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Supreme Court admonishes judge over ‘misleading’ campaign conduct

The Florida Supreme Court on Wednesday publicly reprimanded an Orlando-area circuit judge for an advertisement during her 2014 election campaign that Chief Justice Jorge Labarga said included false statements that “misled” the public.

Labarga, during a more than seven-minute reprimand, pointedly refuted arguments of Circuit Judge Kim Shepard, who has denied wrongdoing.

“At the most fundamental level, you have damaged the public’s trust and confidence in our state courts,” Labarga said to Shepard, who stood quietly before the court. “This is a very serious matter, very serious.”

Justices in May ruled that Shepard, a judge in the circuit made up of Orange and Osceola counties, should receive a 90-day suspension and a public reprimand. The decision came after an investigation that focused on an Orlando Sentinel endorsement that Shepard received in 1994 for a state House campaign.

In the 2014 judicial race, the newspaper endorsed Shepard’s opponent, Norberto Katz, whom Shepard defeated. By deleting the date of the endorsement and references to the House race, Shepard deceptively made it appear in an advertisement that she had been endorsed by the Sentinel in the judicial race, a hearing panel of the state Judicial Qualifications Commission found.

“The First Amendment does not create a free pass for judicial candidates to distort facts or misrepresent themselves or their opponents in their campaigns,” Labarga said Wednesday. He also appeared to warn Shepard about misconduct in the future.

“By this action today, we admonish you to correct whatever caused you to commit this very serious ethical breach,” Labarga said. “But we also advise you to remember what our prior cases consistently hold: The second ethical breach by a judge will be viewed far, far more harshly.”

Shepard filed a document at the U.S. Supreme Court last month indicating she planned to challenge the disciplinary action. In that document. Shepard said she used a description of her character and integrity that had been made earlier by the Sentinel but did not present it as an endorsement.

“At no time, even during the course of the judicial campaign or their (the Sentinel’s) ultimate endorsement of her opponent because of their preference for his `experience,’ did the Orlando Sentinel ever retract or modify any of these observations about the candidate’s character or integrity,” the document filed at the U.S. Supreme Court said.

“All of the record evidence below established that each of these observations were as true when used as when made.”

Republished with permission of the News Service of Florida.

High-profile DUI case spurs battle over blood tests

Attorneys for a Palm Beach County millionaire convicted of DUI manslaughter will go before the Florida Supreme Court this week to challenge state rules for testing blood-alcohol levels in drunken-driving cases.

The hearing Wednesday is part of years of legal wrangling in the high-profile case of John Goodman, who was convicted and sentenced to 16 years in prison in the 2010 traffic death of Scott Patrick Wilson.

Justices will hear arguments about whether the Florida Department of Law Enforcement has adequate rules to ensure that blood-alcohol tests conducted in DUI cases provide accurate results. The arguments will focus, at least in part, on allegations that the state doesn’t have adequate safeguards to prevent drawn blood from clotting – potentially resulting in artificially high measurements of blood-alcohol levels – and doesn’t require proper screening of samples.

“Because neither the rules nor the FDLE-approved standard operating procedures require screening and documenting, criminal defendants have no guarantee that the blood samples tested for use in their criminal trials are scientifically reliable,” Goodman’s attorneys wrote in a December 2016 brief. “More specifically, a criminal defendant has no guarantee that he or she will know when his or her sample is clotted or irregular because the rules do not require screening or documentation, or rejection of unfit samples. Without adequate procedures in place, there is no way to ensure the scientific reliability of the blood test result.”

But Attorney General Pam Bondi‘s office is asking the Supreme Court to uphold a ruling last year by the 4th District Court of Appeal that rejected Goodman’s arguments. Earlier, an administrative law judge also sided with the state.

Blood-alcohol tests in suspected DUI cases are rooted in what is known as a state “implied consent” law. Under that law, people effectively agree to be subject to blood- or breath-alcohol tests when they receive driver’s licenses.

“The department’s rules sufficiently regulate blood draws and blood alcohol testing in a manner that ensures the reliability and accuracy of blood alcohol test results for purposes of Florida’s implied consent law,” attorneys in Bondi’s office argued in a March brief. “Based on all the evidence presented, Goodman’s challenge – grounded in alleged problems stemming from blood clots and hemoconcentration – fails.”

Goodman, whose DUI manslaughter case drew heavy media attention, sought during his trial in Palm Beach County circuit court to exclude blood-alcohol test results because of alleged problems with the testing rules. But the issue was sent to an administrative law judge because it involved questions about the validity of administrative rules approved by the Florida Department of Law Enforcement.

As an example of the details raised in the case, Goodman’s attorneys contend that a state rule does not properly spell out the type of needle to be used in drawing blood in DUI cases. They argue that a type of needle used on Goodman has a higher chance of blood clotting – and resulting in artificially elevated blood-alcohol levels.

In a separate proceeding from the issues going before the Supreme Court this week, the 4th District Court of Appeal in July upheld Goodman’s conviction. The appeals court rejected a series of arguments, including a contention that investigators violated Goodman’s rights by not getting a warrant before drawing blood.

Republish with permission of the News Service of Florida.

Justices to hear case over Supreme Court appointments

The Florida Supreme Court said Friday it will hear arguments this fall in a case that could help shape the future of the court.

The Supreme Court scheduled arguments for Nov. 1 in a battle about whether Gov. Rick Scott will have the authority to appoint as many as three new justices as he leaves office in January 2019.

The League of Women Voters of Florida and Common Cause filed the lawsuit in June, seeking a ruling that would allow Scott’s successor to appoint the new justices. The outcome of the case could play a big role in the future makeup of the Supreme Court, particularly if a Democrat is elected in November 2018 to replace Scott, a Republican.

Three justices widely viewed as part of a liberal bloc – justices Barbara Pariente, R. Fred Lewis and Peggy Quince – will have to leave the court in January 2019 because of a mandatory retirement age.

Scott’s attorneys argue that he has the constitutional authority to pick replacements for the justices. They also argued in a document filed last month that the lawsuit should be dismissed because it presumes that a future dispute will occur about the appointments. The document, for example, said the three justices could step down from the Supreme Court before January 2019.

“Petitioners do not challenge any specific executive action that has been taken by the governor, but rather seek the court’s opinion regarding the scope of the governor’s executive authority to act in the future under a hypothetical set of facts,” the document said.

But attorneys for the League of Women Voters and Common Cause fired back this week in a court document that said Scott has already made clear he plans to appoint replacements. As a result, attorneys for the voting-rights groups said the Supreme Court should resolve the issue in advance instead of waiting for a legal battle after Scott makes appointments in January 2019.

“The governor’s intended action, if not stopped now, will create a constitutional crisis and severely impact the work of this court,” the document filed Monday said.

A key issue in the case deals with when the terms of Scott and the three justices end. The voting-rights groups contend that Scott’s term ends at the start of Jan. 8, 2019, while the justices’ terms run through that day.

Scott’s attorneys reject the groups’ interpretation, saying that the justices’ terms end at the beginning of Jan. 8, while the governor remains in office until his successor takes the oath. The oath has often been administered around noon, which would give Scott time to make the appointments.

Republished with permission of the News Service of Florida.

Supreme Court orders argument in judicial appointments case

The Florida Supreme Court will hear oral argument in the case against Gov. Rick Scott over whether he has the authority to appoint three new justices on the last day of his term.

The court on Friday set argument for 9 a.m. Nov. 1.

For now, the matter will be heard by the court’s seven justices, including the three—R. Fred Lewis, Barbara Pariente and Peggy A. Quince—whose age-required retirements occasioned the suit.

Court spokesman Craig Waters said any process for justices to recuse themselves would begin with motions to the court. “Then the justices would consider the reasons given,” he added.

“A maximum of twenty minutes to the side is allowed for the argument, but counsel is expected to use only so much of that time as is necessary,” the court’s docket said. “No continuances will be granted except upon a showing of extreme hardship.”

Progressive groups are battling Scott over whether he can replace the three liberal-leaning justices, who will be retiring in early 2019.

Scott has said he plans to name their replacements the morning of his last day in office, Jan. 8. His attorneys have argued that their age-mandated retirements also will become effective Jan. 8.

The League of Women Voters of Florida (LWVF) and Common Cause counter that Scott can’t replace those justices because he’ll be out of office earlier on the same day they retire, and their final judicial terms last till midnight.

They seek a “writ of quo warranto,” a court action against government officials to demand they prove their authority to perform a certain action.

For the first time in Florida, a white person is set to be executed for killing a black person.

For the first time in state history, Florida is expecting to execute a white man Thursday for killing a black person — and it plans to do so with the help of a drug that has never been used before in any U.S. execution.

Barring a stay, Mark Asay, 53, is scheduled to die by lethal injection after 6 p.m. Asay was convicted by a jury of two racially motivated, premeditated murders in Jacksonville in 1987.

The planned execution — Florida’s first since the U.S. Supreme Court halted the practice in the state more than 18 months ago — is expected to be carried out using etomidate, an anesthetic that has been approved by the Florida Supreme Court. Two other drugs also will be used.

Asay, who is white, fatally shot Robert Lee Booker, 34, a black man, after making multiple racist comments, prosecutors said. Asay’s second victim was Robert McDowell, 26, who was mixed race, white and Hispanic. Prosecutors say Asay had hired McDowell, who was dressed as a woman, for sex and shot him six times after discovering his gender.

While Asay would be the state’s first white man to be executed in Florida for killing a black man, at least 20 black men have been executed for killing white victims since the state reinstated the death penalty in 1976, according to data from the Death Penalty Information Center. A total of 92 Florida inmates have been executed in that time period.

Opponents of capital punishment said much more needs to be done to make Florida’s criminal justice system more equitable.

“This does nothing to change the 170-year-long history of Florida not executing whites for killing blacks,” said Mark Elliott, executive director of Floridians for Alternatives to the Death Penalty.

Etomidate is the first of three drugs administered in Florida’s new execution cocktail. It is replacing midazolam, which has been harder to acquire after many drug companies began refusing to provide it for executions. The etomidate is followed by rocuronium bromide, a paralytic, and finally, potassium acetate, which stops the heart. It is Florida’s first time using potassium acetate too, which was used in a 2015 execution in Oklahoma by mistake, but has not been used elsewhere, a death penalty expert said.

While the state’s high court has approved the use of etomidate, some experts have criticized the drug as being unproven.

“It’s never been used in an execution before,” said Jen Moreno, a lethal injection expert who works as a staff attorney at the University of California, Berkeley Law School’s death penalty clinic. “There are outstanding questions about whether it’s going to do what it needs to do during an execution. The state hasn’t provided any information about why it has selected this drug.”

State corrections officials defended the choice, saying it has been reviewed. The corrections department refused to answer questions from The Associated Press about how it chose etomidate.

“The Florida Department of Corrections follows the law and carries out the sentence of the court,” Michelle Glady, the Florida Department of Corrections’ spokeswoman, said in a statement. “This is the Department’s most solemn duty and the foremost objective with the lethal injection procedure is a humane and dignified process.”

Doctors hired by Asay’s attorneys raised questions about etomidate in court declarations, saying there are cases where it had caused pain along with involuntary writhing in patients.

But in its opinion allowing the drug to be used, the state’s high court said earlier this month that four expert witnesses demonstrated that Asay “is at small risk of mild to moderate pain.”

Asay would be the first Florida inmate executed since a U.S. Supreme Court ruling found the state’s method of sentencing people to death to be unconstitutional. The court ruled that the old system was illegal because it gave judges, not juries, the power to decide.

Since then, Florida’s Legislature passed a law requiring a unanimous jury for death penalty recommendations.

In Asay’s case, jurors recommended death for both murder counts by 9-3 votes. Even though the new law requires unanimity, Florida’s high court ruled that the U.S. Supreme Court’s ruling did not apply to older cases.

Asay will be the 24th inmate executed since Gov. Rick Scott has taken office, the most under any governor in Florida history.

Booker’s son, Vittorio Robinson, who was 15 when his father was killed, told the Florida Times-Union newspaper in Jacksonville that his father’s death helped him realize that racism was still alive.

“I just couldn’t believe it,” he said, describing when he learned of his father’s death. “And then it dawned on me, there are actually still people out there that thought that way.”

Republished with permission of The Associated Press.

Justices reject resentencing in 1976 murder

In a case stemming from the 1976 strangulation of a 13-year-old girl, the Florida Supreme Court on Thursday rejected arguments that a Death Row inmate should receive a new sentencing hearing.

The arguments by attorneys for inmate James Ernest Hitchcock were rooted in a major 2016 U.S. Supreme Court ruling and subsequent Florida decisions that have led to requiring unanimous jury recommendations before defendants can be sentenced to death.

With Hitchcock sent to Death Row after a 10-2 jury recommendation, his attorneys argued that the new unanimity standard should retroactively apply to his case and lead to a new sentencing hearing.

But justices, as they have done recently in other cases, rejected the idea that the unanimity requirement should be applied to such old cases. The opinion was fully shared by Chief Justice Jorge Labarga and Justices Peggy Quince, Ricky Polston and Alan Lawson, while justices R. Fred Lewis and Charles Canady concurred without signing on to the majority opinion.

Justice Barbara Pariente dissented and pointed, in part, to the U.S. Constitution’s Eighth Amendment, which bars cruel and unusual punishment.

“Reliability is the linchpin of Eighth Amendment jurisprudence, and a death sentence imposed without a unanimous jury verdict for death is inherently unreliable,” Pariente wrote.

Hitchcock, now 61, was convicted in the murder of his brother’s 13-year-old stepdaughter in Orange County, according to court documents. He was accused of going into the girl’s bedroom in the middle of the night, having sexual intercourse with her and then killing her when she said she was going to tell her mother.

Hitchcock had to be resentenced three times because of a series of U.S. Supreme Court and Florida Supreme Court rulings in his case. In his final sentencing proceeding, the jury voted 10-2 to recommend the death penalty, and the Florida Supreme Court upheld that sentence in 2000.

Thursday’s ruling stemmed, in part, from a January 2016 ruling by the U.S. Supreme Court that found Florida’s death-penalty sentencing system unconstitutional because it gave too much authority to judges, instead of juries. That ruling, in a case known as Hurst v. Florida, has spawned extensive litigation about death-penalty cases and legislation to change the sentencing system.

As part of that litigation, the Florida Supreme Court ruled that juries are required to make unanimous recommendations before judges can sentence defendants to death. Florida long allowed majorities of juries to recommend death sentences.

Also, the Florida Supreme Court has ruled that the unanimity standard should apply to cases dating back to 2002. That is when the U.S. Supreme Court ruled in a case known as Ring v. Arizona, which was a key underpinning of the Hurst v. Florida decision.

Hitchcock and other longtime Death Row inmates have argued that the unanimity standard also should apply to cases decided before 2002. But the decision Thursday appeared to make clear that the Supreme Court will not go along with such arguments.

“Hitchcock is among those defendants whose death sentences were final before Ring, and his arguments do not compel departing from our precedent,” the majority opinion said.

Republished with permission of the News Service of Florida.

Rick Scott asks Supreme Court to toss out lawsuit over justices

Gov. Rick Scott is asking the state’s top court to throw out a lawsuit that aims to stop the Republican governor from appointing three Supreme Court justices on his last day in office.

Attorneys for Scott on Wednesday filed a response to a lawsuit filed last month by the League of Women Voters of Florida and government watchdog Common Cause.

The filing with the Supreme Court of Florida asserts the lawsuit should be rejected because it deals with something that may or may not happen in 2019.

Age limits could force three justices to retire on the day Scott leaves office in January 2019. Scott has said he plans to name their replacements that same morning.

The decision could change the ideological balance of the court for decades.

The governor’s filing is here. Previous coverage is here.

(Reprinted with permission of The Associated Press.)

Judge gives state 2 months to defend abortion waiting period

If the state thinks a law requiring women to wait 24 hours before getting an abortion is constitutional, it needs to prove it, a Tallahassee judge said during a Wednesday hearing.

Circuit Judge Terry Lewis—a 28-year veteran of the bench—gave the Attorney General’s Office 60 days to develop evidence to counter a Supreme Court decision this February temporarily halting enforcement of the waiting period, passed in 2015.

Opponents say delays could lead to victims of domestic abuse being forced to forgo an abortion, or cause additional emotional distress for women who have a doomed pregnancy. Proponents counter the waiting period is necessary because the decision can’t be undone.

Julia Kaye, the American Civil Liberties Union lawyer representing a Gainesville women’s clinic, later told reporters the “mandatory timeout” was an “insulting law,” and that Lewis’ move meant “Florida women will just have to wait a little longer for justice.”

Deputy Solicitor General Denise Harle had argued that the law doesn’t create significant burdens for women and was the “least intrusive” way to achieve a “compelling state interest.”

Harle suggested that evidence offered might include details of similar laws in other states, for example.

But the Supreme Court said there’s a strong likelihood that a lower court will determine the law is unconstitutional because the state had offered no evidence that the law in fact does address a compelling state interest.

(Background from The Associated Press, reprinted with permission.)

Gambling control amendment surpasses 100,000 signatures

A proposed constitutional amendment aimed at limiting gambling’s expansion in the state is now over the 100,000 signature mark.

Division of Elections records show the “Voter Control of Gambling” amendment now has 104,416 signatures toward getting on the 2018 statewide ballot.

But that’s still a long way from the 766,200 signatures needed for the initiative’s ballot placement.

“Our petition gathering effort is in full swing across the state of Florida,” said John Sowinski, who chairs Voters in Charge, the political committee behind the amendment. He added there is another roughly 300,000 signatures “in the pipeline” waiting to be verified.

“Tens of thousands of Floridians are signing the blue petition each week to ensure that voters, not politicians, have the exclusive authority to make gambling decisions in our state,” Sowinski said. “We look forward to reaching our goal of 766,200 valid petitions well ahead of the deadline and being on the 2018 General Election ballot.”

The amendment would “ensure that Florida voters shall have the exclusive right to decide whether to authorize casino gambling,” the ballot summary says.

Voters in Charge hadn’t raised money for nearly a year-and-a-half since opening in October 2015 with $195,000 in seed money from the No Casinos anti-gambling expansion organization.

Sowinski also heads No Casinos. The two are separate entities, however.

Since this March, Voters in Charge raised a total of almost $688,000, with $650,000 of that coming from Disney, a gambling opponent. The bulk of the committee’s spending, not surprisingly, is going to petition gathering and verification costs.

The Supreme Court already approved the amendment for ballot placement, though Justices Ricky Polston and R. Fred Lewis had dissented, saying “the ballot title and summary do not clearly inform the public that the proposed amendment may substantially affect slot machines approved by county-wide (referendums).”

That concern is moot since the same court has since also ruled unanimously that counties passing local referendums allowing slots will not be able to offer them because “nothing in (state gambling law) grants any authority to regulate slot machine gaming to any county.”

Squeezed: Supreme Court denies challenge of citrus veto

The Florida Supreme Court Thursday dismissed a challenge of Gov. Rick Scott‘s veto of reimbursements to homeowners whose healthy citrus trees were torn down by the state.

The homeowners had asked the court to undo Scott’s veto of more than $37 million by filing a petition for writ of mandamus, an order to an elected official to perform a certain action.

In a 6-1 decision, the court declined, mentioning lower court actions that had been filed.

“Because the governor’s constitutional line-item veto authority at issue in this case is a part of the process that results in ‘an appropriation made by law,’ we hereby dismiss this petition without prejudice to seek redress in pending circuit court actions,” the order said.

The Republican-controlled Legislature agreed to pay homeowners in both Broward and Lee counties whose trees were torn down in a failed attempt to eradicate citrus canker, “a bacterial disease of citrus that causes premature leaf and fruit drop,” according to the state’s Agriculture Department.

The money was to pay off judgments that had been won against the state. The remaining “pending” actions seek to compel that payment.

Justice Barbara Pariente “reluctantly” agreed, saying “the petitioners (had) obtained final judgments, the validity of which are not contested,” and “the Governor’s veto was based on misinformation that the litigation in these cases was still ongoing when that was not the case.”

Though she said the court undoing a veto “is not legally permissible,” Pariente added that the “petitioners have the right to full compensation. The time has come for the state to pay up.”

Justice R. Fred Lewis dissented: “(F)ull and complete compensation when private property is taken by a government is a foundational cornerstone of this democracy.”

The U.S. constitution promises “…nor shall private property be taken for public use, without just compensation,” and the state constitution says “no private property shall be taken except for a public purpose and with full compensation … paid to each owner.”

“This is not a game and our citizens should not be toyed with as if a yo-yo, and yet that is exactly what this veto accomplishes,” Lewis wrote.

“Now, with the opportunity to stop this ten-year game of yo-yo, this court abdicates its responsibility when it allows state actors to disregard their constitutional obligation by playing further games of delay and obfuscation. Justice demands that it stop now.”

Scott spokesman John Tupps called the matter “unfortunate.”

“Gov. Scott sincerely understands their concern,” Tupps said in a statement. “Due to ongoing litigation, the $37.4 million in the budget was not approved. We are hopeful that all litigation regarding this issue will be completely resolved, allowing the issue to be addressed comprehensively across the state.”

(Background material provided by The Associated Press, reprinted with permission.)

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