The Fine Print

Charlie Crist's last act of defiance

Lost in the swirl of the holidays - and the impending arrival of Governor-elect Rick Scott - is that the outgoing governor late last Friday used his executive power for one final time in a way that goes beyond the way it has traditionally been used.

Crist essentially ordered that the state begin to offer extended jobless benefits to Floridians that had been approved by Congress and signed into law by President Barack Obama.

So why the big deal? Because until earlier in this year it was assumed that only the Florida Legislature had the power to do this. In fact, legislators the last two years have passed bills authorizing previous extensions.

But Crist back in September - and now on his way out the door - circumvented state lawmakers and did it himself.

Now to be sure, without Crist's actions, there would have been a lag between Congressional action and the state extending the benefits. Yet if one just reads the executive order that ordered the extension you can see that Crist is trying to justify his executive power, by noting "substantial injury" to Floridians and that the extension is "vital to the welfare and economic security of Floridians."

But what the executive order does not say is that there is an actual emergency that justifies his decision to issue it. Florida law gives a governor tremendous power to waive normal rules and laws, but only if there is a declared emergency. Instead Crist's executive order points out that it is his "constitutional duty" to take care that laws are faithfully executed.

It appears that neither the Florida House or Florida Senate intend to challenge the decision.

Crist's action is a reminder that one part of his legacy will be how he expanded the power of the governor.

Crist throughout his four years in office issued executive orders and used his budget-veto pen in a way that legislators contended was likely illegal. But state lawmakers failed to challenge the legality of these actions because doing so would have provoked a political backlash. Some previous examples include Crist’s use of emergency powers to extend early voting hours in 2008 and his decision to veto a two-percent pay cut for state employees in 2009.

In only one major instance - when Crist unilaterally signed a compact with the Seminole Tribe of Florida - did the Legislature follow through and actually sue the governor. The state Supreme Court sided with lawmakers and made it clear that Crist did not have the power to let the tribe sidestep existing gaming laws. This led to an impasse that was not eventually resolved until this past year.

More importantly, however, is whether or not Scott intends to use the precedent created by Crist during his four years in office.

 

Sansom case could wind up before the Supreme Court

One potential bit of fallout from the ongoing legal case involving ousted House Speaker Ray Sansom is that it could actually have an impact on Florida's existing anti-corruption laws and it could easily wind up before the state Supreme Court.

That's because there are now conflicting rulings regarding a key part of the law that Sansom was charged under - which incidentally was part of an anti-corruption bill that was an outgrowth of the 1999 task force put together by then-Gov. Jeb Bush.

Sansom was charged with official misconduct and perjury for his role in securing $6 million in the state budget for Northwest Florida State College. A grand jury found that the money was intended for an airplane hangar to benefit a developer and donor.

Circuit Judge Terry Lewis in October ruled that the statute used to charge Sansom with official misconduct was "unconstitutional as applied to the undisputed material facts of the case" and dismissed that charge against Sansom. State Attorney Willie Meggs has appealed the decision. That doesn't mean Lewis thinks the law goes too far, he just disagrees with how they law was used by state prosecutors.

In his ruling Lewis says that the budget cannot be made "false" by fraud, trickery or misrepresentation of individual legislators. Lewis also stated that the application of the law by prosecutors would make it overly broad, which was part of the reason courts had stricken portions of the law in the past.

But the Fourth District Court of Appeal - when it upheld official misconduct convictions on Sept. 30 against a Hollywood city commissioner - ruled that in that case the state only had to prove that the commissioner "misrepresented the underlying facts" included on voting conflict forms he filed.

This sets the stage then for rival interpretations of the official misconduct law eventually heading to the Supreme Court. It also means that this could throw a curveball on plans by Gov. Charlie Crist and Florida lawmakers to get serious about taking additional steps to battle corruption anytime soon.

Crist asked a statewide grand jury to look into corruption but his request has yet to be granted by the state's high court. But an ongoing court battle over how to interpret current anti-corruption laws could prompt state lawmakers - who were reluctant to adopt the 2003 bill - to delay until the high court acts.

"Historically the Legislature has been reluctant to mess with a law when there's a pending case,'' noted Mark Herron, the veteran Tallahassee attorney who handles election and ethics law cases.

Did Crist change the Supreme Court or keep the status quo?

One of Marco Rubio's recurring broadsides against Gov. Charlie Crist is that Crist has handed over the judiciary in Florida to liberal activist judges. Rubio, the former House speaker running for U.S. Senate, has said that Crist appointed the most liberal judges ever to the state Supreme Court.

He sounded a similar refrain in a recent interview with The Weekly Standard where Rubio stated that he thought the governor had "permanently swung the court in Florida to an activist majority."

The article mentions the elevation of Judge James Perry to the Supreme Court. And it's true that Perry's appointment was questioned by conservative groups at the time. Many groups such as the Florida Family Policy Council and the National Rifle Association backed another judge for the job.

Perry replaced Justice Charles Wells, who despite being appointed by the late Gov. Lawton Chiles, often voted with the conservative wing of the court. Wells gave a famous dissent in the Bush v. Gore battles during the 2000 recount.

But the conservative wing of the court was usually in the minority on many notable decisions. (One big exception was the unanimous ruling striking down the law meant to keep alive Terri Schiavo.)

And sometimes Wells himself did not side with other conservatives, such as Bush v. Holmes where the court on a 5-2 vote struck down former Gov. Jeb Bush's signature private school voucher program. It was Wells who asserted the line of questioning during oral arguments that became one of the central tenets of the final ruling that stated the voucher program violated the constitutional requirement for a uniform system of public schools.

The key question, however, is whether or not Crist's four total appointments to the court have shifted its balance or kept it right where it was.

He replaced Justice Raoul Cantero with Justice Charles Canady, a former U.S Congressman and general counsel to Gov. Bush who Bush appointed to the Second District Court of Appeal. Cantero himself was a Bush appointee who was on the losing end of that voucher case and was viewed as part of the conservative wing.

Crist tapped Judge Ricky Polston to fill the spot left by Justice Kenneth Bell,another appointee of Bush on the conservative wing. Polston had been previously appointed by Bush to the First District Court of Appeal.

This past January Crist elevated Judge Jorge Labarga to the state Supreme Court to take the spot of Justice Harry Lee Anstead. It's probably this pick that could be the most crucial since Anstead was viewed as one of the more liberal members of the court.

Another highlight of this selection is that Crist appointed Labarga instead of Frank Jimenez, a former general counsel of Bush. The decision to add Jimenez to the list of nominees created a bit of a firestorm at the time it happened.

But if it turns out that Labarga comes out with a more moderate viewpoint than Anstead then the selection of Perry may wind up doing nothing more than keeping the court in the same place. Now that could be a disappointment to some since the high court has shown a propensity to say no to both the governor and the Legislature on a whole host of subjects. (Schiavo, worker's compensation, vouchers, you name it.)

More recently this court unanimously ordered Crist to appoint a new judge to the Fifth District Court of Appeal even though Crist didn't think the list given to him had enough diversity. 

Another interesting test: A 5-2 decision by the court to deny a motion by Liberty Counsel. That group wanted the court to block a section of The Florida Bar from filing a friend-of-the-court brief in an ongoing lawsuit challenging the state's ban on gay adoption. Polston and Canady dissented from this June ruling.

The court also decided by a 4-2 margin in June to uphold a lower court ruling that struck down a law allowing petition signers to revoke their signatures. The decision cleared the way for Hometown Democracy to get its controversial proposal on comprehensive plan amendments placed on the 2010 ballot. Perry did not participate in this decision. The two dissenting votes also came from Polston and Canady.

Now if Wells, Anstead, Cantero and Bell were still on the court would the end result have been any different?