Florida Attorney General Pam Bondi is asking the Florida Supreme Court to reject a petition asking that portions of a new law intended to speed up death penalty appeals be declared unconstitutional.
A coalition of Capital Collateral Regional Counsel and private appellate attorneys united in a petition filed June 26, asking the court invoke its all-writs jurisdiction just days before the law was to take effect July 1. It also asked for an injunction, barring enforcement of the law until it gets judicial review.
In Bondi's response, the attorney general's office argued the court should not invoke jurisdiction because there is no immediate emergency.
Dozens of death row inmates named as "petitioners do not allege that any tribunal is about to act in excess of its jurisdiction, as necessary for this court's consideration of a petition for writ of prohibition," Senior Assistant Attorney General Carol M. Dittmar wrote in Bondi's defense.
The petition named 167 of the 405 inmates on death row. Since the original filing, several others have asked to be included in the lawsuit.
Dittmar argued there is no need to go outside the standard procedure for reviewing inmate appeals on a case-by-case basis for a constitutional test of the new law.
The state also argues the prisoners mistakenly presume the Timely Justice Act of 2013 is virtually identical to the Death Penalty Reform Act of 2000, which the court struck down in Allen v. Butterworth. Dittmar agreed the Allen ruling was appropriate because the 2000 law drastically changed capital post-conviction procedures.
"The Timely Justice Act … does not address post-conviction litigation in any respect or bring any changes to the death penalty cases," Dittmar wrote.
Provisions being challenged now "only modify" the law on issuing death warrants, attorney qualifications and the extent to which Capital Collateral Regional Counsel must disclose conflicts of interest, she said.
The law was intended to be a comprehensive overhaul of Florida's approach to death appeals. It imposes new restrictions on how much time inmates facing capital punishment have to submit their post-conviction appeals. The law also imposes new reporting requirements on the Supreme Court and its clerk and obligates the governor to follow new deadlines for the issuance of death warrants.
An attorney who is found by a court to have rendered ineffective counsel twice would be suspended for five years from handling death penalty cases. Also, CCRC attorneys asking to withdraw from a case because of a conflict of interest would have to go through a hearing and specify the conflict.
The petitioners claim these changes infringe on the Supreme Court's rulemaking authority and its authority over its clerk and on the governor's power to determine the appropriate time to issue a death warrant.
In all these situations, Dittmar argued the law is constitutional and therefore the petitioners claims are without substance.
On the issuance of death warrants, Dittmar said the law only provides the Supreme Court clerk notify the governor when a capital defendant completes state and federal post-conviction review and that a death warrant should be issued within 30 days of that certification "if the executive clemency process has concluded."
Dittmar emphasized in Thursday's filing that the governor controls the clemency process, which typically does not begin until after other post-conviction appeals have ended.
On the question of infringing on the court's authority over its clerk, Dittmar said the Constitution does not give the justices exclusive authority over the clerk, and there is precedent for the Legislature mandating ministerial duties to the Supreme Court clerk. In addition, "there is no time frame in which the clerk is required to act and no enforcement provision if the clerk fails to act," she wrote.
The inmates argue the changes deny their due process. Dittmar said the petitioners incorrectly presume the law stops all litigation when a death warrant is signed.
"There is absolutely no prohibition or limitation contained in the act on successive litigation, either prior to or immediately following the signing of a death warrant," she said.
On the issue of suspension of attorneys, Dittmar said this is not a disciplinary act that would infringe on the court's authority over legal ethics.
"This claim must fail because the relevant provision … is simply a means of ensuring the capital defendants will be adequately represented," Dittmar wrote. "Any attorney found to have provided ineffective assistance … may still practice criminal law and is not required to complete any remedial measures."
Finally, Dittmar said the requirement that CCRC attorneys explain the cause of conflicts did not infringe on The Florida Bar's authority. She noted the history of public defenders' use of conflict of interest to withdraw from cases.
"There was a time when Florida law granted the elected public defenders the exclusive determination as to whether a potential conflict of interest in a particular case required appointment of new counsel," she said. But the Legislature changed the law in 2003 and required trial court review.
The Supreme Court has given lawyers for the inmates until Monday to reply to the attorney general's filing. No date has been set for oral argument.
A friend of the court brief has been filed by the Florida committee of the American College of Trial Lawyers supporting the inmates.
The brief states some innocent prisoners have not been exonerated until many years pass, and review of the law is necessary to ensure enforcement of the death penalty is consistent with the state and federal constitutions.
"Review is further crucial to assure that this legislative attempt to speed up the process of executions does not have some unintended consequences, such as discouraging participation by fellows of the American College of Trial Lawyers and other lawyers as pro bono counsel," Sylvia Walbolt of Carlton Fields in Tampa for the committee.