Florida Update

Back in April I wrote about three liberal Florida Supreme Court justices who face retention elections this November. At the time, they were under scrutiny for using state employees to carry out campaign activity. Since then, the campaign against them has gained considerable momentum.

Last week the Florida GOP announced that its board had unanimously voted to oppose the justices, joining a growing coalition that includes Americans for Prosperity and the Florida-based grassroots organization Restore Justice 2012. All three of the justices have demonstrated a liberal judicial philosophy, and their opponents have a litany of cases (see here and here) to prove it.  

But the case that is receiving the most attention, Nixon v. Florida, involves very ugly facts that could appeal to Floridians of all political persuasions.  As Justice Ginsburg recounted when the case was before the U.S. Supreme Court:

Questioned by the police, Nixon described in graphic detail how he had kidnaped Bickner, then killed her. He recounted that he had approached Bickner, a stranger, in a mall, and asked her to help him jump-start his car. 5 id.,at 919—921. Bickner offered Nixon a ride home in her 1973 MG sports car. Id., at 922. Once on the road, Nixon directed Bickner to drive to a remote place; en route, he overpowered her and stopped the car. Id., at 924, 926—927. Nixon next put Bickner in the MG’s trunk, drove into a wooded area, removed Bickner from the car, and tied her to a tree with jumper cables. Id., at 930—931. Bickner pleaded with Nixon to release her, offering him money in exchange. Id., at 928. Concerned that Bickner might identify him, Nixon decided to kill her. Id., at 929. He set fire to Bickner’s personal belongings and ignited her with burning objects. Id., at 934—935. Nixon drove away in the MG, and later told his brother and girlfriend what he had done. Id., at 938, 961. He burned the MG on Tuesday, August 14, after reading in the newspaper that Bickner’s body had been discovered. Id., at 963, 982.

The State gathered overwhelming evidence establishing that Nixon had committed the murder in the manner he described. A witness saw Nixon approach Bickner in the mall’s parking lot on August 12, and observed Bickner taking jumper cables out of the trunk of her car and giving them to Nixon. 13id., at 2447—2448, 2450. Several witnesses told police they saw Nixon driving around in the MG in the hours and days following Bickner’s death. See id., at 2456, 2487—2488; 2498; 2509. Nixon’s palm print was found on the trunk of the car. Id., at 2548—2549. Nixon’s girlfriend, Wanda Robinson, and his brother, John Nixon, both stated that Nixon told them he had killed someone and showed them two rings later identified as Bickner’s. 5 id., at 971, 987; 13 id., at 2565. According to Nixon’s brother, Nixon pawned the rings, 5 id., at 986, and attempted to sell the car, id., at 973. At a local pawnshop, police recovered the rings and a receipt for them bearing Nixon’s driver’s license number; the pawnshop owner identified Nixon as the person who sold the rings to him. 13id., at 2568—2569.

Nixon’s attorney did not contest his client’s guilt, believing that was the best way to avoid the death penalty. The jury recommended the death penalty anyway. On appeal, the Florida Supreme Court reversed the conviction on the basis that the lawyer’s strategy amounted to ineffective assistance of counsel. The U.S. Supreme Court unanimously reversed the Florida Supreme Court’s decision; according to Justice Ginsburg, who wrote the opinion, “The Florida Supreme Court’s erroneous equation of Corin’s concession strategy to a guilty plea led it to apply the wrong standard in determining whether counsel’s performance ranked as ineffective assistance.”

Three other cases stand out:

First, in Bush v. Holmes, the Florida Supreme Court struck down then-governor Jeb Bush’s school voucher program on the basis that it violated the “constitutional mandate for a uniform system of free public schools.” In other words, the Court thought that vouchers hurt public schools, and used the “uniform” requirement to constitutionalize that policy perspective. Never mind that Florida’s elected officials had reached the opposite conclusion, or that the court’s interpretation was a distortion of the text and original meaning of that particular constitutional provision.

Second, the Court has also undermined Floridians’ private-property rights.  In SJRWMD v. Koontz, the Court found that the government did not have to compensate private-property owners ”when government regulations or actions reduce the value of someone’s property by making it impossible for people to develop their land.”  

Third, in Florida Department of State v. Mona Mangat, the Court removed the state’s Healthcare Freedom Amendment from the 2010 ballot, arguing that the ballot summary was misleading. Here, the Court dismissed its own precedent (ACLU v. Hood, 2004), which allowed for printing the amendment’s text on the ballot, instead of nullifying the proposed amendment altogether.

In each of these cases, the justices allowed their personal political preferences to override their obligations to fairly and impartially apply the law.  And since Florida is a Missouri Plan state, there is little that governors or other elected officials have been able to do to correct the course of their state’s highest court. I hope that changes in November, when voters will finally have their say.  

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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