Florida Supreme Court – Florida Politics
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.

Justices to take up ‘stand your ground’ split

With lower courts split on the issue, the Florida Supreme Court said Tuesday it will take up a question about whether a 2017 change to the state’s “stand your ground” self-defense law should apply to older cases.

The controversial 2017 change shifted a key burden of proof in “stand your ground” cases — a shift that can play a role in determining whether people claiming self-defense should be shielded from prosecution. But two appellate courts have split about whether the change should apply to defendants who were arrested before the 2017 law took effect but whose cases were pending.

The Supreme Court on Tuesday agreed to hear the case of Tashara Love, who sought to use the self-defense law to be shielded from prosecution in a November 2015 shooting incident outside a Miami-Dade County nightclub. The 3rd District Court of Appeal last month ruled that the 2017 burden-of-proof change should not apply retroactively to Love’s case.

In asking the Supreme Court to hear the case, Love’s attorneys pointed to potentially broad implications.

“This case presents an issue of statewide importance impacting countless criminal prosecutions: whether the 2017 amendment to the Stand Your Ground law applies to all pending cases or only those arising after its enactment,” the attorneys wrote in a brief.

As is common, the Supreme Court’s order Tuesday accepting the case dealt only with procedural issues. But all five justices involved in deciding whether to take up the case — Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis, Charles Canady and Ricky Polston — agreed on hearing it.

The “stand your ground” law says people are justified in using deadly force and do not have a “duty to retreat” if they believe it is necessary to prevent death or great bodily harm. When the defense is successfully raised in pretrial hearings, defendants are granted immunity from prosecution.

Before the 2017 change, the Supreme Court had ruled that defendants had the burden of proof in pretrial hearings to show they should be shielded from prosecution. But with backing from groups such as the National Rifle Association, lawmakers shifted the burden from defendants to prosecutors to prove whether self-defense claims are justified. By placing the burden on prosecutors, the new version of the law could help at least some defendants in “stand your ground” cases.

While the 3rd District Court of Appeal ruled that the change should not be applied retroactively, the 2nd District Court of Appeal this spring took the opposite position in a Hillsborough County case.

A panel of the 2nd District Court of Appeal said the burden-of-proof change should apply retroactively to Tymothy Ray Martin, who was convicted of felony battery in a 2016 altercation involving his girlfriend. Martin appealed his conviction, and the appeal was pending when the 2017 burden-of-proof change took effect.

Martin’s case also is at the Supreme Court. Amid the conflicting rulings, Attorney General Pam Bondi’s office agreed that the Supreme Court should resolve the retroactivity issue — though it suggested justices hear the Martin case instead of the Love case.

“(Courts) of the Third District are forbidden from applying Florida’s Stand Your Ground amendment retroactively, while courts of the Second District must apply it retroactively to all pending cases,” attorneys in Bondi’s office wrote in a brief this month. “This constitutes the requisite ‘express and direct conflict’ that the (Supreme) Court’s conflict jurisdiction is designed to resolve.”

Republished with permission of the News Service of Florida.

Justices reject appeals in decades-old murders

The Florida Supreme Court on Tuesday rejected appeals from three Death Row inmates who were convicted of committing murders in the 1980s in Pinellas, Broward and Palm Beach counties.

The appeals by attorneys for inmates James Milton Dailey, Daniel Lee Doyle and Duane Eugene Owen were rooted in a January 2016 U.S. Supreme Court ruling in a case known as Hurst v. Florida and subsequent Florida Supreme Court decisions.

The 2016 U.S. Supreme Court ruling found Florida’s death-penalty sentencing system was unconstitutional because it gave too much authority to judges, instead of juries.

The subsequent Florida Supreme Court ruling said juries must unanimously agree on critical findings before judges can impose death sentences and must unanimously recommend the death penalty.

Attorneys for Dailey, Doyle and Owen argued the new requirements should be applied retroactively to their cases, which could have led to new sentencing hearings. But the Supreme Court rejected the arguments, as it has done in numerous other appeals from longtime Death Row inmates.

Justices have made the new sentencing requirements apply to cases since June 2002, which is when the U.S. Supreme Court issued a ruling known as Ring v. Arizona that was a premise for striking down Florida’s death-penalty sentencing system in 2016.

Dailey, now 72, was convicted in a 1985 murder in Pinellas County; Doyle, now 58, was convicted in a 1981 murder in Broward County; and Owen, now 57, was convicted in a 1984 murder in Palm Beach County, according to court and Department of Corrections records.

Republished with permission of the News Service of Florida.

Dispute over TIKD going to legal referee

Florida Supreme Court Chief Justice Jorge Labarga on Tuesday ordered the appointment of a referee in a dispute between The Florida Bar and a Miami-Dade County firm that helps motorists fight traffic tickets.

The dispute stems from allegations that TIKD Services LLC violated a ban on practicing law without a license – allegations that the firm denies.

The Bar in January filed a petition requesting that the Supreme Court issue an injunction against TIKD.

But Labarga on Tuesday designated Bertila Soto, chief judge of the 11th Judicial Circuit, which includes Miami-Dade, to appoint a referee in the case.

The referee ultimately will hold a hearing and submit findings and recommendations to the Supreme Court.

TIKD, which was created in 2016, operates an online service in which motorists can upload pictures of tickets, according to court documents.

TIKD performs a statistical analysis after receiving tickets and determines whether to provide its services to motorists.

If it accepts a ticket, TIKD charges a fee and pays an attorney to represent the motorist. TIKD also pays fines or court costs if tickets are not dismissed, the documents said.

TIKD contends it does not provide legal services, but the Bar has alleged that the firm engages in the practice of law “by offering to provide legal services.”

Supreme Court removes judge from bench

Circuit Judge Scott DuPont.

The state Supreme Court on Monday removed a Northeast Florida circuit judge because of improper conduct during a 2016 election campaign and other actions while on the bench.

In the unanimous decision, the court ordered the removal at 5 p.m. Monday of Judge Scott DuPont, who heard cases in Putnam and Flagler counties in the 7th Judicial Circuit.

The Florida Judicial Qualifications Commission, which investigates wrongdoing by judges, recommended that DuPont be taken off the bench after a hearing panel found numerous violations of judicial canons, including an allegation that DuPont published false allegations online about his 2016 election challenger, Malcolm Anthony, and Anthony’s family members.

The investigation also found that, during a candidate forum in 2016, DuPont said that he would not find a state law unconstitutional “because it’s not my job to legislate from the bench,” a “blatant violation” of judicial canons that ban judges from predetermining how they will decide on certain cases.

The panel also took issue with DuPont for changing the times of first-appearance hearings in criminal cases during Memorial Day weekend in 2016 to accommodate his campaign schedule. DuPont admitted he “made a poor decision” but “simply could not say why he started the hearing early,” according to court records.

The commission was especially concerned about information DuPont posted online about Anthony during DuPont’s re-election campaign two years ago.

DuPont “imputed criminality to his opponent’s wife and daughter on his website,” a report by the commission’s hearing panel said.

“He disseminated false and misleading information that Anthony employed aliases, posed as an imposter, and was ‘booked’ for arrest,” the report said.

DuPont was warned repeatedly “not to publish the woefully deficient ‘opposition research’ gathered, both verbally and in writing, by his campaign manager and judicial colleagues,” according to the report.

DuPont’s campaign website represented that Anthony’s daughter had been arrested 23 times, when in fact she had never been arrested, lawyers representing the Judicial Qualifications Commission wrote on April 11.

“This behavior is beyond reckless,” they wrote.

But, arguing that the judge should not be removed from office, DuPont’s lawyer, Rutledge Liles, wrote that the commission was attempting to “fan the flame of prejudice” to get the judge kicked off the bench.

“In essence, what we are faced with is an effort to pile on Judge DuPont in an attempt to show a pattern of conduct justifying his removal,” Liles wrote in a response filed April 30.

DuPont “admitted his carelessness and has in no fashion attempted to defend what occurred as acceptable conduct” regarding the alleged elections violations, Liles wrote.

The judge maintained he “acted in good faith” with “the honest belief” that the information given to him about his opponent was accurate, according to the court documents.

“In this context, it defies common sense to think that an incumbent judge would intentionally manufacture false allegations against an opponent,” Liles wrote. “Careless or reckless publication amounts to negligence and conduct of a rash or unwise nature. It is distinguishable from an evil motive or intent.”

But the judge’s insistence that he didn’t know the information was faulty at the same time he claimed to accept responsibility for the ethical lapse didn’t jibe with the lawyers representing the Judicial Qualifications Commission.

“Acceptance of responsibility is not to repeatedly testify before the Hearing Panel that you relied on others and yet voice the magic words, ‘I accept responsibility,’” lawyers for the commission wrote, adding that DuPont’s testimony to the commission “was, at times, not worthy of belief.”

Monday’s order removing DuPont from the bench is the latest action from justices who have grown increasingly intolerant of ethical and behavioral lapses by judges.

The Judicial Qualifications Commission’s recommendation of removal relied in part on former Chief Judge Terence Perkins, who accused DuPont of heavy-handedness when dealing with defendants and told the commission he received more complaints about DuPont than any other judge.

Perkins said he never assigned DuPont to a felony division because he “was fearful he would constantly have to react to Judge DuPont ‘putting people in jail all the time,’” lawyers for the commission wrote in April.

But Liles took issue with the commission’s reliance on Perkins’ negative remarks about the judge, pointing out that Perkins also authored a letter praising DuPont’s character.

And Liles dismissed DuPont’s alleged “heavy-handedness” by reminding the court that Putnam County is one of the poorest in Florida. Along with Putnam and Flagler, the circuit also includes St. Johns and Volusia counties.

Putnam County “had a lot of trouble with ‘crime, domestic violence, violence and truancy, and things of that nature,” according to another 7th Circuit judge, according to Liles’ April 30 response.

DuPont should be applauded for “his efforts to clean up Putnam County and restore some semblance of order,” his lawyer advised the court.

The county “has the highest child rape statistic per capita” in Florida, has “the highest teen pregnancy rate” and has the highest divorce rate, according to DuPont’s testimony.

“Against this backdrop, should ‘putting people in jail all the time’ and being ‘heavy-handed’ in dealing with the domestic violence and crime be given even a moment’s notice as, is it unreasonable for a judge, who is presiding over a particular case, hearing the seriousness of the charges first hand, to exercise discretion and judgment?” Liles wrote.

Monday’s order removing DuPont from the bench will be followed by a full order later.

Republished with permission of the News Service of Florida.

Supreme Court targets juror anti-gay views in death case

The Florida Supreme Court ordered resentencing Thursday for a Death Row inmate convicted of a 2005 murder in Broward County and said a separate hearing should be held to delve into anti-gay statements made by a juror.

Justices ordered a new sentencing hearing for inmate Eric Kurt Patrick because the jury split 7-5 in recommending the death penalty to a judge. On that issue, Thursday’s ruling was similar to numerous other cases in which justices have ordered resentencing based on a 2016 U.S. Supreme Court decision that found Florida’s death-penalty sentencing system unconstitutional.

But justices also agreed that Patrick should receive an evidentiary hearing related to anti-gay statements made during jury selection by a man who ended up serving on the jury. Patrick’s current lawyers argued in a Supreme Court brief that his trial attorney did not properly seek to block the man from serving on the jury and that a new trial should result.

The Supreme Court opinion said the juror acknowledged he would have a bias if he knew a criminal defendant was gay.

“When asked if he would still hold the prosecutor to the proper burden of proof, he answered, ‘Put it this way, if I felt the person was a homosexual, I personally believe that person is morally depraved enough that he might lie, might steal, might kill,’” the Supreme Court opinion said. “The juror said ‘yes’ when asked if this bias might affect his deliberations.”

Patrick, now 55, was convicted in the September 2005 murder of Steven Schumacher after the men met at a park and went to Schumacher’s home. Patrick, who was homeless at the time, gave Schumacher a massage and the men were naked in bed when Patrick began beating the victim, according to a summary of the case included in the Supreme Court opinion. Patrick said Schumacher wanted to have anal sex but that Patrick refused – a situation that ultimately led to the fatal beating.

The Supreme Court opinion said Patrick denied being gay but that he had engaged in sexual activity with other men. Regardless, the Supreme Court pointed to potential bias in the statements made during the jury-selection process known as voir dire.

“Applying this evidence to the juror’s voir dire answers establishes that, by the juror’s own acknowledgment on the record, he was predisposed to believe that Patrick is morally depraved enough to have committed the charged offenses,” the opinion said. “Although Patrick does not identify as homosexual and indicated in his confession that his sexual activity with men was for material support rather than personal fulfillment, these points do not eliminate the bias that this juror said he would feel based on the evidence that trial counsel and the trial court knew the jury would hear during trial.”

The opinion said prosecutors contended that Patrick’s trial attorney did not block the juror for strategic reasons. But the Supreme Court said it can “neither ignore the possibility that counsel’s failure to challenge this juror was strategic nor conclude that it was.” As a result, justices unanimously ordered a lower court to hold an evidentiary hearing.

The Supreme Court also ruled 5-2, with justices Charles Canady and Ricky Polston dissenting, that Patrick should receive a new sentencing hearing as an outgrowth of the 2016 U.S. Supreme Court decision.

That U.S. Supreme Court decision found Florida’s death-penalty sentencing system unconstitutional because it gave too much authority to judges, instead of juries. A subsequent Florida Supreme Court ruling said juries must unanimously agree on critical findings before judges can impose death sentences and must unanimously recommend the death penalty.

The Florida court Thursday applied that to Patrick’s case, pointing to the jury’s 7-5 jury recommendation for the death penalty. After the court rulings, state lawmakers changed the death-penalty sentencing system to address the unanimity issue.

Republished with permission of the News Service of Florida.

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