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Prompted by a court ruling that gave convicted felons more time to seek DNA testing, Republican legislative leaders in Florida are pushing for a constitutional amendment that would shift the power to write judicial rules of procedure from the state Supreme Court to the Legislature. The proposed amendment is the latest battle between the Republican-controlled Legislature and the Florida Supreme Court, a majority of which are Democrat-appointed justices. Gov. Jeb Bush and GOP legislative leaders have accused the courts of being too liberal and not properly deferring to the executive and legislative branches. But many judges, Florida Bar leaders, and court officials say the Republicans don’t understand or accept the constitutional provision for an independent and co-equal judicial branch. Miles A. McGrane III, president of the Florida Bar, which strongly opposes the proposed amendment, said the state has had a good process in place for the past 30 years to create court procedures. He also noted that the Legislature already has the power to repeal a court rule by a two-thirds vote in both chambers. “It strikes at the fundamental nature of the court system to have the Legislature writing the courts’ procedural rules,” McGrane warned. “To change the whole process would absolutely destroy the separation of powers in Florida.” The proposed amendment, sponsored by state Rep. Gus Barreiro, R-Miami Beach, Fla., and state Sen. Anna P. Cowin, R-Leesburg, Fla., would ask Florida voters in November to amend Section 2 of Article V of the state constitution and give the Legislature rule-making authority for the courts. Neither sponsor returned calls for comment. Gov. Bush’s office also did not respond to requests for comment. Earlier this month, the House Committee on Public Safety and Crime Prevention, which is chaired by Barreiro, passed the measure 13-6. The vote was strictly along party lines, according to David Delapaz, the committee’s staff director. In a related development, House members are balking at a bipartisan proposal in the Senate to extend the DNA testing deadline by two years for about 700 convicted Florida felons who seek to prove their innocence. No House members of either party have agreed to sponsor the bill, which is being spearheaded by state Sen. Alex J. Villalobos, R-Miami. The measure would extend the DNA testing deadline to Oct. 1, 2005, to ensure that nearly all requests for testing can be evaluated. In 2001, in the wake of several high-profile exonerations of convicts in Florida and around the country based on DNA evidence, the Legislature and the Florida Supreme Court gave felons convicted before Oct. 1, 2001, a two-year window — until Oct. 1, 2003 — to petition for DNA testing in an effort to clear themselves. Anyone convicted after that date gets two years from the date of the conviction. In late September, the Supreme Court, in a 4-3 ruling, indefinitely suspended the statutory deadline. It currently is considering extending the deadline under its constitutional authority to establish procedural rules. In response to that ruling, GOP legislative leaders are seeking to strip the justices of their rule-making authority. WHO WILL WRITE RULES? The proposed constitutional amendment is the latest conflict in the ongoing tension between state Republican leaders and the courts. The Supreme Court’s rule-making authority has been a particular target of Gov. Bush and the Republicans, who in 2000 passed a law to speed up death penalty appeals. They were infuriated when the high court subsequently overturned the law on the grounds that it intruded on the judiciary’s rule-making authority. Under Article V, Section 2 of the constitution, the Supreme Court has the sole authority to enact procedural laws while the Legislature enacts substantive laws. In 2000, the Supreme Court distinguished procedural law from substantive by saying that procedural law is the “machinery of the judicial process as opposed to the product thereof.” Procedural law is “all the rules governing the parties, their counsel and the court throughout the progress of the case from the time of its initiation until final judgment and its execution,” the court said. While some experts consider the rules governing post-sentencing DNA testing to be procedural and therefore within the authority of the Supreme Court, others see them as substantive and within the authority of the Legislature. The proposed constitutional amendment would move procedural rule-making to a “judicial conference.” The rules of “practice and procedure proposed by the judicial conference shall be transmitted to the Legislature for consideration. The Legislature may amend, adopt or reject such rules by general law.” The bill does not specify who or how many people would make up the so-called judicial conference. The effort to strip the court of its rule-making authority only came to light in the past few weeks, said the Bar’s McGrane. He noted that the current system of court rule-making has been in place for three decades and has worked well. He explained that 525 lawyers and judges volunteer to serve on a number of rules committees considering various areas of law. Recommendations from the rules committees are voted on by the board of governors of the Florida Bar — an official arm of the Supreme Court — then go to the Supreme Court for review and approval. “It is an open and laborious process that has been in existence for 30 years,” McGrane said. “We think it is a good, fair, balanced process. The Legislature is ill-equipped to do what we are doing.” On Thursday, McGrane was in Tallahassee, Fla., to meet with Rep. Barreiro and lawmakers about the proposed amendment. He said it has now become his primary concern, along with adequate funding of the courts under the new state financing system, which takes effect July 1. McGrane said Barreiro explained to him that the proposal was triggered by his unhappiness over the Supreme Court suspending the DNA-testing deadline last fall. “He said he felt that court overstepped its bounds,” McGrane said. In an effort to reach a solution, McGrane said he suggested allowing the House speaker and Senate president to each appoint one person to each Florida Bar rule-making committee. Barreiro said he would consider it and respond with a letter to McGrane outlining his thoughts. “We had an opportunity to air our concerns,” said McGrane, a Republican who’s close to GOP leaders. “I feel confident we will come up with something to satisfy the Legislature that is also acceptable to the court and Bar.” But McGrane said that he also told Barreiro that “if you go forward with this, I will have to go toe-to-toe with you because it is a core issue.” Other experts contacted about the proposed constitutional amendment were equally critical, saying that it would undermine the independence of the judiciary. “Does the Legislature tell the governor how he or she should proceed?” asked former Florida Supreme Court Justice Gerald Kogan. “Does the governor tell the Legislature what its rules should be? No, they don’t. The state Legislature, which is in the least knowledgeable position, shouldn’t do it for the courts.” PROCEDURAL OR SUBSTANTIVE? The issue of DNA testing prompted a struggle between Republican legislative leaders and the Supreme Court in 2001. That year, the Supreme Court adopted Rule 3.853 of the Rules of Criminal Procedure, which established the way in which an inmate can request post-conviction DNA testing. But the Legislature enacted Section 925.11 of the Florida Statutes, which also governs post-conviction DNA testing. The debate over which DNA testing rule should be considered the law became so prickly that then-House Speaker Tom Feeney, R-Oviedo, Fla., took the unusual step of submitting a brief to the Supreme Court. In a letter to the Miami Herald, he asserted that DNA testing is substantive law and that the Supreme Court does “not have the power to order the state to provide services to convicts when the constitution does not require it.” “If the Supreme Court of Florida cannot keep this simple aspect of the separation of powers straight, I, as a speaker of the House, have a duty to assist them,” wrote Feeney, who’s now an Orlando, Fla.,-area congressman. To avoid a constitutional fight, the Supreme Court crafted its rule in line with the Legislature. Both measures required that petitions for post-conviction DNA testing be filed within two years after a conviction becomes final or by Oct. 1, 2003, which is later. But as the deadline drew near last fall, it became clear that hundreds of requests for DNA testing would not be evaluated by the deadline. So the criminal procedure rules committee of the Florida Bar and the New York City-based Innocence Project urged that the deadline be extended. The Innocence Project has offices in Tallahassee and Fort Lauderdale, Fla. Both groups filed emergency petitions with the high court. The petitions asked for at least a one-year extension and an order requiring state law enforcement agencies to preserve physical evidence for DNA testing. On the eve of the deadline, the Supreme Court, by a 4-3 vote, suspended Rule 3.853 of the Rules of Criminal Procedure and held in abeyance Section 925.11 of the Florida Statutes. The court said it was ordering the suspension of the deadline until it could more fully consider the issue. The majority consisted of Chief Justice Harry Lee Anstead and Justices R. Fred Lewis, Peggy A. Quince and Barbara J. Pariente. In a dissent joined by Justices Raoul G. Cantero III and Kenneth B. Bell, Justice Charles T. Wells argued that the Supreme Court had no authority to suspend a statutory provision enacted by the Legislature. “This court does not have jurisdiction to ‘suspend’ a provision of a lawfully enacted statute or to mandate that evidence which described in the statute be maintained beyond the period that statute specifically states that the evidence is to be maintained,” Wells wrote. Last November, the justices heard arguments about the deadline and whether it should be extended, but the court has yet issued a ruling. UNFOUNDED CONFIDENCE After the Supreme Court decision to suspend the deadline, Sen. Villalobos expressed confidence that the Legislature would extend the DNA testing deadline. In December, Villalobos’ bill to extend the deadline for how long unanimously passed the Senate Judiciary Committee. Jenny Greenberg, director of the Florida Innocence Project in Tallahassee, said that Villalobos, who did not return calls for comment for this article, requested that House Judiciary Committee Chair Rep. Jeffrey D. Kottkamp, R-Cape Coral, Fla., sponsor a companion bill in the House. But Kottkamp declined, as did other House members, Greenberg said. Kottkamp did not return calls by deadline. Greenberg said her group assumed that with the strong Senate support, the testing extension wouldn’t face any major problems. So it wasn’t particularly concerned about the lack of a House sponsor until recently. “We didn’t know we were in such a crisis until a couple of days before the deadline for a House sponsor,” she said, admitting her group’s legislative inexperience. State Rep. Dan Gelber, D-Miami Beach, said he was approached at the last minute about sponsoring the legislation, but he had already sponsored the maximum number of bills allowed under House rules. Greenberg said she’s hopeful about winning passage of the DNA testing extension. “I am optimistic that by some vehicle, which is unclear at present, the citizens of the state of Florida won’t allow innocent people who can prove their innocence with a simple test to not sit for that test,” Greenberg said.

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