Florida Supreme Court Archives - Florida Politics

Justices agree to decide ballot fight on county offices

The Florida Supreme Court on Tuesday unanimously agreed to take up a challenge to a proposed ballot measure that has drawn opposition from some counties.

Justices issued an order accepting the case, though they put off a decision about whether they will hold oral arguments. The order came a day after the 1st District Court of Appeal quickly sent the case to the Supreme Court. The appeals court pointed to a “question of great public importance” that it said needs “immediate resolution by the Supreme Court of Florida.”

The case stems from a proposed constitutional amendment that the state Constitution Revision Commission placed on the Nov. 6 ballot. The measure, known as Amendment 10, would make the five local constitutional offices — sheriff, tax collector, supervisor of elections, clerk of the court and property appraiser — mandatory and require elections for the offices in all 67 counties. It would also prohibit charter counties from abolishing or modifying those offices.

Charter counties have opposed the amendment, arguing that local voters through the charter process should have the power to decide how constitutional offices are structured and whether they should be elected positions.

Challenges filed in Leon County circuit court argued that the ballot language and summary were misleading and that, as a result, the proposal should not go to voters.

But Circuit Judge James Shelfer last week rejected those arguments, prompting Volusia, Miami-Dade and Broward counties to file notices of appeal Friday at the 1st District Court of Appeal, according to online dockets.

The appeals court, instead of following the usual process of considering the issue, essentially forwarded it to the Supreme Court.

Ballots for the November election will begin to be sent out to voters next month.

Appeals court hands off dog racing ban challenge to Supreme Court

The 1st District Court of Appeal on Monday agreed to “pass through” to the state’s Supreme Court a case on whether a proposed amendment to end greyhound racing should stay on the November ballot.

A unanimous three-judge panel said the matter was “of great public importance,” needing “immediate resolution … due to time constraints related to the pending election and ballot preparation timelines.” The Supreme Court did not immediately accept jurisdiction.

Tallahassee Circuit Judge Karen Gievers ruled last week that the proposed ballot title and summary were “clearly and conclusively defective,” and the amendment should not go on the ballot. The measure bans betting on dog racing effective the beginning of 2021.

Among other things, Gievers said the title and summary didn’t make clear to voters that other gambling at racetracks, such as card games and slots, would continue if the measure passed.

Edward M. Wenger – the state’s chief deputy solicitor general – appealed the decision, placing a hold on the effect of Gievers’ ruling pending appellate review.

Judges Joseph Lewis Jr., Scott Makar and M. Kemmerly Thomas also said their court “stand(s) ready to assist on an emergency basis should the matter be remanded back to us for our consideration.”

Amendment 13, placed on the ballot by the 2017-18 Constitution Revision Commission, was challenged by the Florida Greyhound Association, which represents the state’s breeders and owners. Amendments need no less than 60 percent approval to be added to the state constitution.

Both the state and the association had agreed to ask the DCA to pass the case to the Supreme Court, noting that time was of the essence: Mail-in ballots must, by law, be sent to voters by Sept. 22.

“There are only a few companies certified to print these paper ballots in the United States, and every other state in the country is holding elections” on Nov. 6, their filing said. “As a result, counties in Florida submit their ballot orders as early as possible to ensure they meet the mailing deadline.

“… Expedited briefing and oral argument could occur in (the Supreme) Court before the early September practical deadline for printing the general election ballots,” the request said. 

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Featured photo by Van Abernethy

Lara Trump, president’s daughter-in-law, joins fight for dog-racing ban

Lara Trump, President Donald Trump’s daughter-in-law, is joining Attorney General Pam Bondi for a fundraiser to benefit the campaign to pass a proposed constitutional amendment aimed at ending dog racing in Florida.

Trump, a former television host and producer and an animal rights supporter, is married to Eric Trump, the president’s second son.

Trump and Bondi are listed as “special guests” at the fundraiser set for next Thursday in Greenwich, Connecticut, hosted by Leora and Steven Levy. Leora Levy is a Republican national committeewoman; husband Steven is CEO of his family’s New York real estate firm.

For $2,500 a person, contributors also can attend a separate “VIP roundtable” with Trump and Bondi before the event begins.

The fundraiser benefits the Protect Dogs-Yes on 13 campaign, formed to persuade voters to vote for the amendment.

Though a Tallahassee judge this week ordered Amendment 13 off the ballot, the state appealed, which puts an “automatic stay” on the case. That means until a higher court says otherwise, the amendment will be on the 2018 general election ballot.

Among other things, Circuit Judge Karen Gievers said the amendment’s ballot title and summary were misleading.

The measure was slated for the ballot by the 2017-18 Constitution Revision Commission (CRC), of which Bondi was a member.

Bondi gave a impassioned speech to fellow CRC members earlier this year for the amendment’s approval, calling dog racing a “black eye on our state.” The measure needed at least 22 votes to be cleared for the ballot; it passed the commission 27-10.

Amendments need no less than 60 percent approval by voters to be added to the state constitution.

Edward M. Wenger, the state’s chief deputy solicitor general, filed the appeal. Wenger reports to Solicitor General Amit Agarwal, who answers to Bondi. They represent the defendants, the Department of State and its secretary, Ken Detzner, the state’s chief elections officer.

They were sued by the Florida Greyhound Association, which represents breeders and owners who opposes the ban. Both sides have predicted the case will reach the Florida Supreme Court — and both sides are confident they’ll win.

Sides battle over ‘high quality’ schools requirement

When Florida voters went to the polls in 1998, more than 70 percent approved a constitutional amendment that required the state to provide an “uniform, efficient, safe, secure and high quality” system of public schools.

But two decades later, the Florida Supreme Court is preparing to wade into a long-running battle about whether the state has adequately carried out the requirement — and whether judges should even decide questions that attorneys for the state describe as a “political thicket.”

The state last week filed a 72-page brief asking the Supreme Court to uphold a decision by the 1st District Court of Appeal that rejected the lawsuit, which has been led by a group called Citizens for Strong Schools.

In the brief, the state’s attorneys argued that the issues raised by the plaintiffs are “non-justiciable political questions” that courts should not resolve. But even if the Supreme Court disagrees with that argument, the state’s attorneys contend that Florida has made “dramatic improvements” in student performance, dispelling the notion that it has not provided an adequate education system.

“Florida’s school reforms and education policies — most of which were implemented after the 1998 constitutional amendment … — have led to steady and impressive gains in student performance,” the brief said.

But in a brief filed last month, attorneys for the plaintiffs argued that the Supreme Court should overturn the 1st District Court of Appeal ruling and send the case back to a circuit judge under an “appropriate standard of review” to determine if the state has met the constitutional requirements.

In questioning the quality of education provided in the state, the plaintiffs’ brief pointed to issues such as disparities in student test performances in different counties and by different racial and ethnic groups.

“The (1998 constitutional) revision mandates that the state give all children in Florida a chance to obtain a high quality education,” the plaintiffs’ brief said. “Parents allege this is not occurring. But the First DCA (District Court of Appeal) ruled that, regardless, courts have no power to ensure it does. That decision was an abdication of the courts’ core responsibility to act when other branches of government’s acts violate the Constitution.”

The 1998 amendment was placed on the ballot by the Florida Constitution Revision Commission, a panel that meets every 20 years to consider revisions to the Constitution. Voters approved the measure at the same time they elected Republican Gov. Jeb Bush, who ushered in major — and often-controversial — changes to the education system that continue to reverberate in 2018.

Among other things, Bush and his supporters backed expansion of school choice, high-stakes testing and grading the performances of public schools.

The constitutional amendment, in part, said it is a “paramount duty of the state to make adequate provision for the education of all children residing within its borders.” The amendment fleshed that out, in part, by saying adequate provision will be made for a “uniform, efficient, safe, secure, and high quality system” of public schools.

Citizens for Strong Schools and the other plaintiffs initially filed the lawsuit in 2009. A Leon County circuit judge ruled in favor of the state in 2016, and the 1st District Court of Appeal followed suit in December.

After the plaintiffs took the issue to the Supreme Court in January, the state argued justices should not take it up. But the Supreme Court decided in April to hear the case. It has not scheduled oral arguments.

Supreme Court to weigh FPL environmental costs

A battle is playing out at the state Supreme Court about whether customers of Florida Power & Light should pay for an environmental clean-up project in Miami-Dade County.

The Florida Public Service Commission filed a brief Monday urging the Supreme Court to uphold a decision that allows FPL to recover money from customers to deal with a saltwater plume that moved from a power-plant complex into nearby groundwater.

The state Office of Public Counsel, which represents consumers in utility issues, took the issue to the Supreme Court, arguing that FPL customers should not get hit with the costs, which a court filing says could total $206 million over 10 years.

In the brief Monday, the Public Service Commission said its decision to allow FPL to recover the costs is “reasonable and commonsensical.” It pointed to part of state law that allows electric utilities to pass along costs to consumers for expenses related to environmental regulations — a part of state law known in the utility industry as the environmental cost recovery clause.

The project stems from saltwater moving from a cooling-canal system at FPL’s Turkey Point complex into groundwater. FPL in recent years entered into agreements with the county and the Florida Department of Environmental Protection to fix the problem, and the Public Service Commission brief said the utility should be able to recover the costs because it is complying with environmental regulations.

“The consent actions (agreements with Miami-Dade County and the Department of Environmental Protection) impose specific new requirements that apply to FPL in relation to its function as an electric utility, including the abatement or remediation of the hypersaline plume,” Monday’s brief said. “The consent actions are environmental regulations pursuant to (the environmental costs recovery law.)

But in a brief filed in May, the Office of Public Counsel described the December decision as requiring customers to “bail out FPL for the decades that the company allowed the hypersaline plume to spread and build up.”

“The money at issue will not pay for ‘compliance’ with laws or regulations designed to protect the environment, but instead will explicitly pay for FPL’s noncompliance because the costs are paying for cleaning up the effects of decades of FPL’s past, unlawful pollution,” the Office of Public Counsel argued.

The Public Service Commission, which each year considers environmental costs for utilities, voted unanimously Dec. 12 to allow FPL to collect the saltwater-related costs through customer bills. The Office of Public Counsel filed a notice in February that it would appeal to the Supreme Court, which has not indicated when it could hear the case.

In the brief Monday, the commission sought to rebut the arguments by the Office of Public Counsel, saying there “is ample record evidence showing that FPL fully cooperated with its environmental regulators.”

SImone Marstiller

Personnel note: Simone Marstiller appointed to Judicial Management Council

Simone Marstiller, a retired appellate judge, has been appointed to the Florida Supreme Court’s Judicial Management Council.

Marstiller now is with the Gunster law firm’s appellate and government affairs teams, based in the Tallahassee and Tampa offices.

The council “serves as high-level management consultants to the Supreme Court and (is) responsible for assisting the chief justice in proactively identifying trends, potential crisis situations, and the means to address them,” a press release said.

Marstiller, appointed by new Chief Justice Charles Canady, will serve a four-year term ending June 2022.

“Florida citizens and businesses deserve a fair, accessible, well-functioning court system, and I’m eager to use my experience as a judge and lawyer to help achieve that goal,” she said in a statement.

The Liberian-born lawyer had been in private law practice after serving 2010-15 as a judge of the 1st District Court of Appeal, based in Tallahassee.

Her long resume includes being Secretary of the Department of Business and Professional Regulation, interim Secretary of the Department of Management Services, Deputy Chief of Staff, and state Chief Information Officer under Gov. Jeb Bush. 

She also was Associate Deputy Attorney General under Attorney General Bill McCollum and Executive Director for the Florida Elections Commission.

Marstiller is an adjunct professor at Florida State University’s College of Law and at Stetson University’s law school. She also got her undergraduate degree in business administration and her law degree from Stetson.

Miami judge resigns amid ethics probe

A Miami judge who admitted using racial epithets resigned Friday, a month after the Florida Supreme Court rejected a recommended 30-day suspension and public reprimand.

Circuit Judge Stephen Millan submitted his resignation to Gov. Rick Scott Friday, saying “it has been my honor and privilege to serve the people of Miami-Dade County.”

In a unanimous order last month, the justices rejected the proposed sanctions against Millan and asked the Florida Judicial Qualifications Commission, which investigates judicial wrongdoing, to conduct a more thorough probe.

The justices also rejected a stipulation agreement reached by the judge and an investigative panel of the JQC, in which Millan acknowledged that he used racially disparaging language to describe a criminal defendant and members of the public.

Millan also admitted that he conducted what is known as improper “ex parte communication” with an attorney, according to the agreement dated May 21.

The investigative panel found that Millan used the racial epithet “moolie” to describe an African-American defendant during a one-on-one conversation with the defendant’s lawyer. In another instance, while on a break with attorneys in his chamber, Millan instructed a bailiff to return to the courtroom and retrieve his wallet because he didn’t “trust it in there with those thugs,” the investigative panel wrote in its findings and disciplinary recommendations.

A defense attorney believed Millan was referring to his client or the client’s family or friends. The “ex parte” conversation involved a phone call Millan made to the defense attorney several days after the “thugs” remark.

The attorney said he was uncomfortable talking without the prosecution present, but the judge went on to talk about at least six of the attorney’s cases. In the stipulation agreement, Millan signed off on the suspension and the $5,000 fine recommended by the investigative panel.

The agreement said the judge had also “taken significant steps to address his misconduct,” such as reviewing “scholarly articles and publications about racial bias in the court system” and attending, at his own expense, a “seminar about racial fairness” in the court system.

“Judge Millan apologizes for his misconduct, and deeply regrets that his remarks have damaged the public’s perception of fairness and impartiality of the judiciary,” Alexander Williams, assistant general counsel to the judicial commission, wrote.

It is not unusual for the justices to reject recommended sanctions and order full hearings prior to imposing tougher penalties on judges who have violated standards regulating judicial conduct.

In his resignation letter submitted Friday, Millan said he would serve on the bench until Aug. 3.

Rick Scott urges justices to stay out of appointment battle

Attorneys for Gov. Rick Scott on Friday argued the state Supreme Court should not step into a legal dispute about whether Scott can appoint a Northeast Florida circuit judge or whether the judge should be elected by voters.

Scott administration attorneys filed a 30-page response that fired back against a request for the Supreme Court to block the appointment until underlying legal issues can be resolved. The case centers on whether Scott should be able to appoint a replacement for retiring 4th Judicial Circuit Judge Robert Foster.

Jacksonville attorney David Trotti filed a lawsuit arguing that the replacement should be elected in November. A Leon County circuit judge agreed and blocked the Scott administration from moving forward with an appointment process.

But the Scott administration immediately appealed, and the 1st District Court of Appeal kept in place a stay on the circuit judge’s ruling. That effectively allowed the appointment process to advance while the case continued.

Trotti, who tried to qualify to run for the seat in November, then asked the Supreme Court to step in and halt the appointment process.

Foster was expected to leave office Jan. 7, 2019, which would be the end of his term, because of a mandatory retirement age. But on April 2, Foster sent a letter to Scott making the retirement effective Dec. 31, four business days ahead of schedule.

The Scott administration takes the position that the governor’s acceptance of a judicial resignation before the start of an election-qualifying period creates a vacancy that will be filled by appointment, rather than election.

“Here, the undisputed facts establish that Judge Foster’s resignation was tendered and accepted by the governor before the election process commenced at the beginning of the candidate qualifying period,” Friday’s response said.

“The governor is therefore constitutionally authorized and obligated to fill the vacancy by appointment, and the secretary of state is prohibited from qualifying candidates for a judicial seat that will not be filled by election.”

The 4th Judicial Circuit is made up of Duval, Clay and Nassau counties.

Rick Scott, Robert Foster, David Trotti, 1st District Court of Appeal, Florida Supreme Court, judicial

Judge removed over campaign misconduct

For the second time in seven days, the Florida Supreme Court on Monday removed a judge from office after an investigation into misconduct in an election campaign.

Justices, in a 4-3 decision, issued an order removing Palm Beach County Judge Dana Marie Santino from the bench as of 5 p.m. Monday because of attacks on an opponent during a 2016 campaign. The move came a week after the Supreme Court removed 7th Judicial Circuit Judge Scott DuPont, who heard cases in Putnam and Flagler counties.

The Supreme Court said a full opinion in the Santino case will be issued later, but justices Barbara Pariente, R. Fred Lewis, Peggy Quince and Jorge Labarga supported the judge’s removal. Chief Justice Charles Canady and justices Ricky Polston and Alan Lawson dissented.

The decisions in the Santino and DuPont cases came as justices have shown in recent years an increased intolerance for ethical and behavioral lapses by judges. The decisions also came amid elections this year for judicial seats in numerous parts of the state.

The state Judicial Qualifications Commission investigated Santino because of allegations that she and a Facebook page linked to her campaign consultant impugned her 2016 election opponent, Gregg Lerman, because of his work as a defense attorney.

The Facebook page, for example, said “Attorney Gregg Lerman has made a lot of money trying to free Palm Beach County’s worst criminals. Now he’s running for judge!” It also included a photo of Lerman surrounded by words such as “identity theft,” “rape,” “sexual assault,” “pedophiles” and “murder,” according to a report last year by a hearing panel of the Judicial Qualifications Commission.

The report, which recommended Santino’s removal from office, also pointed to comments made by Santino during the campaign about Lerman’s background as a defense attorney. Santino defeated Lerman in the November 2016 election.

“Candidate Santino did not merely compare her background, qualifications, character and integrity with that of her opponent,” the report said. “She imputed guilt to those that were merely accused. She also expressly stated and implied that Lerman was not impartial, was predisposed to favor criminals, while she was predisposed to victims, and courted votes based on each candidate’s supposed predisposition. Her entire campaign was inflammatory and rife with innuendo. She repeatedly implied that representing persons charged with crimes was, by its very nature, dishonorable and antithetical to the public good.”

But in a document filed in November at the Supreme Court, Santino’s attorneys argued she should not be removed from office, saying that the “campaign violations — considering this (Supreme) Court’s prior campaign violation precedent as well as Judge Santino’s background, character and performance as a judge — do not establish evidence of ‘present unfitness to hold office.’ ”

“Her campaign violations were wrong, and she fully acknowledges her mistakes,” the document said. “This Honorable Court should … levy a serious sanction consistent with this misconduct. As a matter of law, however, in light of her ‘excellent’ work as a judge, lack of any prior Florida Bar discipline, character and mitigation, and full acceptance of responsibility, this record does not demonstrate present unfitness to hold office, and, under Article V (of the Florida Constitution), does not implicate removal.”

The decision in the Santino case followed the Supreme Court’s unanimous decision June 25 to remove DuPont from his post in the 7th Judicial Circuit, which is made up of Putnam, Flagler, St. Johns and Volusia counties. DuPont was accused of publishing false allegations against his 2016 election challenger and was investigated for other actions while on the bench.

Framers’ allowed to file brief in education legal fight

The Florida Supreme Court on Friday allowed 10 members of the 1998 state Constitution Revision Commission to file a brief in a legal battle about whether Florida is meeting its constitutional duty to provide a high-quality system of public schools.

Describing themselves as the “framers” of a 1998 ballot measure that put the duty in the Constitution, the former Constitution Revision Commission members filed a motion in May asking for approval to file a friend-of-the-court brief at the Florida Supreme Court.

But attorneys for the state objected.

The Supreme Court issued a one-paragraph order Friday allowing the group to file a brief but also appeared to leave open the possibility that the state could object to parts of the brief, known formally as an amicus brief.

The order said the approval was granted “without prejudice to the subsequent presentation of objections by respondents to specific content of the amicus brief filed.”

The brief stems from a long-running lawsuit led by the group Citizens for Strong Schools, which argues that the state has failed to comply with the 1998 voter-approved amendment.

A Leon County circuit judge and the 1st District Court of Appeal rejected the arguments, leading Citizens for Strong Schools and other plaintiffs to go to the Supreme Court.

The 1998 constitutional amendment says it is a “paramount duty of the state to make adequate provision for the education of all children residing within its borders.”

The amendment fleshed that out, in part, by saying adequate provision will be made for a “uniform, efficient, safe, secure, and high-quality system” of public schools.

The plaintiffs argue the state has not met those standards and should be forced to take steps to carry out the constitutional amendment. But the 1st District Court of Appeal said, in part, it is not the role of judges to determine education policy.

The 10 former commissioners who sought to file the brief included former Attorney General Bob Butterworth, former Supreme Court Justice Gerald Kogan and former House Speaker Jon Mills.

Republished with permission of the News Service of Florida.

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