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Weekly Florida Roundup: That Pesky Third Branch

An off-election summer in the capital city usually provides a tempting opportunity for idle hands to pursue thrills in far-flung climes more palatable to the senses than Tallahassee's oppressive heat.

For the fortunate, this sweltering season was one like any other, full of indulgences in travel and esprit. But for others, the Florida Supreme Court put the kibosh on even Thurberish escapes, replacing fantasy with drudgery and casting a lugubrious pall over an already pudding-like ambiance.

Some might be grateful to the state's high court for providing a reprieve in the waning days of summer from news that would otherwise have been dominated only by scandal, a la Ashley Madison, and Donald Trump.

The Florida Supreme Court this week again obliged.

On Tuesday, the justices heard dueling arguments about a constitutional amendment dealing with solar energy.

On Wednesday, the court pondered whether a doctor could be found negligent after one of his patients hanged herself.

On Friday, the court revealed that, after being diagnosed with cancer, Chief Justice Jorge Labarga will undergo surgery to have a kidney removed.

And the Supreme Court capped off the week by handing to a Tallahassee judge the task of putting together a congressional redistricting plan after state lawmakers failed to agree on a new map during a special session last month.

Might the court now allow us an opportunity to act on some of James Thurber's advice? "It is better to have loafed and lost, than never to have loafed at all."


In an order Friday afternoon, the Supreme Court left open the possibility that the Legislature could still come back into session and redraw congressional districts. But it also made clear it wasn't waiting long for lawmakers, giving Leon County Circuit Judge Terry Lewis until Oct. 17 to handle the case --- and refusing a House request for more time.

"Sufficient time exists for the Legislature to accomplish this task before the matter is scheduled for a hearing before the trial court, should the House and Senate agree to convene for another special session,'' Labarga wrote in a concurring opinion. "However, if the two houses of the Legislature cannot join together to pass a plan within this time, the judiciary must take steps to ensure that a constitutionally compliant congressional redistricting plan is in place …to provide certainty to candidates and voters."

Friday's order came nearly two months after the Supreme Court ruled that eight current congressional districts violate the anti-gerrymandering "Fair Districts" standards approved by voters in 2010.

The Supreme Court in July ordered lawmakers to hold a special session to redraw the districts to comply with the constitutional standards. But the House and Senate could not agree on a map during an August session, tossing the issue back to the courts.

Lewis, who has long overseen litigation about the congressional districts, said late last month that he needed guidance from the Supreme Court about how to proceed. That resulted in Friday's order.


Labarga, 62, will undergo surgery sometime this month at UF Health Shands Hospital in Gainesville, according to an announcement released by the court Friday morning.

The chief justice will be hospitalized for a week after having one of his kidneys removed, and will start working remotely soon after surgery. Justice Barbara Pariente --- the court's longest-sitting member and a former chief justice --- will serve as acting chief justice during any time Labarga is incapacitated.

Labarga has served on the Supreme Court since 2009 and became its first Cuban-American chief justice last year.

"Doctors tell me that my prognosis is very good after surgery because the cancer was detected early by blood tests during a routine medical exam,'' Labarga said in the announcement. "This is a big example of why regular testing is so important for everyone."

Numerous closely watched cases --- including a proposed ballot initiative aimed at increasing the use of solar energy in the state --- are pending in the court.

Labarga has made a priority as chief justice of trying to find ways to make the civil legal system more accessible to lower-income Floridians. The effort comes as legal-aid programs grapple with a shortage of funding.

Labarga, who was born in Cuba, was appointed to the Supreme Court by former Gov. Charlie Crist after serving as a Palm Beach County circuit judge and a brief stint on the 4th District Court of Appeal.

He and four other justices --- Pariente, R. Fred Lewis, Peggy Quince and James E.C. Perry --- have made up a relatively liberal court majority. The court has frequently split 5-2, with the more-conservative Charles Canady and Ricky Polston in the minority.


"There are two kinds of light --- the glow that illuminates, and the glare that obscures," Thurber quipped.

Pariente may have suspected that lawyers appearing before the court earlier this week were trying to eclipse each other during arguments about a proposed constitutional amendment to expand the use of solar energy.

She cautioned the attorneys more than once that their remarks leaned more toward campaign rhetoric than the legalities of the ballot initiative.

The Floridians for Solar Choice amendment, in part, would allow businesses to generate and sell up to two megawatts of power to customers on the same or neighboring properties. Two megawatts have been estimated as providing the daily needs of a typical Wal-Mart or residential communities between 225 and 714 homes.

The court has to decide if the proposed ballot language is limited to a single subject, the wording is unambiguous and the summary meets a 75-word limit. But the court is not supposed to weigh the merits of proposed constitutional amendments --- which prompted Pariente's comments Tuesday.

"It seems to me what you're arguing is why the voters shouldn't approve it," Pariente told Barry Richard, an attorney for Florida Power & Light, Duke Energy Florida, Gulf Power and Tampa Electric. "It talks about a certain amount of power … and it talks about contiguous or on the property supplying it. Whether it will upend the entire electric power structure in Florida or not seems to be merits of the proposal, not that it (the ballot language) is misleading."

Attorney General Pam Bondi has joined the power companies in opposition to the measure.

State Solicitor General Allen Winsor, representing Bondi, argued that the amendment would change the definition of utilities that require Public Service Commission oversight and that it is ambiguous about the future impact on consumer electric rates.

But proponents of the amendment believe that the justices will agree that the initiative can be placed on the November 2016 ballot if enough signatures are collected.

"I think they were much more skeptical of their (opponents') arguments than ours," said Stephen Smith, executive director of the Southern Alliance for Clean Energy, which is the biggest backer of Floridians for Solar Choice. "I think the judges understood what we're trying to do, and I think that while they might not agree wholeheartedly with the policy implications, their job was to focus on the language and let the voters decide. And I think we cleared that hurdle."

STORY OF THE WEEK: The Florida Supreme Court sent the state's battle about congressional redistricting back to a lower court after lawmakers could not agree on a plan during a special session last month.

QUOTE OF THE WEEK: "For a department that routinely murders prisoners in its care through brutality and through medical neglect, it should come as no surprise that they don't respect the First Amendment any more than they respect the Eighth." Prison Legal News founder Paul Wright, speaking after a federal judge upheld a Department of Corrections ban on his publication in state prisons. Florida is the only state in the country that forbids the monthly publication.

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