Federal court confirms Florida House’s power to enforce subpoena in Visit Florida case

A judge in the U.S. District Court in Tallahassee denied a preliminary injunction to TV executive C. Patrick (Pat) Roberts on Friday, reaffirming the Florida House's powers to enforce the subpoenas it issued last week as part of its investigation into Visit Florida's tourism contracts.

House Speaker Richard Corcoran, R-Land O' Lakes, was not physically in the courtroom. But his presence weighed heavy on the proceedings as Judge Mark Walker, an Obama appointee, discussed how "some could use the word … 'bully'" to describe the House's actions in issuing the subpoenas, which had a "thousand-pound gorilla aspect" when issued against a single private citizen.

"We are coequal branches and I would respectfully suggest to the Florida Legislature, just as I am cautious about overextending my jurisdiction, my colleagues in the other branch should similarly comport themselves," Walker said.

Roberts was seeking the injunction to prevent what he viewed as "imminent danger" of being severely punished by the House —the state Constitution allows it to impose up to $1,000 in fines and 90 days in jail per day Roberts is deemed in contempt —for not handing over the business contracts and tax records requested by the House. As executive of MAT Media, LLC, Roberts was granted multi-million dollar contracts in 2012 by Visit Florida, the state's tourism arm, to produce shows that featured celebrity chef Emeril Lagasse and promoted the state as a fishing destination.

He has maintained that many of the documents contain "trade secrets" or nondisclosure agreements with other companies.

The House has been investigating if Roberts raked in big profits from the deal at the taxpayers' expense, after the Naples Daily News found that Roberts had been gifted a $175,000 boat from one of the program's sponsors and kept all advertising and sponsorship revenue.

Despite the ruling, Roberts's lawyer, Tim Jansen, said outside the courthouse that it was a "victory for Mr. Roberts and for every citizen in the state of Florida."

"Only in their response to our lawsuit for an injunction did they finally concede that they will give meaningful opportunity to be heard on these subpoenas," Jansen said. "Otherwise Mr. Roberts would've been incarcerated, we believe, immediately at 5:01 or as soon as session could've been put into place by the Speaker."

Because the House has never exercised its authority to issue subpoenas before, there is no defined way for Roberts to argue against them.

But during the hearing, Adam Tanenbaum, the House's lawyer, said they would continue to negotiate with Roberts about which documents the House had a right to obtain and which would be considered public record, and would allow two state lawsuits related to the subpoenas play out.

Court tosses lawsuit over whether Scott or his successor appoints new justices

The Florida Supreme Court on Thursday dismissed a lawsuit over whether Gov. Rick Scott or his successor has the power to appoint three new justices to the Florida Supreme Court saying that action is not "ripe" because the appointments have not yet been made.

In a majority opinion, in which Chief Justice Jorge Labarga joined the three conservatives on the court, Justice Charles Canady, Ricky Polston and Alan Lawson, the court held that the "writ of quo warranto," the method used by the litigants, the League of Women Voters and Common Cause of Florida, was inappropriate.

"Until some action is taken by the Governor, the matter the League seeks to have resolved is not ripe, and this Court lacks jurisdiction to determine whether quo warranto relief is warranted,'' the majority ruled.

But the decision was blasted by Justice R. Fred Lewis, who warned that the court may not have invited a "constitutional crisis" and created a dangerous precedent when the majority required "that that illegal and unconstitutional conduct which produces disarray must have already occurred to allow judicial action."

"Under the majority view, elected politicians can announce their intentions and plan to engage in all types of illegal and harmful conduct but no relief is available until the illegal and harmful act has already inflicted its damage,'' he wrote. "Magnificent trees cut, pristine waters fouled, and unthinkable harm inflicted upon our citizens, which may not be prevented when the actor plans and even announces his intentions. Today, we have a new test. The writ is only available when the illegal act is taken and harm is actually inflicted—at times even irreparable harm."

Lewis was explicit that the court was creating a new precedent that has the potential to harm future generations.

"I fundamentally disagree with depriving the citizens of Florida of their ability to challenge inappropriate action by a state official simply based on this unfounded limitation,'' he said. Today’s decision - 16 - allows state officials, such as Governor Scott, to circumvent this extraordinary writ at the convenience of the office holder based on a ripeness challenge that does not, in my view, have any legal justification."

Agreeing with the result, but not the reasoning, was Justices Peggy Quince and Barbara Pariente. Quince wrote the opinion and Pariente concurred, arguing that both the majority opinion and Lewis confuse the issue because they under court precedent in a previous case involving a Scott appointment to the court, the court has shown "we have the authority to act prior to the Governor’s making an appointment that is contrary to law."

Quince wrote that "while I agree with the majority that it is not appropriate for us to rule on the petition at this time, I do not agree that it would only become appropriate to do so after Governor Scott has consummated an appointment."

Quince, however, noted that Scott's lawyers conceded in their oral arguments that he may not have the authority to make the appointment.

Dan Nordby told the court that “the Governor’s term concludes at the end of the day on [the first] Monday” in January, “the same day that the Justices’ terms end" and if the justices do not leave before the end of their terms and “if the new governor’s term has begun, then the new governor would have the authority to make the appointment.”

Quince noted that this is what voters concluded when they rejected a 2014 amendment to the state Constitution to clarify the law and give the appointment power to the outgoing governor. Lewis also noted in his dissent that he disagreed with this interpretation as well.

The Florida branch of the League of Women Voters and the government watchdog group Common Cause filed a petition with the Supreme Court in June saying Scott's successor should make the appointments.

Age limits are forcing three justices to retire on the day Scott leaves office in January 2019 because of term limits. Scott has said he plans to name their replacements that same morning.

Lawsuit filed in dispute over HB 7069, escalating political war

@ByKristenMClark

The legal war has officially begun over a highly controversial, charter school-friendly education law Republican state lawmakers pushed through last spring.

Palm Beach County School Board members filed a lawsuit this week challenging the constitutionality of one part of House Bill 7069. Another, potentially more far-reaching lawsuit with the backing of at least 14 other school districts — including Miami-Dade and Broward counties — is still expected in the weeks ahead.

Meanwhile, charter school advocates are rallying their forces, too — vowing to fight in defense of HB 7069 in the courtroom and also on the political battlefield.

Among the weapons they’re preparing: A coordinated public relations campaign highlighting school districts’ spending, and fielding — and funding — challengers to school board members statewide who face re-election in 2018 and who have been critical of HB 7069.

“We’re developing a plan and we’re going to be very aggressive,” said Ralph Arza, a former Miami-Dade Republican lawmaker who is now the government affairs director for the Florida Charter School Alliance.

More here.

Photo credit: Miami Herald file photo.

'Friends of NRA' charity fundraiser featured judges as table sponsors

via @stevebousquet

Two judges who serve on Florida’s First District Court of Appeal were table sponsors at a recent “Friends of NRA” charity fundraiser and were both listed by the title “Judge” in the event’s program, under the heading of “sponsors and supporters.”

Judges Clay Roberts and Kemmerly Thomas both confirmed they bought tables for the Sept. 15 event in Tallahassee. Both also said they asked the NRA that they be listed in the program by name only, not by title, and that they did not see the program beforehand.

Contributions to the Sept. 15 event in Tallahassee support The NRA Foundation, a 501(c)(3) charity. The program said the NRA Foundation supports initiatives, such as school safety, gun accident prevention and crime victim awareness. Two potential Republican opponents for governor, Richard Corcoran and Adam Putnam, were platinum sponsors. (Putnam is an announced candidate for governor, while Corcoran is still considering.)

Florida’s Code of Judicial Conduct states that judges “shall not use or permit the use of the prestige of judicial office for fundraising or membership solicitation.”

Bonuses based on teacher test scores violate civil rights, lawsuit alleges

A state program that awards bonuses to top-rated teachers based on their own SAT and ACT scores from high school violates federal and state civil rights laws against employment discrimination, argues a potential class-action lawsuit filed this week by Florida’s largest teachers union and seven classroom teachers from South Florida.

The Best and Brightest program — first enacted in 2015 and now in its third year — continues to be envisioned by Florida House Republicans as an innovative means to recruit and retain the best teachers in the state’s public schools.

But it’s been a subject of ongoing controversy because the program relies on teachers’ own test scores — sometimes decades old and unavailable — which has no proven correlation to teacher effectiveness.

The Florida Education Association is now asking a federal judge to step in and declare the program illegal and discriminatory against teachers who are older and who are non-white.

The FEA first made the accusation two years ago through a complaint to the federal Equal Employment Opportunity Commission — an avenue the union said Friday it had to exhaust before it was recently given federal authorization to file a lawsuit.

“The SAT/ACT score requirement has an illegal disparate impact on teachers based on their age and on teachers based on their black and Hispanic race,” the plaintiffs’ attorneys, John Davis and Kent Spriggs, argued in the 58-page lawsuit, which was filed Wednesday in U.S. District Court in Tallahassee. “The SAT/ACT score requirement is not required by business necessity and is not related to job performance.”

Full story here.

Photo credit: Florida Department of Education [Scott Keeler / Tampa Bay Times]

Labarga orders all state courts to be closed Friday

@ByKristenMClark

State courts throughout Florida will be closed Friday as Hurricane Irma nears the state.

Supreme Court Chief Justice Jorge Labarga signed an administrative order Wednesday — citing the safety of court visitors, staff and judges.

Labarga’s order affects all 20 judicial circuits and five district courts of appeal statewide, although courts in South Florida counties had already planned to be closed.

RELATED: “Here’s what’s closed, canceled or postponed because of Hurricane Irma”

His order allows for the extension of court time limits that can’t be met because of the hurricane and of deadlines for certain individual cases. Judges can make exceptions “for emergency matters” and have “the authority and responsibility” to close courts and offices as needed, Labarga said.

Supreme Court: Gov. Scott did 'not abuse his broad discretion' in death-penalty dispute

@ByKristenMClark

Gov. Rick Scott was within his executive authority in reassigning more than two dozen potential death penalty cases away from an Orlando state attorney who declared she wouldn’t pursue the punishment for any case prosecuted in her district, the Florida Supreme Court ruled Thursday.

In a 5-2 ruling, justices said Aramis Ayala’s “blanket” opposition to seeking the death penalty negates her argument of having exercised prosecutorial discretion.

Writing for the majority, Justice C. Alan Lawson — a conservative judge whom Scott appointed to the Supreme Court in December — said Scott, as governor, has leeway in his constitutional duty to “take care that the laws are faithfully executed,” and “the governor has not abused his broad discretion in reassigning the cases at issue” to Brad King, a state attorney in Ocala.

Full story here.

Photo credit: AP

Florida's legal losses up to $19M and counting under Gov. Rick Scott

From Gary Fineout of the Associated Press:

Florida's price tag for losing legal battles — which has included courtroom fights over drug testing, voting rights and gay marriage — continues to grow under Gov. Rick Scott.

Scott recently agreed to pay $1.1 million to cover the legal bills of physicians and medical organizations in their successful challenge of a law that restricted doctors' ability to talk to patients about guns. The law had been pushed through the Florida Legislature at the urging of the National Rifle Association.

In early July, the state also agreed to a $2 million payment that will go to lawyers who sued on behalf of disabled inmates.

A review of records by The Associated Press shows that since Scott took office in 2011 the state has paid at least $19 million to cover expenses and fees for lawyers who have sued the state. Many of those lawsuits took aim at policies put in place by Scott and the Republican-controlled Legislature.

The Scott administration has defended the legal expenses in the past, saying the governor will "vigorously defend" Florida's laws.

In February a federal appeals court ruled that Florida doctors can talk to patients about gun safety, declaring a law aimed at restricting such discussions a violation of the First Amendment's right to free speech. The state did not appeal the decision and in late June reached a settlement to pay $1.1 million for attorney fees and costs.

One of the firms involved in the lawsuit — Ropes & Gray — announced it would donate $100,000 of its fee award to the Brady Center to Prevent Gun Violence.

"This award is a message to states to think twice before enacting or defending laws that put lives at risk just to boost the gun industry's bottom line," said Dan Gross, president of the Brady Center to Prevent Gun Violence, in a statement.

John Tupps, a spokesman for Scott, defended the state's fight over the law. He said the governor was a "strong supporter" of the 2nd Amendment and that he signed the bill "after it was approved by a large, bipartisan majority in the Florida Legislature."

Earlier this month, the state agreed to pay $2 million to cover the fees and costs for groups that sued the state in 2016 over its treatment of inmates with hearing, vision and mobility disabilities.

Randall Berg with the Florida Justice Institute said the money will go to reimbursing the institute, Disability Rights Florida, Jacksonville Area Legal Aid and the well-known personal injury law firm Morgan & Morgan. John Morgan is a frequent Democratic donor and has been speculating about running for governor next year.

In the last six years, the state has agreed to pay attorney fees of lawyers who have sued the state over everything from employee discrimination to drug testing of welfare recipients.

The total includes $12 million paid to attorneys who represented pediatricians in a more than 10-year legal battle over whether Florida violated federal mandates by failing to deliver critical health services to 2 million children on Medicaid.

The state also paid more than $800,000 to lawyers working for the American Civil Liberties Union and nearly $513,000 to lawyers who defeated a state law targeting businesses doing business in Cuba.

An AP review found that between 2011 and early 2017 that Florida had spent more than $237 million on outside lawyers hired to defend the state.

Florida taxpayers will shoulder $1.1M in legal fees in state's defense of 'Docs vs. Glocks'

From Jim Saunders at the News Service of Florida:

Florida will pay $1.1 million in legal fees to attorneys who challenged a controversial state law that sought to prevent doctors from asking patients about guns, a group representing opponents said Monday.

The Brady Center to Prevent Gun Violence announced the legal-fees agreement more than five months after a federal appeals court sided with doctors and medical groups in striking down key parts of the 2011 law --- which became known as the “docs vs. glocks” law. The state did not appeal the Feb. 16decision by the full 11th U.S. Circuit Court of Appeals.

A copy of the legal-fees agreement had not been posted in an online court file Monday morning. But documents indicate the state and the law's opponents had been in mediation on the fees.

The law, which was backed by groups such as the National Rifle Association, included a series of restrictions on doctors and health providers. For example, it sought to prevent physicians from entering information about gun ownership into medical records if the physicians knew the information was not "relevant" to patients' medical care or safety or to the safety of other people.

Also, the law said doctors should refrain from asking about gun ownership by patients or family members unless the doctors believed in "good faith" that the information was relevant to medical care or safety. Also, the law sought to prevent doctors from discriminating against patients or "harassing" them because of owning firearms.

Opponents argued, in part, that the law violated free-speech rights. The full appeals court found that the record-keeping, inquiry and anti-harassment parts of the law were unconstitutional, but upheld the portion of the law that bars doctors from discriminating against patients who have guns.

“Legislators across the country should learn from Florida's example that if you side with the corporate gun lobby instead of your constituents, you endanger the safety of children and families, impinge upon First Amendment rights of doctors, and force taxpayers to pay millions to unsuccessfully defend unconstitutional laws,” Jonathan Lowy, director of the Brady Center's Legal Action Project and an attorney in the case, said in a prepared statement Monday. “Thankfully, in this case justice prevailed and the court recognized that doctors have a First Amendment right to tell the truth about guns, and the risks they can pose to children and families.”

When asked for comment Monday about the legal fees, John Tupps, a spokesman for Gov. Rick Scott, said in an email that Scott signed the 2011 law after it “was approved by a large, bipartisan majority in the Florida Legislature.”

“Governor Scott is a strong supporter of the Second Amendment,” Tupps said. “Much of this law was either never challenged or upheld in court. This (legal fees) settlement is in accordance with Florida law and a recommendation from the Department of Financial Services.”

The challenge to the law was filed in June 2011 and played out over nearly six years. A U.S. District Court judge blocked the law from taking effect, but a three-judge panel of the appeals court upheld the law in three rulings before the full appeals court agreed to take up the case.

Supporters of the law said it was necessary to prevent doctors, such as pediatricians, from harassing and discriminating against patients and parents about gun ownership. The also described the law, formally known as the Firearm Owners' Privacy Act, as a Second Amendment issue.

But Douglas Hallward-Driemeier, an attorney with the firm Ropes & Gray, who argued the case for the plaintiffs, said in a prepared statement Monday that the case allows doctors to “go back to giving their best advice to patients when it comes to gun safety.”

“From day one in bringing this case, our commitment has been to protect doctors' First Amendment rights to ensure the safety of individuals, families and communities in Florida,” Hallward-Driemeier said. “The successful resolution of the litigation and subsequent fees and costs award are both critical to furthering that goal.”

Judge: State gets 60 more days to prove need for 24-hour abortion waiting period

@ByKristenMClark

Attorney General Pam Bondi’s office has 60 more days to gather evidence and testimony to defend a mandatory 24-hour waiting period for abortions, which lawmakers enacted in 2015 but which has been blocked from taking effect amid a two-year legal battle.

In granting the state extra time, Leon County Circuit Court Judge Terry Lewis on Wednesday also chided Deputy Solicitor General Denise Harle for not already being prepared to make her case.

It’s been five months since the Florida Supreme Court upheld a lower-court decision that stopped the waiting period from going into effect while the lawsuit over constitutionality went ahead.

“I’m very skeptical in terms of the state’s suggestion that they need more time,” Lewis said during an hourlong hearing in Tallahassee. “If I were in your shoes, I’d be ready a long time ago to answer what the challenges were.”

Full story here.

Photo credit: Julia Kaye, attorney for the ACLU. Kristen M. Clark / Herald/Times