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first_img February 15, 2004 Gary Blankenship Senior Editor Regular News House Committees question procedural rules Senior Editor Two Florida House committees last month heard a report that suggested Florida courts have been undermining legislative authority through procedural rules and jury instructions.The claims made at a January 22 joint meeting of the House Judiciary Committee and the Public Safety and Crime Prevention Committee left court system officials, both at the meeting and contacted afterwards, surprised.They said legislative officials may not completely understand the process of creating procedural rules and jury instructions.The one-hour meeting was entirely devoted to a presentation by David Delapaz, staff director for the Public Safety and Crime Prevention Committee, and it was announced that the two committees would take no other testimony.Delapaz listed several examples that he said showed the courts had thwarted or undermined the intent of laws passed by the legislature.In one example, he noted the legislature had repealed the law on using legal intoxication as a defense in a criminal case, but the jury instruction was still in place. That meant, Delapaz said, it could still be used as a defense, adding, “If jury instructions do not instruct the jury to the law as written, then it is not the law that is being applied.”But Second Circuit Public Defender Nancy Daniels, president of the Florida Public Defender Association, said it is irrelevant that the instruction remains. “The jury instruction is there, but we’re not using it,” she said. “We’re aware it’s not a defense any more.”Fourteenth Circuit Judge Dedee Costello, chair of the Supreme Court’s Standard Jury Instructions in Criminal Cases (who was not at the meeting), agreed with Daniels that the instruction is not used in current cases. She said it was originally left in the jury instructions after the law was repealed because there were still old cases to which it would apply.The provision will likely be removed at the next review of the jury instructions, Costello said.Delapaz told the two committees that under the Florida Constitution, the legislature is in charge of substantive law issues, while the Supreme Court oversees procedural rules, although those rules can be repealed by a two-thirds vote of both the House and Senate.“Substantive law is the rights of citizens relating to life, liberty, and property,” Delapaz said. “Procedural is the way the courts operate.”Under the name of procedural rules, the courts have infringed on substantive law several times, he said, including:• A recent juvenile rule (Rule 8.350) approved by the Supreme Court that gave juveniles in foster care the right to consult with an attorney if the Department of Children and Families wanted to commit them to a mental institution and the child objected. Delapaz said the legislature did not create that right to counsel, did not appropriate money to pay for such attorneys, and there was no statutory authority to appoint such attorneys. “This is a decision where the rule was simply implemented on policy reasons,” he said.Delapaz also said the court improperly said that funding approved by the legislature for F.S. Chap. 39 uses in the guardian ad litem program could be used for those attorneys, thereby improperly appropriating funds.• The Supreme Court is considering a rule that in death penalty cases would provide a pretrial determination of whether the defendant is mentally retarded. Under a recent state law and U.S. Supreme Court ruling, mentally retarded inmates cannot be executed. But Delapaz said the state law provides for the determination of mental retardation after conviction and after the death penalty is imposed. The proposed rule would subvert the legislature’s intent by providing for that determination before the trial. The state law also requires that mental retardation be shown by clear and convincing evidence, while the proposed rule sets the standard at the lower standard of preponderance of the evidence.• No jury instruction has been created for the crime of attempted first degree felony murder, even though the legislature passed that law in 1998.• The Supreme Court has lifted the statutorily set October 1, 2003, deadline for filing appeals seeking DNA testing in old criminal cases. The court had received a petition from the Rules of Criminal Procedure Committee seeking a one-year extension of the October 1 deadline, which the court had also adopted in the criminal rules.• The Supreme Court in 2000 overturned the Death Penalty Reform Act where the legislature imposed a statute of limitations on post conviction motions and imposed a time bar on late collateral attack. The law also repealed conflicting procedural rules. The court’s action, Delapaz said, showed that “even though you can repeal a rule of procedure, the court can within a very short period of time put the rule back in the books.”The two committees took no action on Delapaz’s report, although Judiciary Committee Chair Jeff Kottkamp, R- Cape Coral, observed, “This is something that is good for us to look at.. . . We will review this and ensure there is the proper balance between the branches of government.”Those involved in writing rules and jury instructions said Delapaz may have oversimplified a highly complex process, and they disagreed with his assessment that the process is not deferential to legislative wishes.“Our committee has taken a pretty strong stance that we are procedural in nature and we will not become involved in substantive issues,” said 10th Circuit Judge Olin Shinholser, chair of the Criminal Procedure Rules Committee.“I would suggest our committee has not attempted to subvert the legislature or even take positions on substantive issues,” he said. “We don’t view that as our right or our charge. We make recommendations and petition the Supreme Court to make procedural rules changes. Sometimes they follow our advice and sometimes they don’t. Sometimes they ask us to look at issues and sometimes we disagree with them.”Judge Costello said the problems cited by Delapaz might just be the byproduct of the complex and large task of keeping procedural rules and jury instructions up to date with myriad changes made annually by lawmakers.“We certainly don’t have a concerted effort to ignore them,” Costello said.“There are many, many laws and a few problems will arise.”Shinholser said much of the disagreement comes over what is substantive and what is procedural.From the committee’s perspective, it is bound by the guidelines set out by the Supreme Court in Allen V. Butterworth, 756 So.2d 52 (Fla. 2000), the decision where the court overturned much of the Death Penalty Reform Act. (See sidebar.)Here’s how officials involved in rule and jury instruction committees responded to Delapaz’s specific examples:• On the DNA rule, Shinholser said, “There are some who view it as being substantive, some who view it as procedural. Our committee took the decision based on Allen v. Butterworth that it’s procedural. We just requested a one-year extension.” Officials also noted that Attorney General Charlie Crist did not oppose the extension request or suspending the filing deadline.• On the mental retardation rule in death penalty cases, Shinholser said the court proposed that rule on its own, and the committee has taken no position. He added, though, that like the DNA rule no final action has been taken so it’s not clear if the final rule will ruffle legislative feathers.• On Juvenile Rule 8.350, Deborah Schroth, a member of the Juvenile Court Rules Committee, said the rule came from nearly three years of study and debate and reconsideration between the committee and the Supreme Court. She also disagreed with Delapaz over whether the rule is procedural or substantive.The rule stemmed from a case where a child was contesting DCF’s recommendation that the child be committed to a psychiatric facility.“The child was facing psychiatric commitment with no previous hearing,” Schroth said. “The court directed the committee to come up with a procedural rule to handle those cases.. . . To the extent that the court has the inherent authority to appoint counsel for children in any case, this rule does not create any new substantive rights. It’s just creating a procedure for the court to determine when to exercise that authority, and it’s when the child objects.”Nor did the court unconstitutionally appropriate funds. Courts, she said, have the inherent authority to appoint pro bono counsel for children, and the committee and the Public Interest Law Section argued there were sufficient volunteer lawyers to handle the cases. “The courts can’t obligate the state to pay, but the courts always have the authority to find a pro bono attorney for the child,” Schroth said.In addition, before the rule was passed, the legislature had created a fund to pay for lawyers for children in cases where the court thought it was necessary. The Supreme Court merely said those funds could be used in Rule 8.350 cases, she said.• On the attempted first degree felony murder law, Judge Costello said both the committee and the courts have trouble because of a contradiction of terms. Felony murder is defined as when a death occurs during the commission of a crime, but when the death was not intended or premeditated. So, she said, the problem is charging someone with attempted murder when there was no specific intent to kill, and no one died.Officials involved with rules and jury instructions noted that during the two-year rule cycles and the periodic jury reviews, hundreds of changes are made to keep up with changes in both state law and case law. They said some friction and misunderstandings might be inevitable.“Obviously it can become a significant emotional political issue when the courts and the legislature butt heads on a particular issue,” Shinholser said.“Some of the folks in the legislature take offense when the courts declare something to be procedural that they consider to be substantive. Reasonable people can disagree. I don’t think we in the courts should become hostile or adversarial to the legislature.” House Committees question procedural ruleslast_img read more


first_imgMidfielder Aaron Ramsey has backed Arsenal to bounce back from their Manchester City mauling. The Gunners remained top after their 6-3 loss at the Etihad, but they head into the weekend knowing if results go against them they could be as low as fourth should they lose to Chelsea on Monday. Ramsey feels the defeat has done no permanent damage though. “I don’t think it has shaken us,” the 22-year-old told the Daily Mail. “To concede that many goals was disappointing for the team, especially when we’ve defended so well this season. We still created a lot of opportunities and we could have had six goals as well. “We’re also still top of the league, and therefore in a great position. “We’ve dropped a few points in the past couple of games and we are still top, and that just shows what a good start we’ve had. Hopefully we’ll learn from this little blip and put it right as soon as possible.” center_img Press Associationlast_img read more