April 10, 2017

Parents ask Supreme Court to review 'opt-out' testing case

From the News Service of Florida:

Several parents who oppose standardized-testing requirements in public schools are taking their battle to the Florida Supreme Court.

The parents last week filed a notice that is a first step in asking the Supreme Court to overturn a decision by the 1st District Court of Appeal in a case related to what is known as the "opt out" movement.

Parents who brought the case against the Department of Education and several school boards told their third-grade students to put their names on a standardized test, then refuse to answer questions. When the students were barred from moving to fourth grade under state law, the parents sued, saying they wanted their children to be evaluated using a portfolio allowed in the case of "good cause exemptions."

A three-judge panel of the appeals court on March 7 ruled that Leon County Circuit Judge Karen Gievers erred on procedural grounds in allowing the case to go forward and also disagreed with portions of her opinion that could have allowed some students to avoid answering questions on state exams. The appeals court ruled, in part, that the state has an interest in preventing social promotion, the reason given for the testing requirement.

The parents' notice of appeal to the Supreme Court, as is common, did not provide detailed arguments.

March 15, 2017

Lawmaker: House should 'put Florida Supreme Court in position of telling us that we're wrong'

Florida Legislature (4)


Some Florida House Republicans have issued a challenge to the state’s top court — saying if the Legislature moves forward and enacts a constitutionally questionable measure seeking to impose harsher penalties on undocumented immigrants, then the Florida Supreme Court should prove them wrong.

HB 83, which passed its first House committee Wednesday, is rife with questions about its constitutionality because it subjects undocumented immigrants convicted of severe crimes to enhanced charges — and potentially longer prison sentences — solely on the basis of their immigration status.

But some House Republicans said a bill’s potential unconstitutionality shouldn’t be a factor in whether lawmakers approve it.

“I would submit to you that perhaps we sit in here one day and the Florida Supreme Court has told us this vote is wrong,” Tampa Republican Rep. James Grant said, but “I would encourage all of us to put the Florida Supreme Court in the position of telling us that we are wrong.”

More here.

Photo credit: State Rep. James Grant, R-Tampa. Florida House.

March 09, 2017

Is Sen. Bill Nelson a filibuster flip flopper?



A conservative group misfired in its attack on U.S. Sen. Bill Nelson, D-Fla., for being inconsistent on the use of the filibuster for Supreme Court nominees.

America Rising Squared, the policy arm of the conservative America Rising PAC, said in an online post that Nelson, up for re-election in 2018, committed a "filibuster flip-flop" on President Donald Trump nominee Neil Gorsuch.

"In 2006, Nelson opposed the use of a filibuster for the nomination of Justice (Samuel) Alito, but now has adopted a different stance," said America Rising Squared, a group advocating for senators to support Gorsuch.

We decided to look at whether Nelson flip-flopped on using the filibuster for a Supreme Court nominee on our Flip-O-Meter, which examines whether a politician has been consistent on an issue.

Experts told us America Rising mischaracterized Nelson’s record.

Keep reading from PolitiFact Florida.

February 09, 2017

Will Florida become the first state to impose term limits on justices?

Florida supreme court.1_12061496_8col@MaryEllenKlas

Despite a torrent of criticism from both conservatives and liberal lawyers, a House committee on Thursday advanced a proposed constitutional amendment that would impose a 12-year term limit on Florida Supreme Court justices and appeal court judges who now can serve until retirement age.

The idea is a top priority of House Speaker Richard Corcoran, R-Land O’Lakes, who accuses the Florida Supreme Court of repeatedly "writing whole cloth law" in violation of the separation of powers. If the measure is placed on the November 2018 ballot, it would need 60 percent of the vote to become law. No other state has such steep limits on its highest courts, although Colorado, Mississippi and Nevada have proposed judicial term limits at the appellate level and voters have rejected it .

The House Civil Justice and Claims Subcommittee voted 8-7, for HJR1, by Rep. Jennifer Sullivan, R-Mount Dora. The measure would not apply to judges currently in office but take effect beginning with anyone who is appointed to the appellate courts beginning in 2019.

Under current law, justices and appeals court judges can serve until they reach the retirement age of 70, but must face voters in an up-or-down merit retention election every six years. Sullivan argued that since no justice or judge has been turned out of office in the last 40 years, the system has not worked as intended.

“An accountability system that does not hold people accountable is not truly accountable,'' she said. "This bill seeks to correct that and give the people of Florida another opportunity to implement the accountability they originally intended to place upon our judicial branch of government."

The Florida Supreme Court, however, does have the power to discipline judges and the Judicial Qualifications Commission recommends who to discipline and remove. Most of the appellate judges that have faced sanctions in the last two decades have resigned before being reprimanded, according to a 2015 report by legislative auditors.

The proposed amendment is opposed by the Florida Bar, former court justices and legal scholars and, this year, the conservative Florida Justice Reform Institute, a judicial advocacy organization that has been on the losing side of many Florida Supreme Court rulings, also voiced its opposition to the bill.

Continue reading "Will Florida become the first state to impose term limits on justices? " »

February 06, 2017

Labarga appoints to CRC three candidates who will watch the court's back

Roberto Martinez Arthenia Joyner HenryCoxeAs rhetorical attacks mount against the judiciary in Florida and in Washington, the chief justice of the Florida Supreme Court on Monday named three people who value “judicial independence” to serve on the powerful panel to revise the Florida Constitution.

Florida Chief Justice Jorge Labarga appointed Miami lawyer Roberto Martinez, Jacksonville defense attorney Henry Coxe III and former Democratic leader of the Florida Senate Arthenia Joyner to serve as his appointees to the Constitution Revision Commission, the 37-member panel assembled every 20 years to review the constitution and put proposals directly before voters in 2018.

They each were chosen because they value an independent judiciary, Labarga told reporters at a press conference on Monday at the Florida Supreme Court. He called them "extremely qualified people who care about our state" and said he looked for candidates with "wide-ranging knowledge about our system and appreciation for separation of powers and the independence of the judicial branch of government."

While the chief justice has only three appointees, Republican Gov. Rick Scott will appoint 15 members of the panel, including its chair. House Speaker Richard Corcoran, R-Land O’Lakes, and Senate President Joe Negron, R-Stuart, each have nine appointees. Members of the commissioner are volunteers who will serve until the November 2018 election. The appointments must be made before the legislative session begins March 7.

Labarga’s three appointees are each prominent lawyers in their fields with experience working in the political process.

Continue reading "Labarga appoints to CRC three candidates who will watch the court's back " »

January 30, 2017

Court administrator weighs in on Corcoran v. Court dust-up: Nothing new, full court was consulted

James E.C. PerryIn a letter today to the chairman of the House Justice Appropriations Committee, Florida's state courts administrator Patricia "P.K." Jameson attempted to clear up some misconceptions about the Florida Supreme Court's decision to allow a retiring Justice James E.C. Perry to complete unfinished work on the bench.  Download 20170130-Letter to House Justice Appropriations Subcommittee

Perry was appointed senior justice by Florida Supreme Court Chief Justice Jorge Labarga in December pending his retirement on Dec. 30. The appointment originally lasted until Sept. 30, 2018 but on Jan. 11 Labarga assigned a new order ending Perry's term tomorrow, saying that when he made the first order, Perry's replacement had not been named at and "it was not known when a new Justice would be appointed to replace him. That issue now has been resolved."  Download Perry (James E C) sj orders

In the meantime, House Speaker Richard Corcoran threatened to sue, suggesting that Perry was serving as an unconstitutional "eighth justice." He also sought an end to any reimbursement he may have been paid. 

Jameson's note to Rep. Bill Hagar, R-Boca Raton, clarified that Perry wasn't paid, that his appointment is nothing new, that he served in the job to finish up work that might otherwise still be pending and his assignment as a retired justice was done "in consultation with the full court."

"The appointment as a senior justice is distinct from appointment as a senior judge, and there is no compensation provided Senior Justice Perry for his work in that capacity,'' Jameson wrote. "The appointment of a departing justice of the Court as a senior justice allows him or her to continue to serve in that capacity so pending work may be completed efficiently and timely."

She added that "this is not a new procedure" and in the last 20 years, "six different chief justices have issued assignment orders for eight departing justices to serve as senior justices."

Jameson explained that the practice was done "as a matter of judicial efficiency" because "it would take significant time for new justices to review anew cases that may otherwise be disposed much sooner with the participation of a senior justice who heard the case originally."

Corcoran and the House lawyers who prepared his brief argue, however, that the U.S. Supreme Court uses a different system which requires the court to rehear a case when a pending case is not completed before a justice retires or decide the case with the remaining justices.  Download DRAFT 2017.xx.xx_Petition for quo warranto


December 30, 2016

Justice Perry on lingering racism in Florida and the justice system: lynching and the death penalty

James-E-C-Perry-APJustice James E.C. Perry nestled a box of mementos under his arm, pulled his black robe off the hook in his Tallahassee office overlooking a grove of live oak trees, and left his corner office in Florida’s Supreme Court for the last time two weeks ago.

Perry’s nearly eight-year career on the state’s highest court ends Friday. He is forced to retire because, at 72, he has reached Florida’s mandatory retirement age for Supreme Court justices.

The trail-blazing child of Jim Crow segregation, describes his time on the bench simply: “I kept it real,” he says with a characteristic belly laugh.

He leaves with no regrets and plenty to say. One of his last acts on the court was to author a blistering dissent in a seminal death penalty ruling last week in the case of Mark James Asay. As the court majority upheld the death penalty in dozens of cases prior to 2002, Perry declared that it was an uneven and “discriminatory” application of capital punishment and left the state’s constitutional protections to “little more than a roll of the dice.”

I no longer believe that there is a method of which the State can avail itself to impose the death penalty in a constitutional manner,” Perry wrote in a 10-page dissent.

In many ways, the proclamation was not only a parting shot at one of the most vexing issues before the court, but the culmination of a career by someone shaped in an era he calls “apartheid America” who continues to be pelted by the arrows of racism today.

“There’s a reason the people who led the nation in lynching of black people also lead in electrocutions,” Perry said in an interview with the Herald/Times. “There’s a nexus there.” Story here. 

Top photo: Associated Press; bottom: Perry on his last day in his office in the Florida Supreme Court building. He retires today. By Mary Ellen Klas

December 16, 2016

Gov. Rick Scott picks appellate Judge Alan Lawson to serve on Supreme Court

Alan LawsonGov. Rick Scott appointed C. Alan Lawson to be Florida’s next justice of the Supreme Court Friday, choosing a conservative appellate judge to leave the governor’s mark on a moderate court that has been responsible for some of sharpest defeats of his political career.

Lawson, who currently serves as the chief judge on the 5th District Court of Appeal in Daytona Beach fills the seat on the seven-member court that is being vacated by Justice James E.C. Perry, a liberal jurist who is retiring at the end of the month because he has reached the mandatory retirement age. Perry was the the fourth African-American jurist to serve on Florida’s high court. Lawson, who lives in the Orlando suburb of Winter Park, is white.

Perry, who was appointed to the bench in March 2009 by former Gov. Charlie Crist, must retire because of a state law requiring justices to retire on their 70th birthday or the end of their six-year term if they are halfway through the term. Perry turned 70 in January 2015 but his term ends Jan. 3, 2017.

Scott said he choose Lawson for his 20-year track record, his public service and because "he's not going to legislate from the bench." Our story here. 

Photo: Gov. Rick Scott choose C. Alan Lawson as the new justice of the Florida Supreme Court. From left his mother Velma Lawson, sister Laurie Cox, Gov. Scott, Alan Lawson, his son Caleb Lawson.


November 28, 2016

Rick Scott's gets three finalists for Supreme Court who have been vetted by conservative groups

James E.C. Perry

Gov. Rick Scott’s goal of reshaping the Florida Supreme Court drew closer Monday as the nominating commission controlled by the governor interviewed 11 candidates and nominated three who demonstrated they are judicial conservatives.

The Supreme Court Judicial Nominating Committee sent the governor three candidates to replace Justice James E.C. Perry, one of two blacks on the high court, from the list of six women and five men, all of whom are white. Perry, 71, is retiring from the seven-member bench on Dec. 30 because he has passed the state's mandatory retirement age of 70 for judges. The appointment will be Scott’s first to the state’s highest court.

After more than six hours of interviews, the JNC narrowed the list of candidates to three: Wendy Berger, a 5th District Court of Appeal judge, C. Alan Lawson, chief judge of the 5th District Court of Appeal in Daytona Beach, and Daniel J. Gerber, of the Orlando office of the law firm Rumberger, Kirk and Caldwell. Both Lawson and Gerber were nominated when Perry was named to the bench in 2009 by then-Gov. Charlie Crist.

The three candidates were heavily promoted by members of the Florida chapter of the Federalist Society, a conservative libertarian lawyers group many of whose members serve as the governors’ appointees to the JNC. They promote the originalist judicial philosophy promoted by the late U.S. Supreme Court Justice Antonin Scalia that adheres to the notion that interpretation of law should be based on the original meeting of the text of the statute or the Constitution at the time its enacted.

The appointment of a conservative to the seven-member bench will allow the governor to add another justice to the court's conservative minority, now comprised of Justices Charles Canady and Ricky Polston.

A former circuit court judge in Seminole County and graduate of Columbia Law School, Perry has frequently joined with the moderate members of the court's majority in several cases that have invalidated laws passed by the Republican-led Legislature and the Republican governor.

Among the defeats the court has handed Scott and the Legislature is the landmark ruling that threw out the state's congressional and state Senate redistricting plans, the Legislature’s rewrite of the death penalty statute, and a ruling this summer that invalidated the Legislature’s rewrite of the state’s workers compensation system.

Continue reading "Rick Scott's gets three finalists for Supreme Court who have been vetted by conservative groups" »

November 14, 2016

Judicial Nominating Commission to interview all applicants for Florida Supreme Court vacancy



In a conference-call meeting that took less than 4 minutes, the Florida Supreme Court Judicial Nominating Commission voted unanimously Monday morning to interview all 11 applicants for the upcoming vacancy on the state's top bench.

Thirty-minute interviews for each applicant are planned for Nov. 28.

The nominating commission has until Dec. 13 to present a short list of no more than six candidates to Republican Gov. Rick Scott, who will ultimately appoint the replacement for retiring Justice James E.C. Perry. Perry's term ends Jan. 3; he is retiring as required by law because he turned 70 years old.

MORE: Who applied for the vacancy

Nominating commission chairman Jason Unger, an attorney and managing shareholder with GrayRobinson in Tallahassee, said the 11 candidates who applied for Perry's vacancy are an increase from the previous vacancy. The last vacancy had eight applicants, he said.

Perry's retirement is the first opportunity Scott has had to name a new justice.