Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 7

(Pixabay)

2000—Nearly two years after Florida voters vote, 73% to 27%, to amend the state constitution to require that Florida’s ban on “cruel or unusual punishment” comport with U.S. Supreme Court decisions construing the Eighth Amendment, the Florida supreme court (in Armstrong v. Harris) rules, by a 4-to-3 vote, that the ballot title and summary for the amendment were defective and that the amendment is therefore invalid.

Using mixed metaphors in lieu of reasoning, the majority opinion asserts that the amendment was “flying under false colors” and “hiding the ball.” You see, a portion of the ballot title (“United States Supreme Court interpretation of cruel and unusual punishment”) and a sentence in the summary (“Requires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment”) “imply that the amendment will promote the rights of Florida citizens through the rulings of the United States Supreme Court,” but the amendment “effectively strikes the state Clause from the constitutional scheme.” (Huh?? The ballot title and summary provide a far more accurate description of the amendment than the majority does.) And, the majority continues, the ballot summary supposedly never “mentioned—or even hinted at” the fact that the amendment would apply to “all criminal punishments, not just the death penalty.” (Gee, isn’t that exactly what the general language of the summary sentence quoted above means?)

2016—State superior court judge Thomas Moukawsher appoints himself czar of Connecticut’s public schools.

As this Hartford Courant article reports, Moukawsher “ordered the state to come up with a new funding formula for public schools”; “directed the state to devise clear standards for both the elementary and high school levels, including developing a graduation test”; “ordered a complete overhaul of Connecticut’s system of evaluating teachers, principals and superintendents”; and “demanded a change in the ‘irrational’ way the state funds special education services.”

Further: “Moukawsher’s mandates come with a tight deadline: The remedies he is ordering must be submitted to the court within 180 days.”

As the reporter observes, “It is unclear how the state Department of Education, the legislature and Gov. Dannel P. Malloy will come up with solutions, within six months, to complicated problems that have plagued public education in Connecticut for decades.” Yes, indeed.

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