Ryan Nicol
A federal judge say he’s hopeful to have an order “soon” in a case involving former Broward Sheriff Scott Israel‘s push for reinstatement.
North Florida’s Chief U.S. District Court Judge Mark Walker is overseeing that case. Friday’s hearing addressed a motion by Gov. Ron DeSantis and Senate President Bill Galvano to have the case dismissed.
The Senate voted in October to remove Israel after DeSantis had suspended the former Sheriff. Israel responded with a federal lawsuit, arguing the removal violated his due process rights.
Walker challenged Israel’s attorney, Ben Kuehne, on multiple points Friday during a more than three-hour hearing held by phone.
He began by questioning the argument that Israel had a property right in remaining Sheriff. Walker summed up prior cases, which appeared to counter that assertion.
“I’m stuck with that prior precedent,” Walker said, while noting he was “sympathetic” to the argument in theory. “There is no federal — as opposed to state — recognized property interest in public office. How could I have any other analysis?”
Kuehne argued the property right evolves from Florida Supreme Court precedent which has shown that removal from office requires evidentiary considerations.
“That is the very nature of the property interest that is at stake here: a right to that office that can be and must be maintained absent some evidentiary foundation for taking that away.”
Walker seemed to signal a reticence to go that far, while noting a failure to show that property interest wouldn’t make Kuehne’s entire case moot.
“It doesn’t mean you lose on the whole case.”
Nick Primrose — representing DeSantis — and Jeremiah Hawkes — representing the Florida Senate — also appeared before the court Friday. They agreed with Walker’s interpretation that no property interest was at stake.
Kuehne additionally argued it was improper for the Governor’s team to introduce additional evidence ahead of the Senate review that was not considered by the Special Master assigned to the case.
Walker challenged Kuehne on the assertion that amounted to a due process violation.
“You knew before the hearing what the Governor’s position was going to be because you got the Governor’s memo three days before,” Walker told Kuehne.
“And I don’t see a single allegation where you were told you can’t talk.”
However, Walker did express some concern regarding the lack of time Kuehne’s team was given to respond to that new evidence during the Senate process.
“I understand, the view could be, ‘Judge, when you look at the complaint as whole, having only a couple of days to prepare a response in this context is not enough,’” Walker said.
Kuehne pushed Walker to accept that reading. “It was not a real opportunity to contest and it was not a real opportunity to be heard or submit our version in contrast to what the Governor’s office did submit,” Kuehne said of the Senate review.
That deficiency served as a due process violation, Kuehne argued Friday. But attorneys for the Governor and Senate countered that the Senate action is simply not subject to judicial review.
That immunity argument served as the basis of the motion to dismiss the case.
Countered Kuehne, “The suspension and removal from office is uniquely an executive chapter function, an executive article function of the Florida constitution, and no other.”
While the Senate is tasked with reviewing the decision, Kuehne argued that review is to be based on evidentiary standards and not on policy considerations that are usually exempt from judicial review.
“They are not part of the political process” when reviewing a suspension, Kuehne asserted, instead arguing the Senate operates more as a court.
Walker also drilled down on what relief Kuehne was seeking from the court, should his arguments prove successful.
“Does it mean Sheriff Israel wins or does it mean he simply has to be afforded process?” Walker asked.
Kuehne responded that typically, another shot at a fair process — such as a new hearing — would be required. While Kuehne argued that is an option for relief, the unique situation of the Florida constitutional structure means Israel should be fully reinstated.
That’s because in the event the Senate fails to act on a Governor’s suspension, the suspended individual is returned to office.
“The Senate has finished its Legislative Session and its business is done,” Kuehne noted of the latest Legislature Session, which wrapped up in mid-March.
“They have not constitutionally, we believe, affirmed the decision of the Governor.”
Walker wrapped the hearing summarizing his goal for deciding the motion to dismiss.
“I’m not going promise a date certain by which I’ll get an order out,” Walker said. “But this is on the front burner so I’ll do my best to get something out sooner rather than later.”
Regardless of the outcome, Israel has already filed to run in the 2020 election to regain his post.
The Senate Rules Committee in October considered Special Master Dudley Goodlette’s report and heard emotional testimony from members of the public, including two parents of children who died in the Parkland school massacre. Days before the meeting, the committee accepted testimony that had not been submitted during the June trial.
The committee supported removing Israel, a Democrat, from office. In a 25-15 vote on Oct. 23, the Republican-dominated full Senate stripped Israel from office.
The Senate proceedings last fall sparked an emotional outcry from Parkland parents, who supported DeSantis’ decision to remove the former sheriff. Israel’s backers, meanwhile, showed up en masse to defend the long-serving law enforcement officer.
Speaking to reporters in October, Tony Montalto, whose daughter Gina was among the 14 students slain at the Parkland school, said the “systemic failures can only be blamed on incompetent leadership.”
He called it “unfathomable” that Israel is seeking to be reinstated to his old job.
“Our 17 families have learned that without safety and security, nothing else matters,” Montalto said, adding that Israel and his deputies “failed us when we needed them the most.”
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Material from the News Service of Florida was used in this report.
