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Amicus brief to charge Rick Scott with voter disenfranchisement in Aramis Ayala case

A coalition of groups led by the Advancement Project in Washington D.C. is filing an amicus brief charging Gov. Rick Scott with refusing to recognize voters’ will in the State Attorney Aramis Ayala case in the Florida Supreme Court.

The coalition, including Civil Rights, immigration reform and labor groups, is characterizing Ayala as a criminal justice reform state attorney elected by voters of Florida’s 9th Judicial Circuit because of her criminal justice reform platform.

And they’re charging that Scott is rejecting that criminal justice reform platform selected by voters because he does not like the reform she is pursuing – her decision to not pursue death penalty prosecutions.

Scott has stripped Ayala of 23 first-degree murder cases and reassigned them to 5th Judicial Circuit State Attorney Brad King. Ayala on Tuesday challenged Scott’s power to do so in a writ before the Florida Supreme Court and a lawsuit in federal court.

The coalition’s friend-of-the-court entry is in the Supreme Court case, charging Scott is refusing to recognize the will of the voters.

Judith Browne Dianis, executive director of Advancement Project, called Scott’s move “a power grab” in a telephone press conference Thursday announcing the amicus brief.

“We are raising two points in our brief. One of which is the state of Florida is in need of criminal justice reform, and two, that the people voted in a reformer in order to make that happen,” Browne Dianis said.

She said Florida is one of the worst offenders when it comes to a “broken criminal justice system” and that Ayala’s reforms are sought by voters and eschewed by Tallahassee leadership.

“Unfortunately Gov. Scott … didn’t like the policies of Aramis Ayala and decided to step in and usurp the will of the voters,” Browne Dianis continued. “That is unconstitutional”

Ayala never campaigned against the death penalty during her 2016 election campaign, though she did offer herself as a criminal justice reformer.

The coalition, which included representatives of the New Florida Majority, Dream Defenders, the Florida State Conference of the NAACP, Color of Change and the SEIU Florida, also pushed racial aspects of the battle between Ayala, who is Florida’s first African-American state attorney, and Scott, who is white.

Chardonnay Singleton of Dream Defenders, a criminal justice reform organization founded after the slaying of Treyvon Martin in Sanford, said Ayala’s election also can be traced to the cry for criminal justice reform that came from that case..

“The voters have really sought to create an environment where the criminal justice system serves them and not special interests,” Singleton said. “And that’s reflected in the election of Ayala, who is the first black woman state attorney, and that’s a testament of our desire as voters’ across Florida to transform the system to one that is more human, to one that that is more human, one that is more reflective of all of the people in Florida, and one that is more restorative to us as human beings.”

 

Governor’s office affirmed prosecutorial discretion, state attorneys’ independence, in letter last year

Among material filed Tuesday with Orlando’s State Attorney Aramis Ayala‘s Florida Supreme Court challenge of Gov. Rick Scott‘s executive orders stripping cases from her is a year-old letter from his office affirming her position – that her prosecutorial decisions cannot be overridden.

Ayala’s attorneys Roy Austin Jr. of Washington D.C. and Marcos Hasbun of Tampa included the letter as an appendix to their writ of quo warranto, which asks the Florida Supreme Court to vacate Scott’s 23 executive orders used to strip cases from Ayala.

The governor issued those orders reassigning first-degree murder cases from her to 5th Ocala’s State Attorney Brad King because the governor believed she overstepped her authority when she claimed prosecutorial discretion and refused to pursue death penalties.

Yet almost exactly a year ago, April 21, 2016, Scott’s office wrote to support the prosecutorial discretion exercised by Ayala’s predecessor, then-9th Judicial Circuit State Attorney Jeff Ashton, whom Ayala beat in the election last year. The letter came from Warren Davis in Scott’s Office of Citizen Services.

The governor’s office issued the following response Tuesday:

“Governor Scott stands by his decision to assign State Attorney Brad King to prosecute Markeith Loyd after State Attorney Ayala refused to recuse herself. Markeith Loyd is accused of executing Lt. Debra Clayton, a brave law enforcement hero who was on the ground fighting for her life, and murdering his pregnant ex-girlfriend Sade Dixon. Orange County Sheriff’s Deputy Norman Lewis was also killed while actively searching for Loyd. As Governor Scott has continued to say, these families deserve a state attorney who will aggressively prosecute Loyd to the fullest extent of the law and justice must be served.”

The response, however, did not specifically address the Davis letter.

“Although we appreciate your concerns,” Davis wrote to concerned citizen in the 9th Judicial Circuit, “each state attorney is an elected official charged with certain discretionary duties, including the duty to determine whether or not to prosecute any particular crime committed within his or her jurisdiction. This decision is based on the quality and the quantity of the evidence of guilt shown, and in the best interest of justice.

“The state attorneys operate independently, and as elected officials, they answer only to the voters of their individual jurisdictions,” Davis’s letter continued.

Ayala’s petition for a writ, filed Tuesday by Austin and Hasbun, cites amendments to Article V, Section 17, to the Florida Constitution, adopted in 1972 and 1986 saying they “expressly required for the first time that ‘the state attorney shall be the prosecuting officer of all trial courts’ in his or her judicial circuit and made it clear that any exception to this must be ‘provided in this constitution.’

“Until the last few weeks,” the writ continues, “the Office of Governor Scott agreed that the Ninth Circuit State Attorney had discretion over the cases in his judicial circuit.” It then cites the April 21, 2016 letter.

 

Aramis Ayala files challenges of Rick Scott with Florida Supreme Court, federal court

Arguing Gov. Rick Scott had no legal basis to strip murder cases from her jurisdiction, Orlando’s State Attorney Aramis Ayala filed challenges Tuesday morning in both the Florida Supreme Court and federal court.

In complaints filed by her attorney, Roy Austin Jr. of Washington D.C., Ayala contends that she legally exercised prosecutorial discretion in deciding not to pursue death penalty prosecutions in the 9th Judicial Circuit. Ayala was not found by guilty of any misconduct.

Consequently, Ayala argues that Scott’s executive orders stripping 23 first-degree murder cases from her and reassigning them to another state attorney were only because he disagreed with her determination not to pursue death penalties.

The state action, seeking a writ of quo warranto, asks the Florida Supreme Court to vacate Scott’s 23 executive orders. Ayala’s petition cites Article V, Section 17, of the Florida Constitution, which declares that “the state attorney shall be the prosecuting officer of all trial courts in that circuit,” and contends that Scott has no legitimate grounds to overcome that.

Ayala’s federal suit, filed in Florida’s Middle District of U.S. District Court, seeks injunctive and declaratory relief against Scott in his official capacity as Governor of Florida and in his individual capacity, as well as against Fifth Judicial Circuit State Attorney Brad King in his official capacity.

It argues that Scott denied both the will of the voters of the 9th Judicial Circuit and the due process clause of the Fourteenth Amendment to the U.S. Constitution.

“This is about justice and it’s about fairness,” Austin said in an interview with FloridaPolitics.com. “Ms. Ayala was elected to ensure the fair administration of justice in the 9th Judicial Circuit. That is what she plans and is going to fight for. That involves everybody, the people in her office, the families of victims, the community she represents.”

The moves set forth the anticipated monumental showdown that will determine both the breadth of the power of the governor and breadth of prosecutorial discretion of Florida prosecutors.

The federal suit asks the federal court to defer for now to the Florida Supreme Court, so the state will get the first crack at the issues, based on state law and the Florida Constitution.

Scott said he hadn’t seen the filing, but when Ayala declined to seek the death penalty for alleged cop-killer Markeith Loyd, also charged with killing his pregnant girlfriend, “it bothered me, personally.”

He recounted the grisly details of the crimes of which Loyd stands accused.

“I’m going to continue to look at cases. I’ve moved other cases there,” Scott said.

“I’m going to think about the victim, and I’m going to think about the victim’s family. What she’s filed, I don’t know.

“But I want to thank Brad King for his willingness to take on this responsibility — to do the job that all citizens expect our state attorneys to do, and that is prosecute individuals to the full extent of the law.”

There is no question that Ayala’s decision to not pursue death penalties ignited a political firestorm, with Scott, State Attorney General Pam Bondi, many other Republicans and many police representatives expressing angry disagreement, while a number of Civil Rights, faith-based and legal organizations and a handful of Democrats have sided with Ayala, a Democrat.

The key questions are: how far can a state attorney take the long-standing legal concept of “prosecutorial discretion,” which essentially holds that the prosecutor can decide how to prosecute cases; and how much power does the governor have to manage the affairs of state and local officials whom the governor determines have overstepped their authorities.

The federal suit stands ready to test the issues on a bigger scale.

The complaint charges: “Scott violated the Constitution of the United States, usurped Ayala’s authority, and deprived voters in the 9th Judicial Circuit of their chosen State Attorney when, under color of law, he removed Ayala from 23 pending homicide cases in her circuit and replaced her with King, a State Attorney who was not elected by voters from Orange and Osceola Counties.”

For the first time, the federal case argues Ayala did indeed consider the facts of the case of Loyd, the alleged Orlando cop-killer who is also charged with killing his pregnant girlfriend.

Loyd’s first-up on her agenda, and it was her refusal to pursue a death penalty that led Scott’s first action, taking that case from Ayala and reassigning it to King.

“After extensively researching the relevant law, as well as the facts of the Loyd case, Ayala determined that she would seek a sentence of life without the possibility of parole in Loyd’s case, not a sentence of death,” the suit states.

“Separately from building her case against Loyd, Ayala began formulating her office’s policy for handling death-eligible cases generally. She reviewed research showing that the death penalty: has no positive impact on public safety; is racially discriminatory; discriminates against the poor; is enormously expensive; leaves victims’ families in a state of uncertainty, and is imposed on innocent people too often

“She also met with victims’ families, reviewed files from other cases, and spoke with other people involved with the criminal justice system,” the suit contends.

Florida may pay millions to homeowners for lost citrus trees

Florida may end a long-running battle and pay millions to homeowners whose healthy citrus trees were torn down in a failed attempt to eradicate citrus canker.

The Florida House has $66 million in its proposed budget to pay lawsuits filed on behalf of homeowners in Broward, Lee and Palm Beach counties. There are also lawsuits ongoing in Orange and Miami-Dade counties.

Rep. Carlos Trujillo, the House budget chairman, said the payments should be made because courts have already ruled against the state in those counties.

Agriculture Commissioner Adam Putnam says the state should wait until the lawsuits reach the Florida Supreme Court.

So far Senate Republicans have not included the payments in their budget.

Canker damages citrus trees. From 2000 to 2006, the state removed citrus trees within 1,900 feet of an infected tree.

Republished with permission of The Associated Press.

Supreme Court tweaks its ‘senior justice’ rule after controversy

The Florida Supreme Court no longer will allow its justices to keep working indefinitely on open cases after they leave the bench, according to a new rule released Thursday.

After Justice James E.C. Perry officially retired on Dec. 30, Chief Justice Jorge Labarga allowed him to finish work on opinions as a “senior justice,” following decades of court practice.

But critics, including Republican House Speaker Richard Corcoran, cried foul. They complained Perry was displacing his successor, C. Alan Lawson, who started work the next day on Dec. 31. Perry worked for an additional month after that.

Lawson—GOP Gov. Rick Scott‘s first Supreme Court pick—is a conservative; Perry most often voted with the court’s left-leaning contingent.

Corcoran even prepared a legal challenge to Perry’s continued work, saying among other things that Perry was an unconstitutional “eighth” justice on the seven-member court.

Now, the new Rule of Judicial Administration says, “(N)o retired justice … or other judge who is qualified to serve may be assigned to the supreme court, or continue in such assignment, after 7 (seven) sitting duly sworn justices are available and able to perform the duties of office.”

In defending his decision, Labarga had said the court’s protocol, “as long as I can remember,” has been to grant retired justices senior status to finish work they started; that is, to work on opinions in cases in which they participated in oral argument.

“Appellate work is not like trial work,” Labarga said in February. “If I leave the bench today and a new judge comes in, that judge can’t just start that morning. The records are huge. It takes time to read” all the material.

“This way, when you’re almost out of the woods, almost done with an opinion, you can get it done.”

In a Thursday media availability, Corcoran called it “a great rule change … and my hat’s off to Chief Justice Labarga.”

“They took it upon themselves to come up with a rule, it looks like it was supported by all the justices, and despite that people want to say, ‘there’s tension here, there’s tension there,’ I’ve said it a thousand times that I consider Chief Justice Labarga a friend,” he added. “I think they all want to do … what is best for the judicial system.”

Senate bill to increase Supreme Court reporting requirements clears second committee

A bill that would increase reporting requirements for Florida Supreme Court cases cleared the Senate Criminal and Civil Justice Appropriations Subcommittee with a unanimous vote Wednesday.

SB 878, sponsored by Republican Sen. Tom Lee, would require the court to write up an annual report on cases that the court did not issue a ruling on within 180 days of oral arguments.

“To the extent, the court is having challenges prosecuting its work, I’d like to try to find a way to help them,” Lee said.

Court rules put the 180-day benchmark on issuing a ruling, though there are instances when the Supreme Court is not able to beat the deadline.

Though he didn’t vote against the bill, Lake Worth Democratic Sen. Jeff Clemens said he was concerned that the law would interfere with the way the Supreme Court operates.

“To me, it’s potentially stepping over a line between the three branches of government for us to be looking at how the Supreme Court implements its own rule,” Clemens said.

The bill now moves on to the full Senate Appropriations Committee and must also pass the Rules Committee before it is ready for a vote on the Senate floor. Previously, the bill cleared the Senate Judiciary Committee with a unanimous vote.

The House version of the bill, HB 301, cleared all of its committee stops before the start of the 2017 Legislative Session and was approved by the full chamber with a 78-37 vote March 10.

Legislation advanced making knowingly spreading HIV through sex without partner’s knowledge a capital crime

Roughly 34 years after the discovery of the virus that causes AIDS, Florida’s lawmakers are considering legislation whose maximum sentence would be death to knowingly spread the human immunodeficiency virus, or HIV, to a sexual partner without their knowledge, according to a committee that voted favorably Monday in regard to the measure.

The bill, HB 165, sponsored by Florida Rep. Kionne McGhee, would expand a current law already on the books in the Sunshine State making it a crime to consciously spread sexually-transmitted diseases (STDs).

McGhee’s legislation looks to amend the law by adding HIV to a list of STDs, which include gonorrhea, genital herpes simplex, chlamydia, human papillomavirus hepatitis and syphilis, among others. Anyone caught knowingly spreading those communicable diseases can be punished in a court of law and face jail time, but may only be charged with a first-degree misdemeanor crime if they didn’t know it.

The amendment could make it a first-degree felony, punishable by death, if a person knowingly spreads the disease more than once to multiple people.

The move was sparked by a 2011 case in Key West, Florida, that forced Florida lawmakers to redefine the definition of sex. The Florida Supreme Court issued a ruling in connection to the case just last week.

Gary Debaun, 65, allegedly risked his partner with the virus that causes AIDS and a legal definition of sexual intercourse can’t get him out of the charge, the Supreme Court ruled Thursday in a six-page decision based solely on whether intercourse is defined as only sex between a man and a woman.

“The term ‘sexual intercourse’ is commonly understood to broadly refer to several sex acts — including the sexual act at issue here,” said the court ruling. “In certain contexts, the term refers to specifically — that is, more narrowly, to penile-vaginal intercourse.”

Florida Supreme Court rules sex is sex, no matter who’s doing it

A law that requires someone with HIV to notify a potential sex partner beforehand applies to same-sex relationships as well as between a man and a woman, the Florida Supreme Court unanimously decided Thursday.

The defendant, Gary Debaun, has been trying to have a charge dismissed under a 1986 state law designed to prevent the spread of the human immunodeficiency virus.

Debaun is HIV-positive, according to records.

The case, argued last February, involved the definition of “sexual intercourse.” In 2011, Debaun, a man, lied to a male sex partner that he was HIV-negative, “forg(ing) his doctor’s signature on the lab report,” the opinion said. It did not state whether the other man acquired the virus from having sex with Debaun.

Lawyers for Debaun had argued the law says it’s illegal not to disclose an HIV infection before “sexual intercourse,” but that definition only appeals to traditional sex between a man and a woman—not two men.

The law itself does not define sex, and two different appellate courts had disagreed over the definition.

Justice Charles Canady, who wrote the decision, said: “We first consider the plain and ordinary meaning of the term ‘sexual intercourse’ and conclude that it is not limited to only penile-vaginal intercourse.”

He then notes that “HIV can be spread through vaginal, anal, and oral sex, but anal sex presents the greatest risk of transmitting the infection,” and “gay, bisexual, and other men who have sex with men … are the population most severely affected by HIV.”

Including forms of sex other than penile-vaginal in the definition of intercourse is “a reasonable result, which gives full effect to the Legislature’s intent to reduce the incidence of HIV,” Canady wrote.

“As used in a statute directed at curtailing the spread of HIV(, )it would be absurd for the term ‘sexual intercourse’ to apply only to the act of heterosexual penile-vaginal intercourse,” he added.

As of mid-2015, the Florida Department of Health estimated that nearly 110,000 Floridians were living with HIV, and there had been almost 5,900 newly-diagnosed HIV infections in the state in 2014.

Richard Corcoran gets nod for dedication to term limits from U.S. Term Limits

House Speaker Richard Corcoran has been honored for his commitment to term limits.

U.S. Term Limits announced this week that it has presented Corcoran with the Champion of Term Limits Award. The Land O’Lakes Republican was honored for his commitment to term limits and citizen government.

“By supporting term limits, Speaker Corcoran has given a voice to Floridians who feel let down by corruption and careerism in government,” said Philip Blumel, the president of U.S. Term Limits. “People are tired of business as usual and term limits is the only way to change the status quo. We applaud Corcoran for his important work to get this done.”

Corcoran has pushed to impose term limits on Florida’s Supreme Court and appellate judges, which the organization supports. The organization also applauded Corcoran for his support of legislative term limits, which have been in place since 1992.

“Term limits have served as an effective check against unrestrained power in the Legislature,” said Blumel. “It will have a similar impact in bringing more discipline to our judicial system.”

The national organization is based out of Melbourne, Florida. The group aims to fight for term limits at all levels of government.

House Speaker Richard Corcoran making good on transparency, accountability promises

House Speaker Richard Corcoran began his two-year speakership in November by promising a “transformational leap” in government accountability and transparency.

“The Florida House will set the standard for others to emulate,” he declared.

Such pronouncements are often uttered by politicians, especially those who may aspire to higher office. But one week into Florida’s annual legislative session the hard-charging Republican reformer from Land O’Lakes has a lot to show for his audacious accountability talk.

While the final outcome is far from certain, under Corcoran’s leadership the House voted to kill Enterprise Florida, the state’s chief businesses recruitment organization, and restructure Visit Florida, the state’s tourism marketing corporation, while cutting its funding from $76 million to $25 million annually.

Enterprise Florida’s $350 million Sanford Burnham deal that failed to create 300 jobs over 10 years, and Visit Florida’s $1 million payment to rapper Pitbull for a “Sexy Beaches” tourism promotion are symbols of Corcoran’s “corporate welfare” outrage.

The House passed the tough accountability reforms 87-28, and 80-35, respectively, despite intense pressure from Republican Gov. Rick Scott and economic development and tourism marketing beneficiaries across the state.

Lobbyists are also feeling the pressure. On Friday, the House passed the toughest lobbying ban in the country.

By a vote of 110-3, lawmakers agreed on a 6-year lobbying ban for legislators and statewide elected officials once they leave public office. The measure extends a current two-year “revolving door” restriction, and applies to all state agencies and the government bodies the elected officers formerly served.

Corcoran previously said extending the ban would eliminate the “looking to lobby” mentality that can manifest in an official’s final term. After Friday’s vote, the Speaker tweeted, “Proud that @myflhouse just passed the strongest lobby ban for fmr. legislators in the nation with a bipartisan vote of 110-3.”

All three items are central to Corcoran’s legislative agenda. Whether the state Senate will emulate his efforts remains to be seen.

Meantime, the Speaker’s transparency push continues in the lower chamber.

In a manner befitting Sunshine Week, an annual mid-March open government initiative, Corcoran is imposing additional restrictions on lobbyists with the aim of shedding light on their activities and reducing undue influence.

Before being allowed to lobby House members, lobbyists now are required to file electronic notices of appearance disclosing the specific issues they seek to influence. The disclosure is necessary to eliminate “the mystery of who is lobbying what issue,” according to a House statement.

Lobbyists also are prohibited from influencing House lawmakers via email, text message or other forms of electronic communication when the chamber is voting or when a member is in a committee meeting. It’s a practice that “if widely known to the public would engender justifiable outrage,” the statement says.

Additionally, House members are no longer allowed to travel on private jets owned by lobbyists, enter into business deals or financial relationships with lobbyists, or lobby local governments that they oversee.

Private contracts also must be disclosed if lobbyists are representing public entities or any related institution receiving taxpayer funding. “Taxpayer money being used to lobby the Legislature for more taxpayer money is a vicious cycle.”

Lawmakers and lobbyists would be subject to one or more of the following penalties for violations: public censure and reprimand, civil penalties up to $10,000 or restitution of any pecuniary benefits received in violation of the rules.

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