Yesterday brought opinions from the Second, Third, and Fourth DCAs. Tuesday gave us opinions from the First, and today will see the Florida Supreme Court’s regular opinions for the week.
Deciding not to decide: stand-your-ground edition
The Third DCA had a stand-your-ground case, with briefs from six amici curiae and the Florida Solicitor General, Amit Agarwal. Odds are that you’ve heard of the stand-your-ground laws in Florida. ‘Stand-your-ground’ is shorthand for Florida’s self defense statutes that grant immunity to a person using deadly force when “he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” ‘Stand-your-ground’ comes from the next sentence in section 776.012: such a person using force “does not have a duty to retreat and has the right to stand his or her ground” as long as the person isn’t “engaged in criminal activity and is in a place where he or she has a right to be.” A stand-your-ground-hearing occurs at the beginning of a criminal prosecution against someone who claims to have acted lawfully under the stand-your-ground laws.
In 2017, the Legislature amended section 776.032 to shift the burden of proof to the State in a stand-your-ground hearing. That was in response to case law that said the burden was on the defendant in such hearings.
Judge Salter wrote for a unanimous panel. But the court decided not to rule on whether the 2017 version of section 776.032 or the 2015 version (the statute in effect at the time of the alleged crime) applies, or the constitutionality of the 2017 amendment, because it wasn’t ripe for relief on writ of prohibition. That’s because the trial court didn’t actually have the hearing yet, so the Third DCA said there is no “material injury” to the defendant based upon which standard the trial court ultimately uses in deciding whether he gets immunity.
Under the new version, the State has the burden to show the defendant didn’t act in self defense when using deadly force against the victim and must do so by clear and convincing evidence. According to the Third DCA, the trial court’s ruling that the 2017 version is unconstitutional (violates separation of powers) was not enough of an injury to warrant prohibition, meaning the Third DCA didn’t have jurisdiction to rule on the merits.
In the trial court, the State argued that the 2015 version applied because that was the version in effect at the time of the crime. The judge took an extra step, deciding that the 2017 version is unconstitutional. It is not clear whether the State advanced this theory below or not. If so, it would be interesting to know whether that view is consistent throughout the executive branch. There was no veto from the Governor’s office. Obviously someone noticed this case in Tallahassee because the State’s top appellate lawyer got involved. If only we could see the briefs!
In any event, the defendant will go into the hearing with the burden of proof under the old statute because the trial judge ruled the 2017 version unconstitutional.
Then the Third DCA closed with an unusual footnote:
We appreciate the amici briefs filed by numerous non-profit associations and the University of Miami School of Law Federal Appellate Clinic. The research and legal theories advanced by the amici will not be discarded. There are presently pending numerous other SYG appellate cases, not only in this court but also in others throughout the State, relating to the June 2017 amendment, its alleged unconstitutionality (on at least two separate legal theories), and its applicability to prosecutions for crimes allegedly committed before enactment.
Apart from the gracious nod to the amici briefs, this is a somewhat puzzling message. Will the court use the “research and legal theories” in other cases where these amici didn’t file briefs? Will the Third DCA pass it on to the other courts “throughout the state”? What would that look like? Perhaps that explains the passive voice–it isn’t necessarily that the court will or will not “discard” the “research and legal theories,” but that the amici have done a service to litigants “throughout the state” that can use the briefs for guidance in other cases.
Those folks will have to go to the clerk’s office to pull the briefs because the court didn’t address these theories in the opinion and the online docket doesn’t have them available for easy public download.
Dissent in the Districts!
From Miami to Tallahassee we go. And speaking of Solicitors General, in Ash v. Campion, Judge Makar dissented in what he described as a “rancorous and affluent dissolution case” and what Judge Winsor, writing for the majority, called a “long and contentious divorce battle.” (Both Makar and Winsor served as Florida Solicitor General before joining the bench.) The issue was contempt sanctions against the former wife based on “a slew of vitriolic text and voicemail messages” (according to Judge Winsor) that “charitably, can be described as outrageous, profane, and vile,” according to Judge Makar. Judge Winsor described some of the messages as “unfit for print here.” Judge Makar revealed that one message to the former husband purported to show the couple’s son “appearing severely injured in a hospital bed at an undisclosed location,” whereas he was merely recovering from cosmetic surgery in Los Angeles, unbeknownst to former husband. No telling what the “unfit for print” messages contained.
Aside from their general agreement on adjectives, the judges disagreed on whether the lower court properly imposed a $100,000 fine on the former wife in a contempt order. Judge Winsor reasoned that this should be considered a criminal sanction that didn’t follow a proper criminal contempt proceeding. He and Judge Lewis voted to reverse.
Judge Makar pointed out some of the shenanigans surrounding the hearing, and the case. Former wife fired her lawyer on the eve of the hearing and her new lawyer showed up “mid-hearing to request a continuance.” Judge Makar focused on the fact that there was no preserved objection other than a denied motion for continuance, and that the former wife’s tactics of “dismissing her lawyers before important court proceedings and seeking continuances, four of the trial itself,” showed there was no abuse of discretion in denying the continuance. Because there was no objection, the court was reviewing for fundamental error. And Judge Makar didn’t believe the case fell into a category of fundamental error review for civil cases (lack of jurisdiction or due process); nor did he agree that the contempt order should be considered a criminal contempt order, as the majority considered it.
It’ll be interesting to see whether the case returns to the appellate level, and whether Judge Makar’s closing sentence proves prophetic:
Principles of judicial restraint, which reserve fundamental error analysis for only the truly meritorious cases, require affirmance of the contempt order, short of which flouting court orders and provoking disorderly adjudication are rewarded.
Thursday Florida Supreme Court Watch
We’ll be watching the Florida Supreme Court for its regular opinion release, and we’ll tweet when the opinions are up, @fla_ct_rev.