June 15, 2017

League petitions Supreme Court, warns of 'constitutional crisis' prompted by Rick Scott's 'midnight appointments' to Supreme Court

Florida supreme court.1_12061496_8colThe Florida Supreme Court is being asked to avoid a potential "constitutional crisis" and affirm that Gov. Rick Scott does not have the authority to appoint judges whose term expires on the same day he leaves office in 2019.

The request came in the form of a quo warranto petition filed late Wednesday by the Florida League of Women Voters and Common Cause which argues that governor cannot appoint the successors of three Florida Supreme Court justices who will be retiring on the same day he is out of office because the justice's terms "run through the last second of the evening of Jan. 8, 2019."

Under current law, the governor is not allowed to make an appointment to the Florida Supreme Court, or the state courts of appeal, unless there is a vacancy. Justices R. Fred Lewis, Barbara Pariente and Peggy Quince are scheduled to retire because they have reached the mandatory retirement age of 70 on Jan. 8, 2019 -- the same day a new govenror will be sworn in the replace Scott. 

Scott, a two-term Republican, said during a December press conference that: "I'll appoint three more justices the morning I finish my term.” But the League warns that if Scott attempts a "midnight appointment" and attempts to choose the successors before the deadline, it will draw lawsuits and set the court system into chaos. 

"The importance of deciding this issue before Gov. Scott attempts to make the subject appointments cannot be overstated,'' wrote the attorneys for the voting rights groups. "Not only would that invite a constitutional crisis, especially if his successor makes different appointments, but it would disrupt the functioning of this court and any district court on which a similar vacancy might arise."

The petition urges the court to decide the matter swiftly to "clarify for the electorate and potential candidates the scope of what is at stake in the 2018 election."

It also asks the court not to send the issue to the lower courts to decide. Although the 2018 election is "over a year away, there is simply not enough time" for the case to wind its way through the court system to reach a resolution, the petition said.

The petition also argued that the high court should accept the case because there may be candidates for their jobs among the judges on the lower courts and "that is a very real conflict of interest that simply does not exist for any member of this court."

The petition cites previous court opinions to conclude "that the outgoing governor does not get to appoint successor justices or judges on the way out of office."

The issue has already came before voters in 2014 -- in the form of a constitutional amendment asking them to give the outgoing governor the appointment authority. But the measure needed approval from 60 percent of voters and only 48 percent approved.

The 2014 amendment was the brainchild of the Florida Legislature and Sen. Tom Lee, R-Thonotosassa, who was then chair of the Senate Judiciary Committee.It was supported by the Florida Chamber of Commerce and the Florida Council of 100 but was opposed by the League of Women Voters.

Lee argued the current law is unclear about whether the incoming or outgoing governor can make the appointment and also warned that a potential legal battle could set off a “constitutional crisis.”

But in the petition, lawyers for the voting groups also note that a resolution to this soon "would also preempt cynical complaints by anyone dissatisfied with the decision that the case was contaminated by political considerations."

Photo by Scott Keeler, Tampa Bay Times 

April 06, 2017

Fact-checking a Florida senator's claim about Supreme Court and death penalty

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@amysherman1

Florida Sen. Randolph Bracy argues that Gov. Rick Scott overreached when he issued an order removing Orlando-area prosecutor Aramis D. Ayala from a high-profile prosecution of an accused cop killer after she said she would not pursue the death penalty in murder cases.

Bracy, an Orange County Democrat and chairman of the Florida Senate criminal justice committee, wrote in a New York Times op-ed that prosecutors have broad discretionary power.

"Although Ms. Ayala’s critics have denounced her actions as dereliction of duty, they cannot point to a single law or statute that she has violated," he wrote in the April 4 op-ed. "That’s because she hasn’t. There are no federal or state laws that say prosecutors must seek death sentences. And the United States Supreme Court has banned all state laws that make executions mandatory for murders."

Legal experts told PolitiFact that Bracy is correct. Key court rulings about the death penalty forbid laws that force prosecutors to seek the death penalty.

Ayala, a Democrat elected as state attorney state attorney in Orlando and Osceola counties in 2016, announced in March that she would no longer seek the death penalty.  Her decision came while handling the case of Markeith Loyd, who is accused of killing Orlando police Lt. Debra Clayton amid a manhunt for Loyd after he allegedly killed his ex-girlfriend.

Keep reading from PolitiFact Florida.

January 30, 2017

Court order on retired Supreme Court Justice Perry stops threatened lawsuit by Speaker Corcoran

Corcoran_Richard Swearing In (1)@stevebousquet and @MaryEllenKlas 

Florida Supreme Court Chief Justice Jorge Labarga on Jan. 11 -- not today, as earlier reported -- modified an earlier order and ended retired Justice James E.C. Perry's service as a senior justice effective tomorrow. Perry had been serving as a retired justice until the court completed final orders on cases he participated in before retiring Dec. 30Download Perry (James E C) sj orders

Labarga's action came in response to a decision by Perry that "he had decided to pursue other things" instead of serving to fill in vacancies on the court until September 2018, as the original order had allowed, said Craig Waters, spokesperson for the Florida Supreme Court.

The ruling got attention Monday because House Speaker Richard Corcoran threatened to file a petition before Labarga's court, challenging the chief justice's action as in violation of the Florida Constitution.

Labarga said in his order that the court "has a long tradition of assigning recently retired Justices to senior service for purposes of completing the work they already had begun on this Court before the dates of their retirement."

He said the practice was intended to promote "judicial speed and economy" by "ensuring that justices who already have worked on those cases are available to continue to participate in them whenever necessary."

The Constitution gives the chief justice the authority to assign a retired justice to temporarily fill a vacancy on the court but, Corcoran argued, that in effect made Perry an "eighth justice" on the Supreme Court.  Download DRAFT 2017.xx.xx_Petition for quo warranto

Corcoran argues that after Gov. Rick Scott appointed Justice Alan Lawson as Perry's successor, the court could decide whether to rehear the cases that the court hadn't completed before Perry's retirement or allow Lawson to receive the briefs and then vote on the case.

The practice of having retired justices finish opinions that were in the pipeline before they retied has been employed by the court for the last 30 years, Waters said, and has never before been challenged as unconstitutional. Among the justices who have stayed on to complete orders of their unfinished work in recent years were both conservative a liberal judges including Justices Leander Shaw, Ben Overton, Raoul Cantero.

Perry was an outspoken opponent of the death penalty in light of the U.S. Supreme Court's decision a year ago in Hurst v. Florida and Corcoran has objected to many of the court's rulings in recent years in which he was in the majority. 

The draft emergency petition drafted by the House's lawyers had Corcoran, acting "as a taxpayer." It challenged Labarga's legal authority as well as what the House concluded were unauthorized payments of taxpayer money to Perry.

The court has, however, has not paid Perry anything, said Paul Flemming, spokesperson for the Florida Courts Administrator. As a retiree of state government, Perry would have forfeited his pension if he had he accepted any compensation from the state for the first year of his retirement, Flemming said. 

"There is no constitutional or legal justification for the Chief Justice's assignment of retired Justice Perry to the status of 'senior justice' or to assign him as a justice sitting on active cases before this court after retired Justice Perry resigned his commission," Corcoran's draft lawsuit reads.

Labarga's order marks the second time in a week in which Corcoran's planned action against the judiciary was short-circuited. A week ago, Duval Circuit Judge Mark Hulsey III abruptly resigned, one day before a House committee was to have launched impeachment proceedings against him for allegedly making racist and sexist remarks from the bench.

[Photo credit: House Speaker Richard Corcoran, R-Land O'Lakes. Scott Keeler / Tampa Bay Times]

January 19, 2017

Court overturns three death sentences, including cop killer's

@MichaelAuslen

OT_392168_KEEL_15_FLGOV0305The Florida Supreme Court on Thursday overturned death sentences for three men, including a convicted cop killer.

Lancelot Uriley Armstrong was convicted of killing John Greeney, a Broward County sheriff's deputy and Air Force veteran, during a 1990 armed robbery at a Church's Fried Chicken in Fort Lauderdale. The jury voted 9-3 to sentence him to death and gave another man involved in the armed robbery a life sentence. 

Now, Armstrong, as well as Donald Otis Williams, convicted of kidnapping and murdering an 81-year-old woman in 2010, and William M. Kopsho, sentenced for killing his wife in 2000 after learning she was having an affair, will have new sentencing hearings.

It's possible they could still be sentenced to death, but they could also see their sentences commuted to life in prison.

Courts will empanel new juries to decide how to sentence each of these men, though they will not determine whether they are guilty, as their first-degree murder convictions have not been overturned.

If the Florida Legislature updates the state's death penalty laws to require a unanimous vote for a death sentence -- as state Sen. Randolph Bracy, D-Orlando, has proposed (SB 280) -- then a vote of all 12 jurors could put them to death. Anything less would lead to a life sentence. (The state Supreme Court threw out Florida's death penalty laws as unconstitutional last year because they did not require unanimous jury votes.)

By demanding new sentencing hearings in these cases, the court is putting into practice a Dec. 22 ruling that could lead to life sentences for some of the 200-plus death-row prisoners whose cases were finalized after a key U.S. Supreme Court ruling in 2002.

It's likely similar decisions will continue to trickle out of the court in the coming months.

In the December rulings, the justices decided that death sentences finalized after June 2002 were unconstitutional because they did not require a unanimous jury vote and because the judge could impose a death sentence without the jury's approval. It's a standard critics, including Senior Justice James Perry, have criticized as "arbitrary."

Older sentences still stand. The court affirmed two of them Thursday, as well, including the case of Stanley McCloud, convicted of killing his wife with a .357 magnum in front of their two young children.

Photo: Florida Supreme Court. (Scott Keeler, Tampa Bay Times)

December 15, 2016

Gov. Rick Scott to announce first Supreme Court pick on Friday

Florida supreme court.1_12061496_8colWill it be the female appellate court judge who says she has been "rarely reversed,'' or the male appellate judge who has lobbied the Legislature for court funding or will it be the lawyer in private practice who has represented industry giants like Publix and Orkin and worked to keep David Duke off the 1992 ballot?

Either Wendy Berger, C. Alan Lawson and Dan Gerber will be standing next to Gov. Rick Scott in his Capitol office at 8 a.m. Friday for a rare Tallahassee press conference to announce the governor's first -- and potentially only -- pick to the Florida Supreme Court. The new judge will be replacing Justice James E.C. Perry who is retiring at the end of the month because he has reached the mandatory retirement age.

The candidates all have two things in common: they are all self-professed conservatives, who abide by the "originalist" judicial philosophy 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, and they have each been 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 Judicial Nominating Commission.

The JNC interviewed 11 candidates to recommend the three names (who were widely expected to be the pre-determined list) to the governor. 

For more on the selection process and who the candidates are, read our story here. 

Photo by Scott Keeler, Tampa Bay Times. 

September 26, 2016

Digital currency popular in Miami draws congressional scrutiny

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@jamesmartinrose

WASHINGTON Lawmakers have formed a special group in a bid to stay on top of the exploding use of bitcoins and similar forms of digital currency in Florida and elsewhere in the country.

Miami has become a bitcoin hotbed, which some federal prosecutors say is tied to South Florida’s reputation as a money-laundering hub tied to drug-trafficking.

The new Congressional Blockchain Caucus is named after the online foundation of bitcoins: The blockchain is a digital ledger that records every bitcoin transaction with an encrypted 32-digit code.

“Blockchain technology has the potential to revolutionize the financial services industry, the U.S. economy and the delivery of government services,” Rep. Mick Mulvaney, a North Carolina Republican, said of the caucus he helped form.

Bitcoin proponents say it’s a revolutionary way to move value quickly and anonymously from one point to another, whether around the corner or across the globe, with no middlemen, no fees, no central banks, no collection of personal data and almost impenetrable computer security.

In the first money-laundering cases tied to bitcoins, a Miami-Dade judge last month dismissed charges against website designer Michelle Espinoza. He was charged with illegally transmitting $1,500 worth of bitcoins.

Polner ruled that the Bitcoin is not “tangible wealth,” is not backed by any government or bank, and “cannot be hidden under a mattress like cash and gold bars.”

Polner wrote: “Even to someone with limited knowledge in the area, the Bitcoin has a long way to go before it becomes the equivalent of money.”

The judge also said that Florida law’s description of money-laundering is too vague to apply to use of bitcoins.

Espinoza paid his lawyer in bitcoins, which fluctuate in value based on buying and selling demand through digital exchanges.

As of Monday afternoon, one bitcoin was selling for $608, more than double its worth of $298 in January 2015.

Andrew Hinkes, a Fort Lauderdale lawyer, said that Polner’s ruling could prompt Florida legislators to pass legislation more focused on bitcoins and other forms of digital currency.

“Hopefully, Florida’s Legislature will consider the impact of cryptocurrencies like bitcoin and craft legislation to balance their potential for abuse with their potential to foster innovation, create jobs and generate wealth,” Hinkes wrote on coindesk.com, which provides news about the controversial currencies.

Polner in her ruling also urged state legislators to update its money-laundering laws.

The IRS calls bitcoins “virtual currencies” and describes them as property, not money.

Bitcoin enthusiasts from across the country gathered in Miami in January for the 2016 Bitcoin Hackathon.

Held at LAB Miami in the trendy Wynwoood neighborhood, the conference encouraged developing Smartphone apps and other software to expedite the use of bitcoins.

Photo credit: Gary Reyes, San Jose Mercury News

 

 

 

September 12, 2016

Justice Perry announces retirement, sets in motion plan for Scott to pick replacement

James E.C. Perry@MaryEllenKlas

Florida Supreme Court Justice James E.C. Perry notified Gov. Rick Scott on Monday that he will retire from the Florida Supreme Court on Dec. 30, 2016, as required by law, formally setting in motion the opportunity for the governor to make a coveted pick to the state's highest court.

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 half-way through the term. Perry turned 70 in January 2015 but his term ends Jan. 3, 2017.

Scott will choose from a list of three to six candidates from the region that encompasses the Fifth District Court of Appeal in Central Florida. Under Florida's judicial appointment system, the governor appoints new justices from a list of three to six names submitted to him by the Supreme Court Judicial Nominating Commission, a nine-member panel controlled by the governor’s appointees. Last week, Scott reappointed three members of the commission, including his former general counsel, Jess Panuccio.

The likely candidates are expected to be Daniel J. Gerber, of the Orlando office of the law firm Rumberger, Kirk and Caldwell, Fifth DCA Judges Alan Lawson and Wendy Berger. Gerber also applied when Perry was nominated and Berger was named to the trial court bench by Scott.

Perry’s retirement is the first opportunity Scott will have to name a justice to the moderate court that has vexed Republicans during his term on issues ranging from redistricting, abortion and workers compensation to declaring that the Republican-controlled Florida House violated state law when it adjourned early in protest over a budget dispute over the Affordable Care Act.

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