Florida Gov’t Weekly Roundup: Issues Of Authority

May 22, 2016

The issues in Florida were driven by questions of authority this week.

http://www.northescambia.com/wp-content/uploads/2011/01/floridaweeklly.jpgDid Florida utility regulators act within their authority by allowing Florida Power & Light to invest ratepayers’ money in a controversial Oklahoma natural-gas project? Did the Obama administration overreach with “guidance” dealing with how public schools should treat transgender students? Can an inmate essentially shut down a Death Row appeal being pursued by his attorney?

Some of the questions were answered — the Supreme Court shot down FPL’s plans — and some were left hanging. When it came to the treatment of transgender students, no one at the highest levels of state government seemed particularly eager to respond at all.

POWER OUTAGE

The decision about the Florida Public Service Commission’s authority to approve the Oklahoma natural-gas project came on a 6-1 ruling by the state Supreme Court, an unusual margin for a court that often decides cases unanimously or on an ideologically divided 5-2 basis.

But Justice Ricky Polston, who generally votes with fellow conservative Justice Charles Canady, wrote the decision saying that the utility-regulatory commission overstepped its bounds by giving FPL the go-ahead to invest in drilling and production of natural gas in what is known as the Woodford Gas Reserves Project.

“This may be a good idea, but whether advance cost recovery of speculative capital investments in gas exploration and production by an electric utility is in the public interest is a policy determination that must be made by the Legislature,” Polston wrote. “For example, in contrast to natural gas exploration and production, the Legislature has authorized the PSC to approve cost recovery for capital investments in nuclear power plants and energy efficient and renewable energy power sources.”

FPL had argued that by passing along the costs for production, the project would help shield the utility’s customers from future price swings for natural gas.

Joining Polston were Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis, Peggy Quince and James E.C. Perry. Canady dissented, arguing that the Public Service Commission acted within its legal authority.

“The purpose of the Woodford project is to acquire natural gas, which is used to produce approximately 65 percent of the electricity FPL generates,” Canady wrote. “Acquiring natural gas is therefore necessary for and integrally related to FPL’s primary function of generating electricity.”

FPL was “disappointed” in the decision that could potentially have “long-term negative impact on customers’ bills,” spokeswoman Sarah Gatewood said in an email.

“We continue to believe the Woodford project is a smart long-term investment on behalf of FPL’s customers that will help us provide reliable electricity at low and stable prices by investing directly at the source to provide rate stability and reduce risk for our customers,” Gatewood wrote. “We also believe the PSC was on solid ground in approving a utility’s natural gas investment used in the provision of electric service, and appreciate its careful consideration of this innovative approach.”

FPL has collected about $78.4 million for the Woodford project, which is already providing natural gas for the company. The total comes to less than $1 a month on a typical customer’s bill. It remains unknown if any money will have to be refunded.

BATHROOM BRAWL

With the May 13 release of new guidance by federal officials that school districts should allow transgender students to use restrooms and other facilities of their choice, the fallout in Florida began spreading this week.

The most prominent upshot was social conservatives trying to push Gov. Rick Scott and Attorney General Pam Bondi to defy the administration of Democratic President Barack Obama. But neither Scott nor Bondi seemed eager to wade into the fight.

State Rep. Janet Adkins publicly announced that she had asked Bondi to address whether the Obama administration’s guidance is tantamount to a federal rule, or if it violates the 10th Amendment’s guarantee of state sovereignty for Florida.

“To craft a special class of rights for certain individuals and to allow people to make decisions based on how they identify their gender creates a chaotic environment for the school administrators,” said Adkins, R-Fernandina Beach, in a statement released by her office. “This is illogical and harms the greater need for an orderly learning environment that promotes the safety and well-being of all students.”

Adkins, who chairs the state House K-12 Subcommittee, is running for schools superintendent in Nassau County.

But Bondi’s office demurred. In a letter responding to Adkins, Florida Deputy Attorney General Kent Perez thanked the lawmaker for her curiosity but declined to address the question directly.

“We do not issue legal opinions on federal law,” Perez wrote.

Scott’s office continued to say it was reviewing the issue, even as Republican congressional candidates and one of the state’s highest-profile conservative groups pushed him to get involved.

The Florida Family Policy Council issued a letter by President John Stemberger calling on supporters to sign an online petition asking Scott to defy the Obama administration.

“For starters, the governors in at least six states have told the Obama administration they will NOT comply with his unlawful and dangerous edict,” Stemberger wrote. “But Florida is not yet one of them. We need your help to make that happen. States MUST push back!”

In contrast, the American Civil Liberties Union of Florida issued a letter Thursday calling on Scott and Bondi to stand down.

ACLU of Florida Executive Director Howard Simon said allowing public school students to use facilities corresponding to their stated gender identity — rather than their sex at birth — “is not only required by law, but it is also the right thing to do.”

“When transgender students are required to use separate facilities, it does not go unnoticed by other students,” Simon wrote. “Being separated from other students in this way would be damaging to anyone, but it is especially harmful for transgender children.”

One reason politicians might not be eager to get involved was represented by another development in Florida government. Health officials said they have started listing both spouses on birth certificates of children born into same-sex marriages and hope to have new birth certificates adding the option of “parent” — in addition to “mother” and “father” — by mid-July, according to court documents filed this week.

In a court filing, the state said U.S. District Judge Robert Hinkle’s March 31 final order in a lawsuit that overturned the state’s gay-marriage ban made it possible for the forms to be changed. Hinkle’s order came more than a year after same-sex marriages became legal in Florida and long after the U.S. Supreme Court struck down state bans on gay marriage last June.

Five or 10 years ago, such a ruling would have seemed unlikely. But legal standards and public opinion on LGBT issues have been evolving rapidly, and ambitious politicians might not want to go any further on those debates than they have to.

POWER OF ATTORNEY

Meanwhile, the state’s ongoing battle over the death penalty was roiled again this week, when a Death Row inmate whose execution is on hold asked the Florida Supreme Court to abandon, in his case, consideration of a U.S. Supreme Court decision that struck down the state’s death-penalty sentencing process.

The Florida Supreme Court earlier this year indefinitely postponed the execution of Mark James Asay, a convicted double murderer who was scheduled to be put to death on March 17. The ruling was prompted by a U.S. Supreme Court decision that found Florida’s death penalty sentencing system gave too much power to judges, and not juries.

The state’s high court has focused on the fallout of the decision, which came in a case known as Hurst v. Florida, in more than a dozen Florida death penalty cases since the opinion was issued in January.

During the legislative session that ended in March, Florida lawmakers hurriedly crafted a “fix” to the state law — which defense lawyers contend is flawed — in response to the Jan. 12 ruling,

Under Florida’s new law, juries will have to unanimously determine “the existence of at least one aggravating factor” before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed, and it did away with a feature of the old law that allowed judges to override juries’ recommendations of life in prison instead of death.

A jury in Asay’s case recommended death on both first-degree murder counts with a vote of 9-3.

Since the Hurst ruling, lawyer Marty McClain — who was appointed after Scott signed a death warrant for Asay — has argued that the new law should apply to Asay and that the prisoner should receive a life sentence, based on a 1972 Florida law that required death sentences to be reduced to life imprisonment without parole if the death penalty is overturned.

“While Mr. McLain (sic) is indeed an honorable and excellent attorney in the rush and exigency of proceeding under a death warrant counsel has moved this court to review and to address claims relating to sentencing issues that petitioner simply is not interested in seeking relief from and now wishes to waive,” Asay wrote in a handwritten, two-page document filed with the Supreme Court.

Documents filed by Asay on Monday and Thursday appear to indicate that he is interested in pursuing appeals based on new or rejected evidence related to his case.

The court could ignore Asay’s request, ask the state to weigh in, ask McClain to respond, or send the case back to the trial court, according to legal experts.

STORY OF THE WEEK: The Florida Supreme Court rejected a decision by utility regulators to allow Florida Power & Light to charge customers for an investment in an Oklahoma natural-gas project.

QUOTE OF THE WEEK: “A right guaranteed by the Florida and United States Constitutions cannot be bargained away by a legislative compromise. To allow a non-unanimous verdict only in cases where the ultimate penalty is to be decided stands the Eighth Amendment ‘death is different’ principle on its head.”—10th Judicial Circuit Public Defender Rex Dimmig, in a friend-of-the-court brief dealing with whether a jury must unanimously agree to impose the death penalty.

by Brandon Larrabee, The News Service of Florida

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Written by William Reynolds · Filed Under News