News from Tallahassee for 10/23/14

Amendment 3 Could Determine Future of Court posted on 10/20/14

by BRANDON LARRABEE | News Service of Florida

A low-profile ballot proposal that supporters say would avert a constitutional crisis but opponents say is nothing more than a thinly-veiled partisan power grab is headed to voters in November, possibly with the future of the Florida Supreme Court at stake.

Amendment 3 would essentially grant an outgoing governor the right to appoint replacements for Supreme Court justices and District Courts of Appeal judges who leave office at the same time as the governor does.

It comes after years of heated battles over the high court, which has served as one of the last barriers to the Republican agenda in Tallahassee. And it comes against the backdrop of an election between Republican Gov. Rick Scott and former Gov. Charlie Crist, his Democratic rival, that could decide which governor gets to make the appointments in 2019.

That has left critics suspicious of the motives of Republican lawmakers who approved it.

"We think that this is politicizing the way that the court works," said former Republican Sen. Alex Villalobos, who has sometimes butted heads with his party since leaving office.

At the center of the issue are three justices -- R. Fred Lewis, Barbara Pariente and Peggy Quince -- who are part of the court's left-of-center majority. That voting bloc, which often decides controversial cases on a 5-2 margin, has frustrated GOP lawmakers and governors for years.

Lewis, Pariente and Quince will reach the mandatory retirement age for justices before their next retention election, meaning they will have to step aside in early 2019. That will happen at the same time that the governor elected in the November 2018 elections is taking office.

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Florida high court puts limits on phone tracking posted on 10/17/14

by GARY FINEOUT | AP

TALLAHASSEE, Fla. (AP) — In a sweeping ruling, Florida's highest court said Thursday that police in the state have no right to use a cellphone to track someone's movements without a warrant.

The state Supreme Court in a 5-2 decision ruled that Broward County Sheriff's Office had no right to stop and arrest Shawn Tracey for possession of more than 400 grams of cocaine.

Detectives had gotten a tip from that Tracey was involved in moving cocaine from Broward over to Cape Coral on the state's West Coast where he lived. But the warrant they had obtained only allowed them to monitor the phone calls in and out on Tracey's cellphone.

Authorities, however, also kept track of Tracey's movement by getting real time updates of his location from his phone. They stopped him shortly after he left a house and discovered a brick of cocaine and $23,000 in cash in the car he was driving.

Tracey's lawyers argued that the evidence in the case should be suppressed because of the way police tracked Tracey. But their motions were denied and Tracey remains in prison.

And a majority of justices agreed, saying that in a day when cellphones have become a routine way of life, Floridians should expect a certain level of privacy in how they use them. The ruling also stated it was unreasonable to require people to turn off their phones just to make sure their movements are not being tracked.

"Requiring a cellphone user to turn off the cellphone just to assure privacy from governmental intrusion that can reveal a detailed and intimate picture of the user's life places an unreasonable burden on the user to forego necessary use of his cellphone, a device now considered essential," wrote Chief Justice Jorge Labarga.

The American Civil Liberties Union and defense attorneys involved in similar cases applauded the ruling saying there is evidence that police across the state are using technology to track people.

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Politics, power play role in Amendment 3 posted on 10/17/14

by Kristen Mitchell | Tampa Tribune

ST. PETERSBURG — Florida voters will be asked to decide which governor has the right to replace retiring justices on the state Supreme Court during a change of administrations.

Amendment 3 on the Nov. 4 ballot aims to clarify language regarding the appointment on justices who reach the mandatory retirement age of 70 and don’t qualify to continue presiding.

With the amendment, that judicial seat would become vacant on the inauguration day of the new governor, and the outgoing governor would name a replacement.

Opponents say the change would give an outgoing governor the ability to stack the bench politically without being held accountable by voters. Advocates say the amendment will clarify the constitution, preventing a potential legal battle regarding appointments that could render the court useless.

Pinellas-Pasco Chief Judge J. Thomas McGrady declined to give his opinion on the issue, but said the law needs clarification.

“It’s an important issue that needs an answer, one way or another,” he said.

In January 2019, the governor will have three seats to fill on the state Supreme Court. If the amendment passes and the outgoing governor is granted authority to make the appointments, whoever wins the Nov. 4 race, Republican Rick Scott or Democrat Charlie Crist, will be able to appoint three of the court’s seven justices on his way out of office. That would give the outgoing governor the power potentially to reshape the court in his political favor.

Scott has said he supports the amendment, while Crist does not.

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Three appeals court judges up for retention posted on 10/16/14

by Andrew Meacham | Tampa Bay Times

Voters will decide Nov. 4 whether to retain three judges on the Florida 2nd District Court of Appeal. The court sits in Lakeland and hears appeals in criminal and civil cases from Pasco, Pinellas, Hillsborough, Charlotte, Collier, DeSoto, Glades, Hardee, Hendry, Highlands, Lee, Manatee, Polk and Sarasota counties.

The appellate judges — Chris Altenbernd, Morris Silberman and Daniel Sleet — all have worked in the Tampa Bay area since law school.

Altenbernd, 65, had been a partner in the Tampa law firm of Fowler, White, Gillen, Boggs, Villareal and Banker. He was appointed to the 2nd District Court of Appeal by Gov. Bob Martinez in 1989, and served as chief judge of the court from 2003 to 2005. He is married and has two daughters.

Silberman, 57, started his own firm in Clearwater in 1988 specializing in civil litigation and contract disputes. He was appointed to the appeals court in 2001, and served as chief judge from 2011 to 2013. He is married to Judge Nelly Khouzam, who also sits on the 2nd District Court of Appeal.

Silberman and Khouzam met at least 25 years ago when both were clerking for judges at the appeals court, said Jo Haynes, the marshal of the court. They have one daughter.

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Judicial Appointments, Supreme Court Balance At Stake In Amendment Three posted on 10/15/14

by Lynn Hatter | WFSU

One constitutional amendment proposal on the November ballot could affect Florida politics and policies for decades to come, but it hasn’t gotten much attention. Still, Amendment Three could give a future governor the power to change the balance of the Florida Supreme Court.

In January of 2019 a new governor will be inaugurated. Inauguration Day is also when three new Florida Supreme Court justices will have to be named. And, according to Sen. Tom Lee (R-Brandon), it’s also the one day, when, up until inauguration—the state will technically have two governors serving. Florida’s constitution is mum on which governor—the incoming or the outgoing—will get to make the appointments, and Lee believes the issue should be settled now.

“We could end up with a major constitutional question about whether justices were seated properly by a Governor, and depending on the stakes involved with that, we could see a great deal of litigation ensue following with which a cloud is over the court in terms of their work product," Lee said earlier this year explaining a then-bill that lays out a plan for addressing the situation.

That bill is now Amendment Three, and Lee’s take on it is this: since the process for nominating new justices will start under the old governor, it should be the old governor who gets to make the appointment.

“We don’t know who we’re talking about. If we do this in 2016, when this is right over the horizon, there will be a lot of political discussion going on in this process based on judicial philosophy about who this benefits and who it doesn’t. And I think this is the purest time for us to think about good governance, and not politics," he said.

But this is Florida, and the politics of the issue aren’t being ignored. League of Women Voters of Florida Executive Director Jessica Lowe-Minor, says Amendment Three could give the next governor an unprecedented amount of power and influence over the Florida Supreme Court.

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