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Federal prosecutor applies for state Supreme Court

A federal prosecutor has become the fourth applicant for a seat on the Florida Supreme Court.

Roberta J. Bodnar, an assistant U.S. attorney in the Middle District of Florida, filed on Tuesday, according to Jason Unger, chair of the Supreme Court Judicial Nominating Commission.

Bodnar, who works in Ocala, was admitted to the Florida bar in 1993, the same year she graduated from the University of Florida’s law school.

The Middle District stretches from Fort Myers north through Jacksonville. A. Lee Bentley, III is the current U.S. Attorney for the district.

She has worked a number of prosecutions related to online child pornography.

Bodnar was lead government counsel on a electronic-privacy case that reached the Atlanta-based 11th U.S. Circuit Court of Appeals. A panel split 2-1, upholding law enforcement’s search of a mobile phone for pornographic images of children.

Bodnar joins three others for the seat being vacated at the end of the year by retiring Justice James E.C. Perry:

— Circuit Judge Patricia Strowbridge, who sits on the family-law bench at the Osceola County Courthouse. She was appointed a judge by Gov. Rick Scott last year.

— Orlando civil-trial defense attorney Dan Gerber, a partner with the law firm of Rumberger, Kirk & Caldwell. His complex-litigation practice focuses on “toxic tort, class actions, commercial, product liability, and governmental affairs,” according to his official bio.

— C. Alan Lawson, chief judge of the 5th District Court of Appeal. When he applied for a high-court opening in 2009, Lawson was backed by “religious conservatives and the National Rifle Association,” according to the Tampa Tribune.

Scott, a Republican, will name Perry’s replacement, making it his first opportunity to pick a state Supreme Court justice.

The seven-member state Supreme Court often splits 5-2 on matters of public policy, with Justices Charles Canady and Ricky Polston the only reliable conservative votes.

Voters in Florida face crucial solar power decisions

Voters in sun-bathed Florida will face a decision Tuesday that could weigh heavily on the use — and cost — of solar power in the state.

The solar power industry is opposed to Amendment 1, a proposal to amend the state constitution that will appear on the ballot as “Florida Solar Energy Subsidies and Personal Solar Use Initiative.”

Utilities — including Florida Power & Light Co. — have spent upward of $20 million trying to get the amendment on the ballot.

The two sides are sharply divided. The solar industry says it could penalize users of sun-derived power who sell their excess energy back to the grid. Utility companies say the amendment would prevent non-solar users from subsidizing the solar users who profit from the excess energy that they produce.

The Florida Supreme Court narrowly ruled in March that the amendment can appear on the ballot. Critics had sued to get it removed, claiming it was too confusing and would mislead voters.

On Friday, the court rejected a request to invalidate the measure.

The amendment would also put into the constitution a right already enjoyed by Floridians to produce solar power. Critics say this is meant to deceive voters into thinking the amendment is pro-solar. The amendment also reaffirms the government’s right to protect consumers by stating that they are not “required to subsidize” access to the grid by individual solar user.

Passage requires the approval of 60 percent of voters casting ballots.

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WHAT IS THE SUBSIDIZING ISSUE ABOUT?

The practice of selling individually produced solar energy back to the grid is called net metering. It treats people who install solar panels on their rooftops like mini power plants, paying or crediting them for the electricity they produce and send into the grid. Florida law currently allows for net metering, though utilities set the price.

Solar supporters say net metering benefits all energy consumers since the grid receives more clean energy while solar owners can get paid for the extra power they provide. Also, if enough solar is installed on rooftops it would reduce the need to build more power plants in Florida, a cost shared among all ratepayers.

But utilities around the nation have said net metering is unfair because it benefits private solar owners over non-solar ratepayers.

As more people install solar and “net meter,” or sell energy to the grid, Duke and other utility companies believe they should also pay more for use of the company’s transmission infrastructure. The solar industry says utilities simply want to protect their monopoly in Florida.

Duke, Florida Power & Light Co., Tampa Electric Co. and Gulf Power Co. have spent more than $20 million to get Amendment 1 on the ballot, according to state campaign finance records.

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WHY DOES THE SOLAR INDUSTRY OPPOSE AMENDMENT 1?

The solar industry and other groups like the League of Women Voters say Amendment 1 is confusingly written to trick voters into thinking it’s a pro-solar law.

Raul Vergara, owner of Cutler Bay Solar Solutions, a small solar panel installer in South Florida that has grown from one employee four years ago to 12 now, says if Amendment 1 passes it will be devastating for his business.

“Without the net metering you’re taking away the economic incentive,” he said.

Amendment 1 is also opposed by the Solar Energy Industries Association and a broad coalition of environmental groups like Greenpeace, the Libertarian Party of Florida and politicians like former Vice President Al Gore.

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WHY IS AMENDMENT 1 ON THE BALLOT?

Amendment 1 was funded by the utilities as a counter to another solar-related ballot initiative that failed to qualify earlier this year.

The failed initiative — backed by an unlikely coalition including the Tea Party, solar industry and Sierra Club — sought to allow solar companies to sell energy directly to consumers, which is currently illegal in Florida.

Florida remains one of only four states where it’s illegal for anyone other than a utility to sell power, under a monopoly system set up decades ago.

Even though the other amendment failed to make the ballot this year, Amendment 1 supporters decided to move to place it on the Nov. 8 ballot.

Amendment 1’s language, called deceptive by critics, was upheld by the Florida Supreme Court, but dissenting Justice Barbara Pariente said it was “masquerading as a pro-solar energy initiative.”

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IS THIS RELATED TO THE OTHER SOLAR AMENDMENT THAT PASSED IN AUGUST?

No. That was Amendment 4, which changed the law to reduce property and other taxes on solar systems in an effort to make solar power more affordable in Florida.

It passed in August with more than 70 percent support.

Republished with permission of the Associated Press.

Patricia Strowbridge latest applicant for Supreme Court

Patricia Strowbridge, appointed a trial-court judge by Gov. Rick Scott just last year, has become the third applicant for the upcoming vacancy on the Florida Supreme Court.

Her application was received over the weekend, said Jason Unger, chair of the Supreme Court Judicial Nominating Commission, on Monday morning.

Strowbridge
Strowbridge

Strowbridge, with a long background in adoption and family law, was named last March to the 9th Judicial Circuit. She sits on the family law bench in the Osceola County Courthouse, according to her official webpage.

The 55-year-old joins Orlando civil-trial defense attorney Dan Gerber and 5th District appellate chief judge C. Alan Lawson as the initial applicants for the seat now held by Justice James E.C. Perry.

Republican Scott will name Perry’s replacement, making it his first opportunity to pick a state Supreme Court justice.

Perry, 72, had announced his retirement effective Dec. 30. He joined the court in March 2009, having been appointed by then-Gov. Charlie Crist. Perry and Peggy A. Quince are currently the only black members of the seven-justice court.

Before Scott appointed her to the state judiciary, Strowbridge had been legal services director for A Chosen Child, Inc. since 2014 and was its executive director from 1999-2014, according to a governor’s office press release.

She had previously lost an election for circuit judge to Diana Tennis in 2014.

Strowbridge, a mother of five, was married to Bob Wattles, another 9th Circuit judge, who died of cancer in 2010.

They adopted their oldest daughter as a 12-year-old out of the child-protection system, according to an interview she gave the Orlando Political Observer in 2014.

“I have discernment that allows me to recognize when someone has a frustration boil over that simply requires someone to ‘hear’ them, versus someone that engages in power dynamics that are dangerous to others around them,” she told the website. “Many times, emotions can be diffused simply by respectfully listening to what the person is trying to say.”

Strowbridge also had been the owner of the Adoption, Surrogacy and Family Law Firm, P.A. since 1989, it said. She served on the board of directors of the Florida Adoption Council since 2002.

She has an undergraduate degree from Michigan State University and a law degree from Georgetown University.

“Patricia has demonstrated true dedication during her more than two decades of working with Florida families,” Scott said in a statement upon her appointment. “I know she will use her experience to continue serving families honorably.”

The nominating commission is scheduled to interview finalists Nov. 28 and submit six recommended replacements to Scott by Dec. 13.

Second application in for Fla. Supreme Court opening

And then there were two.

Gerber
Gerber

Orlando civil-trial defense attorney Dan Gerber has become the second applicant for an upcoming opening on the Florida Supreme Court.

Jason Unger, chair of the Supreme Court Judicial Nominating Commission, confirmed the name Monday morning.

The 51-year-old Gerber joins conservative appellate judge C. Alan Lawson as the only applicants so far for the seat now held by Justice James E.C. Perry.

Lawson is chief judge of the 5th District Court of Appeal in Daytona Beach. Gerber’s brother, Jonathan D. Gerber, sits on the 4th District Court of Appeal in West Palm Beach.

Perry, 72, had announced his retirement effective Dec. 30. He joined the court in March 2009, having been appointed by then-Gov. Charlie Crist. Perry and Peggy A. Quince are currently the only black members of the seven-justice court.

Both Lawson and Gerber made the short list that year, losing out to Perry for the appointment.

Republican Gov. Rick Scott will name Perry’s replacement, making it his first opportunity to pick a state Supreme Court justice.

Gerber is a partner with the law firm of Rumberger, Kirk & Caldwell. The National Law Journal named him a “Top 40 under 40” attorney in 2002.

His complex-litigation practice focuses on “toxic tort, class actions, commercial, product liability, and governmental affairs,” according to his official bio.

“In his toxic tort and mass tort practice, Dan represents manufacturers of chemical products in claims alleging injury from chemical exposure,” it says. “Included among his clients are national manufacturers of pharmaceuticals, dietary supplements, pesticides, and industrial chemicals as well as pest control companies.”

A profile on the firm’s website explained that Gerber, who once considered “studying biology in a rainforest,” has “the ability to understand the science behind the case.”

“I like to say that I understand (it) well enough to explain it to judges and jurors without boring them or losing them,” Gerber said in the article.

He also was selected by then-Florida Attorney General Bill McCollum “to serve as one of two private attorneys on the State of Florida Legal Advisory Panel in response to the BP oil spill,” the bio says.

Gerber, a baseball fan who’s married with three sons, received both his undergraduate and law degrees from the University of Florida.

The nominating commission is scheduled to interview finalists on Nov. 28 and submit six recommended replacements to Scott by Dec. 13.

Florida Supreme Court won’t toss out solar ballot question

The Florida Supreme Court rejected a request to invalidate a proposed solar-power constitutional amendment that’s supported by power companies.

The court made its decision Friday, four days before the election and after 5.2 million votes had already been cast by mail and at early voting sites.

The challenge came after a leading proponent of Amendment 1 was recorded saying that the measure was written to appear pro-solar, even though it could end up restricting solar growth in Florida by raising costs.

Solar-power advocates asked the court Wednesday to revisit a previous ruling which found that the ballot summary was not misleading. The court unanimously denied the request.

Amendment 1 seeks to change the state constitution to say consumers shouldn’t “subsidize” solar growth.

foreclosures

Florida Supreme Court decision will cause ‘new wave’ of foreclosures

When a mortgage foreclosure action gets dismissed by a Florida court, it resets the clock on the state’s five-year statute of limitations, the Supreme Court decided Thursday.

That means the lender can try again to get paid, as long as it’s within the next five-year period and the borrower had started paying again and then stopped.

“I think this decision will cause a new wave of foreclosure cases to be filed in the next 12-24 months,” said Jonathan Kline, a Westin attorney who practices primarily in foreclosure defense. “Basically, banks are getting a do-over.”

He added the ruling applies to “tens of thousands” of foreclosures in South Florida alone, which was hard-hit by the Great Recession of 2007-09.

Florida was ranked No. 1 in the country for completed foreclosures in 2015-16, with 55,000 actions, according to real estate data tracking firm CoreLogic.

In 2013, Gov. Rick Scott signed into law a measure to speed up the state’s residential mortgage foreclosure process. The idea was to “put (foreclosed) homes back onto the housing market and allow Florida families who have experienced a foreclosure to begin working to repair their credit and finances,” the governor said in a signing letter.

Thursday’s decision, which consolidated three separate cases involving U.S. Bank, involves “standard residential mortgages.”

“When a mortgage foreclosure action is involuntarily dismissed … the effect is revocation of the acceleration, which then reinstates the (borrower’s) right to continue to make payments,” Justice Barbara Pariente wrote.

But that also revives “the right of the (lender) to seek acceleration and foreclosure based on (any) subsequent defaults,” she wrote.

An “acceleration” is a “term in a loan agreement that requires the borrower to pay off the loan immediately,” according to the Legal Information Institute. “For example, most home mortgages have an acceleration clause that is triggered if the borrower misses too many payments.”

The court’s opinion says just because lenders try to accelerate the loan once doesn’t mean they can’t do it again, especially if the borrower screwed up his own second chance.

A bank’s “attempted prior acceleration in a foreclosure action that was involuntarily dismissed did not trigger the statute of limitations to bar future foreclosure actions based on separate defaults,” the opinion says.

Chief Justice Jorge Labarga and Justices Charles CanadyJames E.C. Perry, and Peggy A. Quince concurred in Pariente’s decision.

Justices Ricky Polston and R. Fred Lewis concurred in result only, meaning they agreed with the decision but not its legal analysis.

Solar power advocates go to Florida Supreme Court to half the vote count of Amendment One

With less than a week to go before Floridians finish voting, critics of Florida’s Amendment 1 filed legal actions on Wednesday against the measure, calling on the Florida Supreme Court to reject the results of the vote because they contend the measure was created to intentionally deceive Florida voters.

Citing new information unearthed from a leaked audio recording that surfaced last week, the lawsuits were filed by the Florida Solar Energy Industries Association and Floridians for Solar Choice, the advocacy group whose own pro-solar amendment failed to qualify for enough signatures on the 2016 ballot.

“Consumers for Smart Solar, Inc., the amendment’s proponents, affirmatively withheld relevant and material information as to the objective and intended purpose of the amendment, and thereby misled this Court (and is now misleading the public) as to the adequacy of the ballot title and summary presented to the voters,” the lawsuit says, citing the Miami Herald report from last week which quoted comments made by Sal Nuzzo with the James Madison Institute. In those recorded remarks, Nuzzo called Amendment 1 an “act of political jiu jitsu” designed to deceive voters into supporting restrictions on solar by proclaiming it a pro-solar initiative.

Consumers for Smart Solar, the group sponsoring Amendment 1, said last month that they didn’t know Nuzzo and that he didn’t know what he was taking about.

Proponents of the measure say Amendment 1 will constitutionally guarantee individuals and businesses the right to buy or lease solar equipment to produce their own energy. It also gives solar customers the ability to sell any excess electricity that they generate back into the electric grid. And that it will protect Florida consumers from scams, overcharging, and unfair subsidies.

The Florida Supreme Court narrowly approved putting the measure on the ballot earlier this year, 4-3. Writing in dissent, Supreme Court Justice Barbara Pariente said that the measure was “masquerading as a pro-solar energy initiative” that “actually seeks to constitutionalize the status quo.”

Referring to that comment, Ben Koehne, the legal counsel for Floridians for Solar Choice, said on a conference call Wednesday “we anticipate that the Supreme Court will reevaluate its advisory position and determine that the amendment is unconstitutional and invalid because it is deceptive and misleads the public, thereby preventing intelligent vote casting.”

A second legal action targets the Florida secretary of state to embargo all votes cast on Amendment One until the Supreme Court is able to make a determination that the amendment should not have been placed on the ballot and is not “a legal vehicle,” said Koehne. Millions of people have already voted on Amendment 1 in the past three weeks.

“The more we learn about the heavy-handed, monopolistic behavior of Florida largest electric utilities, the more concerned we become. With today’s legal actions, we are exposing how the utilities and their proxy front groups intentionally used fraud before the Florida Supreme Court in advancing the anti-solar Amendment 1 ballot measure before Florida voters,” said Dr. Stephen A. Smith, board member of Floridians for Solar Choice. “We are increasingly confident that Florida voters will vote this down, but we are concerned that thousands of voters have already been fooled by Amendment 1’s true intent. Many of our members and supporters have asked that we take these actions as ‘insurance’ given the extraordinary amount of money and deceptive activities the utilities are throwing at this in the final days.”

“This is just political grandstanding at its best to deter Florida voters from voting in favor of Amendment 1, which simply safeguards consumer rights, consumer protection, and consumer fairness as we grow solar in Florida,” said Sarah Bascom, a spokesperson for Consumers for Smart Solar.

 

 

Florida Supreme Court considers gambling amendment

While the attorney for the Voter Control of Gambling amendment said it would address a “lack of clarity,” the state’s justices seemed to lack clarity about just what the constitutional change would do.

The Florida Supreme Court heard oral argument Wednesday. It must OK proposed amendments to ensure they cover only one subject and that their ballot title and summary aren’t misleading.

The amendment’s backers, Voters in Charge, wants to “ensure that Florida voters shall have the exclusive right to decide whether to authorize casino gambling,” the ballot summary says. It’s aiming to get on the 2018 statewide ballot.

In questions, several justices hammered the group’s lawyer, Adam Schachter, on how the amendment, if passed, would affect current gambling law and other constitutional provisions.

For instance, statewide voters in 2004 approved a change to the constitution legalizing slots at existing jai-alai frontons and horse and dog racetracks only in Broward and Miami-Dade counties and only if voters OK’d it in referendums there.

Justice Barbara Pariente asked: Would this amendment interfere with that? Voters should know what an amendment will do, as opposed to telling them “just read it and you’ll understand what you’re voting on,” she said.

The court also has not yet ruled in the case on Gretna Racing, the Gadsden County track seeking to add slot machines. Dunbar, who also represents the track, has said it should be allowed to offer slot machines because voters approved them in a local referendum in 2012.

If the court rules favorably, it could expand slot machines to all six counties where voters passed slots referendums: Brevard, Gadsden, Hamilton, Lee, Palm Beach, and Washington. That could result in the single biggest gambling expansion in the state.

Schachter insisted the amendment wasn’t retroactive, and though he said it could have some effect on existing gambling law, it can’t yet be known what that will be.

That raised an alarm from Marc Dunbar, who represents gambling interests across the state. For a ballot summary to be fair, “you have to be able to tell voters what the consequences are,” he told the justices.

This much was clear: Schachter said the amendment would no longer allow the Florida Legislature to authorize casino gambling.

But Dunbar raised the point that the federal government, through its power to regulate Indian gambling, can define what is and what is not a game of chance. That has implications for new forms of gambling, such as fantasy sports, he said.

The amendment’s proponents have a “truth in packaging” problem, he said: “The voters truly not do not know the impact of this (change) … that is a big issue here.”

Voters In Charge Chairman John Sowinski released a statement after Wednesday’s arguments, saying the language is “crystal clear in its intent – to return control of gambling decisions to the people of Florida.”

“It establishes a bright line in our state’s constitution when it comes to gambling expansion,” he said. “Those who oppose our amendment are gambling operators that have profited from a mix of loose rules, backroom lobbying deals and clever lawyering.

“We are confident that our amendment meets all the requirements for Supreme Court approval, and we look forward to the next steps in gathering enough petitions to appear on the 2018 ballot.” As of Wednesday, it had 74,626 valid signatures

As is customary, the justices did not signal when they would rule. All initiatives need 60 percent approval to be added to the constitution.

Opening for state Supreme Court gets first application

Conservative appellate judge C. Alan Lawson has become the first applicant for the open seat on the Florida Supreme Court.

Jason Unger, the Tallahassee attorney who chairs the Supreme Court Judicial Nominating Commission, confirmed the name Tuesday night.

Lawson
Lawson

Lawson is now chief judge of the 5th District Court of Appeal in Daytona Beach.

Republican Gov. Rick Scott will make the pick, his first chance to select a member of the seven-member state Supreme Court that often splits 5-2 on matters of public policy.

Now, Justices Charles Canady and Ricky Polston are the court’s only reliable conservative votes.

The man Lawson seeks to replace, Justice James E.C. Perry, is the same person who beat him in 2009 for the high court job, itself created by the retirement of Justice Charles T. Wells.

Lawson was backed by “religious conservatives and the National Rifle Association,” wrote politics reporter William March in a February 2009 story for the now-defunct Tampa Tribune, while Perry was favored by “liberal groups and black leaders.”

The appointment created a quandary for then-Gov. Charlie Crist, March wrote, “pit(ting) conservatives in his own party (then Republican) against a minority community Crist is courting.” He eventually picked Perry, who joined the court the next month.

Lawson, born in Lakeland, graduated from Tallahassee Community College and later Clemson University with a degree in Parks, Recreation & Tourism Management, according to his online bio. He got his law degree from Florida State University in 1987.

He was in private practice for several years before becoming an assistant county attorney in Orange County and then a circuit judge in 2002.

Lawson also was a Florida Bar exam question writer and grader. He moved to the 5th District appellate bench in 2006.

In 2012, he was a member of a three-judge appeals panel that considered a custody battle between two women who were formerly in a relationship.

The majority said both women have parental rights, but Lawson wrote “a blistering dissent,” in which he said a child can have only one mother, according to the Associated Press.

The court shouldn’t recognize two mothers “unless we are also willing to invalidate laws prohibiting same-sex marriage, bigamy, polygamy, or adult incestuous relationships on the same basis,” Lawson said.

In a 4-3 opinion, the state Supreme Court later said the non-birth mother could seek shared custody.

Perry’s retirement is effective Dec. 30. His absence otherwise leaves Peggy A. Quince as the only African-American on the court.

The nominating commission is scheduled to interview finalists on Nov. 28 and submit a list to Scott of possible replacements by Dec. 13.

 

Associated Industries seeks public comment on workers’ comp rates

Associated Industries of Florida moved Tuesday to build public support behind a fix for rising workers’ compensation insurance rates that business interests see as a threat to the state’s economy.

The lobby solicited comments from the public “on how Florida can restore a stable, self-executing, and affordable workers’ compensation system as the Florida Legislature intended,” according to a press release.

Floridians can comment on the situation here.

The Florida Office of Insurance Regulation on Sept. 27 approved a 14.5 percent increase in workers’ compensation rates, blaming Florida Supreme Court rulings lifting limits on attorney fees in claims litigation and removing a limit on temporary total disability payments.

AIF organized a Florida Workers’ Compensation Strategic Task Force, chaired by lobby president and chief executive officer Tom Feeney, to look for a legislative remedy to the court rulings.

Feeney cited a study by the Oregon Department of Consumer and Business Services indicating Florida will rank No. 23 among the states in the cost of workers’ compensation insurance.

Florida had the most expensive rates in the country before the Legislature enacted reforms in 2003, Feeney said, and by 2010 had the 40th lowest rates.

“This first rate increase since the workers’ compensation law in Florida was ruled unconstitutional is just the first shoe to drop,” Feeney said.

“It is imperative that we collectively work together to ensure we don’t regress back to prior to the 2003 workers’ compensation reforms, which have done nothing but allow for a healthy and vibrant workers’ compensation system in Florida since their inception.”

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