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Broward judge to be publicly reprimanded Feb. 7

The Florida Supreme Court on Monday “commanded” a Broward judge to come to Tallahassee Feb. 7 for a public reprimand.

Circuit Judge John Patrick Contini also must write a letter of apology, undergo judicial mentoring, complete a mental health program, and pay administrative costs, according to a court order.

He was brought up on judicial misconduct charges last year.

Contini was accused of sending a document on how to argue for lesser sentences to an assistant public defender without giving a copy to prosecutors. Contini himself is a former prosecutor and criminal defense attorney.

When prosecutors sought to disqualify him from pending criminal cases because of an appearance of bias, he rejected the request and lashed out against them, making “disparaging, demeaning remarks,” an investigative report says.

They included his wanting to “spank” and “ream out” the lawyers who sought to disqualify him. Contini later admitted he “‘lost it’ in court, ‘overreacted,’ ‘personified incivility,’ and had ‘no excuse’ for his comments.”

A Judicial Qualifications Commission panel noted that “Contini was a new judge, who … made a series of significant missteps.” It also said he “immediately accepted responsibility for his conduct, expressed sincere remorse, and apologized.”

The Supreme Court, however, noted that his “conduct was as improper as it was rude.”

Though he’s practiced law for 31 years, Contini was only elected judge in 2014 and on the bench since January 2015, the report says. He was given a hefty docket of more than 1,000 cases.

Florida Supreme Court rejects shift in insurance claims law

The Florida Supreme Court has overturned a lower-court ruling that would have made it harder for policyholders to collect on insurance policies when there is more than one cause for their losses.

At issue in Sebo v. American Home Assurance Co. was competing doctrines for resolving claims under all-risk policies in those circumstances.

Under the so-called “efficient proximate cause” theory, if the first cause of any damage — say, construction defects — isn’t explicitly covered, nothing else is.

Under the “concurrent law doctrine,” however, a homeowner can collect if any of the damage is covered.

“We conclude that when independent perils converge and no single cause can be considered the sole or proximate cause, it is appropriate to apply the concurring cause doctrine,” Justice James E.C. Perry Thursday wrote for a 5-2 majority.

That’s been the law in Florida for 30 years, said Richard Hugh Lumpkin of Ver Ploeg & Lumpkin in Miami, who filed an amicus brief on behalf of United Policyholders, a consumer group.

Still, the 2nd District Court of Appeal applied the stricter policy in ruling on the case. Other states, including California, use that standard.

“What the Florida Supreme Court is saying is that you apply the policy as written. There’s nothing new or different about that,” Lumpkin said.

“But if the efficient proximate cause doctrine had been made law in Florida, that would have changed things — made it more difficult for folks in Florida to collect their due.”

It also would have injected uncertainty into the insurance industry — both for policyholders and their insurers, he said.

“Let’s just say we breathed a sigh of relief” at the high court’s ruling, Lumpkin said.

The case involved a home in Naples, insured for $8 million, that had to be torn down after design and construction defects led to damage from rainstorms and Hurricane Wilma in 2005, according to court records.

Perry wrote that because the insurer “did not explicitly avoid applying the (concurrent law doctrine), we find that the plain language of the policy does not preclude recovery in this case.”

Commission settles on three finalists for Supreme Court vacancy

Florida Gov. Rick Scott will pick a new state Supreme Court from one of three finalists.

A state nominating panel on Monday interviewed 11 applicants for the job and then whittled down the list before coming up with a list for Scott.

The panel recommended that Scott consider Charles Alan Lawson, the chief judge for the 5th District Court of Appeal, Wendy Berger, a 5th DCA judge, and attorney Daniel Gerber for the high court.

Some high-profile names were passed over for consideration, including State Attorney Brad King, the lead prosecutor for five central Florida counties, and State Rep. Larry Metz.

The spot on the court is coming open because Justice James Perry is stepping down on Dec. 30 because he’s reached the mandatory retirement age.

This Supreme Court candidate steers clear of social media

Count on this if Seminole County Circuit Judge Michael J. Rudisill lands on the Florida Supreme Court: He won’t be tweeting about rulings or anything else.

“I tend to stay away from Twitter,” Rudisill said Monday, during his interview for a high court vacancy. “Twitter’s dangerous. Stay away from it. I don’t use Twitter, and virtually no good can come of it.”

Rudisill and Osceola County Circuit Judge Patricia L. Strowbridge were the final applicants of 11 interviewed by the Supreme Court Judicial Nominating Commission to replace Justice James E.C. Perry, who departs the bench Dec. 30.

The nominating panel will forward six names by Dec. 13 to Gov. Rick Scott, who will then name Perry’s replacement.

Virtually to a person, the applicants described themselves as strict conservatives who would follow the examples of the late U.S. Supreme Court Justice Antonin Scalia or Florida Supreme Court Justice Charles Canady.

Finally, late in the day, somebody asked Redistill whether he could point to any other judge he’d emulate.

“My fantasy football team is actually named The Fighting Scalias,” Rudisill replied.

Then he turned to Justice Clarence Thomas.

“His work ethic and constitutional originalist judicial philosophy, while slightly different from Antonin Scalia’s, probably would be a close second for me,” he said.

The differences between Thomas and Scalia’s textualism “are rather nuanced, I guess,” he said, but he personally tries to read laws according to the plain meaning of their words as generally understood.

“I definitely would not be tempted to breath new life and meaning” into those words, he said.

Rudisill was asked about Chief Justice John Robert’s opinion upholding the Affordable Care Act. Roberts interpreted the law’s financial sanctions against people who don’t buy insurance as a constitutionally permissible tax — to the consternation of movement conservatives.

Rudisill replied that he agrees with Roberts that courts should find laws constitutional when they can.

“Deference is always going to be appropriate,” but not if “you have to torture” statutory language to abide by the constitution, he said. “The law is clear that you err on the side of finding something constitutional. But if it’s clearly not, you have to do your job.”

Rudisill posited his relative youth as an advantage — he was born in 1976. “It’s a form of diversity that I would bring to the bench.” It makes him more at ease with useful technology than are some of his fellow jurists.

“These are things that I’m comfortable with,” he said.

Strowbridge has specialized in family law including adoptions and child dependency as an attorney and judge.

She disavowed any concern for trying to decipher the legislative intent of laws. That stance, she said, was informed by her experience early in her career helping to lobby the Legislature.

She witnessed considerable horse-trading for votes. “A lot of people” who supported her measure “didn’t know what was in the bill,” Strowbridge said.

“I don’t believe there’s anything called legislative intent,” she said. “Words have meaning. … Give those words the meaning that they have.”

If appellate courts increasingly face political pressure, it’s their own fault.

“When judges wander into legislating, that’s when the political pressure ramps up on them,” Strowbridge said.

As for coming to speed on the unfamiliar legal areas she would confront as a justice, “I study. I read,” she said. In fact, she considers The Florida Law Weekly good bedtime reading.

“I believe I am capable of learning what I need to learn,” Strowbridge said.

She was asked about two ethics proceedings against her when she was an attorney, and which she disclosed on her application.

One involved a misdirected fax that she neglected to return to the sender, not realizing that the Florida Bar had recently issued a rule requiring her to do that. She was required to take an ethics class.

The other involved a Bar grievance filed by a birth mother who’d given her child up for adoption and who later wished she’s chosen a more open form of the process. Strowbridge was not the woman’s attorney, but agreed to be more careful in communicating her role to mothers in the future.

During Supreme Court interview, Larry Metz discloses he has Parkinson’s

The third round of interviews of Florida Supreme Court applicants on Monday brought several revelations, including state Rep. Larry Metz’s disclosure that he has Parkinson’s disease.

Metz, a Yalaha Republican, shared his diagnosis with members of the Supreme Court Judicial Nominating Commission at the end of his interview.

“I don’t think it’s an issue,” Metz told the panel, adding he is not on medication for the condition. “But I did not want to not mention it.”

Parkinson’s is a “chronic and progressive movement disorder, meaning that symptoms continue and worsen over time,” according to the Parkinson’s Disease Foundation.

It’s caused when certain nerve cells in the brain die. There is no cure, although the symptoms can be managed through medication.

The disease, which has an unknown cause, often manifests through trembling of the hands, legs and jaw.

The late U.S. Attorney General Janet Reno had the illness, as does actor Michael J. Fox. Nearly 1 million people in the U.S. have Parkinson’s disease, according to the foundation.

The third round included Metz, Chief Judge C. Alan Lawson of the 5th District Court of Appeal and Circuit Judge Michelle T. Morley of Sumter County.

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

In his interview, Lawson spoke of the need to foster communication between the branches of government. Lawmakers have slammed the high court in recent years for opinions they say veered too much into policymaking.

Lawson used the example of his inviting then-House Speaker Dean Cannon to sit in on a violation of probation hearing. Otherwise, he said. the only interaction judges and legislators have is when they’re asking for money during budget meetings, “which isn’t the best in developing relationships.”

Lawson, as did interviewees before him, said he subscribed to an “originalist and textualist approach” in interpreting laws, favored by conservatives.

“In most cases, you don’t need to go beyond (the statute),” he told the panel.

Lawson’s only stumble may have been when Commissioner Cynthia Angelos, a former trial judge in St. Lucie County, asked him what his weakness was. Lawson couldn’t answer.

After joking he “should have thought of the question,” he said he was “prepared for this position, pretty uniquely and in a lot of different ways … It is my hope and belief to make a difference to the jurisprudence of this state.”

The judge, who has run the Boston Marathon, also said he ran for the Legislature while in law school, coming in third in a field of six for a Tallahassee-area seat. “In retrospect, I’m really glad I did not win,” he said.

Metz faces term limits after his current stint in the House. The former Marine has been one of the House’s stalwart conservative members.

He was the only candidate up to that point to walk around the conference table to shake all the commissioners’ hands.

Metz mentioned his years of public service, including on the Lake County school board, as motivating his application: “There’s a real sense of satisfaction … it’s about being something bigger than yourself.”

He also stressed his belief in judicial restraint: “You have to understand your role and responsibility” as a judge, he said. 

“Judicial power is both concentrated and broad … you have to remind yourself constantly what you are there to do, and not go beyond what you are supposed to do,” Metz said.

One commissioner, Jeanne Tate, shocked Metz by telling him they had gone to high school together. “It’s not that I’m worried I don’t remember you but I hope you don’t remember me,” he joked.

When asked whether there was a need for more “turnover” in the judiciary, Metz said he would keep an “open mind” to judicial term limits. Florida now uses merit retention elections, but no appellate judge in the state has ever lost such an election.

“One has to wonder, if the elections always produce the same result, whether they’re really working or not,” he said.

Morley said her judicial philosophy was not to “put a spin on a statute”: “The law needs to be interpreted according to plain language,” she said.

When asked about her mistakes, she admitted to holding a lawyer in contempt for a disagreement over evidence sharing between sides in a case, which she later realized was the “wrong way to achieve what I wanted to achieve.”

On “original meaning” in the Constitution, she was asked about the phrase “cruel and unusual punishment,” often used in the context of the death penalty.

“Human beings have found more and more egregious ways to treat each other that were never contemplated in 1789,” she said.

Surprises included her once being a member of the Lake County Sheriff’s Mounted Posse and her writing a letter to every Sumter County student who makes the honor roll.

The last of the interviews were scheduled to go through Monday evening. The commission will name six finalists for Gov. Rick Scott to consider.

One Supreme Court applicant cites liberal wing member as exemplar

Sylvia Grunor stood out among the second round of candidates interviewed Monday for a vacancy on the Florida Supreme Court by naming as her judicial role model the man she would replace — Justice James E.C. Perry, a member of the court’s liberal wing.

Dan Gerber, a civil-trial defense attorney with Rumberger, Kirk & Caldwell in Orlando, praised Justice Charles Canady, a member of the court’s conservative minority, as “among the most brilliant attorneys and supreme court justices in the country.”

Brad King, state’s attorney for the 5th Judicial Circuit in Central Florida, praised the late U.S. Supreme Court Justice Antonin Scalia.

In fact, he said, he’d read Scalia’s book, “Reading Law: The Interpretation of Legal Texts.”

“As I read it, clearly that’s the way I think things through,” King said of Scalia’s “originalist” approach to judging.

Still, to Grunor, a trial lawyer and partner with Orlando firm Palmer, Weiss, Grunor & Barclay, “Justice Perry had, to me, a good sense of himself.” He is, she said, “a family-first, law and order guy.”

But she also insisted: “I’m looking to interpret the law as it’s written.”

The Supreme Court Judicial Nominating Commission began interviewing the 11 applicants to replace retiring Perry, who departs the bench Dec. 30.

The nominating panel will forward six names by Dec. 13 to Gov. Rick Scott, who will then name Perry’s replacement.

Scott has said that he wants a justice to follows judicial restraint and is humble.

None within the second round of interviewees has served on the bench before. Grunor said that would “add rather than detract” from her contributions to the high court.

“Being a trial lawyer, you get an idea of what goes on in the courtroom,” she said.

She would approach the work “not with an agenda,” but to apply her education and experience. “I want to make it a better place.”

Grunor ran unsuccessfully for the trial bench in 2000, and once applied to fill a vacancy in the 18th Judicial Circuit. She practices family, personal injury and insurance law.

She cautioned against judges who give overly broad interpretations of the law. “If the Legislature passed it, my job is to interpret it,” she said — and not to try to read too much into a statute.

Asked what changes she would like to see in the court system, Grunor said: “More access to the courts.” As a trial lawyer, she understands “how hard it is to get into the courthouse sometimes, and how long you have to wait.”

“If I had any influence on that, I’d like to see more judges in the courts.

Gerber has more than 28 years’ experience practicing law — mass torts and class actions, commercial litigation, and voting rights cases included, he said.

He would take “a practitioner’s point of view” to the court. He lamented that the average time for an intermediate appellate court in Florida to issue a decision is 190 days.

“Frankly, time is money,” Gerber said.

An advocate for children with autism, he said the courts represent “the last place” in which to “seek help for the helpless.”

Although not well versed in criminal law, he would approach it like “any other area of law in which you might not have experience.”

Specifically: “Read everything you can get your hands on. After a while, you’ll be able to handle those cases in a predictable manner.”

What kind of court ruling make Gerber grimace?

“When I see a judge of an appellate court saying, ‘We know better than the Legislature or an executive department,’ “ he said. “That does frustrate me when I see that.”

He hates to see “judicial hostility to the litigants and the lawyers.”

Gerber noted his long history in the conservative movement, including assignments for Republican clients during his early days at his firm, before the movement’s ascension.

“I didn’t have to do that,” Gerber said. “I took it because I believed in it.”

Asked to write his own epitaph should be win appointment, Gerber said: “He brought a stabilizing conservative presence to the Florida Supreme Court.”

King spent much of his time explaining his role in the investigation of the 2010 death of Michelle O’Connell — according to her family, at the hands of boyfriend St. Johns County Deputy Jeremy Banks.

King was one of two outside state’s attorneys assigned as special prosecutor in the case. Both determined there was insufficient evidence to support a homicide charge. Rather, King said, the evidence pointed to suicide.

“I could not have taken that case to trial” under the circumstances, despite public demands that he do just that, he said. “Fundamentally, it just wouldn’t have been right.”

He would not serve as a pro-police or pro-prosecution justice, he said.

He believes trial judges should establish the fact record in cases and appellate judges are bound to respect that.

And as for respecting legislative intent, “I don’t think (judges) have the discretion to determine that the Legislature’s intention was” beyond the statutory language, King said. They can’t decide “what they really meant.”

Supreme Court candidates are all about conservatism

The first three candidates to be interviewed for state Supreme Court justice burnished their conservative credentials Monday afternoon.

The Supreme Court Judicial Nominating Commission began interviewing the 11 applicants to replace retiring Justice James E.C. Perry, who departs the bench Dec. 30.

The nominating panel will forward six names by Dec. 13 to Gov. Rick Scott, who will then name Perry’s replacement.

This is Scott’s first chance to pick a state Supreme Court justice, and thus the first opportunity to expand the high court’s reliably conservative voting bloc, now only two justices: Charles Canady and Ricky Polston.

“I generally care about two things,” Scott has said about judicial appointees. “Are they going to be humble in the process, and are they going to uphold the law?” The governor, like the conservative GOP House majority, is a believer in judicial restraint.

First up on Monday were Wendy W. Berger, a judge on the 5th District Court of Appeal; Alice L. Blackwell, a circuit judge in Orange County; and Roberta J. Bodnar, an assistant U.S. attorney in Ocala.

The judiciary’s job is to “apply the law, to interpret the law, but not to make it,” Berger told the panel.

She may have the most experience in death penalty cases, which now makes up roughly half of the Supreme Court’s caseload.

As an assistant general counsel, Berger was Gov. Jeb Bush’s point person on death sentences, helping him determine which cases were ripe for death warrants.

A recent U.S. Supreme Court decision, based on a Florida case, requires unanimous jury recommendations before a judge can impose a death sentence.

But Berger told commissioners she doesn’t believe the Hurst ruling should be retroactive: “That would open a large amount of floodgates we don’t need to see.”

Asked about professionalism, she said dissenting from a majority opinion should mean “you can disagree without being disagreeable.”

She quickly added, “You can be open minded to other points of view, but if they’re outside the law, I’m not going to agree for the sake of collegiality.”

Berger also played up her trial court experience as a circuit judge, saying “if you want to call balls and strikes, you need to have played the game.”

Blackwell, a judicial appointee of Democratic Gov. Lawton Chiles, played defense early and often, mentioning her “conservative judicial philosophy” and saying she was “not an activist judge.”

The judge played up her rural South Carolina upbringing – “You can probably hear it in my voice” – and said she worked her way through school as a church organist.

She was 34 when she first applied to be a judge, and said she was the second youngest person to become a judge when appointed in 1991. Blackwell followed the footsteps of her “Uncle Joe,” a judge who held the Bible at her swearing-in.

Blackwell said she follows the late U.S. Supreme Court Justice Antonin Scalia’s concept of ‘originalism’: “What do the words mean that are in the law?”

She distinguished herself from activists who say what the law “ought to be.”

“That’s not a judge’s job,” Blackwell told the panel. “I don’t legislate from the bench.”

But, she was asked, what about when courts, even the Supreme Court, have misinterpreted a law? 

“I hope I would have the intellectual and moral fortitude to say we got it wrong and we need to change it,” she said.

Bodnar, unlike Berger and Blackwell, sat for her interview with no notes. She too espoused restraint in interpreting the law, saying judges should “apply the law” and not “invent it.”

“The law belongs the people,” she said, a theme she revisited later in her interview. “Start with the law, never start with instinct.”

Bodnar, however, bristled at a question on her lack of judicial experience, referring to her analytical skill in a brief she submitted as a writing sample.

“I wrote that brief, and it’s good,” she told commissioners. “I don’t need to have put on a black robe.”

She also was asked about her long-standing “BV” Martindale-Hubbell peer rating, which she’s had for 23 years. “BV” is similar to a silver medal; “AV” is considered the gold standard.

Bodnar smiled, saying the only reason she sought a rating in the first place was to ensure a pay bump from her then-boss, state Attorney General Bob Butterworth. Getting rated or getting published was the only way he’d give a raise, she said.

Finally, when asked about a right to bear arms, Bodnar said she “believe(s) in a personal right to bear arms,” adding that she has a concealed carry permit.

The interviews, which are taking place in Orlando, continue through the afternoon and are being livestreamed by The Florida Channel.

Judge faces misconduct charges over campaign tactics

A judge in Putnam County faces misconduct charges for posting inaccurate information about his campaign opponent.

Circuit Judge Scott DuPont is facing five charges related to his campaign against Malcolm Anthony, a Ponte Vedra Beach attorney.

The Florida Judicial Qualifications Commission notified the state Supreme Court of the charges on Wednesday.

The commission’s investigative panel said DuPont went to a criminal background check website to dig up dirt on Anthony and posted the results without verifying them.

The commission noted the website can’t be entered without clicking a warning that the information might not be accurate.

The information included supposed arrests of Anthony’s wife and daughter even though he didn’t verify their identities.

DuPont also got into hot water for saying he wouldn’t find any law unconstitutional despite his oath to uphold the state and federal constitutions.

Reprinted with permission of The Associated Press

Felon voter restoration advocates make their case to Supreme Court

The group behind a proposed state constitutional amendment to automatically restore voting rights to nonviolent felons told the Florida Supreme Court this week that the initiative meets all criteria to appear on the ballot.

In a brief filed Tuesday, Floridians for a Fair Democracy argued that the proposed amendment “presents voters with a unified and limited question of whether to automatically restore voting rights to persons convicted of a felony.”

Additionally, “the ballot title and summary of the proposed amendment clearly and unambiguously explain that such automatic restoration is the chief purpose of the amendment,” the brief argues.

“Reading them together, the voter will be adequately informed and able to cast an intelligent vote about whether to include the proposal in the Florida Constitution.”

The text of the amendment and its ballot summary comply with Supreme Court precedent requiring a “logical and natural oneness of purpose,” the brief argues.

Signing the document were Jon Mills of Boies, Schiller & Flexner, a former Florida House speaker and dean emeritus at the University of Florida Fredric G. Levin College of Law; and Orlando attorney Andrew M. Starling.

Supporters hope to place the initiative on the ballot in 2018.

The Supreme Court reviews all proposed constitutional amendments and can block any that violate the single-subject rule. That means either that they amount to “logrolling,” forcing voters to accept something they don’t like to get something they do; or substantially affect more than one branch of state government.

“The proposed amendment would make one simple policy change that touches upon only a single branch of Florida’s government,” the brief says. “Given the vast executive functions of the governor and Cabinet, this solitary impact is not substantial in the sense contemplated by the single-subject rule.”

Under existing law, the governor and Cabinet review petitions to restore voting rights filed by all felony offenders. Were the amendment adopted, that system would apply only to felons convicted or murder or sexual offenders.

The ballot summary reads:

“This amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation. The amendment would not apply to those convicted of murder or sexual offenses, who would continue to be permanently barred from voting unless the governor and Cabinet vote to restore their voting rights on a case by case basis.”

“The drafters explicitly excluded individuals convicted of murder or a felony sexual offense, who will continue to seek restoration under the current system,” the brief says.

flowers florist

Florist wants Supreme Court to take up tax decision

A Florida-based florist is asking the nation’s highest court to review a state Supreme Court sales-tax decision.

American Business USA Corp. filed its petition with the U.S. Supreme Court last month, dockets show.

The state’s Department of Revenue was due to file a response next Monday but the deadline has now been moved to Jan. 12.

The state’s high court had ruled that Florida can impose a sales tax on the web-based florist for flowers sold to out-of-state customers and delivered outside of Florida.

The court overturned an appeals court decision that said the Department of Revenue couldn’t collect taxes from the company’s out-of-state sales.

Because the Palm Beach County-based business has a physical presence in the state and does business within Florida, that’s enough of a tie to the state to make all its sales taxable — regardless if they originated outside of Florida.

The company has argued it shouldn’t be responsible for sales tax on orders from out-of-state customers for flowers that were grown and delivered outside of Florida.

Background from The Associated Press, reprinted with permission. 

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