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With Death Penalty Case Unresolved, Florida Supreme Court Goes on Vacation

The Florida Supreme Court went on summer vacation Thursday and put on ice rulings resolving two of the most controversial issues to come before the court this year: the death penalty and expansion of slot machines.

By Mary Ellen Klas

The Florida Supreme Court went on summer vacation Thursday and put on ice rulings resolving two of the most controversial issues to come before the court this year: the death penalty and expansion of slot machines.

The court issued its final rulings for its 2015-16 term, which ended June 30, including a clarification of its decision overturning the state's workers compensation law, but it left unresolved the constitutionality of the state's death penalty and the question of whether a 2010 state gaming law allows counties to expand slot machines without legislative approval.

Both decisions could have wide-ranging ramifications, potentially leaving the state's death penalty sentencing procedure and its gaming compact with the Seminole Tribe in limbo for several more months until the court resumes rulings at the end of August. Whatever the court rules, the decisions on the two emotionally charged issues may also provoke criticism, controversy and unleash an election-year debate.

Three of the seven justices are themselves on the November ballot. Chief Justice Jorge Labarga, Justice Charles Canady and Justice Ricky Polston face up or down merit-retention votes.

They may or may not rule before then on the fate of a new death penalty law, which opponents say is unconstitutional. Florida legislators passed the law in March in response to a federal decision outlawing Florida's death penalty scheme in January.

The U.S. Supreme Court ruled in Hurst v. Florida that the state's death sentencing procedure was unconstitutional because it gave too little power to juries. For decades, Florida jurors issued simple majority recommendations, with judges ultimately imposing the death penalty.

In response to the Hurst ruling, the Florida court stayed two executions, heard arguments in more than a dozen death penalty cases, and was widely expected to answer whether longtime Death Row inmates should be afforded new sentencing hearings. There are 338 inmates on Death Row.

The decision also forced the Legislature to rewrite its death-penalty sentencing law to require juries to unanimously vote for all reasons, known as aggravating factors, that a defendant might merit a death sentence. The new law says that the decision to impose the death sentence requires 10 of 12 jurors to agree.

The Hurst ruling evolved from a similar ruling in a 2002 case, Ring v. Arizona, which held that juries in that state should have the sole authority to decide on aggravating circumstances that made someone eligible for the death penalty. Alabama, Florida and Delaware are the only three states that do not require a unanimous jury to impose the death sentence, and Florida officials said the jury's "advisory" role was sufficiently different to allow the court to differentiate Florida from the Arizona ruling.

But questions remain.

Martin McClain, a lawyer who has represented more than 250 defendants condemned to death and who presented arguments before the court in June, noted that there are two people on Death Row whose juries recommended a life sentence but a judge overrode it with a death sentence.

"We now have a statute that says you can't get a death sentence if three or more people voted for life and yet we are still going to execute people who have a life recommendation?" he said. He suggested that the court may be taking its time to consider the impact of the new law and the Hurst verdict on those and other cases.

"It's very difficult to determine what we're going to do. It makes sense to me the court wants to do it right," he said. "It's also clear from the oral arguments that they are not in agreement."

The fact that the court went on its summer recess without issuing an opinion, however, doesn't necessarily mean there won't be one to come before the court issues opinions again in late August, McClain said. He recalled how in 2009 he was appealing the death sentence of an inmate when the Florida court issued its last opinions before it recessed for the summer.

"The next week, it issued an opinion," in McClain's case, he recalled. "We have no idea what they will do."

On the gaming question, the court heard arguments from the owners of Gretna Racing in Gadsden County that the rural racetrack should be allowed to install slot machines because it has the approval of county voters.

The case hinges on what appears to be conflicting legislative intent stemming from a 2009 law that modified the implementing law for the 2003 constitutional amendment authorizing slot machines in Miami-Dade and Broward counties by allowing Hialeah Park to be eligible for a slots license.

The Hialeah racetrack was not an operating parimutuel facility when voters approved the statewide constitutional amendment but, because Hialeah was located in Miami-Dade, legislators agreed to revise the law to include it among the casinos that could operate Class III slots.

The Legislature changed the law again in 2010, when it was ratifying the gaming compact with the Seminole Tribe, and allowed for counties to authorize slot machines by referendum vote. Gretna argues that the change applies to all counties, but the state argues that the slots expansion is only allowed if it is first approved by the Legislature or the state Constitution.

If the high court sides with Gretna, it could usher in explosive growth of gambling.

At least five other counties -- Brevard, Hamilton, Lee, Palm Beach and Washington -- have already voted to bring casinos to their stressed horse and dog tracks and jai-alai frontons. A statewide gaming expansion would also invalidate the $120 million the state receives each year from the gaming compact between the state and the Seminole Tribe of Florida.

The court will resume issuing its regular weekly opinions on Aug. 25.

(c)2016 Miami Herald

Caroline Cournoyer is GOVERNING's senior web editor.
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