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More judges needed in Orlando and Tampa, Florida Supreme Court says

The Florida Supreme Court on Wednesday said four additional judges are needed in the Orlando area and Hillsborough County.

It added, however, that judgeships in some counties could be eliminated.

The Supreme Court is required each year to “certify” to the Legislature its analysis of the need for judges, though lawmakers often have not followed the court’s recommendations.

In Wednesday’s opinion, the Supreme Court certified a need for two additional circuit judges in the 9th Judicial Circuit, made up of Orange and Osceola counties, and a need for two more Hillsborough County judges.

But it “decertified” the need for 13 county judges across the state.

That included three county judges in Brevard County, two in Pasco County and one each in Escambia, Leon, Putnam, Alachua, Polk, Monroe, Charlotte and Collier counties.

The Supreme Court’s analysis takes into account factors such as trends in the types of cases filed and judicial workloads.

For example, the analysis found increases in civil filings in circuit and county courts but decreases in traffic-related filings.

State seeks end to satellite TV tax fight

Attorney General Pam Bondi‘s office has asked the U.S. Supreme Court to reject a challenge to the constitutionality of a state law that sets different tax rates for satellite and cable-television services.

Bondi’s office, representing the Florida Department of Revenue, filed a brief last week arguing that the Supreme Court should not take up the challenge filed by Dish Network.

The satellite TV industry has long argued that a law setting a lower state tax rate for cable services discriminates against satellite companies and violates what is known as the “dormant” Commerce Clause of the U.S. Constitution.

But in the brief last week, attorneys for the state argued that a federal telecommunications law prevents local governments from taxing satellite services. As a result, the brief said, the state set a higher tax rate for satellite services and shares part of the money with local governments. Meanwhile, local governments can tax cable services.

“If a state taxes communications services at the state and local levels, as Florida does, the only way to ensure that the state receives the same revenue from satellite as other communications services while ensuring that local governments may also receive revenue is to tax satellite at a higher rate and share the revenue with local governments,” the 49-page brief said.

The case has high stakes for the state, along with the cable and satellite industries. A 2015 ruling in favor of the satellite industry by the state’s 1st District Court of Appeal raised the possibility of Florida having to pay refunds to satellite companies.

The Florida Supreme Court, however, overturned the 1st District Court of Appeal ruling in April and sided with the Department of Revenue. That prompted Dish Network to take the dispute to the U.S. Supreme Court.

The state’s communications-services tax is s 4.92 percent on the sale of cable services and 9.07 percent on the sale of satellite-TV services. Local governments also can impose communications-services taxes on cable, with rates varying.

Dish Network contends the different state tax rates on satellite and cable are a form of protectionism that violates the “dormant” Commerce Clause, which bars states from discriminating against interstate commerce.

“In particular, it forbids a state from taxing or regulating differently on the basis of where a good is produced or a service is performed,” Dish Network said in a September petition posted on the SCOTUSblog website, which closely tracks the U.S. Supreme Court. “That’s exactly what the unequal Florida tax does. It puts a heavier duty on pay-TV programming that is assembled and delivered without using massive infrastructure within the state.”

But in the brief filed last week, Bondi’s office said the combination of state and local taxes can lead to cable services being taxed at a higher rate than satellite services.

“Because local governments set their own local CST (communications-services tax) rates, the statewide satellite CST cannot perfectly match the combined CST rates for other communications services,” the brief said. “But in all nine years examined, the average satellite subscriber paid a lower CST rate than the average cable subscriber, giving satellite a tax advantage every year.”

It is unclear when the U.S. Supreme Court will decide whether to take up the case.

(Disclosure: The News Service of Florida has a partnership with Florida Internet & Television, a cable-industry group, for a periodic news program about state government and politics.)

Republished with permission of the News Service of Florida.

Rick Scott moves to throw Barbara Pariente off judicial appointments case

Gov. Rick Scott is moving to remove Florida Supreme Court Justice Barbara Pariente from a legal challenge to his judicial appointment power, saying she’s biased against him.

Daniel Nordby, Scott’s general counsel, filed a motion for disqualification Monday.

Scott’s decision follows Pariente “making disparaging remarks after the conclusion of the oral argument in this case on November 1, 2017 which were captured on a live microphone and widely reported on,” the Governor’s Office said in a statement.

The motion also refers to 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.”

“Gov. Scott strongly believes that all Floridians deserve judges that are impartial, fair and non-partisan,” Scott spokesman McKinley Lewis said.

“Justice Pariente’s past remarks cast grave doubt on her ability to take an objective and unbiased position when evaluating Gov. Scott’s authority in this case. She must be disqualified to ensure a fair decision.”

Pariente and Chief Justice Jorge Labarga had been caught on a ‘hot mic’ immediately after a Nov. 1 oral argument in a case over Gov. Rick Scott’s judicial appointment power.

Progressive groups claim Scott doesn’t have authority to appoint three new Supreme Court justices on the last day of his term. The openings are caused by the mandatory retirements for the court’s liberal-leaning trio of Justices R. Fred Lewis, Pariente and Peggy A. Quince.

The Governor’s Office had filed a records request for a piece of paper on the bench to which Pariente and Labarga were ostensibly referring during their exchange. That document turned out to be the current membership list of the Supreme Court Judicial Nominating Commissionwhich happens to include Nordby.

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 JNC.

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 commission by The Florida Bar; the others are appointed by the governor.

When previously asked if he might pursue recusals of Labarga and Pariente from his case, Scott has 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.”

Nordby’s filing says Pariente’s comments, combined with her previous public statements, “provide a reasonable basis to question her impartiality … Scott is reasonably in doubt that this case will not be decided fairly.”

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

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Updated Wednesday – Kendra Arnold, executive director of the conservative Foundation for Accountability and Civic Trust (FACT), issued a statement that her group supports Scott’s motion.

It filed a public records request for Pariente’s and Labarga’s emails over what it calls “the justices’ overt political bias.”

“In a verbal attack on one of Scott’s appointees to the Supreme Court Judicial Nominating Commission, as well as making other past politically biased comments, she has shown herself to be clearly unfit to hear this case objectively,” Arnold said.

“Justice Pariente may not like Gov. Scott or his politics, but a justice’s No. 1 job is to be just, not political. In fact, judicial ethics rules clearly state that any personal bias or prejudice shown by a justice toward a given party is grounds for recusal.”

Right-leaning watchdog now wants judicial emails after ‘hot mic’

A conservative watchdog says it’s filed a public records request for emails from Justice Barbara Pariente and Chief Justice Jorge Labarga after what it calls “the justices’ overt political bias.”

The D.C.-based Foundation for Accountability and Civic Trust (FACT) late Monday released a copy of its request to the Florida Supreme Court.

It asks for copies of emails to or from Pariente and Labarga “that contain the phrases ‘Judicial Nominating Commission’ or ‘JNC,’ or any names” of members of the Supreme Court Judicial Nominating Commission.

The two jurists had been caught on a ‘hot mic‘ immediately after a Nov. 1 oral argument in a case over Gov. Rick Scott’s judicial appointment power.

Progressive groups claim Scott doesn’t have authority to appoint three new Supreme Court justices on the last day of his term. The 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 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. He’s also one of four members nominated to the nine-member commission by The Florida Bar; the others are appointed by the governor.

Kendra Arnold, FACT’s executive director, used the 14 words that could be made out in the conversation to assign “political bias” to the two justices. Pariente has served almost 20 years on the high court; Labarga has served nearly nine years.

“Judicial temperament that includes threatening lawyers short and long-term as Justice Labarga has done, attacking other public officials in the midst of a political campaign as Justice Pariente has done, and now attacking members of the state’s Judicial Nominating Commission, destroys public faith in the courts,” Arnold said in a statement.

The organization was formed “in 2014 as a conservative counterweight to watchdog groups viewed as more left-of-center, such as Citizens for Responsibility and Ethics in Washington,” according to the Center for Responsive Politics.

The Governor’s Office also filed a records request for a piece of paper on the bench to which Pariente and Labarga were ostensibly referring during their exchange. That document turned out to be the current membership list of the Supreme Court Judicial Nominating Commission.

When asked if he might pursue recusals of Labarga and Pariente from his case, Scott has 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.”

In her statement, Arnold was less circumspect: “Both justices should immediately recuse themselves from this case as they have demonstrated a bias against the governor.”

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.

Scott

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.”

Labarga

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

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.”

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