By Dwight Slater and Jacek Stramski

On Wednesday, June 26, 2013, nearly 200 of Florida’s death-row inmates (“Petitioners”) filed an emergency petition asking the Court to declare certain provisions of the Timely Justice Act of 2013, Ch. 2013-216, Laws of Fla. (“the Act”) unconstitutional and to enter a temporary injunction halting its implementation, which was set to begin after July 1, 2013. Petitioners urge the Court to find that the Legislature’s latest foray into the laws that govern the issuance of death warrants, the provision of counsel to persons facing the death penalty, and the production of public records in postconviction proceedings violate the federal and state constitutions in several ways.

Warrant-Issuance Provision

Previously, upon entry of a death sentence, section 922.052(1), Florida Statutes, required only that the sheriff send a certified copy of the conviction and sentence record to the Governor, and provided that the sentence could not be carried out until the Governor decided to issue a warrant directing its execution. The Act changed these responsibilities and imposed new ones. See, generally, Ch. 2013-216, § 12, Laws of Fla. As amended, section 922.052 now directs the sheriff to send a copy of the record to the Clerk of the Florida Supreme Court in addition to the copy sent to the Governor. See id. It then directs the Clerk to provide the Governor written certification notifying the Governor of the conclusion of a defendant’s “direct appeal and initial postconviction proceeding in state court, and habeas corpus proceeding and appeal therefrom in federal court,” or when a defendant has allowed the time permitted for filing a habeas corpus petition to expire. Id.

Additionally, if the Governor has already completed the executive clemency process when he or she receives the certification from the Clerk, the Governor must issue a warrant within 30 days and the warrant must schedule the execution within 180 days. Id. The Act also provides that “if in the Governor’s sole discretion,” the clerk has not complied with the new directives, the Governor can go ahead and sign the warrant. Id.

Petitioners claim that the amendment violates the separation of powers doctrine by infringing on the constitutional authority of the Court. See, generally, Petition at 33-62. Specifically, they argue that the new law infringes on the Court’s exclusive authority “to adopt rules for the practice and procedure of all courts” by setting unconditional, fixed deadlines triggered by completion of a defendant’s initial proceedings. Art. V, § 2(a), Fla. Const.; Petition at 33-42. The recognition of what the Legislature deems initial, Petitioners argue, necessarily rejects or completely ignores the existence of successive postconviction motions. Petition at 33-42. Moreover, Petitioners posit, the amendment could interfere with or even cut off some federal litigation like review of successive post-conviction motions and certain federal claims that are not ripe until a death warrant is issued. Petition at 47-52.

Petitioners further argue that the new provision infringes on the Court’s authority by undermining, displacing or conflicting with the Court’s precedent and rules. See, generally, Petition at 42-53. As noted by Petitioners in the Court’s own words: “It is a well-established principle that a statute which purports to create or modify a procedural rule of the court is constitutionally infirm,” Petition at 42 (citing State v. Raymond, 906 So.2d 1045, 1048 (Fla. 2005). Petitioners liken the amended warrant-issuance provision to the indigency rules the Court struck down in Jackson v. Dep’t of Corrs., 790 So.2d 381 (Fla. 2000). Petitioners contend that Florida Rules of Criminal Procedure 3.851(d)(2) and (e)(2) permit defendants to file successive motions beyond the rule’s deadline and the amended warrant-issuance provision “adds new procedures to the ones already in the rule [which] conflict with it.” Petition at 43 (citing Jackson, 790 So. 2d at 384). Thus, just as the Court held in Jackson, Petitioners argue that the Legislature has unconstitutionally encroached into matters within the province of the Court.

Petitioners also argue that the certification portion of the warrant-issuance provision infringes on the Court’s constitutional authority to oversee and direct its clerk. Petition at 53-57. Article V, § 3(c), Fla. Const., provides that the Supreme Court’s clerk shall “hold office during the pleasure of the court and perform such duties as the court directs.” Petitioners argue that directing the clerk to send the certification to the Governor, along with granting the Governor sole discretion to determine whether the Clerk has complied with the certification requirements, are simultaneously an attempt by the Legislature to direct and control a judicial officer and an attempt to subject a judicial officer to the oversight of the Governor, in direct violation of the Court’s constitutional authority.

Another separation-of-powers concern is implicated, according to the Petitioners, by the Act limiting the Governor’s power to issue warrants to instances where the Clerk issues a certification or where the Clerk is determined to have failed to follow the requirement to issue a certification, and by prescribing a timeframe within which such warrants must be issued. Petition at 57-62. Petitioners argue that this requirement is inconsistent with the discretion afforded to the Governor to sign death warrants under the Governor’s constitutional clemency powers. See Petition at 60 (citing Carroll v. State, SC13-738, 2013 WL 1976326, *5 (Fla. May 15, 2013) (“[t]he clemency process in Florida derives solely from the Florida Constitution and we have recognized that the people of the State of Florida have vested sole, unrestricted, unlimited discretion exclusively in the executive in exercising this act of grace.”) (internal quotations and citations omitted)).

Due Process/Equal Protection/Cruel and Unusual Punishment

Petitioners also challenge the warrant-issuance provision on the grounds that it runs afoul of the constitutional guarantees of due process and equal protection. The equal protection concerns stem from the limits on post-conviction proceedings that apply to defendants convicted of capital offenses, but not to defendants convicted of non-capital offenses, and from the fact that defendants whose initial proceedings were completed prior to the effective date of the Act had the ability to raise successive motions under rule 3.851 “unencumbered by [the Act’s] time restraints” Petition at 68.

The Petitioners also assert that certain drafting ambiguities and inconsistencies create due process problems. See, generally, Petition at 62-70. For example, the Act requires the Clerk to notify the Governor when a capital convict has completed “initial postconviction proceedings.” This term is undefined and vague according to the Petitioners, and because there is no opportunity for the parties in litigation to be heard on the matter the provision falls short of basic due process requirements. Additionally, Petitioners argue that the Act appears to ignore the potential for certiorari review of postconviction proceedings by only addressing habeas corpus proceedings and appeals from such proceedings when determining when the Clerk is to certify to the Governor that post-conviction proceedings have terminated.

Mandatory 5-Year Disqualification Period for Attorneys

The Act created section 27.7045, Florida Statutes, which prohibits any state-employed or court-appointed attorney from representing a person charged with a capital offense at trial, on direct appeal, or in a postconviction proceeding if—in two separate postconviction proceedings—it has been determined that the attorney provided constitutionally deficient representation.

Petitioners contend that this provision violates the separation of powers mandated in Article II, § 3 of the Florida Constitution, which provides, in part: “No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Specifically, Petitioners contend that this provision is disciplinary in nature and point out that the constitution empowers the Court with “exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of the persons admitted.” Art. V, § 15, Fla. Const. Thus, the limitation on an attorney’s ability to practice law as set forth in the statute could be an attempt by the Legislature to regulate the practice of law, and as such be constitutionally impermissible.

Capital Postconviction Public Records Production

The Act codifies much of Rule 3.852 of the Florida Rules of Criminal Procedure, including portions of the rule that address how requests may be made for public records relating to postconviction proceedings. The Petitioners argue that this violates the doctrine of separation of powers by imposing time limitations and procedures governing the production of public records in capital cases, which has been found to be the “exclusive province of Court.” Allen v. Butterworth, 756 So.2d 52, 54 (Fla. 2000).

Conflicts of Interest and Substitutions of Counsel

The Act amended Section 27.703(1), Florida Statutes, which previously prohibited capital collateral regional counsel from accepting any appointment that would “create a conflict of interest,” and required sentencing courts to appoint a different regional counsel if the first determined that continued representation would “create[] a conflict of interest.” Section 27.703(1), Fla. Stat. (2012). As amended, section 27.703(1) now prohibits regional counsel from accepting any appointment that “create an actual conflict of interest,” and permits sentencing courts to appoint a different regional counsel only if the court itself determines that “an actual conflict of interest exists.” Ch. 2013-216, § 5, Laws of Fla. (emphasis added). In other words, the determination whether a conflict exists would no longer rests with the attorney, but with the sentencing court instead.

The new version of section 27.703(1) also provides that “An actual conflict of interest exists when an attorney actively represents conflicting interests. A possible, speculative, or merely hypothetical conflict is insufficient to support an allegation that an actual conflict of interest exists.” Ch. 2013-216, § 5, Laws of Fla. The Petitioners cite this provision as another example of the Act regulating the practice of law, which as discussed above, is within the exclusive jurisdiction of the Court. See Art. V, § 15, Fla. Const.

Conclusion

The Petitioners raise many issues to challenge the Act, foremost among them separation of powers arguments that challenge the authority of the Legislature to regulate attorney conduct and enact what Petitioners label as procedural aspects of capital proceedings within the exclusive province of the Court, and due process concerns that the Act may unconstitutionally impair the rights of the convicted to adequately challenge their convictions. Therefore, the decision of the Court in this case, assuming it will hear the Petition, potentially could impact much more than just capital collateral proceedings. The response from the Attorney General is expected on the 18th of this month.