Florida Supreme Court Archives - Page 5 of 23 - SaintPetersBlog

Winning elections best way to achieve favorable judiciary

If you are one of those who are sick and tired of judges ruling against your policy preferences, the Florida House of Representatives is offering an elixir for what ails you.

Judges are in the news a lot lately. From the nomination of Judge Neil Gorsuch to the U.S. Supreme Court, to the drama in the U.S. Court of Appeals for the Ninth Circuit, many Americans are paying attention to black robes.

Florida is now adding to the conversation on the judicial branch. If HJR 1 is enacted, Florida Supreme Court and appeals court judges could serve no more than 12 years. While several states have term limits on the executive and legislative branches, Florida would become the first state to impose limits on the judicial branch

If approved, the measure would go before voters in 2018 with 60 percent needed to amend the Florida Constitution. While there is a chance it could pass the House, there is no companion measure in the Florida Senate.

Clearing the House is not a slam dunk. The measure barely emerged from the House Civil Justice and Claims subcommittee. Republicans George Moraitis and committee vice-chair Jay Fant voted with the five Democrats to provide a razor-thin 8-7 vote to move the bill forward.

Judicial accountability is said to be a priority of Speaker Richard Corcoran. Rep. Jennifer Sullivan, a Republican from Mount Dora, makes the case for her bill and for Corcoran.

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

All of that is well and good, but perhaps it is time to pause and reflect on a couple of important facts.

First, haven’t the Republicans been in charge of judicial appointments for the past two decades? Governors have appointed the members of the Judicial Nomination Commissions, who have forwarded candidates generally palatable to the governor.

With the appointment of Judge C. Alan Lawson to the Supreme Court by Gov. Rick Scott, Florida is now only one justice away from a conservative majority. That will come to a head near the end of Scott’s term.

Second, perhaps the remedy is worse than the “disease.” Term limiting judges creates more problems than it solves. On this some conservatives are in agreement with liberals.

There are reasons judges and justices have lifetime appointments, or at least until the mandatory retirement age of 70. One of the best arguments against the bill comes from former Lt. Gov. Jeff Kottkamp, who also served with distinction in the Florida House.

“Our founding fathers believed deeply in the independence of the judiciary, making sure that we protected our judges from the winds of change, from politics and from worrying about making an unpopular decision,” he told the subcommittee.

The Florida Justice Reform Institute, who advocates conservative, originalist judicial thinking, has a sound argument against the measure. He believes fewer lawyers will want to become judges.

“We want judges that are knowledgeable, experienced, diligent, and who are texturalists and originalists,” said the institute’s director, William Large. “And judges who can say what the law is, not what it should be.”

The bill now heads to the full House Judiciary Committee.

It is true that no Florida judge or justice has been removed under the current system of merit retention. Instead of changing the constitution, conservatives should ensure they elect another conservative in 2018 to continue making judicial appointments.

That will primarily achieve the results conservatives seek from the judiciary.

 

House panel approves three measures tamping down on the judiciary

A House committee voted Thursday to approve three proposals to tie the hands of Florida’s judiciary, including a proposed constitutional amendment to impose term limits on judges of courts of appeal and Supreme Court.

Altogether, the measures would limit appellate judges to two six-year terms; remove a judicial education program from the Supreme Court’s supervision; and require the high court to report its caseload clearance rate to the governor and House and Senate leaders.

Legislative leaders have chafed at court rulings striking down their priorities in recent years, but supporters in the Civil Justice & Claims Subcommittee have insisted this had nothing to do with that.

Committee member Sean Shaw — a Tampa Democrat whose father, Leander Shaw, served for many years on the appellate bench, including the Florida Supreme Court — wasn’t persuaded.

“We seem to forget that the judiciary is a co-equal branch of our government,” he said following the committee’s meeting. “The judiciary is just as important as the branch that I serve in. They’re sure not being treated like it.”

HJR 1 would limit judges of the district courts of appeal and the Supreme Court to 12 years in all. They’d have to sit out a year after being termed out to become eligible to rejoin the bench. The measure passed, 8-7.

Mount Dora Republican Jennifer Mae Sullivan sponsored the bill. She noted that, since Florida adopted the merit-retention system for judges during the 1970s, not one has been defeated in a retention election.

“Any accountability system that doesn’t hold people accountable is not truly an accountability system,” she said.

The measure drew opposition from groups including the Institute for Legal Reform, the Florida Board of Trial Advocacy Education Fund, the Florida Judicial Reform Institute, and various sections of the Florida Bar.

The thrust of the opponents’ argument was the danger to judicial independence; that the existing system works; and that change would discourage the brightest young legal minds from seeking the bench, for fear of having to restart a law practice after 12 years away.

At the same time, Jeff Kottcamp, of the advocacy fund, argued the state would be foolish to discard experienced judges.

“When it comes to dispensing justice — to matters of life and liberty — there is no substitute for experience,” he said.

As a proposed constitutional amendment, the bill needs the support of three-fifths of the membership of the House and Senate plus 60 percent of the voters.

HB 301 would require the state’s chief justice to deliver its annual report on the number of cases undecided after more than 180 days to the governor, House speaker, and Senate president.

The reports would be due each Oct. 15. At present, the chief justice receives the report.

The bill passed, 13-3.

PCB for HB 175 would transfer oversight of Florida’s training programs for judges from the high court to Florida Court Education Council, which now advises the court on judicial education. Its staff would be cut from 15 employees to three.

The measure passed, 11-5.

military

Lawyers married to military could bypass bar exam in Florida

The Florida Bar wants lawyer-spouses of active military members stationed in Florida to be able to practice law here without having to take the state bar exam.

The Bar, which regulates the state’s 100,000-plus licensed attorneys, filed its request with the Florida Supreme Court last week. The change would require court approval.

Twenty-three other states, including Texas and New York, “have adopted a military spouse rule,” the Bar’s petition says. It “received no comments in opposition.”

“Due to the unique mobility requirements of military families, lawyers licensed in a jurisdiction other than Florida often have to relocate to Florida with their spouse who is in the military,” the petition explains. “Currently, that lawyer is unable to engage in the practice of law in Florida” without passing the state bar exam.

There were “over 900 military spouse attorneys worldwide as of November 2013,” according to the Military Spouse JD Network.

“Moving to Florida and taking the Florida Bar Examination is often impractical because of the timing of the deployment to Florida and the dates the bar examination is given,” in February and July, and only in Tampa, the Bar’s petition adds.

“The timing issues could result in the military spouse being reassigned before the lawyer spouse is admitted … For these reasons, some lawyer spouses choose to remain in the jurisdiction where they are licensed, splitting families apart while the military spouse is stationed in Florida.”

The new rule “would only apply to lawyers who are spouses of active military personnel stationed in Florida,” and they would be considered Florida lawyers only “during the time their military spouse is stationed in Florida.”

“Although the number of military spouse attorneys is relatively small, the positive impact of this proposed rule on their families will be enormous,” said a report by the Military Spouse JD Network to the Bar.

Its passage “will send a clear message that the Florida legal community encourages the participation of the talented diverse group of military spouse attorneys.”

Jorge Labarga answers critics about James E.C. Perry’s ‘senior’ service

Florida’s chief justice Friday publicly defended his decision to allow Justice James E.C. Perry to continue working on cases after his retirement.

On Dec. 1, Jorge Labarga assigned Perry “senior” status for a period after his mandatory Dec. 30 retirement.

News since surfaced that the Florida House of Representatives, led by Republican Speaker Richard Corcoran, was preparing a legal challenge to Perry’s continued work, saying, among other things, Perry was an unconstitutional “eighth” justice on the seven-member court.

“It’s in the constitution,” Labarga told reporters, speaking in advance of a meeting of the state’s Commission on Access to Civil Justice in Tallahassee. “The constitution permits the chief justice of the Florida Supreme Court to appoint senior justice and senior judges.”

The state’s governing document says the chief justice “shall have the power to assign justices or judges, including consenting retired justices or judges, to temporary duty in any court for which the judge is qualified.”

“When I signed the original order, way back in December,” Labarga said, “the names (of nominees to replace Perry) had just been sent to the governor, and I had no way of knowing how long the governor was going to take to make the appointment within the period in which he’s allowed to make it.”

Gov. Rick Scott Dec. 16 announced then-5th District Court of Appeal Chief Judge C. Alan Lawson, a conservative jurist, to replace Perry, who often voted with the court’s liberal contingent.

“Once the governor appointed Justice Lawson, then I amended the order,” Labarga said. That amended order, relieving Perry of his extended service as of Jan. 31, was signed Jan. 11 and released to the media Monday.

Labarga said the court’s practice, “as long as I can remember,” has been to grant retired justices senior status to finish work they started; that is, to work on opinions in cases in which they participated in oral argument.

According to court records, the last justice afforded such status was Charles T. Wells, the man Perry replaced on the court in 2009. Before that, Labarga said then-Justice Raoul Cantero, a conservative, also had gone on senior status. Cantero left the court for private practice in 2008.

Critics privately have referred to a section of state law providing that “upon the resignation, death or impeachment of any judge, all matters pending before that judge shall be heard and determined by the judge’s successor.” That law does not use the word “justice,” others say.

“Appellate work is not like trial work,” Labarga said. “If I leave the bench today and a new judge comes in, that judge can’t just start that morning. The records are huge. It takes time to read” all the material.

“This way, when you’re almost out of the woods, almost done with an opinion, you can get it done.”

The chief justice also noted Perry was not paid as a senior justice, that he worked as a “volunteer:” “He served a long and distinguished career and was ready to move on with his life.”

Labarga also said, when he amended his order to end Perry’s senior status, he did not know the House was preparing to challenge Perry’s still being at the court.

“Absolutely not. I learned about that in a newspaper article,” Labarga said. Court spokesman Craig Waters “came to me and said, ‘They’re making this allegation.’ My reaction was, ‘What?’ “

Labarga later declined comment on bills now filed in the Legislature to place term limits on appellate judges and allow legislative overrides on court decisions.

Moreover, another reporter pointed out the governor’s proposed budget does not fund the state court system’s request for new judges or improved technology.

When asked if he felt “like the judiciary has a bull’s-eye on its back,” Labarga said, “We’re prepared to answer any questions they have about how we use the taxpayers’ money … But I’m not going to comment on motivations.”

Supreme Court: Attorneys can collect fees for claim bill work

The Legislature can’t limit the amount of attorney fees to be paid out of money it OKs for a claim bill, a narrowly divided Florida Supreme Court decided.

The 4-3 opinion was one of nine in an unusual out-of-calendar release from the court this Tuesday. The Supreme Court normally releases opinions 11 a.m. on Thursdays.

Senior Justice James E.C. Perry and Justices Barbara Pariente, R. Fred Lewis and Peggy A. Quince were in the majority. Justices Charles Canady, Ricky Polston and Chief Justice Jorge Labarga dissented.

Perry’s “senior” status after his December retirement was considered improper by conservative critics of the court. Perry was replaced last month by former state appellate Judge C. Alan Lawson, a conservative.

The Florida House of Representatives was even prepared to legally challenge Perry’s continued work on the court until he finally withdrew into full retirement this week.

In the claim bill opinion, the majority sided with the Searcy, Denney, Scarola, Barnhart & Shipley law firm, which represented Aaron Edwards, a brain-damaged man who received a $15 million claim bill from the Legislature.

Edwards was born brain-damaged in 1997 because of medical malpractice at Lee Memorial Health System, according to briefs in the case.

Florida law limits local governments and other public bodies to paying no more than $200,000 per person in damages. To get more, lawmakers must pass a claim bill, also known as a relief act, for extra money.

The “contingency fee contract” between the firm and Edwards’ mother called for attorney fees of 25 percent.

The 2012 claim bill, however, says the “total amount paid for attorney’s fees, lobbying fees, costs, and other similar expenses relating to the claim may not exceed $100,000.”

The majority said lawmakers may approve or deny a claim bill but they can’t “impair an pre-existing contract” between an attorney and a client.

On the other hand, Polston noted in dissent that the firm’s fee agreement said, in part, that “Federal and Florida Law may limit the amount of attorney fees charged by [Searcy Denney], and in that event, I understand that the fees owed to [Searcy Denney] shall be the amount provided by law.”

“Because the fee agreement explicitly anticipates and agrees to an award of fees as limited by Florida law and in the amount provided by law, there is no impairment of contract,” Polston said.

Christian D. Searcy, the firm’s president, told the court during oral argument in June he took the case because no other firm wanted it and he believed Edwards needed to be compensated.

In emotional remarks to the court, he called the fee cap a “confiscatory limitation,” adding that “no seriously injured child will ever be able to get an attorney … or anybody with a serious claim.”

Searcy was not immediately available at his office Tuesday.

James E.C. Perry’s “senior service” on Supreme Court to end

Florida Supreme Court Justice James E.C. Perry‘s last day as a “senior” justice will be Tuesday, according to a court order released Monday.

Chief Justice Jorge Labarga signed the latest order Jan. 11, modifying his previous order of Dec. 1.

Spokesman Craig Waters previously 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.”

, who joined the court in 2009, stepped down Dec. 30, having reached the mandatory retirement age. His name appeared on several opinions, including death penalty matters, released by the court since then.

“However, it is axiomatic that continued service is not without limit,” Labarga wrote.

“…At the time that the Dec. 1 order was entered, it was not known when a new justice would be appointed to replace him,” he wrote. “That issue now has been resolved.”

Gov. Rick Scott on Dec. 16 appointed conservative appellate judge C. Alan Lawson to replace Perry. Lawson had been chief judge of the state’s 5th District Court of Appeal in Daytona Beach.

Perry has since “expressed his desire that his senior service not be protracted for a lengthy period of time,” Labarga said.

The senior status recently piqued the ire of conservative blogger Ed Whelan, who opined on National Review Online that Perry’s continuing to work on pending cases was wrongly “displac(ing)” Lawson.

Bill would force case reporting requirements on Supreme Court

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.”

classroom school vouchers

Teachers’ union: “Who can challenge the Legislature on voucher program?”

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.”

The court decided not to hear a challenge to the Tax Credit Scholarship Program, created in 2001, though – as one former judge noted – its order “doesn’t say (it) lacks jurisdiction.” (Main story here.)

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.

“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.”

“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.

Supreme Court throws out school vouchers case

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 is the 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 legal battle over the nation’s largest private school choice program is over,” in a blog post.

Doug Tuthill, president of the nonprofit Step Up For Students organizationhe 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. Jeb Bush, 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.

The Florida Coalition of School Board Members (FCSBM) weighed in later Wednesday morning, saying “Florida is on the right side of history.”

“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. 

Who knows best, parents or teachers’ union?

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?

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