Florida Supreme Court Archives - Florida Politics

Rick Scott says citrus veto is constitutionally valid

Gov. Rick Scott responded Monday to a lawsuit brought by homeowners whose healthy citrus trees were torn down by the state, saying his veto of reimbursements to homeowners was “consistent with his constitutional authority.”

The homeowners have asked the Florida Supreme Court to undo Scott’s veto of more than $37 million.

The Republican-controlled Legislature agreed to pay homeowners in both Broward and Lee counties whose trees were torn down in a failed attempt to eradicate citrus canker. The money was to pay off judgments that had been won against the state.

In court filings, attorneys for the homeowners argue Scott lacked legal authority to veto the money because a court had already ruled the state violated the private property rights of homeowners.

In a 26-page response by Scott general counsel Daniel Nordby, the governor said the petition “should be dismissed or denied” in part because, under the state constitution, Scott “may exercise his veto power for any reason whatsoever.”

It goes on to say there’s “no basis for the exercise of this Court’s jurisdiction and … there is no legal merit to the (homeowners’) claims.” Specifically, they have no “clear legal right to the requested relief,” mentioning lower court action still pending.

Scott said in his veto message that he vetoed the money because there are other citrus canker lawsuits still ongoing.

Moreover, “separation of powers concerns also counsel strongly against any claim that the judicial branch may direct a governor regarding whether and how to exercise his discretionary line-item veto authority with respect to specific appropriations,” Scott’s filing says.

Chief Financial Officer Jeff Atwater—who leaves office Friday—also responded to the suit, taking “no position” but saying “he is not a proper party to this proceeding.” Atwater is taking a job as chief financial officer for Florida Atlantic University in Boca Raton.

And Secretary of State Ken Detzner—a Scott appointee—filed a response, saying the homeowners have “no clear legal right to have the Governor ‘undo’ his veto,” and thus Detzner has “no duty to ‘expunge’ the Governor’s vetoes from the public records of Florida.”

Both officials were also named in the petition for writ of mandamus, a court order to an elected official to perform a certain action.

The homeowners have till noon Tuesday to file any replies.

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

Former Florida Supreme Court justice dies at age 93

Parker Lee McDonald

A former Florida Supreme Court justice who wrote a decision that prevented lawyers from excluding jurors because of their race has died.

Court spokesman Craig Waters announced that Parker Lee McDonald died Saturday at his home in Tallahassee. McDonald was 93.

McDonald, who was born in Sebring, was appointed to the state Supreme Court in 1979 by then-Gov. Bob Graham. McDonald served 15 years on the court and retired from the court after reaching the mandatory retirement age of 70.

He authored the decision regarding jurors in 1984.

He was nicknamed the “Whistling Justice” because a security guard stopped him on his first day and told him no whistling was allowed in the court building. McDonald told the guard he could do what he wanted since he was a justice.

Republished with permission of The Associated Press.

Jorge Labarga names Council of Business Partners members

Chief Justice Jorge Labarga on Friday announced the first members of a panel to advise the Florida Supreme Court‘s commission on helping the state’s poor and working poor get legal help.

The Council of Business Partners will advise the Commission on Access to Civil Justice, created by Labarga in 2014.

“Employers, too, have a stake in this,” Labarga said in a statement. “Employees who have challenges accessing justice have higher absenteeism and reduced productivity.

“It is in all our interests to address access to justice,” he added.

Those appointed include:

— Tere Blanca, president and CEO of Blanca Commercial Real Estate in Miami, who will serve as liaison between the Council of Business Partners and the Commission on Access to Civil Justice.

— David Faulkenberry, president of FBMC Benefits Management, Inc., Tallahassee.

— Cathy Roth, senior vice president of legal affairs and general counsel, Universal Parks & Resorts, Orlando.

— Byron Russell, chair and CEO, Cheney Brothers, Inc., West Palm Beach. 

— Lynne Wines, Harvard University, Advanced Leadership fellow, Fort Lauderdale.

The commission has been seeking solutions to the perennial problem of providing civil legal help to those who can’t afford it. That includes things like child custody and landlord-tenant cases.

Rick Scott gets more time to respond to judicial appointments lawsuit

The Florida Supreme Court on Thursday granted Gov. Rick Scott‘s request for 14 extra days to respond to a lawsuit claiming he doesn’t have authority to appoint three new justices on the last day of his term.

Scott general counsel Daniel Nordby filed the request Wednesday, asking to move the deadline to July 19.

“Multiple extensions of time for the same filing are discouraged,” the court’s order says. “Absent extenuating circumstances, subsequent requests may be denied. All other times are extended accordingly.”

Nordby’s reasons for extension included the need for legal briefings on bills still on the governor’s desk (68 as of Thursday morning), and “official duties associated with Section and Committee meetings at the 2017 Annual Bar Convention,” meeting in Boca Raton this week.

Scott, a Naples Republican, has said he plans to name the replacements for the court’s liberal-leaning trio of Justices R. Fred Lewis, Barbara 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.

The lawsuit by The League of Women Voters of Florida and Common Cause says Scott can’t replace those justices because he’ll be out of office earlier on the same day all three retire, and their terms last till midnight.

They seek a “writ of quo warranto,” a court action against government officials to demand they prove their authority to perform a certain action.

Rick Scott asked to respond to judicial appointments lawsuit

The Florida Supreme Court has asked Gov. Rick Scott to respond to a lawsuit claiming he doesn’t have authority to appoint three new justices on the last day of his term.

The court on Friday gave Scott till July 5 to file a response, with the League of Women Voters of Florida (LWVF) and Common Cause having a July 17 deadline to reply to Scott’s filing.

The organizations this week filed a petition for “writ of quo warranto,” a court action against government officials to demand they prove their authority to perform a certain action.

Scott, a Naples Republican, has said he plans to name the replacements for the court’s liberal-leaning trio of Justices R. Fred LewisBarbara 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.

The filing says Scott can’t replace those justices because he’ll be out of office earlier on the same day all three retire, and their terms last till midnight.

The Supreme Court, in a 2006 advisory opinion, said appellate vacancies may be filled by a governor only “upon the expiration of the term of the judge or justice.”

Advisory opinions, however, “do not constitute binding precedent, though they can be persuasive,” wrote former Justice Gerald Kogan and court spokesman Craig Waters in a 1994 law review article. “They are authorized by the (state) constitution to deal with situations in which the Court’s opinion on an abstract question can advance public interests.”

A Scott spokesman previously declined comment on the suit.

“A prompt, final decision on this pure question of constitutional law … would preempt cynical complaints by anyone dissatisfied with the decision that the case was contaminated by political considerations,” the petition says.

The petitioners also include LWVF President Pamela Goodman, former LWVF president Deirdre Macnab, and Liza McClenaghan, the state chair of Common Cause Florida.

They’re represented by Tallahassee attorneys John S. Mills and Thomas D. Hall, a former Clerk of the Florida Supreme Court.

Progressive groups sue over Rick Scott’s judicial appointment power

When Gov. Rick Scott appointed a conservative jurist to the state’s Supreme Court in December, he made clear he wasn’t done.

“I will appoint three more justices the morning I finish my term,” he said, referring to the mandatory retirement in early 2019 of the court’s liberal-leaning triumvirate of Justices Barbara Pariente, Peggy A. Quince and R. Fred Lewis.

Now, two progressive organizations are saying to Scott: Prove you can. They say he can’t.

The League of Women Voters of Florida (LWVF) and Common Cause on Wednesday sued Scott in the Supreme Court, saying he doesn’t have the power to name their successors—only the governor elected after Scott does.

They filed a petition for “writ of quo warranto,” a court action against government officials to demand they prove their authority to perform a certain action.

The upshot of their argument is that Scott can’t replace the justices in question because he’ll be out of office earlier on the same day all three retire, and their terms last till midnight.

“The Florida Constitution prohibits a governor from making a prospective appointment of an appellate judge to an existing seat before that seat becomes vacant,” the writ argues.

It adds: “A prompt, final decision on this pure question of constitutional law … would preempt cynical complaints by anyone dissatisfied with the decision that the case was contaminated by political considerations.”

“Our office has not officially received the suit,” said Scott spokesman McKinley Lewis, declining comment.

Scott’s addition of former appellate judge C. Alan Lawson to the bench created a three-judge conservative minority, including Justices Ricky Polston and Charles Canady, whose name was on a list of then-GOP presidential nominee Donald Trump‘s “potential Supreme Court picks.”

Assuming the Republican Scott appoints three more conservatives in 2019, the seven-justice court could tilt 6-1 to the right, with current Chief Justice Jorge Labarga remaining. His mandatory retirement is in 2023.

“The Florida Constitution establishes a mandatory retirement age for justices that occurs on or after their 70th birthdays,” the court’s website explains.

Three more conservative judges may well be appointed anyway, even if left to the next governor: Florida hasn’t chosen a Democrat for the Governor’s Mansion since Lawton Chiles was re-elected in 1994.

The lawsuit, however, sticks to a “constitutional question that has plagued this State for decades: When a judicial seat opens on a Florida appellate court due to an expired term coinciding with the election of a new governor, whom does our Constitution authorize to appoint the successor, the outgoing governor or the newly elected governor?”

In December 1998, days before Chiles died in office, he and then Gov.-elect Jeb Bush, a Republican, avoided a crisis by jointly appointing Quince to the court to replace Ben F. Overton.

In 2014, lawmakers placed a proposed constitutional amendment on the statewide ballot, backed by Republican state Sen. Tom Lee, that would have given Scott the power to name the new justices. But it failed to gain the required 60 percent approval.

“There may be many reasons voters rejected the amendment, there can be no doubt one reason was that a newly-elected governor is not only more accountable, but also better represents the will of the people who just voted than someone elected four years ago,” the writ says.

Ultimately, Scott “lacks authority because the expiring judicial terms run through the last second of the evening of January 8, 2019, by which time his successor will have begun his or her term or, alternatively, if the vacancies occurred earlier in the day, his successor’s term still will have already begun by that time,” it says.

“… (I)f any ambiguity existed in our constitutional scheme, it should be resolved in favor of allowing the incoming governor, who best represents the will of the people, to fill judicial vacancies arising the same day he or she is set to take office.”

The plaintiffs also include LWVF President Pamela Goodman, former LWVF president Deirdre Macnab, and Liza McClenaghan, the state chair of Common Cause Florida. They’re represented by Tallahassee attorneys John S. Mills and Thomas D. Hall, a former Clerk of the Florida Supreme Court.

Supreme Court sends Bessman Okafor sentence back, Rick Scott reassigns it from Aramis Ayala

The Florida Supreme Court has remanded another murder case death penalty from Orlando, that of Bessman Okafor, and Gov. Rick Scott quickly reassigned it away from Orlando’s State Attorney Aramis Ayala.

The move came with swift intervention from state Rep. Bob Cortes of Altamonte Springs, who asked the governor to keep the case from going back to Ayala, who has vowed to not prosecute death penalties. The governor concurred, reassigning it to neighboring State Attorney Brad King in the 5th Judicial Circuit, as he has done with 23 previous first-degree murder cases in the past three months.

“I am grateful,” said Cortes, a Republican who has been a stern critic of Ayala’s declaration and how she arrived at her decision.

Okafor’s murder conviction stands, according to the Supreme Court. The court threw out his death penalty and ordered another penalty phase trial.

He was convicted of murdering a witness who was expected to testify at Okafor’s upcoming armed robbery trial, and of trying to murder two others, who survived being shot, in 2012. However, during the penalty phase of his 2015 trial, the jury voted 11-1 to sentence Okafor to death. That was good enough for the legal standard of 2015, but that standard was thrown out in 2016, and Florida now requires a unanimous jury vote for a death sentence.

On Thursday the Supreme Court decided on the appeal of Okafor’s sentence, and sent it back to the 9th Judicial Circuit for a new sentencing phase.

Cortes then urged the governor to reassign it, declaring in a letter his “distrust that this case will not be given the attention it requires and deserves.” Scott then redirected it to King, using the same assertion he used for 23 other murder cases that have been diverted from Ayala.

“The unequivocal statements of State Attorney Aramis D. Ayala raise grave concerns regarding her silliness to abide by and uphold the uniform application of the laws of the state of Florida, and the ends of justice will be best served by the assignment of another state attorney to discharge the duties of State Attorney Aramis D. Ayala with respect to the investigation, prosecution, and all matters related to Bessman Okafor,” Scott wrote in his order.

Ayala expressed satisfaction that the court remanded the case, and no surprise at Scott’s executive order.

“I am very pleased that Bessman Okafor’s conviction for his horrific crimes was upheld today by the Supreme Court of Florida,” she said in a written statement. “Florida’s High Court was tasked with attempting to resolve the chaos surrounding Florida’s death penalty statute after being stricken down by the United States Supreme Court early last year. I am not surprised by the Florida Supreme Court’s ruling nor the Governors’ hasty reaction.”

That order, and Ayala’s authority to refuse the death penalty, will soon also be decided by the Florida Supreme Court.

Ayala filed in the Supreme Court in April to assert that she has full authority to refuse to prosecute death penalties under prosecutorial discretion, and that Scott does not have the authority to reassign cases from her just because he disagrees with her. Scott answered that Ayala overstepped her authority and her blanket refusal is a violation of her legal duties, and that he has the power to intervene when a state attorney is breaking the law.

The Supreme Court has received a dozen arguments from Ayala, Scott, and friends of the court, and has set oral arguments for June 28.

medical malpractice

Supreme Court strikes down limit on medical malpractice awards

In a 4-3 decision, the Florida Supreme Court on Thursday agreed with a lower court and said limiting certain damages in personal-injury medical malpractice lawsuits is unconstitutional.

The ruling split along the usual lines, with the progressive-leaning justices concurring, and the conservatives—now including new Justice C. Alan Lawson—in dissent.

The Legislature established $500,000 limits, or caps, on what are called “non­-economic” damages for such cases.

The Supreme Court previously ruled they don’t apply in medical malpractice cases involving wrongful death. The 4th District Court of Appeal had extended that decision to personal injury cases.

That court reinstated a $4.7 million damage award to Susan Kalitan, who sued North Broward Hospital District and others over complications from surgery, namely that her esophagus was punctured during the administering of anesthesia.

The majority of Chief Justice Jorge Labarga and Justices R. Fred Lewis, Barbara Pariente and Peggy A. Quince held that “caps in (state law) violate equal protection” in that some people are injured worse than others. 

“The arbitrary reduction of compensation without regard to the severity of the injury does not bear a rational relationship to the Legislature’s stated interest in addressing the medical malpractice crisis,” the opinion said.

“We further conclude … there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims,” it added.

Former Gov. Jeb Bush, a Republican, called a Special Session in 2003 to overhaul the law governing medical malpractice lawsuits. Doctors said big-money jury awards were driving up their insurance premiums; some even stopped practicing in Florida.

The state eventually limited noneconomic damages, sometimes referred to as “loss of the enjoyment of life,” to $500,000 per plaintiff and no more than $1 million from all defendants in a single lawsuit.

In dissent, Justices Lawson, Charles Canady and Ricky Polston countered that the limit “easily passes constitutional muster.”

Moreover, “it is the Legislature’s task to decide whether a medical malpractice crisis exists, whether a medical malpractice crisis has abated, and whether the Florida Statutes should be amended accordingly,” the dissent said.

“For a majority of this Court to decide that a crisis no longer exists, if it ever existed, so it can essentially change a statute and policy it dislikes, improperly interjects the judiciary into a legislative function.”

Paul Jess, interim director of the Florida Justice Association, welcomed the ruling in a written statement.

“Today’s ruling by the Florida Supreme Court that state statutes establishing caps on noneconomic damages in medical malpractice personal injury cases are unconstitutional is a resounding victory for patients,” he said. “This is a step forward that will promote safer health care in Florida.”

But David J. Becker, M.D., president of the Florida Medical Association, said his group “is disappointed with the Court’s ruling, but given past decisions, it was not unexpected.”

The FMA “will continue to do all it can to ensure that the costs of the medical liability system do not unfairly impact physicians ability to practice medicine,” he added.

New deal? Gretna asks court to reconsider slots ruling

Lawyers for a North Florida racetrack have asked the state’s Supreme Court to rehear argument in a case over whether pari-mutuels can add slot machines in counties that passed referendums allowing them.

Gretna Racing‘s motion for rehearing was filed late Friday, court dockets show. The horse track, also known as Creek Entertainment/Gretna, is managed and operated by the Poarch Band of Creek Indians.

Last month, the court unanimously ruled against the track, meaning that gambling facilities in Gadsden County’s Gretna and in seven other counties that passed referendums allowing slots will not be able to offer them.

The court upheld a decision by the 1st District Court of Appeal that agreed with state gambling regulators who denied the track a slots permit.

The ruling was a blow for the state’s pari-mutuels and a win for gambling expansion opponents—if it had gone the other way, the decision might have led to the single biggest gambling expansion in the state.

The opinion, authored by Justice Charles Canady, found that “nothing in (state gambling law) grants any authority to regulate slot machine gaming to any county.”

The track’s 12-page motion counters, in part, that the justices “misapprehended” case law on counties’ home rule authority.

Track lawyer Marc Dunbar, also a part owner, told justices in oral argument last June that the Legislature intended to allow for an expansion of slot machines in the state, saying counties were empowered under state law to decide whether to allow slots.

Lawmakers, many of whom have bitterly complained of judicial overreach into policy, failed to agree on a comprehensive overhaul of the state’s gambling laws this Legislative Session.

As of Monday morning, the court had not responded to the motion. Voters in Brevard, Duval, Gadsden, Hamilton, Lee, Palm Beach, St. Lucie and Washington counties have approved slots.

Aramis Ayala defends death penalty position, asserts budget cut will hit key programs

Orlando’s reform-pledging yet controversial State Attorney Aramis Ayala defended her anti-death penalty position as “evidence based” and charged that the Florida Legislature’s $1.3 million cut to her budget will hamper anti-human trafficking and domestic violence prosecutions.

In a feature published Thursday morning by Orlando-Rising.com, a sister website to FloridaPolitics.com, the rookie state attorney representing Florida’s 9th Judicial Circuit also reiterated her earlier statements that she has had nothing to do with Democratic political rainmaker George Soros, who ran an independent campaign on her behalf last summer; and that she believes Gov. Rick Scott reassigned 23 first-degree murder cases from her “solely based on his own political beliefs.”

“I know the ‘death penalty’ is extremely controversial and evokes emotion from both people who are for and against it. As I stated on steps of Orange County Courthouse when I made my announcement, what is NOT controversial is the evidence that led me to my decision,” Ayala stated in a written interview with Orlando-Rising.com, part of the ongoing “OR Conversations” weekly feature, highlighting the thoughts and views of newsmakers.

The feature, which involved Ayala providing written responses to written questions, marks the most comprehensive public statements Ayala has made since her March 16 announcement that she had decided that Florida’s capital punishment laws are unjust to all, and she would not pursue them. That announcement had led to a firestorm of political, social, legislative, and legal responses, some of which she told Orlando-Rising.com she anticipated, and some of which she did not.

“What I did not anticipate is the governor overstepping his authority by inserting himself in a prosecutorial decision and removing 23 cases from my office,” Ayala stated. “I believe what Gov. Scott has done is an attack on the U.S. Constitution, the Florida Constitution, the rule of law, the separation of powers and our criminal justice system. Scott’s move is unprecedented and solely based on his own political beliefs.”

She and the governor are locked in litigation battles, in the Florida Supreme Court, and in U.S. District Court, over her decision to not seek death penalties, and his subsequent decision to reassign her first-degree murder cases to other state attorneys.

“I did not anticipate the Legislature cutting my office budget $1.3 million dollars and eliminating 21 positions from my office. This move will severely impact this agency’s ability to effectively prosecute crimes, threaten public safety and ultimately have an economic impact on the central Florida community.

“I also did not anticipate racist responses including someone sending a noose to my office because they disagree with how my administration will handle death penalty cases,” added Ayala, the first African American known to be elected to the position of state attorney anywhere in Florida, in history.

Ayala went into great detail on how she fears the $1.3 million cut in her 2018 budget could affect her office’s ability to prosecute human trafficking and domestic violence cases, two special programs she campaigned for, the first of which had received a special $1.4 million appropriation in 2017. Her response essentially included position statements she provided the Florida Legislature. For the sake of their newsworthiness, Orlando-Rising.com decided to publish them in their entirety, even though they went beyond the normal bounds of brevity the OR Conversations feature requests of its newsmaker subjects.

The Florida Legislature had argued that the $1.3 million should and will follow the reassigned first-degree murder cases to the receiving state attorney, which, in the case of the currently-reassigned 23 cases, is Brad King of Florida’s 5th Judicial Circuit. But Ayala challenged that logic, arguing that money already automatically follows reassigned cases, so that what the legislature did was essentially charge her for those cases twice.

“My office will also be footing the bill for every single case Scott removed from this office,” she stated. “Florida Statute 27.15 requires all expenses and costs incurred by any gubernatorial re-assignment to be paid for by the circuit receiving the assistance. As such, the 9th Circuit will pay any and all costs and expenses as required by law from its existing budget appropriation.

“The impact of cutting $1.3 million and eliminating 21 positions will have a devastating effect on existing efforts to prosecute widespread human trafficking and domestic violence offenders in this circuit,” she added.

As for Soros’ help during her campaign, Ayala said she appreciated his involvement but that she had nothing to do with him. The New York-based liberal crusader set up an independent campaign fund that spent nearly $1.4 million in the last four weeks of the state attorney’s office primary election campaign, buying TV commercials and mailers blitzing her opponent, then-incumbent State Attorney Jeff Ashton.  The money Soros’ spent on that race through his Florida Safety & Justice political action committee was eight times as much as Ayala’s and Ashton’s official campaigns spent combined.

“I understand that Mr. Soros invested in around a dozen prosecutor campaigns across the country, both Republicans and Democrats as supporters and opponents to the death penalty,” she told Orlando-Rising.com. “He supported candidates like myself who were committed to bringing change and reform to prosecution. My values and goals were very clear before Mr. Soros ever supported my campaign. I appreciate the support he gave, but I never solicited it nor did it change my platform.”

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