A bill filed Thursday in the Florida House would force the state Supreme Court to produce a yearly report on how many cases it’s finishing with opinions.
It seems to go against the court’s official Latin motto, “Sat Cito Si Recte,” translated as “Soon enough if done correctly,” or even “Justice takes time.”
“The phrase indicates the importance of taking the time necessary to achieve true justice,” the court’s website says. Supreme Court spokesman Craig Waters declined comment on the bill.
The legislation (HB 301), filed by new Republican state Rep. Frank White of Pensacola, would require the court to tally in detail “each case on the court’s docket … for which a decision or disposition has not been rendered within 180 days.”
It then requires a “detailed explanation of the court’s failure to render a decision or disposition” in pending cases older than six months.
The bill also instructs the court to tally cases it decided in the previous year but took longer than six months.
The report “shall be submitted in an electronic spreadsheet format capable of being sorted” and sent to “the Governor, the Attorney General, the President of the Senate, and the Speaker of the House of Representatives.”
In a phone interview Friday, White – an attorney – said he started hearing from constituents soon after his election about “painfully long wait times for appellate opinions.”
“I thought, let’s just simply ask the court, starting with the Supreme Court, for a modest report,” he said. “A little sunshine and some data will all help us do a better job.”
To those who bring up the court’s motto, he counters with another expression: “Justice delayed is justice denied.”
Waters did say the court currently has 785 pending cases. “By comparison, the court disposed of 2,432 cases in calendar year 2016,” he said, adding that number “is subject to correction as we routinely audit the final results.”
Coincidentally, the bill is the latest legislation from a Republican-controlled House that’s long been antagonized by rulings its leaders have characterized as “judicial overreach.”
In October, for example, House Speaker Richard Corcoran lambasted a decision invalidating part of the state’s death penalty.
The ruling, requiring a unanimous jury recommendation for a death sentence, “is just the latest example of the Florida Supreme Court’s ongoing effort to subvert the will of the people as expressed by their elected representatives,” Corcoran said.
The House also is considering a measure for the 2017 Legislative Session that would impose term limits on judges. At its last hearing, the panel reviewing the legislation also discussed how quickly courts are clearing their caseloads.
Earlier this month, Heather Fitzenhagen – chairwoman of the Civil Justice and Claims Subcommittee – rejected a suggestion that House Republicans want to publish the court for rulings striking down the GOP’s priorities. White also sits on that committee.
“Absolutely not,” she said. “What we’re trying to do is … (make) sure that all of our branches of government are functioning at the best possible efficiency, and that we’re getting things done in the best manner possible. That justice is served in a timely manner.”
The Florida Education Association (FEA) vented its “frustration” Wednesday after the Florida Supreme Court declined to take up a suit challenging the constitutionality of what’s been called “the nation’s largest private school choice program.”
That had Joanne McCall, the statewide teachers’ union’s president and the lead plaintiff in the case, asking, Who can pursue a case? A trial court and the 1st District Court of Appeal had previously ruled the matter could not go forward.
“This ruling, and the decisions by the lower court, doesn’t answer that question,” she said in a statement. “We still believe that the tax credit vouchers are unconstitutional, but we haven’t had the opportunity to argue our case in court.”
Though the Supreme Court put an end to this case, first filed in 2014, the challenge now for voucher opponents is to find one or more plaintiffs who do have the legal standing to successfully press a complaint.
At issue was money going toward religious schools, and whether “taxpayers,” like McCall, could challenge “indirect state subsidies” paying for parochial school tuitions.
The program works by companies ponying up money for private-school scholarships for disadvantaged students, then they get tax credits equal to their donations.
“We’re baffled that the courts would deny taxpayers the right to question state expenditures,” McCall added. “This decision has ramifications beyond this challenge to a voucher program.”
It “relies on private, voluntary donations—not public dollars,” the state’s brief on the jurisdictional question said. “And the program provides tax credits to donors—not schools or students.”
But the FEA and others have argued it’s led to a “parallel system of education that is separate and unequal.”
Its defenders, including prominent Republicans such as Gov. Rick Scott and free market advocates, say the program gives a leg up to kids who otherwise would have to attend failing public schools.
“At bottom, petitioners’ assertion of taxpayer standing is predicated on the assumption that this case involves the unlawful ‘use of public funds,’ ” the state’s brief said. “As the trial court and the (appellate court) correctly concluded, that position is flatly at odds with the how the Scholarship Program actually operates, and misconstrues the plain language of Florida’s Constitution.”
In other words, “the Legislature’s carefully crafted policy choice does not suffice to establish a concrete, particularized injury” to those that sued, including the FEA, the League of Women Voters and the NAACP’s Florida State Conference.
On the other hand, the FEA’s brief said the vouchers scheme “diverts funds from the public (treasury) to subsidize the costs for certain Florida children to attend private schools, the overwhelming majority of which are sectarian.”
“(N)othing in the law prohibits these schools from engaging in religious discrimination or mandating that their students participate in religious instruction and religious exercise,” according to the brief.
It said the high court should “accept jurisdiction … because the decision not only undermines the law of taxpayer standing, but it effectively holds the Scholarship Program – and any other government program similarly funded by a targeted tax credit rather than direct appropriations – to be immune from challenge.”
Simone Marstiller, a retired judge of the 1st District and now a lawyer in private practice, said appellate Judge Lori S. Rowe‘s decision “beautifully lays out exactly why” the high court turned the case down.
“Bottom line: The union and others simply cannot show any ‘injury’ from the Legislature’s use of tax credits to fund the scholarship program,” said Marstiller, who also held many positions under Gov. Jeb Bush, including secretary of the Department of Business and Professional Regulation.
“This is not a situation in which tax revenues are being diverted away from the public school system in favor of private schools, including religious schools,” she said. “So, not only is there no exercise of the Legislature’s spending power at issue, no constitutional provisions are implicated.”
The FEA did not immediately say what further legal plans it had regarding the vouchers program.
The Florida Supreme Court on Wednesday said it will not take up an appeal on a high-profile school vouchers case.
The decision comes as a major setback to vouchers opponents, including the Florida Education Association (FEA), the statewide teachers’ union, but was applauded by school choice advocates. (Separate story on the FEA’s reaction here.)
The court denied a request to review the case, but did not comment on its merits. “No motion for rehearing will be entertained by the Court,” its 2-paragraph order said.
“Who is allowed to challenge the constitutionality of the tax credit vouchers?” FEA President Joanne McCall said in a statement. “This ruling, and the decisions by the lower court, don’t answer that question.” McCall isthe lead plaintiff in the case.
Justices Barbara Pariente, Peggy A. Quince, Charles Canady and Ricky Polston concurred in the decision. Justice R. Fred Lewis dissented, saying he would have granted oral argument.
The nonprofit organization that administers the state’s Tax Credit Scholarship Program, created in 2001, declared that “the legal battle over the nation’s largest private school choice program is over,” in a blog post.
DougTuthill, president of the nonprofit Step Up For Students organization, said “the court has spoken, and now is the time for us all to come together to work for the best interests of these children.”
His organization and other supporters had put on a pro-vouchers rally last year featuring Martin Luther King III, the oldest son of Dr. Martin Luther King Jr. The FEA held its own“Enough is Enough!” rally days before.
“We face enormous challenges with generational poverty, and we need all hands on deck,” Tuthill added in a statement.
The program “provides for state tax credits for contributions to nonprofit scholarship funding organizations(SFOs). The SFOs then award scholarships to eligible children of low-income families,” its website says.
The tax credit cap for the current year is $559 million, according to the state. That cap will increase to $698,8 million for the 2017-2018 state fiscal year.
House Speaker Richard Corcoran also issued a statement, calling the move “a great victory for school children, parents, and classroom teachers who want the best for their students.” The program is a favorite of legislative Republicans.
“I thank the many organizations, pastors, parents, and children who advocated for fairness and justice in our education system and wish them all a great school year,” said Corcoran, a Land O’ Lakes Republican.
The Supreme Court’s inaction leaves in place a 1st District Court of Appeal decision, siding with a lower court’s decision to throw out the lawsuit filed by the Florida Education Association and others.
They had argued that the state’s method of funding private-school educations for more than 90,000 schoolchildren this year is unconstitutional.
The appeals court said the plaintiffs haven’t been harmed by the program, and denied that it violates state law. The vouchers are funded by corporations, which in turn receive tax credits on money they owe to the state.
Florida has several voucher programs in place; the one being challenged extends vouchers to low-income families, most of them black or Hispanic, who send their children to religious schools.
It began in 2001 under Gov. JebBush, and legislators later approved expanding it to middle-income families.
The teacher union argued that it violates the state’s constitution by creating a parallel education system and directing tax money to religious institutions.
But Judge Lori Rowe, who wrote the 1st DCA opinion, said the plaintiffs lack legal standing to sue because they had not shown that other school funding had declined because of the program, or provided other proof of “concrete harm.”
Rowe added that the tax credit scholarship program doesn’t violate a constitutional ban on state aid to religious institutions because it involves the taxing, and not the spending power, of the Florida Legislature.
“I am proud to live in a state where educational choices for families are embraced and upheld,” said Shawn Frost, FCSBM president. “… “Let’s return Florida’s focus to where it belongs: on our students.
“We must commit to meeting each child’s unique needs, and improving academic outcomes for all,” Frost said. “When choices work for a child, we should celebrate that success not be threatened by it.”
Background for this post from The Associated Press, reprinted with permission.
In a recent POLITICO article, Florida Teachers’ Union President Joanne McCall said the following: “We believe that those closest to the students should be making the decisions about what is best for the students they serve.”
At issue was the controversy surrounding the state Board of Education’s efforts to turn around Florida’s worst performing public schools. McCall was stressing her belief in local control of schools, saying that her members are bogged down with state requirements and don’t have enough freedom in the classroom.
It’s a shame that McCall doesn’t always follow the belief she articulates. She and her union have sued to shut down the state’s tax credit scholarship program and evict nearly 100,000 poor, mostly minority children from schools that fit them better than their assigned district schools.
Both a trial court and an appeals court have ruled that the union didn’t even have the right to bring the case, but McCall has appealed to the Florida Supreme Court. Like a hungry dog with a piece of steak, she just refuses to let go – even though it’s far past time to drop the suit and let the focus return to where it belongs: the kids.
To McCall’s point, I would ask her this: Who is closer to a student than his or her parent? Why don’t you believe these poor parents should be making the decision about what school is best for their children?
Finally, why do you persist in this misguided lawsuit whose aim is to keep kids away from the best educational opportunities available to them?
Conservative blogger Ed Whelan isn’t giving up his position that retired Florida Supreme Court Justice James E.C. Perry continuing to work on pending cases “appears to be in plain violation of Florida law.”
Whelan wrote on National Review Online last week that Perry was wrongly “displac(ing)” Justice C. Alan Lawson, the newest conservative jurist on the state’s high court.
In the court’s defense, spokesman Craig Waters explained that the court’s “longstanding practice for many decades has been that retiring justices remain in senior status to complete their unfinished work after retirement.”
He also said “there are serious workload issues involved in processing cases because the work is cumulative … asking a new justice to step in … can greatly slow decision-making in those cases – a result that would impose delay and additional expense on the parties to those cases, some of which are facing the death penalty.”
Whelan’s recent rebuttal said “the proposition that the court has employed this ‘practice for many decades’ does not speak meaningfully to the legality of the practice.
“If the court can’t offer a compelling legal explanation for its practice of allowing a retired justice to continue to decide cases after his retirement, it ought to terminate that practice pronto.”
Moreover, “it’s one thing to decide already-argued cases without the new member. It’s quite another thing to allow the retired justice to displace the new member in those cases,” Whelan wrote.
Any “efficiency gains that Waters touts would be achieved by simply deciding the case without him,” he added.
“To be sure, there may be a small number of cases that would have to be re-argued because Lawson’s participation would break a tie among the six remaining justices who heard oral argument. But those are precisely the cases in which having Perry displace Lawson is most objectionable.”
Florida Supreme Court Justice James E.C. Perry has reached his final day in office.
Perry is stepping down Friday because he reached the mandatory retirement age for justices.
Perry was appointed by then-Gov. Charlie Crist to the court in 2009. He was the fourth black justice appointed to the court.
During his tenure, he was part of a group of justices that has issued rulings that angered the Republican-controlled Florida Legislature and Gov. RickScott.
Perry last week issued a lengthy dissent that asserted the state had applied the death penalty in a “biased and discriminatory fashion” and that there was no way it could be carried out in a constitutional manner.
Scott earlier this month appointed C. Alan Lawson, the chief judge of the 5th District Court of Appeal, to replace Perry.
Lawmakers could override court decisions they don’t like under bills filed Tuesday.
State Rep. Julio Gonzalez, a Venice Republican, filed two pieces of legislation, one aimed at state judges and another at federal judges who interpret state laws.
The first measure (HJR 121) would allow the Legislature to review judicial rulings that declare legislative acts void. If approved in the 2017 Legislative Session, it would allow lawmakers to put the issue on the ballot and amend the state Constitution.
That means that if “the Supreme Court, (any) district court of appeal, circuit court, or county court” overturns a law, the Legislature could salvage it with a two-thirds vote within five years of the ruling.
House Speaker Richard Corcoran has made judicial reform a top priority during the next two years.
He has called for the state to impose a term limit for judges; in a November speech on the House floor, Corcoran said the state needs “judges who respect the Constitution and separation of powers; who will reject the temptation to turn themselves into some unelected, super-legislature.”
Gonzalez, an orthopedic surgeon by trade, also is taking aim at the feds, filing what’s known as a House memorial (HM 125).
“It is my concerted view that such provisions, if enacted by the people would curtail the tendency of activist judges to manipulate the law to suit their political views and agendas,” said Gonzalez in a statement on his website explaining his decision to file the measures. “Equally as importantly, this would force the people to engage the legislature in enacting rectifications to current laws that they see as objectionable or flawed, restoring the natural relationship between the people and their legislative bodies. This would also force the electorate to more carefully look at their candidates and their actions during times of reelection.”
It urges Congress to propose a constitutional amendment to “deem a law that has been declared void by certain federal courts active and operational.” Such measures, if passed, are non-binding.
It says the judicial branch has taken “an increasingly activist role aimed at molding legislation according to the political beliefs of its members.”
The U.S. Supreme Court “currently possesses ultimate and unchecked authority on matters of the constitutionality of the United States’ laws such that its opinion on such matters has the same effect as amending the United States Constitution,” the measure says.
“Thomas Jefferson foresaw the dangers of ‘allowing judges to be the ultimate arbiters of all constitutional questions,’ calling this ‘a very dangerous doctrine indeed, and one which would place us under the despotism of oligarchy,’ ” it continues.
“And … the presence of such unchecked and plenary authority on determining the constitutionality validity of a law of the United States must be dismantled for the sake of our republic and for the continued empowerment of its people.”
__Tallahassee-based reporter Jim Rosica contributed to this report.
The court determined that this year’s U.S. Supreme Court opinion, Hurst v. Florida, requiring Florida juries—not judges—”to (determine) the facts necessary to sentence a defendant to death” does not apply retroactively to Asay and many others.
But the opinion can be retroactive for certain death-sentenced inmates whose “cases were not final” when another related U.S. Supreme Court ruling, Ring v. Arizona, came out in 2002.
That’s when the court first said juries alone must decide on “aggravating factors” for the death penalty. As of Friday, there were 384 convicts facing capital punishment in Florida.
Resentencing efforts could cost Florida taxpayers more than $100 million, said Mark Elliott, FADP’s executive director, in a statement.
“Florida taxpayers could spend more than $500,000 for each complex death sentencing phase that may or may not result in a sentence of death,” he said.
“Commuting these death sentences to life in prison without the possibility of parole would save many millions of critically needed criminal justice dollars,” Elliott added. “These funds could be reallocated to hire and train more law enforcement officers and better protect those who protect us.
“Now is the time to be both tough on crime and smart with taxpayer dollars.”
A spokeswoman for Gov. RickScott said the governor’s lawyers would review the ruling but did not immediately indicate when executions will resume.
Conservative appellate judge C. Alan Lawson will become the next Florida Supreme Court justice, Gov. Rick Scott announced Friday morning.
Lawson, who will replace retiring Justice James E.C. Perry, is chief judge of the state’s 5th District Court of Appeal in Daytona Beach. Perry’s retirement is effective Dec. 30; Lawson’s first day is the 31st.
“He’s got a 20-year track record, he’s been a public servant, he clearly believes in following the rule of law,” Scott said, standing next to Lawson – his first ever Supreme Court pick – and his family. “He is going to do a good job … and he’s not going to legislate from the bench.” (Video of announcement here.)
Lawson now makes a third conservative vote on a seven-member state Supreme Court that often splits 5-2 on matters of public policy. To date, Justices CharlesCanady and RickyPolston have been the court’s most reliable conservative voices.
In a statement, both men “applaud(ed)” the appointment, calling Lawson “a true leader (who) brings strong conservative principles” to the court.
Conservative lawmakers and business interests have long derided the court – specifically its liberal-leaning triumvirate of Justices Barbara Pariente, Peggy A. Quince and R. Fred Lewis – for “judicial overreach,” saying the court often breached the separation of powers between the lawmaking and judicial branches.
Recently, they denounced decisions chipping away at protections afforded business owners in the state’s workers’ compensation law, striking down caps on attorney fees and ordering disability benefits extended for injured workers.
The state’s highest court also becomes more white; Perry is black. With his departure, Quince is the now the lone African American on the court.
This isn’t Lawson’s first attempt to join the court. Perry, whom Lawson is replacing, beat him in 2009 for the opening created by the retirement of Justice Charles T. Wells.
Lawson appeared with his wife Julie and son Caleb, as well as his father and mother, Charles and Velma Lawson, sister Laurie Lawson Cox and brother-in-law Thomas Cox.
Lawson, whom Scott had first mistakenly introduced as “Lanson,” told reporters that the judiciary’s mandate to interpret laws “came with a promise, that it would be exercised with judicial restraint.”
“There are a lot of precedents from the Florida Supreme Court and U.S. Supreme Court that details what judicial restraint means and is not supposed to mean,” he added. Many critics have noted that “judges and courts have moved away from what is clearly laid out … that says, ‘this is what courts are supposed to do.’ “
When asked if he could name decisions in which judges have “overreached,” he said, “No. It’s not ethical for judges to comment on issues that could come before the Supreme Court.”
Lawson was then backed by “religious conservatives and the National Rifle Association,” wrote politics reporter William March in a February 2009 story for the now-defunct Tampa Tribune, while Perry was favored by “liberal groups and black leaders.” Those backers were largely silent this time around.
The appointment created a quandary for then-GOP Gov. Charlie Crist, March wrote, “pit(ting) conservatives in his own party (then Republican) against a minority community Crist is courting.” He eventually picked Perry, who joined the court the next month.
Lawson, born in Lakeland, grew up in Tallahassee. He graduated from Tallahassee Community College and later Clemson University with a degree in Parks, Recreation & Tourism Management, according to his online bio. He got his law degree from Florida State University in 1987.
He was in private practice for several years before becoming an assistant county attorney in Orange County and then a circuit judge in 2002.
Lawson also was a Florida Bar exam question writer and grader. He moved to the 5th District appellate bench in 2006. Both his judicial appointments were by Republican former Gov. JebBush.
In 2012, he was a member of a three-judge appeals panel that considered a custody battle between two women who were formerly in a relationship.
The majority said both women have parental rights, but Lawson wrote “a blistering dissent,” in which he said a child can have only one mother, according to the Associated Press.
The court shouldn’t recognize two mothers “unless we are also willing to invalidate laws prohibiting same-sex marriage, bigamy, polygamy, or adult incestuous relationships on the same basis,” Lawson said. In a 4-3 opinion, the state Supreme Court later said the non-birth mother could seek shared custody.
Scott picked Lawson over two other conservative finalists for the post: Wendy W. Berger, another judge on the 5th District Court of Appeal, and Dan Gerber, an Orlando civil-trial defense attorney.
Scott “had three excellent candidates to consider,” Florida Bar President William J. Schifino Jr. said in a statement.
“I applaud the governor, the Judicial Nominating Commission and the process, and very much look forward to working with soon-to-be Justice Lawson in the future,” Schifino said. “He has demonstrated himself to be an excellent jurist and someone who has the best interests of all Floridians at heart.”
Business interests also commended the pick.
William Large, president of the Florida Justice Reform Institute, a group created by the Florida Chamber of Commerce, said Lawson’s appointment is a “reaffirmation of our system of checks and balances between the three branches of government.”
Scott “based his decision on the precepts that judges should strictly adhere to the rule of law,” he said in an email. The governor’s “thoughtful choice in this solemn duty will have a profoundly positive impact on Florida for a long time.”
Tom Feeney, CEO of Associated Industries of Florida, added that his members have been “anxious for the day that a majority of the Florida Supreme Court can restore respect for the constitutional separation of powers, including legitimate powers of the popularly elected members of the legislative and executive branches.”
“If the Florida Supreme Court will exercise only those legitimate judicial powers, such as deciding controversies of fact and enforcing the language of our duly enacted statutes and Constitution, as opposed to arbitrarily injecting their personal and political preferences, a constitutional balance can be restored.”
Scott could have the opportunity himself to put a conservative majority on the bench. Pariente, Quince and Lewis face mandatory retirement in early 2019, and Scott said he plans to replace them before he leaves office that January.
“I will appoint three more justices the morning I finish my term,” he said.
House Democratic Leader Janet Cruz quickly reacted, saying she was “deeply troubled” by Scott’s position.
“The Supreme Court is no place for political gamesmanship,” she said in a statement. “If Gov. Scott follows through on this assertion, he risks setting off a contentious legal battle with his successor that would mar the transition process and throw our state’s highest court into uncertainty.
“The governor should look to the example set by Govs. Buddy MacKay and Jeb Bush in 1998 and do the right thing on behalf of Floridians,” she added, referring to their joint appointment of Quince.
Tallahassee City Commissioner Scott Maddox lives in the City of Tallahassee. While that should not come as man-bites-dog news, it’s not that simple in Florida’s capital.
The residency of the former Tallahassee Mayor and Florida Democratic Party Chair was challenged in court by Dr. Erwin Jackson, a frequent city government and Maddox critic. Maddox maintains two domiciles; a rented home within the city limits and another larger residence outside the city, which he owns.
The home outside the city limits was put on the market in 2012 while Maddox was a candidate for the Commission and was put on the market again as he sought re-election this year. Jackson points to that and questions other indicators he says makes the case Maddox lives in the home outside the district.
Second Circuit Judge Charles Dodson ruled in Maddox’s favor on three occasions only to be overruled and scolded for “abuse of discretion” by a three-judge panel of the First District Court of Appeal (DCA). After Dodson had recused himself, colleague Karen Gievers drew the short straw and was assigned the case.
In her 28-page ruling, Gievers said Jackson “has offered neither documents or testimony that establish Maddox’s legal residency on August 30, 2016, at the time of the election was somewhere other than the North Adams Street (city) address.”
She further ruled the “overwhelming credible evidence” shows Maddox lives in the city and that he did not try to “game the system.”
Gievers addressed several questions posed by Jackson and his legal team. Among those were the registrations of vehicles registered to Maddox using the county address between 2000 and 2015.
All eight were changed to the downtown address during calendar year 2016. Gievers admitted the registration changes were “not as timely as the statutes provide,” but that fact still does not prove residence on a particular date.
For the record, Maddox is registered to vote in Precinct 1302 according to the Leon County Supervisor of Elections. His rented home in the city is within that precinct, allowing him to answer in the affirmative whether he voted for himself.
The DCA had given a deadline of December 6 for the lower court to make a ruling. Unless they find some procedural error, this should put the Maddox residency matter to rest.
But there is one other matter still percolating within the legal system. The City of Tallahassee has asked the Florida Supreme Court to overrule the DCA hold that local governments should have the final say on residency.
The DCA held the Tallahassee City Charter is subservient to state law, but local governments wish to protect their autonomy to decide who meets the criteria established by their respective charters.
This is a big deal to them. When I published the first article on this topic, I heard from a former Jackson County Commissioner in total agreement with the City’s position.
On Monday, the Florida League of Cities, representing more than 400 communities around the state, turned this into a statewide matter. They, too, are asking for the Florida Supreme Court to weigh in.
“The League’s membership has a significant interest in the question before the Court in this proceeding,” they wrote in their filing document. “The governing documents of many of the League’s members contain provisions that, like the provision at issue here, authorize municipal councils and commissions to be the judges of the election and qualification of their members.”
Jackson and his legal team responded on Friday while Maddox and the City responded to the Supreme Court on Monday.
No matter whose side one takes in Jackson v. Maddox, it is probably a good thing to have some clarification. There are good reasons for the communities to set their own standards. There are also good reasons to be on the lookout for circumstances where the Establishment is protecting its own.
Merry Christmas from Tallahassee or Leon County, whichever applies.