Judge denies witness sequestration in Sunshine suit

Sunshine defendants
From left, attorneys Jim Dye and Jodi Ruberg, defendant John Metz, former mayor Bill Shearon and defendant Tjet Martin were on hand for Wednesday's hearing. - Joe Hendricks | Sun

BRADENTON – 12th Judicial Circuit Court Judge Lon Arend has rejected defendant John Metz’s request to sequester non-party witnesses in a Sunshine Law lawsuit.

“I don’t find that I have the authority to sequester the witnesses, so I deny the motion,” Arend said, as the 40-minute hearing concluded on Wednesday, May 9. Arend also denied the defense’s last-minute, verbal request to sequester the transcripts of depositions given by non-party witnesses.

During depositions, defendants, plaintiffs and witnesses give individual testimony under oath in a non-courtroom setting with a court reporter transcribing what’s said. The written transcripts can then be used in court to support or contradict additional testimony given, or used if a witness can’t be present.

In some cases, witnesses are sequestered from hearing the testimony of others to prevent them from being influenced by that testimony or trying to match it.

“We want this to be open to the public, why don’t they? Who are they trying to keep out? They don’t want the press to attend these depositions,” attorney Robert Watrous successfully argued for the co-plaintiffs, the City of Bradenton Beach and Jack Clarke.

“It’s not the general public, it’s not the citizens, it’s not even the media that we’re concerned about. It truly is non-party witnesses, somebody who would potentially be a witness,” said attorney Jodi Ruberg, representing defendant Metz.

The co-plaintiffs filed a lawsuit against Metz and five other members of two Bradenton Beach boards last August, alleging they violated the Florida Sunshine Law. Metz and three other defendants – Reed Mapes, Patty Shay and Bill Vincent – are former Bradenton Beach Planning and Zoning Board members. Defendants Tjet Martin and Rose Vincent are former members of the city’s Scenic WAVES Committee. All six defendants resigned after the lawsuit was filed.

The lawsuit alleges the defendants discussed past and potential future board and committee business outside of a city meeting publicly noticed by the city clerk’s office. The alleged Sunshine violations stem from a Concerned Neighbors of Bradenton Beach meeting in July and additional email exchanges discovered later.

On April 13, Metz’s attorneys filed a motion asking the court to sequester the depositions of non-party witnesses. Non-party witnesses are those not directly named as defendants or plaintiffs.

Sunshine Judge
Judge Lon Arend rejected the defense’s request to sequester witnesses. – Joe Hendricks | Sun

Arend said he has some concerns about how the deposition proceedings would be handled and he noted he has the authority to limit who’s in attendance. It is not yet known if the press or public can attend the defendant depositions scheduled to begin with Metz on May 23. Arend said that question may require another ruling from him if the parties can’t agree.

Attorney’s arguments

Metz and Martin attended Wednesday’s hearing accompanied by former mayor Bill Shearon and former City Commissioner Janie Robertson. Clarke also attended the hearing.

Attorney Jim Dye represented Mapes, with Ruberg representing Metz. The other four defendants have withdrawn their legal counsel and will represent themselves.

Paralegal Michael Barfield was on hand to assist Watrous, with City Attorney Ricinda Perry serving as co-counsel.

Watrous successfully argued the defense didn’t meet the burden of proof needed to support the request to sequester, and he noted that neither he nor the defense has yet named any non-party witnesses.

Perry suggested the non-party witnesses might include herself, the city clerk and the city planner. She said as co-counsel, sequestering her from the testimony of others would prevent her from protecting her client, the city.

“The can of worms we’re opening here is daunting.”
– Robert Watrous, Attorney

Citing past cases, Arend expressed concerns about hundreds of people wanting to attend depositions and showing up in T-shirts that express support or opposition for the parties involved.

In response, Perry pointed out the four non-party attendees present: Shearon, Robertson and two newspaper reporters.

Watrous said the limited space inside the court reporters’ offices would automatically limit attendance.

Attorney Robert Watrous, paralegal Michael Barfield and City Attorney Ricinda Perry are serving as the city’s legal team. – Joe Hendricks | Sun

Arend said that even if sequestered, witnesses could still be given written transcripts of others’ depositions, which are also later made public at the Manatee County Clerk of Circuit Court website.

“Are you asking that as part of my order as well?” Arend asked.

“We actually are,” Ruberg said.

Arend said he’s never had anyone come before him expressing concerns about non-party witnesses attending depositions. He asked if there was anything particular that made the defense think this was going to happen.

Ruberg said Watrous had already filed affidavits for non-party witnesses. Watrous filed affidavits on Aug. 11, the day the lawsuit was filed; the parties mentioned were the clerk, the planner and the city attorney who has since joined as co-counsel.

Watrous said he did not know who he planned to call as non-party witnesses and he’s never heard of a request like this.

“Are they going to move to exclude witnesses when nobody knows if they are or aren’t going to be witnesses? The can of worms we’re opening here is daunting,” he said.

Due to time constraints, a second hearing pertaining to the defense’s motion to compel Clarke to provide additional documents was postponed to a later date.