Filing # 55447755 E-Filed 04/21/2017 05:36:00 PM

IN THE SUPREME COURT OF

Case No.: SC17-653

ARAMIS AYALA, as State Attorney for the Ninth Judicial Circuit,

Petitioner,

v.

RICHARD L. SCOTT, as Governor of the State of Florida,

Respondent.

CORRECTED BRIEF OF AMICI CURIAE SENATOR OSCAR BRAYNON, SENATOR JEFF CLEMENS, SENATOR PERRY THURSTON, SENATOR GARY FARMER, REPRESENTATIVE JANET CRUZ AND REPRESENTATIVE SEAN SHAW IN SUPPORT OF PETITIONER’S EMERGENCY NON-ROUTINE PETITION FOR WRIT OF QUO WARRANTO

MESSER CAPARELLO, P.A. Mark Herron Florida Bar No.: 199737 E-mail: [email protected] Secondary E-mail: [email protected]; [email protected] Robert J. Telfer III Florida Bar No.: 0128694 RECEIVED, 04/21/201705:38:26 PM,Clerk,Supreme Court E-mail: [email protected] 2618 Centennial Place Tallahassee, FL 32308 Telephone: (850) 222-0720

Attorneys for Amici Curiae

TABLE OF CONTENTS

Table of Citations ...... ii

Statement of Interest of Amici ...... 1

Summary of the Argument ...... 1

Standard of Review ...... 2

Argument...... 3

Conclusion ...... 8

Certificate of Service ...... 9

Certificate of Compliance ...... 11

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TABLE OF CITATIONS Austin v. State, 310 So. 2d 289, 292 (Fla. 1975) ...... 2, 5, 6

Finch v. Fitzpatrick, 254 So.2d 203, 205 (Fla. 1971) ...... 5

Hall v. State ...... Passim

Hart v. State, 198 So. 2d 120, 125 ...... Passim

State v. Bloom, 497 So.2d 3 (Fla. 1986)……………………………………..7

Constitutional Provisions and Statutes

Art. IV, § 1, Florida Constitution ...... Passim

§ 27.14, Florida Statutes ...... Passim

§ 775.082, Florida Statutes ...... 6

§ 782.04(1)(b), Florida Statutes ...... 6

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STATEMENT OF INTEREST OF AMICI

Senator Oscar Braynon, Senator Jeff Clemens, Senator Perry Thurston,

Senator Gary Farmer, Representative Janet Cruz* and Representative Sean Shaw

(“Amici”) are elected members of the and the Florida House of

Representatives. As members of the minority in both chambers of the Legislature, their interest as amici is to provide this Court with an alternative perspective to that of amici Florida House of Representatives, who appear in this matter as amici in support of Respondent Governor Scott.

SUMMARY OF THE ARGUMENT

The Governor’s decision through the series of executive orders to reassign all pending death penalty cases pending in the 9th Circuit from Petitioner State Attorney

Aramis Ayala to the State Attorney for the 5th Judicial Circuit is an abuse of the discretion granted to the Governor under Article IV, Section 1 of the State

Constitution and Section 27.14, Florida Statutes. Put simply, there is no basis for

Petitioner’s disqualification. There has been no failure to prosecute; no showing of lack of experience in the State Attorney’s Office to prosecute first degree murder cases; no speedy trial consideration; any other unwillingness or inability by State

* Amici have moved to allow Representative Janet Cruz to join and appear as amicus in this proceeding.

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Attorney Ayala to prosecute any person for the crime of first degree murder in the

9th Judicial Circuit.

The Governor’s actions, under the guise of "tak[ing] care that the laws be faithfully executed," are nothing more than his disagreement with the decision of

Petitioner as to what penalty specifically authorized by law she will seek in first degree murder cases in the 9th Judicial Circuit. Such disagreement does not constitute “good or sufficient reason” pursuant to Article IV, Section 1, Florida

Constitution, and Section 27.14, Florida Statutes, for reassigning these cases to the

State Attorney from the 5th Judicial Circuit. If permitted to stand, the Governor may claim the constitutional and statutory power to reassign any case or class of cases from one State Attorney to another State Attorney merely because the Governor disagrees with a resident State Attorney’s penalty decision with respect to a particular offender or class of offenders. Such power is not granted to a Governor pursuant to Article IV, Section 1, Florida Constitution, and Section 27.14, Florida

Statutes.

STANDARD OF REVIEW

The standard of review in testing the power of the Governor to assign another

State Attorney to discharge the duties of the resident State Attorney with respect to a specific case or class of cases is whether there is “any good and sufficient reason

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the Governor thinks that the ends of justice would best be served.” Austin v. State,

310 So. 2d 289, 292 (Fla. 1975).

ARGUMENT

The issue presented in this case is whether disagreement with the decision of the resident State Attorney not to seek the death penalty in a specific case or a class of cases is “good or sufficient reason” pursuant to Article IV, Section 1, Florida

Constitution, and Section 27.14, Florida Statutes, for the Governor to assign another

State Attorney to discharge the duties of the resident State Attorney with respect to a specific case or class of cases, where there is no disqualification; no failure to prosecute; no lack of experience in the State Attorney’s Office to prosecute; no speedy trial consideration; nor any other unwillingness or inability to prosecute by the resident State Attorney of the accused for first degree murder. Amici assert that it does not.

This Petition arises as a result of Petitioner State Attorney Aramis Ayala’s decision that she will not seek the death penalty in the upcoming criminal prosecution of Markeith Loyd for two counts of first degree murder. Loyd is charged with the killings of Sade Dixon, his pregnant ex-girlfriend, and of Lt. Debra Clayton of the Orlando Police Department. State Attorney Ayala decided that regardless of the circumstances of those capital felonies, and without regard for the presence of

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applicable statutory aggravators, she would not seek the death penalty. As a result of that decision, the Governor, by Executive Order, determined that “the ends of justice will best be served and there is good and sufficient reason to order the assignment of another state attorney to discharge the duties of State Attorney

ARAMIS D. AYALA with respect to the investigation and prosecution of Markeith

Loyd” and that “it is in the best interests of the State of Florida and of the ends of justice that State Attorney BRAD KING discharge the duties of State Attorney

ARAMIS D. AYALA, pursuant to section 27.14, Florida Statutes.” Executive Order

17-66; Executive Order 17-75.

Subsequently, in a series of Executive Orders, the Governor assigned the State

Attorney for the 5th Judicial Circuit to discharge the duties of Petitioner State

Attorney Aramis Ayala with respect to all capital felony cases pending in the 9th

Judicial Circuit because of State Attorney Ayala’s decision not to seek the death penalty, regardless of the circumstances surrounding those capital felonies, and without regard for the presence of applicable statutory aggravators. Executive Order

17-76 through 17-96; Executive Order 17-98.

Amici submit that “good or sufficient reason” pursuant to Article IV, Section

1, Florida Constitution, and Section 27.14, Florida Statutes, is not present as a result of State Attorney Ayala’s decision not to seek the death penalty in the Markeith

Loyd case, or any of the other pending capital felony cases pending in the 9th

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Judicial Circuit, to reassign those cases from State Attorney Ayala to the State

Attorney for the 5th Judicial Circuit. While the Governor has “broad discretion in determining ‘good and sufficient reason’ for assigning a state attorney to another circuit, and is not required to delineate in particularity his reason for the assignment,”

Finch v. Fitzpatrick, 254 So. 2d 203, 205 (Fla. 1971), Amici suggest that the

Governor’s discretion is not unlimited and is subject to judicial review.

Section 27.14, Florida Statutes, specifies that the Governor’s decision to reassign a case or class of cases to another State Attorney must be based on a

“disqualification to represent the state in any investigation, case, or matter pending in the courts of his or her circuit” or must be “for any other good and sufficient reason.” The issue presented in this case is the Governor’s authority to replace the incumbent State Attorney “for good and sufficient reason.”

In Austin v. State, 310 So. 2d 289, 292 (Fla. 1975), this Court held “that if for any good and sufficient reason the Governor thinks that the ends of justice would best be served, he may assign any state attorney of the State to the discharge of the duties of state attorney in any investigations in any circuit of the State.” This Court went on to explain some of the grounds justifying the Governor exercising his constitutional and statutory authority to reassign a state attorney:

Considerations of convenience, such as expediting the due administration of justice or considerations of sound public policy, should never be controlling in the construction of constitutional provisions. However, they may be of great assistance in ascertaining

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the intent and meaning of a constitutional or statutory provision as to which there may be some doubt arising from the uncertainty or generality of the language used. Hall v. State, Supra. Although this Court did not decide the issue in Hart v. State, Supra, it did make the following observations:

It is conceivable that many situations would arise where the proper administration of justice would ‘be subserved’ by the transfer of state attorneys, even though the corresponding resident official might be present, and to all appearances, capable and qualified. A state attorney might be sent into another circuit because better qualified from his experience to prosecute a particular offense. One might be assigned to insure a speedy trial where the docket had become burdensome. In the abundance of caution, a resident state attorney might ask that he be relieved from the prosecution of a case where he felt he might, because of circumstances which would not justify a disqualification, be embarrassed in discharging the duties of his office. These and many other circumstances could motivate the Governor in issuing an order for the assignment, and reciting in it in all good faith that justice would be subserved by its issuance. 198 So. 120, 125.

Austin at 292-293.

Florida law does not mandate that a State Attorney seek the death penalty for the crime of first degree murder. Section 782.04(1)(a), Florida Statutes, defines the crime of murder in the first degree and declares it to be capital felony punishable as provided by Section 775.082, Florida Statutes. Pursuant to Section 775.082, a capital felony is punishable by death or by life imprisonment without parole. Florida law permits a State Attorney to exercise discretion as to whether to seek the death

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penalty in any specific case. Section 782.04(1)(b), Florida Statutes, further provides in pertinent part:

If the prosecutor intends to seek the death penalty, the prosecutor must give notice to the defendant and file the notice with the court within 45 days after arraignment. The notice must contain a list of the aggravating factors the state intends to prove and has reason to believe it can prove beyond a reasonable doubt. The court may allow the prosecutor to amend the notice upon a showing of good cause.

Stated another way, Florida law does not require that State Attorney seek the death penalty for the crime of first degree murder; rather the law grants the State Attorney discretion in determining whether to seek the death penalty in a specific case or class of cases. See, e.g., State v. Bloom, 497 So. 2d 2, 3 (Fla. 1986) (“Under Florida’s constitution, the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute.”).

The Governor’s decision through the series of executive orders to reassign all pending capital felony cases pending in the 9th Judicial Circuit from State Attorney

Ayala to the State Attorney for the 5th Judicial Circuit is an abuse of the discretion granted to the Governor under Article IV, Section 1 of the State Constitution and

Section 27.14, Florida Statutes. There is no basis for State Attorney Ayala’s disqualification. There has been no failure to prosecute; no showing of lack of experience in the State Attorney’s Office to prosecute first degree murder cases; no speedy trial consideration justifying reassignment; nor any other unwillingness or

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inability by State Attorney Ayala to prosecute any person for the crime of first degree murder in the 9th Judicial Circuit.

The Governor’s actions, under the guise of "tak[ing] care that the laws be faithfully executed," reflects nothing more than his disagreement with the decision of State Attorney Ayala as to what penalty specifically authorized by law she will seek in first degree murder cases in the 9th Judicial Circuit. Such disagreement does not constitute “good or sufficient reason” pursuant to Article IV, Section 1, Florida

Constitution, and Section 27.14, Florida Statutes, for reassigning these cases to the

State Attorney for the 5th Judicial Circuit. If permitted to stand, the Governor may claim the constitutional and statutory power to reassign any case or class of cases from one State Attorney to another State Attorney merely because the Governor disagrees with a resident State Attorney’s penalty decision with respect to a particular offender or class of offenders. Such is not the power granted a Governor pursuant to Article IV, Section 1, Florida Constitution, and Section 27.14, Florida

Statutes.

CONCLUSION

Amici respectfully request that this Court grant the relief requested in Petition

State Attorney Aramis Ayala’s Emergency Non-Routine Petition for Writ of Quo

Warranto.

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Respectfully submitted,

MESSER CAPARELLO, P.A. 2618 Centennial Place Tallahassee, FL 32308 Telephone: (850) 222-0720

By: s/ Mark Herron Mark Herron Florida Bar No.: 199737 E-mail: [email protected] Secondary E-Mail: [email protected] [email protected] Robert J. Telfer III Florida Bar No.: 0128694 E-Mail: [email protected]

Counsel for Amici

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the E-Service Portal and sent via E-mail this 21st day of April, 2017 to:

Marcus E. Hasbun, Esq. Roy L. Austin, Esq. [email protected] [email protected] Mamie V. Wise, Esq. Amy E. Richardson, Esq. [email protected] [email protected] ZUCKERMAN SPAEDER, LLP HARRIS, WILTSHIRE & GRANNIS, 101 E. Kennedy Blvd., Suite 1200 LLP Tampa, FL 33602 1919 M. Street, N.W., Eighth Floor Counsel for Petitioner Washington, D.C. 20036 Counsel for Petitioner

Daniel E. Nordby, Esq. Solicitor General Amit Agarwal, Esq.

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[email protected] [email protected] EXECUTIVE OFFICE OF THE FLORIDA DEPARTMENT OF GOVERNOR LEGAL AFFAIRS The Capitol PL-01, The Capitol Tallahassee, FL 32399-0001 Tallahassee, FL 32399-1050 Counsel for Respondent Counsel for the Attorney General

Adam S. Tanenbaum, Esq. Arthur I. Jacobs, Esq. [email protected] [email protected] FLORIDA HOUSE OF Richard J. Scholz, Esq. REPRESENTATIVES Douglas A. Wyler, Esq. 418 The Capitol JACOBS SCHOLZ & ASSOCIATES, 402 South Monroe Street LLC Tallahassee, FL 32399-1300 961687 Gateway Blvd., Suite 201-I Counsel for Amicus Curiae The Florida Fernandina Beach, FL 32034 House of Representatives Counsel for Amicus Curiae Florida Prosecuting Attorneys Association

Judith A. Brownie Dianis, Esq. Shayan Elahi, Esq. [email protected] [email protected] Donita Judge SHAYAN ELAHI, P.A. Denies D. Lieberman P.O. Box 4490 Thomas Mariadason Winter Park, FL 32793 Jennifer Lai-Peterson Counsel for Amici Curiae ADVANCEMENT PROJECT 1220 L Street, NW, Suite 850 Washington, D.C. 20005 Counsel for Amici Curiae

Donald B. Verrilli, Jr. Mark B. Helm Sarah G. Boyce John F. Muller Chad I. Golder Munger, Tolles & Olson Munger, Tolles & Olson 350 S. Grand Ave, Fifieth Floor 1155 F St. NW 7th floor Los Angeles, CA 90071 Washington, DC 20004 Counsel for Amici Curiae Counsel for Amici Curiae

s/ Mark Herron Mark Herron

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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief was prepared in Times New Roman 14-point font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate

Procedure.

s/ Mark Herron Mark Herron

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