Thursday gave us opinions from the First DCA, including a dissent from Judge Makar. The Florida Supreme Court also released opinions. No death penalty cases on Thursday, although the court released two death penalty opinions on Friday, denying relief under Hitchcock.
Time to rethink precedent on intent to sell?
In McFarlane v. State, at the Second DCA, Judge Lucas wrote separately to describe how the law on “criminal intent to sell” has “become overly didactic–perhaps to the point that it is becoming unsustainable.” His beef? Case law has evolved to now require that “having a large quantity of drugs, associated paraphernalia, scales, rolls of cash, and so forth” be in evidence as a prerequisite to proving intent to sell.
This, to Judge Lucas, improperly applies the circumstantial evidence rule to one element of a crime, contrary to the 2016 Florida Supreme Court decision in Knight v. State. (The circumstantial evidence rule: if the evidence of guilt is only circumstantial (i.e, not direct, like a confession, eyewitness account, etc.), then the State’s circumstantial evidence must exclude every reasonable hypothesis of innocence.) In that case, the court clarified that the circumstantial evidence rule applies to the whole crime, “not where any particular element of a crime is demonstrated by circumstantial evidence.”
Judge Lucas traces the origin of the intent-to-sell cases to the application of the circumstantial evidence rule, and argues that it should be rethought in light of Knight: “Since the element in question is one that often turns on circumstantial evidence, it may be time to reconsider our decisions in Phillips, Jackson, and Williams, to the extent that their underpinning is an erroneous element-centric application of the circumstantial evidence rule.” And with a nod to the future: “Hopefully an occasion arises where we can thoughtfully reassess them.”
Statutory interpretation and agency deference–in the same opinion!
At the Fourth DCA, Judge Levine wrote a specially concurring opinion in Whynes v. American Security Insurance Co., joined by Judge Klingensmith, to register his agreement with Justice Lawson’s separate opinion in Schoeff v. R.J. Reynolds, regarding statutory interpretation (“[o]nly after reviewing the text should we look, if needed, to ‘legislative intent.'”), and to take a shot at the appellant’s argument that the court should defer to the Florida Department of Financial Services’ interpretation of the statute at hand.
Judge Levine quotes a law review article by Justice Scalia from 1989, a concurring opinion from Justice Gorsuch when he was on the Tenth Circuit, and Judge Shepherd’s scholarly opinion last year in Pedraza v. Reemployment Assistance Appeals, among other sources.
What’s the issue? The delegation of judicial power to an administrative agency through acquiescence and deference. Many perceive this as a particular problem when the legislative branch grants rule-making power to the same entity, which is also charged with enforcing and administering the law. The result is an entity with the powers of all three branches of government, and that entity is not directly responsible to the people because the folks writing, enforcing, interpreting, and adjudicating are unelected. Nor are they amenable to the chief executive, in the case of so-called independent agencies. The concern is the de facto rise of a powerful new branch of government that strikes some as inconsistent with a representative democracy and judicial review.
Although it is not new (Justice Jackson called agencies “a veritable fourth branch of government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking,” saying they are “probably . . . the most significant legal trend of the last century” back in 1952), this has been a trendy topic at the federal level. One of the issues at Justice Gorsuch’s confirmation hearings concerned his views on so-called Chevron deference (i.e., deference to agency interpretation of a statute if the statute is “silent or ambiguous with respect to the specific issue”). And just this week, Justices Thomas and Gorsuch dissented from a denial of certiorari in a case that concerned deference to an agency’s interpretation of its own regulations (also known as Auer or Seminole Rock deference).
Now Judges Levine and Klingensmith join the judicial voices concerned about the separation of powers implications of deferring to an agency’s interpretation of a statute. Since the majority found there was no need to resort to an agency interpretation because the statutory language was clear, the panel did not address the question of deference in any binding way.
Today we expect opinions from the Second and Fifth DCAs, and will retweet the links @fla_ct_rev.
Note: this post was updated at 12:54pm to reflect the Florida Supreme Court’s out-of-calendar release on Friday.