Karen Kidd Jul. 22, 2016, 8:40pm


TALLAHASSEE – The Florida Supreme Court justices are on their annual 2.5 month summer vacation, leaving pending cases in abeyance, but there is still plenty of work getting done, a law professor said during a recent interview.

Florida Supreme Court chamber
Florida Supreme Court chamber | Nagel Photography / Shutterstock.com

"Like SCOTUS, the Florida Supreme Court has a term that runs from fall to summer," Western Michigan University Cooley Law School Visiting Professor Jeffrey D. Swartz said during a Florida Record email interview. "Most state Supreme Courts do. The court is not in session but the work goes on. The justices do take time off, but they and their clerks work on pending matters and prepare for the fall term."

Three of the seven justices, Chief Justice Jorge Labarga, Justice Charles Canady and Justice Ricky Polston, are on the November ballot for up or down merit-retention votes.

The state high court's 2015-2016 term ended June 30, leaving yet to be done a never-ending list of cases, including some controversial pieces of litigation. Cases awaiting the end of the summer break include the sound recording case Flo & Eddie Inc. v. Sirius XM Radio Inc., the Broward County homestead exemption case, the constitutionality of so-called 'pain and suffering' caps and a question about the expansion of slot machine gaming in the state.

"The most important pending matters relate to the death penalty," Swartz said. "There is the remand of Florida v. Hurst, which is the case in which SCOTUS found the Florida death penalty scheme unconstitutional and whether that ruling is retroactive to all death row convicts. The other is the challenge to the constitutionality of the new death penalty statute."

While they may be on hiatus, those questions probably are still high on the justices' minds, Swartz said.

"In light of two recent decisions, these cases can go either way," he said. "If the justices choose to do so, they could invoke Article 1 Section 9 of the Florida Constitution, our due process clause, and find that the Hurst case is retroactive and then invoke the due process clause to declare the new statute unconstitutional because it only requires 10 out of 12 votes for a binding death penalty verdict."

That would be historic, Swartz said.

"That would make that verdict the only one in Florida Jurisprudence that is not required to be unanimous," he said. "The court could find that that violates due process in the state of Florida. These decisions must be based solely upon the Florida Constitution or can be deemed to be reviewable by the United States Supreme Court."

The U.S. Supreme Court has ruled in Hurst v. Florida that the Florida's death sentencing procedure is unconstitutional, which prompted the state Supreme Court to stay two executions. The state high court also heard arguments in more than a dozen other death penalty cases and is expected to decide whether longtime death row inmates should receive new sentencing hearings. Florida's death row holds 338 inmates.

Those death penalty cases and other pending litigation will have to wait until the Florida Supreme Court's summer break is over. The state high court is scheduled to resume the issuing of regular weekly opinions on Aug. 25.

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