Weekly Roundup: Murky times in Tallahassee

By BRANDON LARRABEE
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, January 6, 2017.......... It was a confusing week in state government and politics, whether your interest was in the state's death penalty or its medical-marijuana industry.

The Florida Supreme Court issued a response to a state request to clarify a major death-penalty ruling --- and then took it back, a head-spinning series of events that was labeled "bizarre" by a high-ranking Republican lawmaker.

Meanwhile, anyone looking for advice on the state of the law about medical cannabis after voters overwhelmingly approved a constitutional amendment in November might have to wait awhile. The Florida Department of Health has largely been mum, even as the constitutional amendment formally took effect.

Less confusing was what Gov. Rick Scott will make one of his top priorities during the legislative session that kicks off in March: counterterrorism squads that the governor says will help respond to attacks like the summer massacre at the Pulse nightclub in Orlando. Then again, as with any budget recommendation issued in January, the fate of that proposal is also a bit murky for now.

MOTION TO STRIKE

The high court hubbub started Wednesday morning, when the Supreme Court issued an order that would have denied Attorney General Pam Bondi's "request for clarification" in a death penalty case. Less than two hours later, the court more or less said: Never mind.

In a highly unusual move, justices rescinded the order, which would have barred prosecutors from seeking the death penalty in capital cases. The mistakenly issued opinion and its almost immediate retraction further muddled Florida's embattled death penalty, on hold for nearly a year following a U.S. Supreme Court decision last January.

"The whole thing is bizarre," House Judiciary Chairman Chris Sprowls, a Palm Harbor Republican and a former prosecutor, told The News Service of Florida.

The order came in the case of Larry Darnell Perry, one of a number of high-profile death penalty cases related to the U.S. Supreme Court ruling last January. That ruling found Florida's capital sentencing system unconstitutional because it gave too much power to judges, instead of juries.

The Legislature quickly passed a new law intended to address the U.S. Supreme Court ruling. But the Florida Supreme Court struck down the new statute because it did not require unanimous jury recommendations for death to be imposed.

Bondi asked the court to clarify a ruling in Perry's case that said the new state law was unconstitutional and that it "cannot be applied to pending prosecutions."

Wednesday's order would have denied Bondi's request for clarification. But the court vacated the order because it was released prematurely, according to spokesman Craig Waters. Instead, it should have been held until separate, pending opinions were issued.

"The rule is that courts wait until all of the referenced opinions have been released to the public," he wrote. "Due to purely human error, that process failed today. The Florida Supreme Court regrets the error and is reexamining its internal procedures to prevent similar errors from occurring in the future."

In a dissent to the now-vacated opinion, Justice Ricky Polston referenced two death-penalty cases not yet decided by the court. Those cases focus on whether the new law could apply to cases already underway, if judges instruct juries that unanimous recommendations are required for the death penalty to be imposed.

Polston objected that the court should clarify its October ruling in Perry's case, which he wrote "has created confusion and paralysis across the state regarding the death penalty and capital trials."

Instead, the majority's vacated order would have struck down the entire section of the new law dealing with sentencing in capital cases.

Pete Mills, an assistant public defender in the 10th Judicial Circuit, said Wednesday's rescinded order "will likely be reissued in a similar form" in the future.

"This is a hiccup. This caused confusion for some people but was resolved very quickly," said Mills, who is chairman of the Florida Public Defenders Association Death Penalty Steering Committee.

When and if that issue gets cleared up, there could be another legal battle over capital punishment in the offing, after state corrections officials adopted a new lethal-injection procedure that includes a drug never before used for executions and another used only by accident.

The Department of Corrections posted the revised three-drug lethal injection protocol on its website Thursday, a day after Secretary Julie Jones signed the new procedure. The move appears to have been prompted by shortages of lethal injection drugs, with manufacturers refusing to sell their substances for use in executions.

Corrections officials expect litigation in response to the new drugs, said corrections spokeswoman Michelle Glady.

"That's very typical," she said.

GREEN HAZE

Medical marijuana became legal this week in Florida for a broad range of conditions. Kind of. What that means is still up for grabs.

Citing a lack of guidance from state officials, authors of the November constitutional amendment, industry insiders and legislative leaders have called on the Department of Health to clarify what doctors and "dispensing organizations" can legally do under existing state laws and under the voter-approved measure that went into effect Tuesday.

But the department largely answered by referring to the language of the constitutional amendment and to state laws approved in 2014 and 2016. Those laws allowed more limited uses of medical cannabis.

Recent questions center on whether doctors are allowed to add to an existing state database patients who qualify under the constitutional amendment, which includes a host of diseases not previously authorized for cannabis treatment.

Medical industry officials and a state lawmaker instrumental in the passage of the current laws advised doctors to be cautious.

"If you are suffering from one of the conditions that is listed in the constitutional amendment and you sought medical cannabis for those treatments, you would be working and dealing in a very murky and dangerous legal area," said state Sen. Rob Bradley, R-Fleming Island.

Bradley said he plans to shepherd a bill laying out guidelines for the constitutional amendment during the legislative session that begins in March.

A Department of Health spokeswoman provided little insight Tuesday when asked whether physicians are allowed to add patients eligible under so-called Amendment 2 to the existing database.

"Doctors should probably consult their legal representation to ask that question," agency spokeswoman Mara Gambineri said.

Under current laws, doctors may order non-euphoric marijuana for patients with chronic muscle spasms or cancer, or full-strength marijuana for terminally ill patients.

But some doctors have started to add patients who meet the requirements of the broader Amendment 2 to the state-run "compassionate use registry," even before health officials have crafted rules governing the newly approved amendment.

"I'm leaning toward telling any physician out there to be extremely careful," Florida Medical Association General Counsel Jeff Scott said.

FIGHTING TERRORISM

Generally, governors will take just about any help they can get in promoting their top legislative priorities. But Gov. Scott could have done without Friday's reminder of the new American reality, when a gunman opened fire and killed multiple people at the Fort Lauderdale airport.

Early reports gave no real indication of whether the suspect taken into custody was motivated by the formal kind of terrorism or the more general variety, but either could boost the profile of the security issues behind Scott's request to set up anti-terrorism squads across Florida.

During a media blitz this week, Scott announced that he will include $5.8 million in his 2017-2018 budget proposal to fund a request for counterterrorism efforts by the Florida Department of Law Enforcement.

That Scott's request represented a sliver of the state's $80 billion-plus spending plan could reflect the fiscal realities that will face state lawmakers when the legislative session begins March 7. The House and Senate will confront a tightening fiscal outlook that is already prompting talks that increases anywhere in the budget will require cuts elsewhere.

In making his pitch for the counterterrorism money, Scott drew upon the "ISIS-inspired" massacre of 49 people at the Pulse nightclub in Orlando last June, which the governor said was "an attempt to rip at the seams of our society."

"No family should go through what so many experienced after the attack on the Pulse nightclub," Scott said. “And we will do everything in our power to make sure this never happens again."

The money proposed by Scott would fund 46 new special-agent and analyst positions, which would be divided into eight squads throughout the state "whose sole focus" would be counterterrorism, FDLE Commissioner Rick Swearingen said Wednesday.

"As the threats to our nation increase, FDLE is ready to move to the next level," Swearingen said.

STORY OF THE WEEK: The Florida Supreme Court issued an order about a request for more clarity on its death penalty rulings --- but might have caused more confusion by quickly rescinding it.

QUOTE OF THE WEEK: "We can pull a blanket over our head and crawl under it and quit competing with the rest of the world, and there seems to be some folks that are advocating that." --- Senate Appropriations Chairman Jack Latvala, R-Clearwater, defending economic incentive programs.