No Objection
Today, I came across an article from the Chronicle talking about the Sand Mine decision from Tuesday. This article is apparently about Commissioner Bays asking questions to the county attorney via email.
I have not seen the email in question yet, but the Chronicle apparently has received a copy as they talk about specific things in the email...
One of the things of interest is about me.
"Bays is also asking for a legal review of how an intervenor was used during Tuesday’s hearing. In a quasi-judicial land-use case, an intervenor is someone who is formally allowed to participate because they have a direct interest in the outcome – in this case, someone opposing the proposed sand mine. The intervenor designated non-attorney local blogger Curtiss Bryant to represent her during the hearing, including questioning the applicant and its witnesses.
Bays wants to know whether Bryant was properly identified and recognized as the intervenor’s representative under county rules and whether the process complied with the county’s requirements and due-process protections."
Here is the full link to the Chronicle Article
This is really just Bays trying to make me look bad, but let's talk about it.
First, all the quasi-judicial rules are under county ordinances.
It is clear she does not understand those rules.
Megan was the intervenor or party of opposition. Per the ordinance:
Party in opposition shall mean an individual or group who, under the recognized legal principals of standing, can demonstrate that they will suffer an adverse effect to a protected interest, such as health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental and natural resources. The alleged adverse interests may be shared in common with other members of the community at large, but must exceed in degree the general interest in community good shared by all persons.
She lives within 1000ft of the sand mine, uses the roads, would suffer an adverse effect if approved and so on. Her interest is greater than that of the general public. The board qualified her as an intervenor before the meeting began. That was the first vote they took. She had to file an application and all of that.
Under the rules, the first thing it says:
(a) Each party shall have the right to call and examine witnesses, to introduce exhibits, to cross examine opposing witnesses on any relevant matter, and to rebut evidence.
The key here is that she is allowed to call and examine witnesses, to cross examine, introduce evidence, etc. This happens after the applicant and staff presentations.
(g) Party in opposition. Any recognized party in opposition to the matter shall make his/her presentation, including any witnesses, experts and/or exhibits the party may wish to present as testimony.
How was I able to speak at the microphone for 30 mins and give a presentation? I was a witness for her. I was sworn in under oath as required. I was providing testimony for the case.
a) Upon the calling of the matter by the chair, the applicant, staff and all witnesses, requesting to provide testimony in the matter, shall be collectively sworn, excluding attorneys licensed to practice law in the State of Florida, unless they intend to present testimony. Those wishing to speak solely as participants will not be required to be sworn.
I never once claimed to be a representative for her. I was solely there as a witness for her case and did the presentation, as witnesses are allowed to do.
Witness shall mean a person who testifies under oath.
I was a witness and testified under oath.
The question comes on how I was able to cross examine the applicant and staff. That is a bit of a gray area. The ordinance states the party in opposition can cross examine witnesses. It does not state witnesses can cross examine other witnesses, but it does not say they cannot either.
(i) Cross examination. After each witness testifies, including experts and independent experts, and/or documents are made part of the record, the witness may then be cross-examined on relevant issues by the board, applicant and/or recognized parties in opposition. Unsworn and unqualified participants making statements may be questioned by the board, but may not be questioned by the applicant and/or parties. Cross-examination shall be subject to the procedures as set forth in section 2-57.
Section 2-57 outlines the process for this.
(a) The applicant, staff and witnesses, including experts, providing sworn testimony are subject to cross-examination during the hearing.
(b) Participants, while subject to questioning by the board, are not subject to cross-examination by any other party.
(c) The scope of cross-examination shall be limited to the facts alleged by the applicant, staff, witness, and/or expert in relation to the matter.
(d) The chair of the board may direct the party conducting the cross-examination to stop a particular line of questioning that:
(1) Merely harasses, intimidates or embarrasses the individual being cross-examined; or
(2) Is not relevant and is beyond the scope of the facts alleged by the individual being cross-examined.
(e) If the party conducting the cross-examination continuously violates directions from the chair to end a line of questioning deemed irrelevant and/or merely designed to harass, intimidate and embarrass the individual, the chair may terminate cross-examination.
As you can see... nothing says the applicant, staff or party in opposition cannot have someone else do the cross examination. She had asked me to do the cross examination for her, as her witness.
Knowing that there may be some pushback, I gave Megan the list of questions and told her to review them prior to the meeting in case there was an objection to me asking the questions. She would have taken over had that been the case and asked the same exact thing, so nothing would have changed other than the person doing the asking.
And that is the key. The applicant was not represented by an attorney. Had an attorney been there, they would have certainly objected to me asking questions. The board would then have had to make a determination if they would allow that or require the intervenor to ask the questions and do the cross examination.
BUT NO ONE OBJECTED.
That is the thing. No one objected to it. The Board allowed it to happen. They did not object. The applicant allowed it to happen. Staff allowed it to happen. Not one time did someone question why I was able to ask questions for the intervenor.
She stated in the microphone that she would like me to ask questions. That was the opportunity for someone to object or to question it, but no one did and I was allowed to ask the questions.
Think of a court case and an attorney is introducing hearsay or some other problematic evidence. If the other attorney does not object, the court will allow the questions/evidence to continue. The other party has to object and the ruling party has to rule on the objection and whether they will allow it or not.
It is the job of the parties involved to make sure the processes are being followed. If they aren't, they can raise objections to that.
Megan had a closing argument she was going to make. She did not do that because the board strayed from their process and skipped that portion. They were appearing to deny it, so I told her not to object to not being allowed to give a closing statement, but had it appeared that it would have been approved, she would have objected and requested the 5 minute closing statement.
As for the questions and the presentation. We had gone into the hearing thinking it was going to be approved. The goal was that if there was approval, for them to require McClure to be paved. That would have essentially shut down the mine as SWFWMD would require all property owners on McClure to sign off on the easements and two of the owners were not willing to do that.
The idea then was to build a case for an eventual appeal via writ of certiorari. We wanted to get staff and the applicant to answer specific questions and to present specific evidence that would provide for a good chance to win the appeal and get it back to the BOCC for review under direction of the courts. Was that guaranteed to work? No, but the goal was to provide as much evidence as possible to show that this site should be denied... based on historical county data.
Turns out she did not need to do the appeal. Let's see if the BOCC holds his feet to the fire with voting on the injunction on Monday.