Milt Hirsch wrote a compelling (and very entertaining) order finding Florida's drug statute unconstitutional, following the decision in Shelton. The whole order is worth a read. Here is the intro and conclusion, and a link to the whole order at the bottom:
"[F]or there is nothing either good or bad, but thinking makes it so."
--William Shakespeare, The Tragedy of Hamlet, Prince of Denmark, Act II sc. 2
I. Introduction
The 39 defendants captioned above are similarly circumstanced in that all are charged with violation of Fla. Stat. § 893.13. In light of the recent decision in Shelton v. Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011), finding '893.13 unconstitutional, all defendants move for dismissal. I have consolidated these cases for purposes of these motions only.
Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: "If I'd had more time, I could have written you a shorter letter."
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V. Conclusion
The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, "It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).
Like the court in Shelton, I find that Florida Statute § 893.13 is facially violative of the Due Process Clause of the 14th Amendment to the United States Constitution; and, accordingly, that any prosecution brought pursuant to that statute is subject to dismissal.
In the comments the other day, there was a discussion about whether Shelton was binding. Judge Hirsch has a lot to say about that, including this conclusion:
In the absence of such particularization I am obliged as a Florida trial court to presume that Florida appellate courts relied upon a Florida-law-based guarantee of due process, whether constitutional or common-law. No Florida case has decided the issue presently before me: whether '893.13 is unconstitutional by operation of the 14th Amendment to the federal Constitution. The Shelton court reached the same conclusion: A[N]o Florida appellate [court] ... has addressed the constitutionality of ['893.13] under the federal Constitution,@ Shelton, 2011 WL 3236040, at *12; and the Florida cases that appear to give passing consideration to the issue of the constitutionality or not of the statute Acontain no analysis of or citation to the tripartite constitutional analysis@ required by Staples and other U.S. Supreme Court authorities, and employed in Shelton. Id. See also supra note 3. Accordingly, I am bound to follow Shelton=s holding that '893.13 violates the 14th Amendment=s due process guarantee.
Hirsch Order
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12 comments:
Kudos and well done.
You're still trying to get even for me posting the Jury note in Matthewman's fed trial.
Judge Hirsch's conclusion that he is "bound" by the Shelton decision is unpersuasive. A state-court circuit judge could properly rule contrary to the federal district court - even on a matter of federal constitutional law - and some have. The normal appeal chain (state intermediate-level appeals court and Florida Supreme Court) applies, with the U.S. Supreme Court being the final arbiter. A decision by the Supremes would, of course, be binding on all state judges in Florida (whether it was an appeal that reached the High Court through the Florida Supreme Court or through the federal Eleventh Circuit (i.e., an appeal of the Shelton decision)). But principles of federalism, including our parallel state/federal justice systems, and the history of the expansion of federal jurisdiction do not require a state-court judge to follow the federal district court's ruling.
On the other hand, it is entirely appropriate for the state-court judge to find the federal-court analysis and conclusion persuasive and reach the same result. Section IV of the Order strikes me as much stronger because it does just that.
Without regard to the ultimate result in this case, this is an interesting structural / jurisdictional topic. I predict that we'll see this play out in some variant of the appellate-chain description above and will receive guidance and clarification on this important issue.
9:02 PM here again. This morning's Miami Herald reports that the state has already appealed the federal-court decision and will appeal Judge Hirsch's decision, which he stayed for a week for that purpose. It will be great if the Third DCA and the Eleventh Circuit weigh in on the "bound" issue. Stay tuned ...
Agree with 9:02. J. Hirsch is not "bound" by Shelton. Weak.
9:02 back again. Thanks, 11:05.
Some quick research reveals that the 3rd DCA has pronounced generally on this topic and rejected Judge Hirsch's "bound" conclusion. In Roland v. Florida East Coast Railway, the court, in response to appellee's argument that the court was bound by a federal Fourth Circuit decision, stated: "This court is bound by decisions of the United States Supreme Court and the Florida Supreme Court. Decisions of the federal courts of appeals are persuasive but not binding." 873 So. 2d 1271, 1275 n.5 (Fla. 3d DCA 2004) (citations omitted). While that case did not involve federal constitutional issues, the logic would appear to apply nonetheless. In fact, several state supreme courts have so held directly. See, e.g., State v. Gates, 576 P.2d 1357, 1359 (Ariz. 1978) ("The decision of the District Court is entitled to respectful consideration,
but it is not binding on us. Even with respect to federal constitutional issues, the state and lower federal courts occupy comparable positions, a sort of parallelism with each governed
by the same reviewing authority[:] the United States Supreme Court."); State v. Coleman, 214 A.2d 393, 403-404 (N.J. 1965) (when adjudicating federal questions, state courts "occupy exactly the same position as the lower federal courts, which are coordinate,
and not superior to them. There is no appeal from the state to the lower federal courts. Instead
both are subject to the reviewing power of the Supreme Court, which furnishes the unifying principle.
Decisions of a lower federal court are no more binding on a state court than they are on a
federal court not beneath it in the judicial hierarchy. ... Until the Supreme Court of the United States has spoken, state courts are not precluded from exercising their own judgment upon questions of federal law. They are not concluded by, though they should give respectful consideration to, the decisions of the federal
Circuit Courts of Appeals and District Courts.").
Thanks to my main source for providing these state supreme court decisions!
I heard there is a two sentence version of this order. Can someone post?
In light of, and for the reasons set forth in, Shelton v. Department of Corrections, 2011 WL 3236040 (M.D. Fla. July 27, 2011), I find 893.13 to be unconstitutional under the Due Process Clause of the 14th Amendment. This case is hereby dismissed.
No comma before the case cite - rookie.
9:14, it's a parenthetical comma.
9:14 AM, it looks *really* bad when you use terminology such as "rookie" -- especially when YOU are WRONG!
Kudos to this judge. Our drug policy has gone completely off the rails.
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