Thursday, September 18, 2008

Florida Court's Weird "Change of Mind"

In what is surely one of the weirdest events in state court history, today the Florida Supreme Court reversed its own county bond financing ruling of a year ago. The result will have long-lasting repercussions; not only for local government bond financing without voter approval but also, we suspect, for public perceptions about the rule of law under Florida's court system.

First Court Ruling

On September 6, 2007 -- a little more than a year ago -- the full seven-member state supreme court unanimously ruled that Escambia County was "without authority" to issue road-widening finance bonds for Perdido Key without first obtaining approval by popular referendum "as required by article VII, section 12 of the Florida Constitution."

The full text of that opinion has been scrubbed from the Florida Supreme Court web site. But it can still be found, for now, on the web site of the Miami Herald.

The opinion was written by Justice Kenneth Bell of Pensacola. All six other supreme court justices concurred in the decision.

As Justice Bell wrote for the court at the time --
The language of article VII, section 12 is plain and unambiguous. * * * [A]rticle VII, section 12 of the Florida Constitution provides as follows:
Counties, school districts, municipalities, special districts and local governmental bodies with taxing powers may issue bonds, certificates of indebtedness or any form of tax anticipation certificates, payable from ad valorem taxation and maturing more than twelve months after issuance only:

(a) to finance or refinance capital projects authorized by law and only when approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation; or

(b) to refund outstanding bonds and interest and redemption premium thereon at a lower net average interest cost rate.
Thus, article VII, section 12 plainly authorizes localities to issue long-term bonds "payable from ad valorem taxation" for the purpose of financing capital improvements only when "approved by vote of the electors."
The 2007 ruling was widely seen as a victory for citizens' right to vote before being saddled with taxes or destructive developments they may not desire. Local governmental units around the state, however, were upset. Many of them are seeking to jump-start big-ticket municipal projects. They expected to be free to hand the bill to taxpayers without letting them vote on it.

Locally, one such project put in jeopardy was the planned Pensacola Maritime Park. Although many community leaders favor it, the project also has substantial public opposition.

New Court Ruling

Today, however, Justice Charles Wells wrote a new opinion for the state supreme court in the same Perdido Key road case. This time, the court approved the bond action, although voters still have not approved it. The full text is here.

One year later! This could be a Guinness World Record for slow-motion change of mind.

The Tallahassee Democrat reports:
Now the court says financing schemes that use future property tax increases to pay off bonds are OK, changing utterly what a unanimous court said a year ago. It means local governments will have much greater latitude in approving millions of dollars of bonds for public projects without having to get voter approval.
Weirder and Weirder

But wait! There's more. In yet another odd twist, it turns out one of the supreme court justices signing onto the new opinion has been retired from the court for over a year!

Former Justice Raoul Cantero is listed in the new opinion as one of four judges who concurs in the result of the new, 2008, opinion. But Cantero retired September 4, 2007, -- over a year ago. That was just two days after the court published its first decision in the case and 16 days before September 20, when the first decision was finalized and released for publication.

Moreover, he has since joined the Miami law firm of White & Case. That firm's web site describes White & Case as representing --
public and privately held commercial businesses and financial institutions, as well as governments and state-owned entities, involved in sophisticated corporate and financial transactions and complex dispute resolution proceedings.
Do you suppose there might be, at a minimum, the appearance of a conflict of interest here? Only the firm's client list could tell us for sure.

Missing in Action

In yet another odd twist, Justice Bell, author of the original opinion, recused himself from participating in the reverse decision. No reason has been disclosed.

Justice Bell is only 52 years old. He has served on the court for not quite five years. Yet, earlier this year Bell announced he intends to retire in October and resume practicing law in Pensacola.

We doubt Justice Bell plans to hang out his own shingle as a solo practitioner. But finding a Pensacola corporate law firm that doesn't have ties to some interested party in this lawsuit will be quite a bit harder than scrubbing his old supreme court opinions from the web.

Justice Lewis wrote a dissent in which it is said a second judge, Chief Justice Peggy Quince, concurred. But Quince also is listed in today's court release as having concurred in part with the majority and dissented in part.

We can find no written opinion by Quince, as yet, explaining what the heck is up with that. Normally, a judge who concurs in part and dissents in part issues a separate opinion explaining which parts were which.

Understanding the Result

Tallahassee lawyer David Theriaque, representing the Escambia County citizen who lost the appeal today after winning it a year ago, told the Tallahassee paper, "I'm having a hard time understanding what they did."

That's because you're a lawyer, David. This is a decision only a politician can understand.


A commentator correctly points out that Justice Cantero retired in 2008, not 2007, although still well before the recent re-ruling was announced. The original Miami Herald article about his retirement in 2007 which misled us has been either scrubbed or redated by the newspaper.


Anonymous said...

Conflicts of interest have never been recognized in this area .

Neither are Sunshine Laws

Anonymous said...

It was only last month that Justice Cantero left the court, not a year ago.