

5 towards that end, towards entry of that injunction.

6 And, candidly, Judge, we are entitled to an

7 accelerated hearing on an emergency basis. It is

8 considered in the public interest of the highest9 order and does get accelerated treatment.

10 So I would ask the Court to set very shortly a

11 hearing on that petition for that injunction because

12 the relief -- because of the conduct of the parties

13 involved, it does appear to be necessary. And to14 the extent that the City doesn't object and intends

15 to follow that law, I don't see that it would be a

16 contested issue.

17 MR. SHULTS: Well, your Honor, much of what

18 counsel says the City contests. If they want to

19 have an injunction, that's an evidentiary matter.

20 They have to prove a basis for an injunction. They

21 have to post a bond. What we have in this case is

22 we have the U.S. attorney stating that they came and

23 they took possession of the City's -- of records

24 from Detective Jackson.

25 It's not a situation where the City called up


Page 30


30/34

1 the U.S. attorney and said, here, come and take

2 these records. We've already addressed the nature

3 of those records. By all appearances, they appear

4 to be judicial records. They are offering to file

5 them with the Court. If there would be an order

6 this morning, I think that the only appropriate

7 order would be to take the U.S. attorney up on that

8 offer.9 THE COURT: Okay. Let's do that. Let's get

10 that clarified. These records that the -- it's

11 always -- that the United States has in its

12 possession, those are going to be filed under seal

13 with the state court?14 MR. FLYNN: No, your Honor. What we are

15 offering to do is the applications and orders from

16 the state court that are currently under seal, those

17 applications and orders, we are voluntarily -- we

18 will voluntarily file with the court that issued

19 those orders.

20 THE COURT: Okay. All right. And when will

21 you do that?

22 MR. FLYNN: We can do that in a reasonably

23 short period, your Honor. Whatever, you know -- I

24 don't have a specific time period in mind, but as

25 long as it's a reasonable time that gives us enough


Page 31


31/34

1 time to do it. A couple of weeks, your Honor, I

2 think will probably be sufficient to do that.

3 THE COURT: All right. Can we say that that

4 will be done 10 days from today?

5 MR. FLYNN: Yes, your Honor.

6 THE COURT: All right. Any other response at

7 this point? All right. The Court's going to have

8 to make a determination again ultimately as it9 relates to the jurisdiction to hear the writ.

10 I'm not going to issue any type of status quo

11 at this point based on what's been represented and

12 what's on the record so far. Does either side wish

13 to supplement their argument or are both sides14 satisfied with the arguments that have been

15 presented?

16 MS. MOGENSEN: The only thing I would say,

17 Judge, is just to remind the Court that until the

18 Judge looks at the nature of the records -- and with

19 all respect to the U.S. Attorney's Office, I don't

20 know how they can claim to know what would be in

21 possession of the state agency, whether it's

22 responsive or not.

23 And the attorneys for the City said that they

24 don't necessarily have a full volume. But to the

25 extent that records are going to be produced, this


Page 32


32/34

1 Court has jurisdiction to determine if the failure

2 to produce those records prior to litigation

3 comprises a violation of the act. So I would just

4 encourage the Court to consider that in the

5 jurisdictional question.

6 THE COURT: Okay.

7 MR. FLYNN: Your Honor, I would like to again

8 clarify that the only records that the federal9 government has asserting interest are the documents

10 that are created and maintained by members of the

11 federally-created regional task force and special

12 deputy United States Marshal Jackson in that

13 capacity.14 We are not asserting an interest at this time

15 on any documents maintained by the City outside of

16 that task force. We are only saying that the

17 documents created and maintained by the task force

18 and special deputy United States Marshal Jackson are

19 federal documents. They're our documents, and the

20 Court does not have jurisdiction to review those

21 documents, respectfully. Thank you.

22 THE COURT: Okay. All right. Anything else?

23 MR. SHULTS: No, your Honor.

24 THE COURT: All right. I'll issue some sort of

25 order based on what's been discussed here. Unless


Page 33


33/34

1 there's anything else anyone wants to put on the

2 record, then that will conclude today's proceedings

3 on the status conference.

4 MR. THOMAS: Thank you, your Honor.

5 MR. SHULTS: Your Honor, the nature of the

6 order that you intend to issue, will that address

7 jurisdiction and the status of Mr. Jackson?

8 THE COURT: Yes, I have to make that9 determination before I do anything else.

10 MS. MOGENSEN: And if the Court determines that

11 there is some jurisdiction, would the Court give

12 some consideration to setting an accelerated hearing

13 pursuant to 119?14 THE COURT: Yes.

15 MS. MOGENSEN: Thank you, Judge.

16 THE COURT: All right. Thanks.

17

18 (The proceedings were concluded at 9:38 a.m.)

19

20

21

22

23

24

25


Page 34


34/34

1 CERTIFICATE OF COURT REPORTER

2

STATE OF FLORIDA

3 COUNTY OF MANATEE

4

5 I, Tara Shuck, Registered Professional Reporter, do

6 hereby certify that I was authorized to and did

7 stenographically report the Status Conference before the

8 Honorable Charles E. Williams; and that the foregoing

9 transcript, pages 1 through 33, is a true record of my

10 stenographic notes.

11

12 I FURTHER CERTIFY that I am not a relative,

13 employee, or attorney, or counsel of any of the parties,14 nor am I a relative or employee of any of the parties'

15 attorney or counsel connected with the action, nor am I

16 financially interested in the action.

17

18 DATED this 17th day of June, 2014 at Manatee County,

19 Florida.

20

21

22

23

24 ________________________________ Tara Shuck, RPR, FPR

25


ACLU v. City of Sarasota - Transcript June 12 2014

Documents

Transcript of ACLU v. City of Sarasota - Transcript June 12 2014