Bennett got himself a Booneswatter
By now, you've probably read Kim Hackett's account of the latest round of courthouse scuffles in the Mogensen / Lorenzo Sunshine Law lawsuit.

Let me fill in some of the blanks, though, and correct a few minor errors in the story.

First off, and most personally satisfying to me, was watching attorney Jeff Boone get his ass handed to him by Judge Robert Bennett, this for goofing around and ignoring a court order to start searching Councilman John Simmonds' hard drive for lost emails. "My client has already admitted to deleting emails," Boone pleaded. "Where is this all going?"

Boone's contention was that his client was going through hell and should not have to pay to retrieve the public records that had been admittedly deliberately destroyed by his client. Boone didn't want more emails to come off of that hard drive. He didn't want the hard drive examined. He didn't want his client to pay for it. Boone argued that the Plaintiff, Andrea Mogensen and her client, Anthony Lorenzo, should have to pay for the forensic recovery of the deleted emails, and Boone was arguing in the upper register of his voice.

Boone also complained that his client learned of the motion from newspaper articles that appeared in the Herald-Trib on September 15 and the Gondolier Sun on September 17. Boone stated that the media had received copies of the filed motion for contempt from Mogensen's office before his client had and that neither he or his client could get their hands on a copy of the motion for several days (apparently ignoring the fact that the full motion and ancillary exhibits were published the morning of September 15 in PDF format on this web site). Boone's argument here, which went nowhere fast, was that it appeared that Mogensen was more interested in media publicity than due process.

Mogensen countered Boone's log-winded whine on that subject with one sentence -- that Boone was served properly in a timely fashion as allowed by law, and that ended that.

As to who should pay for the forensic examination of Simmonds hard drive, Mogensen argued that Simmonds had acted as a self-appointed custodian of records when he decided to use his own personal computer and personal email account to conduct city business and that Simmonds had then breached his duties by deleting the emails. Mogensen then argued that a citizen shouldn't have to pay out of pocket for a government official to restore to the public record something that never should have been removed from the public record.

She never really had to make that argument, though. Bennett pulled out the really big flyswatter and splatted Boone at the defendant's podium almost before Mogensen could finish her objections. Bennett had clearly already made up his mind just from Boone's own arguments. Bennett noted that when Councilman John Moore's attorney made a deal with Mogensen to turn over Moore's hard drive for possible forensic analysis, Moore would receive a true copy of the hard drive so that he could attempt to retrieve emails first at his own expense. Every other attorney in the room, Boone included, leapt at the chance to get in on the same deal.

Bennett hammered home that it is now several months later and Boone and Simmonds are making every effort to break that deal. Bennett wasn't going to let that happen: The glove fits, I will not acquit, your client must pay, you will not delay, the hard drive gets scraped, you're gonna get raped.

Computer forensic specialist Jon Jorgensen was appointed as a "special master" for the court. He'll be getting a check from Boone's legal account in the next few days and will then start the slow and laborious process of attempting to retrieve any and all deleted documents that are still physically present on Simmonds' hard drive. According to statements made by both Boone and Mogensen, the process can take as long as two weeks.

Bennett decided not to levy a contempt charge on Simmonds and Boone... this time. The judge made it abundantly clear that his patience was gone and that Boone had stepped on the judge's last nerve. Instead of 'contempt,' the word 'compel' was used. Quite frequently, in fact. That's not a word you want to have aimed at you, especially if you are an attorney. That's some really bad juju.

Happily, at some point in time in the near future, we'll all be able to get a good look at whatever it is that Boone and Simmonds are crapping all over themselves about. After being accused of hacking into Simmonds' computer, I'm kind of curious as to what it is that I supposedly planted there. With this kind of a buildup, if all this turns out to be is nothing more than co-ed porn, I'm going to be really disappointed.

Next up: Mayor Ed gets a spankin'
Next up was Mayor Ed Martin. His attorney, Robert Robinson, had withdrawn from the proceedings earlier in the week, so Martin was now back to being represented by insurance carrier attorney Dale Scott... who promptly had his ass handed to him on nearly the same grounds. So sorry, but let's try this in English now: Martin must pay to have his hard drive examined.

In fact, Bennett acted even angrier at Scott than he did at Boone, if only because Scott was positing the same losing arguments that caused Boone to end up as a stain on the courtroom carpet. Red-faced and embarrassed, Scott stumbled back to his chair at the defendant's table while several other attorneys in the room tried to hold back their laughter.

While Martin isn't accused of destroying any emails, he and his attorneys have been jerking Mogensen around on interrogatory responses. Martin's failure to appear in court on the opening day of this long-running show put him in a position where his hard drive was seized by the court early on in a "just in case" scenario. His subsequent heel-in-the-sand stance through the various attorneys involved earned him the right to pay for a hard drive examination.

Neither Martin or Simmonds attended the hearing. John Moore attended with his wife, as did Jim Leis and Jim Marble.

McKeon, Rafferty, Marble, and Leis are told to take a hike
Now for the good news: Mogensen had accused several citizens of being go-betweens of council members, behind-the-scene messengers out to thwart the intent of Florida's Government in the Sunshine Laws. To prove her point, she subpoenaed several email providers, including Google, AOL, MindSpring, and Verizon, demanding all personal emails within a given date range. Those that she accused included private citizens Mike Rafferty, Jim Marble, and council candidate Kit McKeon.

The Herald-Trib's account would leave you hanging there, but there was a bit more to that part of the story that was left out of the newspaper's account. First off, with the exception of Leis, Mogensen never brought those individuals into the lawsuit, these were exterior accusations, similar in legal procedure to Boone's court filing that accused me of hacking into Councilman Simmonds' computer (Boone's accusation, by his own admission, has since turned out to be false). In this case, Mogensen has limited proof that her allegations are true, which is why she was subpoenaing the email providers -- to try to get the proof to prove her theory.

Former airport board member Jim Leis' email provider was also subpoenaed as part of Mogensen's earlier sweep of airport board members' emails.

Mogensen did make one critical mistake, which is what caused her subpoenas to be tossed: she made a blanket demand to the email providers for all personal emails in a given range of dates without first giving subpoenas to the individuals and giving them a chance to cough up whatever they had that would fit Mogensen's theory.

City Attorney Bob Anderson argued that the subpoenas were overly broad and invasive of privacy rights. Judge Bennett agreed and tossed the subpoenas aimed at the email providers, effectively kicking McKeon, Rafferty, Marble, and Leis back out of the lawsuit.

The four could be brought back in at a later date, however, but first Mogensen will have to make a compelling argument to the judge as to why. With Leis, that may not be much of a problem as Mogensen has already successfully subpoenaed several airport board members' emails, but the other three are part of a different line of inquiry, which Bennett indicated that he would be hesitant to allow. Thus, contrary to what was printed in the Herald-Trib, Mogensen will have an uphill battle if and when she tries to bring McKeon, Rafferty, and Marble back into the lawsuit.

Yes Rick: You can has Inverhouse
And then there's Tacy. Councilman Rick Tacy. You might remember a certain email that Tacy kicked out that caused a bit of a ruckus after Tacy claimed he saw Councilwoman Sue Lang, Mayor Martin, and Mike Rafferty in a room together. Without actually hearing any of the conversation that he psychically knew was taking place, Tacy angrily wrote to Kim Hackett that he would be willing to testify in court that what he hallucinated was a flagrant violation of the Sunshine Law.

     Kim, first I understand this e-mail is covered under the sunshine law [** see footnote]. I need to let you know the Mayor and others are deyning [sic] your article and it's [sic] content. Further more I can't varify [sic] your previous writings, though I'm 100 percent sure you were correct. I can and will testify in court that today after our meeting, that the Mayor, Sue Lang and a nother [sic] non-member of council were in the meeting room going over their proposed airport plan. A total violation of the Sunshine Law.
     Feel free to contact me.
-- Venice City Councilman Rick Tacy, email to Herald-Tribune's Kim Hackett, 05/02/08

Mogensen included this allegation on page 17 of her Third Amended Complaint.

Well Rick, if you are reading this, go ahead and stock up on the Inverhouse and don't bother charging up your wheelchair batteries for a special trip to the courthouse. Judge Bennett thinks you are full of crap and he's crossed you off the witness list.

This came after a bizarrely interesting argument that Anderson was obligated to make on the city's behalf, to wit: that Tacy was being a clueless idiot when he sent off that email. That's not exactly how Anderson phrased it, but that meaning was clear nevertheless. Anderson mentioned that then-City Manager Marty Black had witnessed the same event as Tacy and that Black had stated that there was no way to determine if a violation had occurred. Anderson concluded by stating that there was no way Tacy could have had any factual basis for his accusation as he did not know what, if anything, was being discussed in the room that he was passing by at the time.

Mogensen shot back that of course Tacy didn't know, that's what depositions are for, but she didn't put up much of a fight after that -- she appeared to be willing to concede a loss on this single allegation as she was getting other and more important rulings in her favor.

In the end, Bennett agreed to Anderson's stipulation of idiotic cluelessness on the part of Tacy, which takes some of the future fun out of this lawsuit: watching Tacy on cross-examination on this issue would have been hilarious. According to Bennett, if government officials were accused of Sunshine Law violations every time they were seen together, he'd have a parade of officials coming through his courtroom on a daily basis and government would come to a standstill. Tacy would need a little more proof -- like possibly actually hearing a conversation and being able to specifically recount a Sunshine Law violation.

Nancy Woodley: Come on down!
Immediately after the court hearing, Mogensen stated to me that she would be filing an emergency motion against interim city manager Nancy Woodley and two other city department heads, Fred Watts and Len Bramble, this over an allegation made in Friday's Herald-Tribune that the trio had met in violation of the Sunshine Law to make recommendations to council on the next set of airport advisors.

** Of additional idiocy that nobody ever seemed to pick up on: It is apparent from this email that Tacy never understood the difference between Florida's Government in the Sunshine Law and Florida's public records laws. The email that he sent to Kim Hackett had nothing to do with the Sunshine Law as it was not a communication between two public officials. As a communication between a public official and a private citizen (in this case, a journalist), the email was and is covered under the public records laws, which is a whole 'nother animal. Mogensen's lawsuit complains of alleged violations of both sets of laws by public officials, which helped to cause a lot of public confusion as to what each set of laws actually covered. Still, Tacy should have known better, and this slip is a good indicator of his level of knowledge at the time it was written.

John Patten is the editor and publisher of Venice Florida! dot com and had previously worked in broadcasting for over 12 years. He can also be incredibly rude at times.