SC17-653 ARAMIS AYALA, As State

Filing # 55447755 E-Filed 04/21/2017 05:36:00 PM IN THE SUPREME COURT OF FLORIDA 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 i 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 ii 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 Florida Senate 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. 1 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 2 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 3 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 4 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

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