November 16, 2018

Federal judge denies request to extend mail-in ballot deadline

Walker

Federal Judge Mark Walker denied an injunction Friday night in a case to extend the mail-in ballot deadline to 10 days after the election, just like overseas and military ballots.

VoteVets Action Fund, a progressive veterans' advocacy group, the Democratic National Committee, and the Democratic Senatorial Campaign Committee filed their suit against the state in the Northern District of Florida on Monday.

They asked that mail-in ballots that were postmarked before Election Day, but not delivered before the polls closed at 7 p.m., be counted. They argued that the more imminent deadline for domestic mail-in ballots imposes an undue burden on the right to vote and deprives domestic mail-in voters of equal protection.

At a brief hearing in Tallahassee Wednesday, attorneys questioned expert witness Leon County Supervisor of Elections Mark Earley. Earley said there were only 145 late domestic vote-by-mail ballots that came into the county. 

U.S. Sen. Bill Nelson's attorney, Marc Elias, said Nelson's campaign hoped to allow postmarked absentees to be counted within 10 days after the election, similarly to overseas and military members' ballots.

According to Florida law, mail-in ballots cannot be counted if they arrive after 7 p.m. on Election Day. The lawsuit claims voters shouldn’t be faulted for absentee ballots that arrived late.

Attorneys argued arbitrary factors beyond voters’ control, like mail delivery speed, weather emergencies, traffic delays, understaffing and human error cause mail to take longer to process and deliver.

They cited the case of one voter in Miami-Dade County, who reported that he mailed his ballot on October 29, 2018 — over a week before Election Day — yet learned after Election Day that his ballot had not been received by the county’s elections supervisor.

Elias cited the example of a few hundred mail-in ballots that were postmarked before Nov. 6 but were stuck in an Opa-locka mailing facility, possibly because of an FBI investigation into the Aventura man who sent pipe bombs through the mail before the election.

In his denial, Walker wrote that the whole point of the 10-day exception for overseas voters is to give them the same right to vote as domestic voters.

Walker compared the situation to the special precautions a military member may take while sending and receiving mail from loved ones while overseas.

“When he or she receives care packages from family members back home in the United States, it is only because his or her family sent the package weeks before. And when his or her family receives a letter from that uniformed voter, it is only because that uniformed voter sent it weeks before as well,” Walker wrote. “The same holds true for the uniformed voter’s ballot.”

Walker concluded that the different deadlines were meant to level the ground for overseas and domestic voters, and should remain as such.

"These rules have been used for over a decade, and to enjoin the use of them now would create a substantial hardship on the defendants and perhaps undermine the electoral process,” he wrote.

September 07, 2018

How a snubbed handshake influenced Kavanaugh’s confirmation hearing

Senate Supreme Court

@alextdaugherty

Democrats don’t have the votes to stop Brett Kavanaugh, so they turned his Supreme Court confirmation hearing into a spectacle.

Protesters dressed up in costumes from the dystopian TV drama “The Handmaid’s Tale,” dozens were arrested after interrupting proceedings in the Senate Judiciary Committee and one senator compared himself to Spartacus after daring his colleagues to expel him for releasing supposedly confidential emails from Kavanaugh that had actually been declassified hours earlier.

But the Parkland shooting also played a role in arguments against Kavanaugh’s supposedly genial personality and future rulings on gun issues if confirmed to the lifetime position on the nation’s highest court.

Aalayah Eastmond, a senior at Marjory Stoneman Douglas High School, testified before the Senate Judiciary Committee on Friday with the Brady Campaign to Prevent Gun Violence. Eastmond recounted in detail her experience on Valentine’s Day, when she hid beneath Nicholas Dworet’s body to shield herself from the bullets. At least one senator, Cory Booker of New Jersey, was in tears.

Then she turned to Fred Guttenberg’s snubbed handshake from earlier in the week, when the Supreme Court nominee declined to shake the hand of the Parkland parent and gun control activist whose daughter Jaime was among the victims.

“If Kavanaugh doesn’t even have the decency to shake hands with a father of a victim, he definitely won’t have the decency to make life-changing decisions that affect real people,” Eastmond testified.

Read more here.

June 18, 2018

South Florida activist is 2-0 at the Supreme Court after First Amendment victory

02HOUSE BOAT_CPJ

@alextdaugherty

A South Florida man just won a First Amendment victory at the Supreme Court in a case that could protect disgruntled citizens from arrest for voicing their displeasure at elected officials during public meetings.

The nation's highest court ruled in favor of political gadfly Fane Lozman on Monday in a 8-1 decision, the culmination of more than a decade of work for Lozman after he was dragged out of a Riviera Beach city council meeting and arrested after speaking about the allegedly corrupt dealings of a Palm Beach County commissioner.

Lozman is now 2-0 at the Supreme Court, an accomplishment that his lawyer said is unprecedented for an individual plaintiff in a court that that rejects around 7,000 cases every year and hears only 80. He also won a maritime law case related to his floating home in 2013.

"As far as I know he's the only person who's done it in recent times," said Pamela Karlan, an attorney from Stanford Law School who argued Lozman's case in front of the court. "There were people who got the same case twice to the Supreme Court, but not two different cases."

The court's decision on Monday affects citizens who show up to public meetings to vent and question the actions of elected officials. If one official orders the arrest of someone speaking at a public meeting and the rest of the elected body doesn't object, the person arrested can now have a cause of action against the municipality if he or she can prove animosity.

That means it's harder for angry elected officials to use their power to arrest people they simply don't like.

"It's just been an amazing effort to try to crack the overbreadth of government power towards citizens who want to exercise their First Amendment rights," Lozman said in an interview on Monday. "This arrest happened in 2006 and the case was filed in February 2008, so we've been fighting this case for over 10 years. It's been a Herculean effort."

This isn't Lozman's first time in front of the Supreme Court. The semi-retired South Florida stock trader-turned First Amendment crusader also won a Supreme Court case in 2012, when justices ruled 7-2 that Lozman's floating home was not a "vessel" and therefore not subject to the federal maritime jurisdiction that eventually led local officials to seize and destroy it.

Lozman was already victorious in his fight against Riviera Beach that led to his arrest in the first place. He saved other people's homes from being taken via eminent domain for a new private marina in Riviera Beach, and he was able to keep the public marina out of private hands.

"I won the case today but I won what I really wanted years ago, which was the marina," Lozman said. "They didn't take the marina and the scum that tried to do that are out of power. We finally got the last one of those kicked out last month."

But while his fellow citizens were able to keep their boats and homes on the marina, Lozman became consumed with his First Amendment fight for people like him who are thrown out of public meetings for needling elected officials.

"I've heard horror stories from all over the country, people call me and they say they were physically thrown out of meetings. If you go on YouTube there’s lots of people being dragged out by elected officials and I wanted to stop that," Lozman said, adding that he worked between 8,000 and 9,000 hours on his two Supreme Court cases.

Read more here.

February 10, 2018

State appeals decision on 24-hour waiting period for abortions

Lewis

@elizabethrkoh

State officials are appealing a court decision last month that ruled a 24-hour waiting period for abortions is unconstitutional, extending a legal fight that has brewed since the controversial law in question was enacted in 2015.

The notice of appeal in Gainesville Woman Care LLC v. Florida was filed Thursday afternoon, challenging Leon County Circuit Judge Terry Lewis' ruling for a Gainesville abortion clinic after it argued the law violates state privacy protections. His decision had cemented a temporary injunction, granted by the state Supreme Court last year, which stopped the waiting period requirement from going into effect.

The law, which requires visiting a doctor a full day before obtaining an abortion, has been largely blocked for most of the time since it was signed by Gov. Rick Scott in June 2015. After a series of lower courts batted around an injunction stopping the law, the state Supreme Court blocked the waiting period in April 2016 while it heard the case. It then handed the case back to a lower court last February with a temporary injunction on the law, saying it had a “substantial likelihood” of being unconstitutional.

Lewis’ decision in January ruled the law was unconstitutional outright. In the ruling, Lewis wrote the state failed to show that the waiting period satisfied a “compelling state interest” and suggested it was unduly restrictive.

The state’s notice of appeal Thursday does not detail its expected arguments to the 1st District Court of Appeal. Lauren Schenone, a spokeswoman for Gov. Rick Scott, said "a full legal briefing will be filed by the Solicitor General's office in the weeks to come.”

Nancy Abudu, legal director of the ACLU of Florida, said the state is pushing the case back up through courts where it has already been considered.

“The fact that they exhausted that route and are exhausting it again show their commitment to enforcing this law,” she said. “We will reiterate the arguments that we've already successfully raised… This is an area of women's rights that remains under constant attack in Florida.”

Photo: Judge Terry Lewis, Tampa Bay Times

January 19, 2018

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

Pat RobertsA 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.

January 16, 2018

Lawmakers optimistic about criminal justice reform as new report highlights areas for change

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Sen. Jeff Brandes (center) flanked by Sen. Darryl Rouson (left) and Central Florida Urban League CEO Glen Gilzean (right) DIRK SHADD | Times

A small press conference held by academics and think tanks outside the Florida Senate on Tuesday may not have garnered much fanfare or controversy, but it was another reminder of the momentum criminal justice reform could have in the 2018 legislative session.

 

The speakers highlighted a new report, Reforming Criminal Justice, that was put together by more than 120 scholars and university professors nationwide, including one from Florida State University. The multi-volume work calls for re-examination of scores of hot button criminal justice issues, some of which have already come up in committee meetings in the legislature, like minimum sentencing and supervised release as an alternative to cash bail bonds.

The event was kicked off with comments from Vikrant Reddy, a senior research fellow at the Charles Koch Institute. The institute helped finance the report, as criminal justice reform has been a key issue for libertarian-minded conservatives who see the criminal justice system as overly expensive and ineffective at rehabilitating offenders.

Sen. Jeff Brandes, R-St. Petersburg, was one of the lawmakers at the event and said this year he sees a potential for bipartisan change that he hasn’t seen before.

“I think you’re going to see us reach consensus on a variety of topics in areas that just a few years ago we would’ve felt not within reach of this Legislature,” he said. “I think what you’re seeing is a discussion taking place between the chambers right now that is of a different tone and tenor that is really looking forward to finding positive outcomes … and moving legislation forward.”

January 10, 2018

Myriad of criminal justice reforms on the table for 2018 session

Gualtieri
Pinellas County Sheriff Bob Gualtieri. [Tampa Bay Times]

 

The first day of session was jam-packed for the Florida Senate Committee on Criminal Justice, which passed several reform bills Tuesday with support from civil rights groups and mixed reactions from law enforcement.

Bills that were approved by the committee include measures to ease sentences for theft convictions for items worth less than $1,500, create an additional type of conditional release for inmates with "debilitating illnesses" and grant legal immunity to those who call emergency services in overdose situations.

The committee also voted to advance a bill designed to close a "loophole" in statute that requires internet providers to alert their customers when they have been subpoenaed for child pornography on that person's computer, potentially giving them time to destroy evidence or even harm the children involved.

"This bill will literally save the lives of children," said a lieutenant from Brevard County Sheriff's Office who spoke during the meeting.

Many of the bills passed Tuesday were sponsored by the chairman of the committee, Sen. Randolph Bracy, D-Orlando.

While not yet holding a vote, he also foreshadowed one of his other bills by having multiple speakers, including Pinellas County Sheriff Bob Gualtieri, speak about supervised bail programs, like the ones used in Pinellas County since 2014. These programs, now used in several other states, provide alternatives to traditional bail bonds, which can trap the poor in jail and unnecessarily fill jails with people who would show up for their court dates regardless, the speakers said.

In contrast to Gualtieri, the Florida Smart Justice Alliance, a conservative criminal justice reform group that represents law enforcement in several red parts of the state, declared their opposition to several of these proposals.

"Every sheriff in the state doesn't agree with what Sheriff Gualtieri is doing," said Barney Bishop, CEO of the group. "It's a progressive idea … let's pilot this where sheriffs want to do it, let's not force it on a sheriff."

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

AyalaAP

@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]