HCBA Lawyer Magazine Vol. 28, No. 2 | Page 20

HOw FRAMing THE iSSuE On APPEAL CAn BE diSPOSiTivE
Appellate Practice Section
Chairs: Heather Fesnak - Akerman LLP & Tom Seider - Brannock & Humphries
The battle came down
to one of discretion:
prosecutorial on the
T
one hand versus
executive on the other.
hree subjects at the core
of the Florida Supreme
Court’s institutional
role in state government
— constitutional interpretation,
separation of powers, and the
death penalty — intersected on a
cooler-than-usual Tallahassee day
in June 2017, when political leaders
gathered under the Court’s recently
refurbished dome to observe oral
arguments in Ayala v. Scott. The
result, issued two months later in
a written opinion by the Court’s
newest Justice, C. Alan Lawson,
offered insight into the scope of
executive power and the standards
that the state’s highest court
applies to actions taken by its
highest-ranking public official.
The dispute stemmed from
statements by Ninth Circuit State
Attorney Aramis Ayala, made soon
after becoming Florida’s first and
only African American elected as
a lead prosecutor, that she did not
plan to pursue the death penalty as
a sentencing option in first-degree
murder cases. See Ayala v. Scott,
No. SC17-653, 2017 WL 3774788,
at *1 (Fla. Aug. 31, 2017); see also
id. at *5 (Pariente, J., dissenting).
Unhappy with this decision,
Governor Rick Scott swiftly
responded, issuing a series of
executive orders reassigning
© Can Stock Photo / denyskuvaiev
death-penalty eligible cases in
Ayala’s circuit to the state attorney
in a neighboring circuit. Id. at *1.
Ayala then petitioned the Florida
Supreme Court to intervene,
claiming that Governor Scott
lacked the legal authority to
remove her for exercising her
independent judgment. Id.
The battle came down to one
of discretion: prosecutorial on the
one hand versus executive on the
other. Nowhere were these battle
lines more clearly on display than
in the disparate framing of the
appellate issue by the Supreme
Court’s majority and dissenting
opinions. Speaking for four
members of the Court, Justice
Lawson saw Ayala’s petition as
a “challenge [ ] to the Governor’s
exercise of his broad discretion in
determining ‘good and sufficient
reason’ for assigning a state
attorney to another circuit.” Id.
at *2 (quoting Finch v. Fitzpatrick,
254 So. 2d 203, 205 (Fla. 1971)
(internal quotation marks omitted)).
Viewed in this light, Justice Lawson
said, the executive orders fell
“well ‘within the bounds’ of the
Governor’s ‘broad authority.’” Id.
By contrast, Justice Pariente’s
dissent framed the case as one
“about the independence of duly
elected State Attorneys to make
lawful decisions within their
respective jurisdictions as to
sentencing and allocation of
their offices’ resources, free from
interference by a Governor who
disagrees with their decisions.” Id.
at *4 (Pariente, J., dissenting).
Viewed this way, Justice Pariente
opined, “State Attorney Ayala’s
decision was within the bounds of
the law and her discretion” and
Governor Scott therefore did not
have “good and sufficient reason”
to remove her. Id. at *7.
So, in this case at least,
executive discretion prevailed over
prosecutorial discretion. Whether
that theme permeates future
Supreme Court rulings remains
to be seen. But in any event, Ayala
v. Scott offers a good reminder
that appellate outcomes are often
shaped by
something as
simple as the
framing of the
issue on appeal.
Author:
Joe Eagleton –
Brannock &
Humphries
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18
NOV - DEC
2017
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HCBA LAWYER