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High-profile Florida Supreme Court cases still hanging fire at year’s end

Partly because they came late to the court this year, some high-profile cases before the Florida Supreme Court will remain unresolved by the close of 2017.

As of this writing, the court’s weekly opinion release was going to be on holiday hiatus until Jan. 11, though “out-of-calendar releases” are still possible, a spokesman said.

Here are a few of those pending matters, starting with the court’s official summary:

— Herssein & Herssein v. United Services Automobile Association: “This case asks whether judges commit an ethical violation if they are Facebook ‘friends’ with litigants in cases pending before them.”

The justices decided to weigh in after an August ruling by the state’s 3rd District Court of Appeal that rejected a request to disqualify Miami-Dade County Circuit Judge Beatrice Butchko.

The dispute stems from Butchko being a Facebook friend of attorney Israel Reyes, who was hired to represent an insurance-company executive in a case before her.

The Herssein Law Group is seeking the disqualification; it sued a former client, United Services Automobile Association, for alleged breach of contract and fraud.

— School Board of Alachua County v. Richard Corcoran: “This case involves a challenge to an education bill passed by the 2017 Legislature.”

A group of school boards is asking the court to block a wide-ranging education law passed this May. The boards filed a constitutional challenge to the bill, known by its number, HB 7069.

The 274-page bill, backed by House Speaker Corcoran, deals with controversial subjects such as charter schools and teacher bonuses. The challenge contends that the law violates part of the Florida Constitution that requires legislation to deal with single subjects.

Those named in the case are the school boards of Alachua, Bay, Broward, Hamilton, Lee, Polk, St. Lucie, Volusia and Wakulla counties.

(Ed. Note: The Supreme Court has since transferred the case to a Tallahassee trial court to handle.)

— International Association of Firefighters v. State of Florida: “This case involves a challenge to the Governor’s 2015 veto of firefighter pay raises.”

The union wants the court to strike down Gov. Rick Scott‘s 2015 veto of pay raises for the state’s firefighters.

The 1st District Court of Appeal previously ruled that Scott’s veto of $2,000 pay raises did not violate collective-bargaining rights. That court said Scott acted within his authority to veto spending items in the state budget, and that lawmakers could have overridden the veto but did not.

The Legislature included the $2,000 raises for firefighters in budget fine print known as “proviso” language, which Scott subsequently vetoed.

Attorneys for the state say the appeals court “merely applied a clearly articulated constitutional right” of the governor to veto spending items.

— Dante Martin v. State of Florida: “This case challenges criminal convictions related to a college hazing incident.”

Martin is appealing his convictions in the 2011 hazing death of Florida A&M University drum major Robert Champion. Oral argument is set for Feb. 7.

Martin and Champion were both members of the school’s famed “Marching 100” band. Champion, 26, succumbed to internal injuries after a brutal beating ritual with fists, mallets and drumsticks in a band bus that was parked outside a game in Orlando.

According to an Associated Press story, “the case brought into focus the culture of hazing in the band, which was suspended for more than a year while officials tried to clean up the program.”

Martin, now 30, was sentenced in 2015 to 6 years and 5 months in prison on felony manslaughter and hazing charges, according to the Department of Corrections website. He is currently serving his time in the Wakulla Work Camp, with a release date of April 2020.

The News Service of Florida contributed to this post, republished with permission.

Jim Rosica’s review of top state government stories of 2017

Spoiler alert: If you’re a regular of this site, and reading this story, you can guess what the #1 pick is.

Otherwise, 2017 still offered a bounty of material to Tallahassee’s reporting ranks. We still chuckle at the uninitiated who ask, “What do you write about when the Legislature isn’t in session?”

Without further ado, here’s the admittedly subjective list of the Top 10 (and a half) stories to come out of the Capitol in the Year That Was:

#10 — State finally passes ride-sharing legislation: After years of trying, lawmakers OK’d, and Gov. Rick Scott signed, a bill (HB 221) creating statewide regulations for ride-booking companies like Uber and Lyft. In fact, lawmakers had considered such legislation for four years before passing a bill this year.

The legislation, among other things, requires Uber, Lyft and similar “transportation network companies” to carry $100,000 of insurance for bodily injury or death and $25,000 for property damage while a driver is logged into the app, but hasn’t yet secured a passenger. When a driver gets a ride, they need to have $1 million in coverage.

The bill also requires companies to have third parties run criminal background checks on drivers. It also pre-empts local ordinances and other rules on transportation network companies, or TNCs.

The losers? Local governments, whose attempts to regulate or rein in ride-share got pre-empted, and, well, taxi companies.

#9 — Rick Scott, Aramis Ayala and the debate over the death penalty: Ayala, a Democrat and the Orlando area’s top prosecutor, enraged Scott and conservative lawmakers when she announced in March she would not seek capital punishment in any murder cases.

Scott, a Naples Republican, began unilaterally reassigning death penalty-eligible cases to another state attorney. Republican Rep. Bob Cortes of Altamonte Springs called for Ayala to be removed from office for dereliction of duty.

The controversy made it to the Florida Supreme Court, which ruled Scott has the authority to transfer murder cases away because she refuses to pursue death. Ayala, elected in 2016, responded by announcing she would set up a special panel to review the death penalty’s appropriateness of each case.

But as of this month, Ayala and Scott were still sniping, with the governor accusing her of missing a deadline and blowing a capital punishment prosecution. Ayala denied that but did cut a plea deal with Emerita Mapp, in which she pleaded guilty in exchange for a life sentence for a Kissimmee slaying.

#8 — Puerto Rico migration could remake Central Florida: With many still without power after Hurricane Maria slammed the island in September, more than 250,000 residents of Puerto Rico have now decamped to Florida, most to the Central Florida region, with one advocate calling it a “migration of biblical proportions.”

Curbed said the “sudden influx will also put pressure on housing, social services, and the job market that have yet to be fully addressed by state, local, and federal officials.”

But Scott ordered the opening of “disaster relief centers” providing state services to thousands. Cortes filed a bill to address housing needs for evacuees. Sen. Vic Torres, a Kissimmee Democrat, pressed FEMA to provide more housing relief. U.S. Reps. Darren SotoStephanie Murphy, and Dennis Ross co-signed a letter to the feds for Florida get its full funding as a host state to support the migration.

Education Commissioner Pam Stewart is working on a plan to allow Puerto Rican high schoolers to receive Puerto Rico diplomas in Florida, in case they can’t meet Florida’s graduation requirements. And those are just a few examples.

#7 — The fight over HB 7069: The wide-ranging education law passed this May — a priority of House Speaker Richard Corcoran — has been called a “brew of bad policy” and “a textbook example of a failure in government transparency” by opponents.

They say it will benefit charter schools to the detriment of traditional public schools. Supporters counter that it “helps all students” by holding failing public schools to account.

The law offers all kinds of changes, including requiring recess and reducing mandatory testing. It accelerates state tax dollar funding to for-profit and nonprofit charter and private schools, expands parents’ abilities to choose schools, and tightens Tallahassee’s control over what local school boards can and cannot do.

A group of school boards sued in the Supreme Court to block the law; the justices, in a 4-3 decision, have since transferred the case to a Tallahassee trial court to handle. 

#6 — Enterprise Florida, VISIT FLORIDA survive a hit: Corcoran went full frontal this year, trying to scuttle Scott’s favored organizations and a multitude of business incentives last Legislative Session.

He derided Enterprise Florida, the state’s jobs-creating organization, as little more than a dispenser of “corporate welfare.” Though a public-private partnership, it doles out mostly public dollars.

He slammed VISIT FLORIDA, the tourism marketing group, for secret deals and an overall lack of transparency. Scott and lawmakers eventually worked out a deal to save the agencies and create an $85 million Florida Job Growth Grant Fund, focused on promoting public infrastructure and job training.

Meantime, the organizations now are subject to heightened oversight. And Ken Lawson, the former DBPR secretary whom Scott moved to head the tourism agency, toured the state to meet with local tourism leaders. “I want to earn your trust and learn from you first hand. This has been a hard year for all of us,” he said.

#5 — Special elections churn the Legislature: The turnover in legislative seats began with former South Florida Sen. Frank Artiles resigning after an epithet-laden tirade against two black lawmakers was made public, eventually leading to the seat flipping to a Democrat, Annette TaddeoRepublican Jose Felix Diaz lost that race but had to resign the House to run, meaning his House seat is open.

Plant City Republican Dan Raulerson quit the House this year for health reasons; Republican Lawrence McClure won the District 58 seat in a December special election. Republican Alex Miller, just elected in 2016, also resigned her Sarasota-area House seat this summer. She cited a need to “spend more time at home than my service in the Legislature would allow.”

But wait — there’s more. Democratic Sen. Jeff Clemens quit after his extramarital affair with a lobbyist came to light. Republican Neil Combee resigned the House to take a job with the U.S. Department of Agriculture; the GOP’s Eric Eisnaugle also left the House to become an appellate judge, and Democrat Rep. Daisy Baez resigned before pleading guilty to perjury in a criminal case over her residency in Coral Gables-based House District 114.

#5(a) — Speaking of Artiles … : He resigned his Senate seat rather than face a hearing that could result in his expulsion. The Cuban-American Republican from Miami-Dade County made national news after he accosted Sen. Perry Thurston, a Fort Lauderdale Democrat, and Sen. Audrey Gibson, a Jacksonville Democrat, calling her a “b—h” and a “girl” in a dispute over legislation at The Governors Club.

Artiles also used a slang variation of the ‘N-word,’ referring to white Republicans who supported Joe Negron as Senate President. Thurston and Gibson are black. Artiles apologized on the Senate floor, but Thurston filed a Senate rules complaint. Artiles, elected to the Senate in 2016 after six years in the House, initially called efforts to remove him politically motivated. (Sound familiar?)

#4 Speaking of Clemens … : The Lake Worth Democrat was the first in the Legislature this year to resign after reports of sexual misconduct. “I have made mistakes I ashamed of, and for the past six months I have been focused on becoming a better person,” he said in a statement to news media. 

“But it is clear to me that task is impossible to finish while in elected office. The process won’t allow it, and the people of Florida deserve better. All women deserve respect, and by my actions, I feel I have failed that standard. I have to do better.”

Clemens, the incoming Senate Democratic Leader, apologized for having an affair with a lobbyist during the last legislative session. That woman “came into possession of Clemens’ laptop, gained access to all his contacts and personal information, then informed his wife of the tryst,” according to POLITICO Florida.

#3 — Jimmy Patronis replaces Jeff Atwater: Patronis had been a Panama City restaurateurstate representative and Public Service Commissioner when Scott tapped him to replace Atwater and become the state’s fourth Chief Financial Officer this June. Atwater quit his term early to become chief financial officer of Florida Atlantic University in Boca Raton.

As CFO, Patronis — a Scott loyalist — now is one vote on the Florida Cabinet, in addition to Attorney General Pam Bondi and Agriculture Commissioner Adam Putnam. And he has since announced he will seek a full term as CFO in 2018.

The position heads a roughly 2,600-employee agency that includes the state treasury and insurance regulators, as well as being state fire marshal. The CFO also oversees management of the state’s multibillion-dollar financial portfolio. The office was created after the 1997-98 Constitution Revision Commission recommended collapsing several state departments into one, including Insurance, Treasury, State Fire Marshal and Banking and Finance.

#2 — The politics and policy of Hurricane Irma responseIrma’s size and strength put the entire state on notice; thousands of residents and visitors left in advance of catastrophic winds and flooding.

The most significant casualties were in a South Florida nursing home. The Rehabilitation Center at Hollywood Hills was evacuated Sept. 13 after the facility lost power to its air conditioning system. Eight elderly residents died, with another six perishing in the weeks that followed. Most died from heat exposure. The deaths were later classified as homicides, with a police spokeswoman saying, “Who gets charged is part of the continuing investigation.”

Scott took his own heat after Democrats charged that he had ignored calls for help from the home’s administrators to his personal mobile phone; he said his staff took the messages and forwarded them to the appropriate state officials.

The governor also ordered an emergency generator rule to “ensur(e) that facilities across Florida are coming into compliance and are installing generators to keep their patients safe during a disaster,” he said. But the facilities themselves challenged that move.

The Florida House formed its own special panel to consider the state’s readiness to deal with monster hurricanes. The Select Committee on Hurricane Response and Preparedness has been meeting since October. 

#1 — Jack Latvala quits the SenateIn the face of two damning reports on his alleged serial sexual harassment, Latvala turned in his resignation, not effective till Jan. 5, on Dec. 20.

The Clearwater Republican said in a statement he “never intentionally dishonored my family, my constituents or the Florida Senate.” He first served in the Senate 1994-2002, then returned in 2010. Latvala was term-limited next year.

In his characteristically defiant manner, he said: “Political adversaries have latched onto this effort to rid our country of sexual harassment to try to rid the Florida Senate of me.” The 66-year-old Latvala admitted, however, that he “ … perhaps (had not) kept up with political correctness in my comments as well as I should have.”

An investigative report found Latvala “on multiple occasions” offered to trade his vote for sex with an unnamed female lobbyist. That bombshell came toward the end of retired appellate Judge Ronald V. Swanson‘s report into a complaint filed by Rachel Perrin Rogers, a top aide to future Senate President Wilton Simpson.

Perrin Rogers accused Latvala of sexually harassing her and assaulting her on a number of occasions over several years. A second investigation into sexual harassment claims against Latvala, prompted by a POLITICO Florida story, turned up another witness who bolstered an allegation that the senator would offer to trade sex for favorable votes on legislation.

Florida Supreme Court decides to punt away HB 7069 challenge

In a 4-3 decision Tuesday, the Florida Supreme Court handed over a constitutional challenge to a contentious education law to a local court to handle.

Without explanation, the Supreme Court transferred the matter (SC17-1996) to the 2nd Judicial Circuit, headquartered across the street from the Capitol.

School Board of Alachua County v. House Speaker Richard Corcoran “involves a challenge to an education bill (HB 7069) passed by the 2017 Legislature,” the case’s official summary says.

A group of school boards want the court to block the law, championed by Corcoran.

“The 274-page bill makes many changes to state law, ranging from requiring elementary schools to offer daily recess and making it easier for teachers to win bonuses to letting charter schools get a share of school district construction money and making it easier for charters to move into areas with low-performing traditional public schools,” the Palm Beach Post explained.

Chief Justice Jorge Labarga joined with conservative Justices Charles Canady, Ricky Polston and Alan Lawson to transfer the case.

Left-leaning Justices Barbara Pariente, R. Fred Lewis and Peggy A. Quince “would request responses,” the order said.

“The transfer of this case should not be construed as an adjudication or comment on the merits of the petition, nor as a determination that the transferee court has jurisdiction or that the petition has been properly denominated as a petition for writs of quo warranto and writs of mandamus,” said the court’s order.

“The transferee court should not interpret the transfer of this case as an indication that it must or should reach the merits of the petition,” it added. “The transferee court shall treat the petition as if it had been originally filed there … and is instructed to consider expediting the petition as it appears to be time sensitive based upon the allegations.

“However, a determination to expedite consideration is at the discretion of the transferee court,” the order said. “… No motion for rehearing will be entertained.”

Besides Alachua, the school boards of Bay, Broward, Hamilton, Lee, Polk, St. Lucie, Volusia and Wakulla counties joined the suit.

Its claims are that the law breaks the single-subject requirement in the Florida Constitution, its “title is overly generic and encompasses legislation on a wide variety of subjects,” and is a “prototypical example of logrolled’ legislation.”

‘We decline’: Court tosses challenge to Rick Scott’s appointment power

Saying the issue wasn’t ready for judicial review, the state’s highest court Thursday dismissed a challenge to Gov. Rick Scott‘s  power to appoint three new justices on his last day in office in 2019.

In a 6-1 decision, the Florida Supreme Court said it couldn’t step into the controversy because the governor hasn’t taken any action yet.

The three justices who are retiring and will be replaced took issue with the decision, though two of them agreed with the result. The third called Scott’s intentions “blatantly unconstitutional.”

The League of Women Voters of Florida and Common Cause filed the case in June. Their unstated concern was that Scott, a Naples Republican, would pack the court with more conservatives.

Although Scott has said he intended to make the picks on his way out the door, “clearly no appointments have been made,” according to the per curiam opinion. “To review an action which is merely contemplated but not consummated, as in the present case, would require this Court to depart from historical” precedent.

“This we decline to do. Until some action is taken by the Governor, the matter the League seeks to have resolved is not ripe, and this Court lacks jurisdiction to determine whether … relief is warranted,” the opinion said.

Chief Justice Jorge Labarga, usually a swing vote, joined with the court’s conservatives: Justices Charles Canady, Ricky Polston and Alan Lawson, its newest member.

Soon-to-retire Justices Barbara Pariente and Peggy A. Quince concurred, but said “the majority ignores that we have previously granted a petition … challenging the Governor’s authority to endeavor to fill a judicial vacancy.” That refers to a case over an empty county court judgeship.

“Under this Court’s precedent, we have the authority to act prior to the Governor’s making an appointment that is contrary to law,” their opinion said.

Justice R. Fred Lewis, the third of the justices who will retire on the same day Scott leaves office, dissented and called Scott’s proposed actions “blatantly unconstitutional.”

“Future Floridians have lost the ability to protect themselves and society from clearly unconstitutional action,” he wrote. “The Florida Constitution requires devoted protection and the Florida citizens deserve better.”

The suit challenged Scott’s ability to name successors for Pariente, Quince and Lewis—the court’s liberal-leaning triumvirate. Only the governor elected after Scott can, the plaintiffs said.

Scott has said he plans to name their replacements the morning of his last day in office, Jan. 8, 2019. His attorneys argued that their age-mandated retirements also will become effective that Jan. 8.

The League and Common Cause countered that the governor can’t replace the justices because he’ll be out of office earlier on the same day they retire, and their final judicial terms last till midnight.

The case also included a short-lived dispute over comments Labarga and Pariente made in a conversation caught on a “hot mic”  after the Nov. 1 oral argument.

Scott’s lawyers tried but failed to have Pariente disqualified from the case, saying snippets of what could be heard were “disparaging remarks.” The court denied the request.

Supreme Court to rule on judge, Facebook friend

With potential ramifications in courthouses across the state, the Florida Supreme Court on Monday said it will take up a dispute about whether a judge should be disqualified from a case because she is a Facebook friend with a lawyer.

Justices issued an order saying they will consider an appeal of an August ruling by the 3rd District Court of Appeal that rejected a request to disqualify Miami-Dade County Circuit Judge Beatrice Butchko. The dispute stems from Butchko being a Facebook friend of attorney Israel Reyes, who was hired to represent an insurance-company executive in a case before her.

The Herssein Law Group, which had sued a former client, United Services Automobile Association, for alleged breach of contract and fraud, is seeking the disqualification. In a Supreme Court brief filed in October, the Herssein Law Group said the 3rd District Court of Appeal ruling conflicted with an earlier decision of the 4th District Court of Appeal that said a judge should be disqualified from a criminal case because of being Facebook friends with a prosecutor.

“The Third District Court of Appeal’s opinion, therefore, creates completely different standards for judges in Florida, depending on which district the judge sits in, to determine when and whether they are violating the Florida Code of Judicial Conduct,” the brief said. “This is untenable for both judges and the public perception of the judiciary. The application and interpretation of the Code of Judicial Conduct must be uniform for all judges in the state of Florida.”

Attorneys for the insurance company, however, filed a brief urging the Supreme Court to turn down the case. They argued, in part, that the Herssein case has different circumstances from the earlier case involving a prosecutor.

“Further, petitioners (the Herssein Law Group) are sophisticated litigators who have practiced in Miami-Dade County for many years,” the insurance-company brief said. “It is highly questionable whether any reasonably prudent person in petitioners’ situation would have a well-founded fear of not receiving a fair and impartial trial simply because the trial judge and Reyes are Facebook `friends.’ “

The Supreme Court, as is standard, did not explain its reasons for deciding to take up the case. It said it would schedule oral arguments in a separate order.

In its ruling in August, the 3rd District Court of Appeal concluded that “a `friend’ on a social networking website is not necessarily a friend in the traditional sense of the word.”

“To be sure, some of a member’s Facebook `friends’ are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty,” the decision said. “The point is, however, many are not. A random name drawn from a list of Facebook `friends’ probably belongs to casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a `friend of a friend;’ or even a local celebrity like a coach. An assumption that all Facebook `friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

Florida takes No. 1 spot on ‘Judicial Hellholes’ list

Florida takes the top spot among the states in more than a few lists, but it earned a “distinction” from the American Tort Reform Association which said the Sunshine State was the No. 1 “Judicial Hellhole” in the country.

Florida was one of eight states or judicial districts getting a write up in 2017-2018 Judicial Hellholes, earning the top spot in the ring of dishonor alongside courts in California, St. Louis, New York City, Philadelphia, New Jersey, Illinois and Louisiana.

“The Florida Supreme Court’s liability-expanding decisions and barely contained contempt for the lawmaking authority of legislators and the governor has repeatedly led to its inclusion in this report. And though the high court’s plaintiff-friendly majority this year shrunk from 5-2 to 4-3, a hushed discus­sion between two majority justices recently caught by an open microphone suggests that this majority is as partisan as ever and brazenly determined to influence the judicial selection process as three like-minded col­leagues face mandatory retirement in early 2019,” the report said.

“Meanwhile, an aggressive personal injury bar’s fraudulent and abusive practices in South Florida and elsewhere have also tarnished the state’s reputation. Encouragingly, at least some plaintiffs’ lawyers who’ve crossed the line are being held accountable, either with stiff court sanctions or criminal prosecutions. But with the help of some lawmakers, too many are still get­ting away with too much, and for the first time in this report’s 16-year history, enough shade has been cast on the Sunshine State to rank it as the nation’s worst Judicial Hellhole.”

The 2017-2018 report is the first in the 16-year history of the “Judicial Hellholes” series to name Florida the worst.

The report cites Justice C. Alan Lawson replacing retired Justice James E.C. Perry as a move in the right direction, but the report blasted the court for allowing Perry to help decide cases he had started to hear before his retirement date.

The ATRA cited a memo from Edward Whelan of the Ethics and Public Policy Center in calling that practice “contrary to the Florida Constitution.”

“It’s one thing to decide already-argued cases without the new member. It’s quite another thing to allow the retired justice to displace the new member in those cases. This elementary distinction seems to have escaped the Florida Supreme Court,” the snippet from Whelan said.

The report also blasted Florida Supreme Court rulings in medical liability cases that it said are detrimental to both patients and healthcare providers, while also making it more difficult to solve disputes disputes without litigation. It also warned that Florida attorneys are bracing for the court’s anticipated rejection of higher standards for expert testimony used in all federal and most state courts.

The Florida Chamber of Commerce pointed to the report as vindication for what it has been saying all along – that Florida’s legal system is one of the worst out there.

“Lawsuit abuse in Florida is an increasingly serious and expensive problem, and it just keeps getting worse. On average, it translates into a $3,400 ‘tax’ for Florida’s families each year, due to increased lawsuit abuse costs,” said Florida Chamber President and CEO Mark Wilson.

“There have been five Wall Street Journal articles this year alone talking about Florida’s horrendous lawsuit abuse, the national Institute for Legal Reform named Florida the fifth worst state for legal climate, and now the American Tort Reform Association ranks Florida as the worst Judicial Hellhole, how much more evidence do lawmakers need to take action,” Wilson continued.

NRA lobbyist targets Barbara Pariente

National Rifle Association lobbyist Marion Hammer launched a campaign this week to purge Florida Supreme Court Justice Barbara Pariente from a case that could have far-reaching implications for the makeup of the court.

Hammer, long an influential figure in Tallahassee and a former president of the national gun-rights group, sent an email alert Wednesday morning to NRA and Unified Sportsmen of Florida “members and friends” urging them to tell Chief Justice Jorge Labarga and Pariente that “she must recuse or resign” from her post.

“Florida Supreme Court Justice Barbara Pariente has been caught in an act of what we believe is clear judicial misconduct and must recuse herself,” Hammer wrote, attaching an editorial penned by conservative political consultant Justin Sayfie.

In the email, Hammer wrote there “is no other appropriate option” for Pariente than recusal or resignation.

Gov. Rick Scott had asked Pariente to be removed from the case, which centers on whether the governor or his successor has the legal authority to appoint replacements for three justices — Pariente, R. Fred Lewis and Peggy Quince — whose terms end as Scott leaves office in January 2019.

Scott’s lawyers argued that comments by Pariente caught on a “hot mic” after oral arguments in the case indicated she was biased against the governor.

Hammer’s Wednesday morning alert went out just as the court issued an order rejecting Scott’s request that Pariente be disqualified from the case. Presiding law in similar cases says that justices, not the entire court, get to decide whether to recuse themselves.

Hammer said the court’s decision Wednesday didn’t matter.

“She can recuse or resign at any time, and those are the only realistic options that are available,” she told The News Service of Florida on Thursday.

Pariente, Quince and Lewis are part of a liberal-leaning bloc that holds a slim 4-3 majority on the state’s high court. Whoever gets to choose the next three justices could shape court decisions for years, if not decades.

The court has thwarted efforts by Second Amendment supporters twice this year alone.

“The majority of our state’s highest court is not only liberal-leaning and biased against the Second Amendment of the U.S. Constitution but appears to be comfortable with Justice Pariente’s judicial misconduct,” Hammer said in the Thursday interview.

In September, a unanimous court drew a line in the sand in Florida’s “stand your ground” law, by saying the determination of immunity in a criminal case does not carry over to a civil case.

In a 4-2 ruling in March, the court upheld a long-standing ban on people openly carrying firearms in public.

The court could also hear an appeal in another case related to a change in the state’s “stand your ground” law. A Miami judge struck down the change, which supporters of the law called a “notable setback.”

Republished with permission of the News Service of Florida.

Barbara Pariente to stay on Rick Scott judicial appointments case

The “hot mic” has gone cold.

In a one-sentence order, the Florida Supreme Court denied Gov. Rick Scott’s request to disqualify Justice Barbara Pariente from a pending case over his judicial appointment power.

“The respondent’s motion to disqualify Justice Pariente is hereby denied,” it said, without elaboration.

Scott “expects all judges to be fair and impartial,” Scott spokesman John Tupps said in a statement.

“It is disappointing that today’s decision was made without providing any plausible justification or explanation for Justice Pariente’s comments,” he added. “Given the gravity of this case, Floridians deserve better.”

The governor’s request stemmed from a conversation between Pariente and Chief Justice Jorge Labarga that was caught on a ‘hot mic’ immediately after a Nov. 1 oral argument in the case.

The League of Women Voters of Florida and Common Cause Florida are challenging Scott’s authority to appoint three new Supreme Court justices on the last day of his term in 2019.

They say he can’t name successors to the court’s liberal-leaning triumvirate of Justices Pariente, Peggy A. Quince and R. Fred Lewis — only the governor elected after Scott can.

Moments after the argument ended, Labarga can be heard on a video of the courtroom saying what sounds like, “…anything on there, Panuccio.”

Jesse Panuccio, once Scott’s general counsel and a former head of the Florida Department of Economic Opportunity, is a member of the Supreme Court Judicial Nominating Commission.

Pariente then can be heard saying what sounds like “crazy.”

Scott’s filing said that was “an apparent reference either to Gov. Scott or to (his) appointees to the Supreme Court Judicial Nominating Commission—the constitutional body that will be responsible for nominating her successor.”

The groups had responded Tuesday there was “no there there” in Scott’s complaint, saying the conversational fragments that can be made out don’t paint a picture of “bias or prejudice.”

In fact, they said, “it is simply impossible to tell what the remark referenced.”

As is its usual practice, the court has not signaled when it will rule.

Plaintiffs pooh-pooh Rick Scott’s bias concern in judicial appointments case

“There is no there there” in Gov. Rick Scott‘s complaint that Florida Supreme Court Justice Barbara Pariente is biased against him, say the plaintiffs in a case over his judicial appointment power.

The League of Women Voters of Florida and Common Cause Florida responded Tuesday to Scott’s motion for disqualification against Pariente. It was filed earlier this month by Daniel Nordby, Scott’s general counsel.

“No Supreme Court Justice should be disqualified for unintelligible comments that – even as interpreted by the Governor – had no possible relevance to the case that had just been heard and expressed no antipathy to any party or attorney in the case,” the latest filing says.

Pariente and Chief Justice Jorge Labarga had been caught on a ‘hot mic’ immediately after a Nov. 1 oral argument in the case. The groups say Scott, term-limited as governor in 2018, does not have authority to appoint three new Supreme Court justices on the last day of his term.

Those openings are caused by the mandatory retirements for the court’s liberal-leaning trio of Justices R. Fred Lewis, Pariente and Peggy A. Quince.

Moments after the argument ended, Labarga can first be heard on a recording from the courtroom saying what sounds like, “…anything on there, Panuccio.” Jesse Panuccio, once Scott’s general counsel and a former head of the Florida Department of Economic Opportunity, is a member of the Supreme Court Judicial Nominating Commission.

Pariente then can be heard saying what sounds like “crazy.” Nordby said that was “an apparent reference either to Gov. Scott or to (his) appointees to the Supreme Court Judicial Nominating Commission—the constitutional body that will be responsible for nominating her successor.”

That’s followed by Labarga: “Izzy Reyes is on there, he’ll listen to me.” JNC member Israel U. Reyes is founder of The Reyes Law Firm in Coral Gables and a former circuit judge. He’s also one of four members nominated to the nine-member JNC by The Florida Bar; the others are appointed by the governor.

Tuesday’s filing, by plaintiff’s attorney Thomas D. Hall, starts with an extended footnote on the “bugaboo that has plagued the bench and bar in wired courtrooms for years.”

“One would be hard pressed to find a trial judge or practicing lawyer today with any significant courtroom experience who does not have at least one war story of embarrassing private remarks caught on a live microphone at counsel’s table or in chambers,” he wrote, including “Justices Scalia and Thomas hoping for stiff sentences for courtroom protesters to President Obama criticizing a foreign leader to current United States Senators criticizing President Trump.”

As to the “crazy” remark, he said “no reasonable person could read the partial remarks by Justice Pariente as suggesting any view whatsoever about (Gov. Scott) or any of the lawyers representing him, much less bias or prejudice against them … It is simply impossible to tell what the remark referenced.”

Pariente, Labarga and court spokesman Craig Waters have not commented publicly on the matter.

The filing also dismisses statements made by Pariente while campaigning for retention in 2012, “A vote ‘yes’ will be a vote to retain me and the other two justices … A vote ‘no’ will give Gov. Scott the right to make his appointments, which will result in partisan political appointments.”

“Under no reasonable view was this a comment on what would or should happen if the justices were retained and completed their final terms and (Scott) successfully ran for re-election,” it says.

“(W)hatever controversy (Scott) has sought to create might be diffused by voluntary recusal, which would certainly be the easy road for Justice Pariente,” he added. “On the other hand, giving in to this transparent bullying tactic would set a dangerous precedent,” adding that it could also lead to a 3-3 split, causing more expense and delay.

“At bottom, whether to voluntarily recuse at this late stage is a question (that) precedent places solely in Justice Pariente’s discretion,” Hall wrote.

Later Tuesday night, Scott spokesman John Tupps said that “given Justice Pariente’s remarks, it’s abundantly clear that she will not be able to remain impartial and unbiased in this case. She must recuse herself.”

U.S. Supreme Court rejects challenge to open-carry ban

The U.S. Supreme Court on Monday refused to take up a challenge to a Florida law that bars people from openly carrying firearms in public, ending a case that started nearly six years ago when a man was arrested in St. Lucie County.

The U.S. Supreme Court, as is common, did not explain its reasons for declining to hear the case. But the move effectively let stand a Florida Supreme Court ruling in March that said the open-carry ban did not violate the constitutional right to bear arms.

The plaintiff in the case, Dale Norman, was arrested in February 2012 as he openly carried a gun in a holster. Norman, who had a concealed-weapons license, was found guilty of a second-degree misdemeanor, with a judge imposing a $300 fine and court costs, according to court documents.

Backed by the Second Amendment group Florida Carry, Norman challenged the constitutionality of the state’s long-standing ban on openly carrying weapons. But the state’s 4th District Court of Appeal and the Florida Supreme Court ruled against Norman, leading him to go to the U.S. Supreme Court.

In a petition filed with the U.S. Supreme Court, Norman’s attorneys pointed to major rulings in Second Amendment cases from Chicago and Washington, D.C. and argued that the right to openly bear arms exists outside homes.

“The Second Amendment provides in part that `the right of the people to keep and bear arms, shall not be infringed.’ This guarantees not only the right to `keep’ arms, such as in one’s house, but also to `bear arms,’ which simply means to carry arms without reference to a specific place. When the Framers intended that a provision of the Bill of Rights related to a house, they said so,” said the petition, filed in July and posted on the Florida Carry website.

But attorneys for the state wrote in a brief that the ban does not violate Second Amendment rights, as people can carry concealed weapons if they have licenses.

“This (U.S. Supreme) Court has never held that the Second Amendment protects a right to openly carry firearms in public, and the reasoning set forth in pertinent case law supports the proposition that states fully accommodate the right to bear arms when they make available to responsible, law-abiding citizens some meaningful form of public carry,” the state’s brief said. “That is precisely what Florida has done here. Thus, Florida’s law is valid under any arguably applicable analytical framework.”

State lawmakers have proposed measures that would allow people with concealed-weapons licenses to openly carry firearms, but the proposals have not passed. Senate Judiciary Chairman Greg Steube, a Sarasota Republican and prominent gun-rights supporter, said this month he did not plan to file such a measure for the 2018 Legislative Session, which starts in January.

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