Florida Supreme Court – Page 6 – Florida Politics

Supreme Court tosses out medical malpractice changes

Saying that changes approved by lawmakers “have gashed Florida’s constitutional right to privacy,” a sharply divided Florida Supreme Court on Thursday rejected parts of a controversial 2013 medical-malpractice law.

Justices, in a 4-3 decision, said the 2013 law — which involved an issue known as “ex parte” communications between doctors and defense attorneys — could lead to the disclosure of patients’ private health information that is unrelated to malpractice cases.

The law dealt with the process in which defense attorneys gather information in medical-malpractice disputes and their conversations with doctors who treat plaintiffs for reasons unrelated to the alleged malpractice. The 2013 law would allow such conversations, at least in certain circumstances, to occur outside the presence of the plaintiffs’ attorneys.

Opponents of the law argued that such “ex parte” communications could lead to violations of patient privacy.

“Even the possibility that a person’s extremely sensitive private medical information will be exposed is the type of governmental intrusion that the Florida Constitution protects against because it is impossible to know if an inadvertent disclosure occurred when the meetings are not only ex parte and without a judge, but also secret without a record,” Justice R. Fred Lewis wrote in Thursday’s 50-page majority opinion striking down the parts of the law. “In the case of protected medical information, the danger is uniquely and unconstitutionally great because once the bell has been rung, it cannot be unrung.”

Lewis was joined in the majority by Chief Justice Jorge Labarga and justices Barbara Pariente and Peggy Quince.

But Justice Charles Canady, in a dissent joined by justices Ricky Polston and Alan Lawson, disagreed that the 2013 changes violated the constitutional right to privacy and described the majority opinion as an “unwarranted interference with the Legislature’s authority.” Canady also said nothing in the law allowed disclosure of irrelevant medical information during ex parte conversations.

“In short, medical malpractice claimants waive whatever constitutional privacy rights they may have in relevant medical information,” Canady wrote. “Because the 2013 amendments do not in any way authorize the discussion of irrelevant medical information, medical malpractice claimants have no constitutional right to prevent the ex parte meetings.”

The 2013 law was part of a years-long political fight between groups such as doctors and plaintiffs’ attorneys about the medical-malpractice system. Supporters of the law argued, in part, that allowing ex parte communications could lead to more information about malpractice claims and help resolve cases before they go to trial.

Thursday’s ruling, which overturned a decision by the 1st District Court of Appeal, came in an Escambia County case. The plaintiff, Emma Gayle Weaver, contemplated filing a medical-malpractice lawsuit against physician Stephen Myers but was concerned about the constitutionality of the ex-parte change, according to court documents. Weaver was the wife of the late Thomas E. Weaver, whose care was at issue in the malpractice allegations.

As part of the ruling, Lewis also wrote that the majority was making clear that the privacy rights of people who have died are protected.

“Death does not retroactively abolish the constitutional protections for privacy that existed at the moment of death,” Lewis wrote. “To hold otherwise would be ironic because it would afford greater privacy rights to plaintiffs who survived alleged medical malpractice while depriving plaintiffs of the same protections where the alleged medical malpractice was egregious enough to end the lives of those plaintiffs.”

Rick Scott won’t say if he’ll seek recusals over Supreme Court ‘hot mic’ incident

An attorney for Gov. Rick Scott has filed a public records request with the state Supreme Court over last week’s ambiguous “hot mic” conversation between Chief Justice Jorge Labarga and Justice Barbara Pariente.


But Scott stopped short Tuesday of saying whether he will ask the two justices to recuse themselves from further involvement in a case over his judicial appointment power.

The request, filed Monday, seeks “any and all documents reviewed or discussed” by the two jurists after Wednesday’s oral argument and “raw, native, uncompressed audio” of the conversation.

With a microphone cutting in and out, the justices had seemed to be referring to a piece of paper and discussing membership of the Supreme Court’s Judicial Nominating Commission (JNC), which vets and recommends appointees for Supreme Court justice to the governor.

This week’s record request was signed by Scott’s general counsel Dan Nordby, who also argued the case on Wednesday.

“Let’s find out what was going on,” Scott said, speaking with reporters after Tuesday’s Cabinet meeting. “We expect judges to be impartial. We expect them to simply do their job.

“What document were they talking about? What were they talking about?” he added. “It’s incumbent on everybody to understand what was being discussed.”


When asked if he were interested in pursuing recusals of Labarga and Pariente from his case, the governor said, “I think we have to find out. Let’s put the facts on the table. Then we can make a decision of how we should go forward.”

The case in question was brought by the League of Women Voters of Florida (LWVF) and Common Cause, claiming Scott doesn’t have authority to appoint three new Supreme Court justices on the last day of his term.

Scott, a Naples Republican, has said he plans to name the replacements for the court’s liberal-leaning trio of Justices R. Fred Lewis, Pariente and Peggy A. Quince. They face mandatory retirement on the same day—Jan. 8, 2019—that is Scott’s last in office as governor. He’s term limited next year.

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 Gov. Rick Scott‘s general counsel and a former head of the Florida Department of Economic Opportunity, is a member of the Supreme Court JNC.


Pariente then can be heard saying what sounds like, “…crazy…” 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. Pariente responds, but what she says isn’t clear.

Requests for comment have been left with League President Pamela Goodman, its attorney John S. Mills, and Supreme Court spokesman Craig Waters. Reyes has not responded to a previous request for comment.

Updated Tuesday night: Waters wrote in an email to Florida Politics, “We have responded to the Governor’s public record request. Attached is that response.”

The piece of paper on the bench that Pariente and Labarga were ostensibly referring to was a current membership list of the Supreme Court Judicial Nominating Committee. That document was not “in the record” for the judicial appointments case being argued.

A video of the exchange is now posted on YouTube here.

Proposal would assure governor’s power to name justices

A proposed constitutional amendment would ensure that future governors could appoint new judges and justices up to their last day in office.

But John Stemberger, the member of the Constitution Revision Commission who filed the amendment Thursday, said he was temporarily withdrawing the proposal to correct a drafting error. 

The amendment would make certain that judicial terms end the day before a new governor takes over from a sitting one.

“The proposal should have had an effective date of 2020, well beyond the current legal dilemma that potentially presents itself in January of 2019 when the new Governor is sworn in,” he wrote in an email early Friday.

Attorneys are set to argue a related case against Gov. Rick Scott before the Florida Supreme Court next Wednesday.

“I am not seeking to interfere with the circumstances of legal battles for the judges currently set to retire in 2019, but merely to avoid this miniature constitutional crisis into the future by simply changing the dates so they do not coincide together,” he added.

Progressive groups have challenged Scott’s authority to appoint three new Supreme Court justices on the last day of his term in 2019.

Stemberger, an Orlando attorney and president of the conservative Florida Family Policy Council, aims to “revise the date on which the term of office begins for judicial offices subject to election for retention.”

The amendment aims “to avoid the ambiguity and litigation that may result by having the terms of judicial officers and the Governor end and begin on the same day.”

It would change the start and end dates of judicial terms from “the first Tuesday after the first Monday in January” following the general election, to “the first Monday in January.” 

The League of Women Voters of Florida (LWVF) and Common Cause sued Scott this summer. They seek a “writ of quo warranto,” a court action against government officials to demand they prove their authority to perform a certain action.

Liza McClenaghan, state chair of Common Cause of Florida, said Stemberger’s amendment “thwarts the will of the people and makes government less accountable.” Oral argument in their action is set for next Wednesday morning.

The age-required retirements of three justices—R. Fred Lewis, Barbara Pariente and Peggy A. Quince—occasioned the suit. They are considered the more liberal-leaning contingent of the high court. 

Scott, a Naples Republican, has said he plans to name their replacements the morning of his last day in office—Tuesday, Jan. 8, 2019.

His attorneys have argued that the justices’ age-mandated retirements also will become effective that Jan. 8.

The League 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 terms last till midnight.

If the commission eventually decides to place Stemberger’s amendment on the 2018 statewide ballot, it still would have to be approved by 60 percent of voters to be added to the state constitution.

The 37-member board is convened every 20 years to review and suggest changes to the state’s governing document. Stemberger was named to the panel by House Speaker Richard Corcoran, a Land O’ Lakes Republican.

Supreme Court sets arguments in red-light camera battle

The Florida Supreme Court will hear arguments in February in a battle about a red-light camera program in the city of Aventura that could have broader implications across the state.

The court issued an order Monday that scheduled oral arguments for Feb. 7.

The case, like others, focuses on whether Aventura gave too much authority to a private company that contracted to help run the red-light camera program.

The 3rd District Court of Appeal upheld the Aventura program in a decision involving a motorist who received a ticket for improperly turning right at a red light.

In challenging the ticket, motorist Luis Torres Jimenez contended the city had illegally given “unfettered discretion” to a red-light camera company to review images of potential violations and to print and send out citations.

While the 3rd District Court of Appeal sided with Aventura, it also urged the Supreme Court to take up the case, saying the “lawful use of cameras to enforce red lights has attracted the attention of the public, local governments, and the Legislature.”

Red-light cameras have long been controversial, and the Florida House has started moving forward with a bill (HB 6001) for the 2018 session that would repeal a state law that allows local governments to use the cameras.

Republished with permission of the News Service of Florida.

casino table

Gambling amendment now has 600K signatures

A proposed constitutional amendment aimed at limiting gambling’s expansion in the state now has more than 600,000 signatures, its backers said Monday.

Voters in Charge, the political committee behind the amendment, said it’s “over halfway towards its goal of gathering 1.1 million signatures in order to reach the required number of 766,200 valid petitions to appear on the 2018 General Election ballot.”

As of Monday, Division of Elections records show the “Voter Control of Gambling” amendment officially has 274,282 verified signatures.

“Tens of thousands of Floridians are signing our petition each week and we are on track to accomplish our goal of securing enough signatures for ballot placement by year’s end,” said John Sowinski, chairman of Voters in Charge.

He also heads the anti-casino expansion organization, No Casinos, but that group and the political committee are separate entities.

“We look forward to being on the 2018 ballot, mounting an aggressive statewide campaign and returning the ultimate authority to approve casino gambling to the people of Florida where it belongs,” Sowinski said in a statement.

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

The Supreme Court already approved the amendment for ballot placement, though Justices Ricky Polston and R. Fred Lewis 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 because 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.”

Court to DirecTV, Dish: Pay up in taxing case

An appellate court on Wednesday ordered satellite-television companies to pay legal and other costs in a long-standing tax case they lost earlier this year.

After DirecTV and Dish Network sued, the Florida Supreme Court in April decided satellite TV can be taxed at a higher rate than cable TV.

The case was remanded to the 1st District Court of Appeal, which now has ordered the companies to pony up costs to the Florida Department of Revenue, the Florida Cable Telecommunications Association and others.

The satellite-TV companies had challenged the state’s Communications Services Tax (CST), which taxes cable service at 4.92 percent and satellite at 9.07 percent. (Additional local and other taxes get tacked on; click here for an explanation.)

They said that difference was unconstitutional and asked for a refund. The high court reversed a 1st District panel’s 2-1 decision, which said that taxing the two services differently is unconstitutional.

Then-1st DCA Judge Simone Marstiller, in her dissent, had said there is no discriminatory purpose in the CST because satellite and cable providers are not “similarly situated entities.”

But the Supreme Court’s opinion, by Justice Peggy A. Quince and joined by the other justices, said there was “no evidence from the text of the statute that it was enacted with a discriminatory purpose.”

During oral argument last year, Justice Barbara Pariente had noted that “in the end, we’re really talking about the customer that either gets screwed or helped … It all gets passed on.”

Gambling initiative tops 200,000 signatures

Backers of a proposed constitutional amendment that could limit the expansion of gambling in Florida have submitted more than 200,000 petition signatures to the state as they try to get on the November 2018 ballot.

The political committee Voters In Charge, had submitted 212,993 valid signatures as of Wednesday, according to the state Division of Elections website. The committee will have to submit a total of 766,200 signatures to reach the ballot.

The proposed constitutional amendment, if approved, would give voters the “exclusive right to decide whether to authorize casino gambling” in the state. It would require voter approval of casino-style games in the future.

The Florida Supreme Court this spring signed off on the proposal’s ballot wording, a key first step in the process of taking the issue to voters.

Court overrules regulators regarding ‘flag drop’ races

An appellate court on Tuesday unanimously reversed state regulators in favor of a ragtag north Florida horse track looking to become a “first-class (gambling) facility.”

The Department of Business and Professional Regulation’s Division of Pari-Mutuel Wagering last year rejected an administrative law judge’s tossing out of the state’s complaint that Hamilton Downs ran “flag drop” races contrary to its license.

But a three-judge panel of the 1st District Court of Appeal ruled in favor of the track, which it described as “an L-shaped dirt track … in an open field, with a shed for betting, a covered box on stilts, and a barn.”

Regulators said the small track, located 90 miles east of Tallahassee, violated its license by running such races in June 2014. Essentially, the division said such races weren’t legitimate horse racing.

Even Administrative Law Judge E. Gary Early conceded that there was “nothing about Hamilton Downs (that was) real in terms of racetrack standards.” The flag drop races “must be seen to be believed,” he wrote, referring to video of the contests that were “evocative of an Our Gang comedy short.”

Still, track owner Glenn Richards “has ambitious plans to turn Hamilton Downs into a first-class pari-mutuel facility complete with a cardroom, slot machines, an oval race track, starting gates, and grandstands,” the Tuesday opinion said.

Indeed, he was “frank in his admission that the 2014 race season was important because it allowed Hamilton Downs to qualify for a card room license and, if ultimately allowed, slot machines,” according to Early’s order.

A possibility for slot machines is moot for now because the state Supreme Court ruled in May that Florida counties can’t allow slots where voters have approved them in local referendums because “nothing in (state gambling law) grants any authority to regulate slot machine gaming to any county.” Hamilton County is one of those slots referendum counties.

The “overall quality of the videotaped races was about what one would expect of an entry-level campers’ horse show held at the conclusion of a two-week YMCA summer camp,” Early wrote. At the same time, he said the state’s case was “insufficient to support a disciplinary sanction based on what the Division perceives to be inadequate speed, ‘breaking’ ability, or competitiveness of any given race.”

The appellate panel sided with Early, saying he “properly concluded that a violation did not occur as alleged (and) the Division should be (halted) from prosecuting Hamilton Downs even if it did.”

The division, in part, “alleged that Hamilton Downs failed to conduct all of the 160 races at the 2014 meet,” according to the 12-page decision, by Chief Judge Brad Thomas and judges Harvey L. Jay III and James R. Wolf.

But the court said Early got it right and the state was legally in the wrong when it dismissed his conclusions. The panel found that races in question “occurred on a licensed, approved course … in the presence of duly appointed racing officials,” and winners were paid.

“Richards made every effort to satisfy race officials and ensure compliance with state law,” the opinion said. “We further conclude that Richards relied on the Division’s representation to his detriment [an on-site state “steward” had OK’d the races] … The public trust is undermined when the government punishes people for violations the government causes.”

Rick Scott sets date for next Florida execution

Gov. Rick Scott set the execution of Michael Lambrix, who’s been on Death Row for 33 years, for 6 p.m. Oct. 5, the Governor’s Office announced Friday. 

The Florida Supreme Court last February delayed his execution after attorneys argued that the state should first determine how to apply a recent U.S. Supreme Court ruling that the state’s death penalty system is unconstitutional. The U.S. Supreme Court found Florida’s death penalty system flawed because it allows judges, not juries, to decide death sentences.

Lambrix (Photo: Florida Dep’t of Corrections)

This March, the state’s high court said Lambrix was entitled to no further legal relief and lifted its stay of execution.

Attorney General Pam Bondi‘s office, also Friday, asked the court to dismiss Lambrix’s Thursday request for habeas corpus, calling it over long and an “untimely … abuse of process.”

“Lambrix’s latest habeas petition presents a misleading potpourri of previously presented and rejected claims,” Senior Assistant Attorney General Scott Browne wrote. “The petition … inappropriately seeks duplicative review of a decision of this Court that has been final for years.”

That was after Bondi wrote to Scott earlier Friday, saying that “the record is legally sufficient to set a new execution date.”

Lambrix was sentenced for the 1983 tire-iron and strangling slayings of two people he met at a bar, Aleisha Bryant and Clarence Moore Jr. Prosecutors said he killed them after inviting them home for dinner.

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

*                    *                    *

Updated 5 p.m. — In a docket entry, the state Supreme Court said that “because the governor has reset the execution … , we direct that all further proceedings in this case be expedited.”

Trial court proceedings, if any, were ordered completed, with orders entered by Sept. 11.

The court also set the following briefing schedule: Notice of appeal by Sept. 12; initial brief on the merits by Sept. 14; answer brief on the merits by Sept. 15; Reply brief on the merits by Sept. 18.

“Oral argument, if necessary, will be scheduled at a later date,” according to the docket.

High court backs Rick Scott, Aramis Ayala vows new policy

Gov. Rick Scott has the authority to transfer murder cases away from the office of Orlando’s State Attorney Aramis Ayala because she refuses to pursue capital punishments, the Florida Supreme Court ruled Thursday.

Ayala greeted the ruling by declaring she was changing her policy, and would set up a special panel to review the death penalty  appropriateness of each potential capital case. She would not be directly involved.

“I respect the decision and appreciate that the Supreme Court of Florida has responded and provided clarification,” Ayala said in a written statement. “The Supreme Court of Florida ruled today that a case-specific determination must be made on first degree murder cases. To ensure today’s Court’s decision is heeded, I have organized a Death Penalty Review Panel comprised of seven well-versed and experienced assistant state attorneys. This panel will evaluate each first-degree murder case in the 9th Judicial Circuit.”

“With implementation of this Panel, it is my expectation that going forward all first-degree murder cases that occur in my jurisdiction will remain in my office and be evaluated and prosecuted accordingly,” she added.

The case decided Thursday by the Florida Supreme Court had far-reaching ramifications – not just whether Ayala can decide to not pursue death penalties, or what happens to murder cases in her 9th Judicial Circuit. The court decided the governor has the power to strip cases if he has reason to believe the state attorney is not going to follow the law.

“Today’s ruling is a great victory for the many victims and families whose lives have been forever changed by ruthless, evil acts of crime,” Scott declared in a statement issued by his office. “I absolutely disagreed with State Attorney Ayala’s shortsighted decision to not fight for justice. That’s why I’ve used my executive authority to reassign nearly 30 cases to State Attorney Brad King. These horrific cases include Markeith Loyd, an accused cop killer who murdered his pregnant ex-girlfriend and Orlando Police Department Lt. Debra Clayton; Everett Glenn Miller, another alleged cop killer who is accused of ambushing and murdering two Kissimmee Police Officers, Officer Matthew Baxter and Sgt. Sam Howard; and Callene Marcia Barton and Lakesha Chantell Lewis, who are accused of killing a helpless toddler.

“Crimes like these are pure evil and deserve the absolute full consideration of punishment – something that State Attorney Ayala completely ruled out,” he added. “She unilaterally decided to not stand on the side of victims and their families, which is completely sickening. In Florida, we hold criminals fully accountable for the crimes they commit – especially those that attack our law enforcement community and innocent children.”

Ayala’s attorney, Roy L. Austin Jr., said he respected the ruling and suggested that Ayala’s new policy should return cases to the 9th Judicial Circuit.

“State Attorney Ayala has always intended to follow the guidance she was given by the Florida Supreme Court. To ensure that she is doing so, she has set up a panel of experienced attorneys in her Office to review all death-penalty eligible cases. By setting this up, State Attorney Ayala’s action is well within the Florida Supreme Court’s ruling and all cases should be returned to her and no further cases should be removed from her,” Austin said in a written statement. “This gives the governor the opportunity to return the cases to the people of Orange and Osceola Counties.”

The issue might not be totally resolved. Ayala and Austin also filed suit in U.S. District Court, and that case was put on hold while the Florida case was considered and decided.

Numerous outside groups entered the case including the Florida House of Representatives, led by Speaker Richard Corcoran, arguing it had legal and civil rights ramifications.

“Today is a victory for victims and their families, and I congratulate the Florida Supreme Court for such an unequivocal stand for the rule of law,” Corcoran said in a written statement. “I also commend Governor Scott for his courageous action in this case. The people of the state of Florida support the death penalty as a punishment for the most evil among us and those sworn to uphold the law and enforce the law need to remember that the people have spoken. I hope this message resonates loud and clear with all government officials who think they have the power to ignore or override the will of the people. When it comes to the most evil among us the people demand justice and today they got it. ”

“This is a deeply disappointing decision,” declared Melba Pearson, deputy director of the ACLU of Florida. “Florida law gives independently elected State Attorneys broad discretion to determine how best to seek justice in the cases they are responsible for prosecuting. Florida State Attorneys answer to the voters they represent, not to the governor. Governor Scott’s intervention in State Attorney Ayala’s cases dangerously undermines the independence of our state’s prosecutors, and the Supreme Court’s regrettable decision today opens the door to further politicizing of our justice system.”

Said the Florida Sheriff’s Association: “Today, the Supreme Court affirmed that Governor Scott acted in the best interests of Floridians in reassigning more than 30 death penalty cases from State Attorney Ayala in the Ninth Judicial Circuit to Fifth Judicial Circuit State Attorney Brad King. As a representative of the law, Ayala was not serving to the best of her ability when she announced she would not consider the death penalty in any of those cases.”

State Rep. Bob Cortes has renewed his call for her dismissal Thursday.

Cortes, a Republican from Altamonte Springs, sent a letter to Gov. Rick Scott declaring “Now that the Supreme Court has affirmed that you are well within your legal rights as governor to reassign her cases, I respectfully request again that you suspend State Attorney Ayala from her position.”

Miriam Aroni Krinsky, founder and executive director of Fair and Just Prosecution, a group that submitted a brief signed by “dozens of former prosecutors and judges, including four former Florida Supreme Court justices and two former U.S. solicitors general,” held firm to the notion that local prosecutors must be left to decide what is right in their circuits.

“Legislatures establish the crimes that can be prosecuted and the range of punishments sought,” she wrote. “But it is the locally elected prosecutors who must decide which prosecutions and punishments to pursue. These decisions are an inherent part of the independent exercise of prosecutorial autonomy.”

The issue might not be totally resolved. Ayala and Austin also filed suit in U.S. District Court, and that case was put on hold while the Florida case was considered and decided.

The main question before the Florida Supreme Court was whether Scott could reassign murder cases to the 5th Judicial Circuit, where King has no issues with pursuing death penalty prosecutions. Scott has done so with more than two dozen murder cases in Ayala’s circuit, including two he reassigned on Wednesday.

The main question before the court was whether Scott could reassign murder cases to the 5th Judicial Circuit, where King has no issues with pursuing death penalty prosecutions. Scott has done so with more than two dozen murder cases in Ayala’s circuit, including two he reassigned on Wednesday.

Yes, the court concluded, by a 5-2 decision written by Justice C. Alan Lawson, with Chief Justice Jorge Labarga and Justices  Charles Canady, Ricky Polston and R. Fred Lewis concurring, and with Justices Barbara J. Pariente and Peggy A. Quince dissenting.

“Applying this well-established standard of review to the facts of this case, the executive orders reassigning the death-penalty eligible cases in the Ninth Circuit to King fall well “within the bounds” of the Governor’s “broad authority,” the decision analysis stated.

“The executive orders reassigning death-penalty eligible cases in the Ninth Circuit to King do not exceed the Governor’s authority on the facts of this case. Therefore, we deny Ayala’s petition,” the court’s decision, led by Labarga, read.

Ayala and her allies in court had argued that the very independence of elected state attorneys – prosecutors for their circuits – was at stake from what Scott had done. The ramifications raised questions about whether state attorneys could be politically pressured by an all-powerful governor to make decisions on how to prosecute.

The court granted that Scott has the power to reassign cases when he concludes the state’s laws are not being followed, but it stopped short of suggesting that he or any governor could tell a state attorney what to do.

The issue, the court concluded, was that Ayala’s blanket decision, announced March 16, to not pursue death penalties was not an exercise of prosecutorial discretion, but a decision to not exercise discretion, and therefore a refusal to follow Florida law.

“Ayala and her amici urge this Court to invalidate the reassignment orders by viewing this case as a power struggle over prosecutorial discretion. We decline the invitation because by effectively banning the death penalty in the Ninth Circuit—as opposed to making case-specific determinations as to whether the facts of each death-penalty eligible case justify seeking the death penalty—Ayala has exercised no discretion at all. As New York’s high court cogently explained, ‘adopting a ‘blanket policy’ ‘ against the imposition of the death penalty is ‘in effect refusing to exercise discretion’ and tantamount to a ‘functional veto’ of state law,” and therefore something Scott could step in to remedy, the court wrote.

“Ayala’s blanket prohibition against the death penalty provided the Governor with ‘good and sufficient reason’ to reassign the cases at issue to King, also important to our holding is that the Governor did not attempt to decide which cases are deserving of the death penalty,” the court wrote.

Pariente offered a dissenting opinion, with Quince concurring, that Ayala acted within bounds of Florida law.

“When State Attorney Ayala announced that her office would not seek the death penalty in capital prosecutions, she acted well within the bounds of Florida law regarding the death penalty,” the decision’s analysis stated. “She did not announce a refusal to prosecute the guilt of defendants charged with first-degree murder. Rather, State Attorney Ayala announced that she would not seek a sentence that produces years of appeals and endless constitutional challenges and implicates decades of significant jurisprudential developments, many of which have emanated over the years from the United States Supreme Court. Despite assertions to the contrary, State Attorney Ayala did not make her decision based on personal opposition to the death penalty or ’emotion.’

“State Attorney Ayala’s decision was well within the scheme created by the Legislature and within the scope of decisions State Attorneys make every day on how to allocate their offices’ limited resources. Because State Attorney Ayala’s decision was within the bounds of the law and her discretion, Governor Scott did not have ‘good and sufficient reason’ to remove her from these cases,” the dissenting opinion continued.

“The Governor’s decision in this case fundamentally undermines the constitutional role of duly elected State Attorneys,” Pariente concluded.

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