Florida’s “stand your ground” law was recently watered down by a Miami court decision.
Under a “stand your ground” law, someone who uses deadly force for self-defense when retreat is available is immune from criminal prosecution. (To put it another way, if you’re attacked in a state without a “stand your ground” law, you have the duty to retreat if you can do so safely. If you can retreat safely but you use deadly force anyway, you’ve committed a serious crime.)
A few months ago, the Florida legislature passed a law that strengthens the self-defense rights of persons who use a “stand your ground” defense — by changing the court procedure in which a “stand your ground” defense could be presented. In the past, Floridians using a “stand your ground” defense had to prove their innocence. Under the new law, prosecutors — not the accused — had a new, initial burden: they’d have to prove that the defendant’s guilt was “clear and convincing” before the case would go to trial.
Florida’s Imperial Judiciary
However, a Miami court decision found the new law passed by the Florida legislature to be unconstitutional. Professor Eugene Volokh of the UCLA School of Law (who is, according to one of my coauthors at the Arkansas Project, one of the country’s most brilliant legal minds) recently explained why the Florida court struck this law down.
From The Volokh Conspiracy:
The Miami judge’s decision held that this new clear-and-convincing evidence provision (i.e., item c) was unconstitutional, because of a peculiarity of Florida constitutional law. Article 5, section 2(a) of the Florida Constitution provides that,
The supreme court shall adopt rules for the practice and procedure in all courts …. Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.
As the Florida Supreme Court has held, this means that “the power to initiate” any procedural rules “rests in this Court,” and the legislature has only the power to “repeal” them by a two-thirds vote; indeed, the court has taken the view that the legislature may not itself enact rules of evidence, though the court often does use its own rulemaking power to implement any legislatively proposed rules.
Things aren’t done this way in the federal system: Congress is quite free to enact procedural rules as well as substantive rules. The same is true, to my knowledge, in most states. But some states, including Florida, take a different view of the separation of powers, and reserve certain kinds of rulemaking solely to their judiciaries.
Essentially, a policy decision by the Florida legislature — one designed to protect the self-defense rights of citizens in “stand your ground” cases — was overturned because the Florida court interpreted it as a procedural rule, and only the Supreme Court of Florida can make procedural rules in this area.
The Arkansas Connection
Arkansans will vote on a proposed constitutional amendment commonly known as “tort reform” in November 2018.
One aspect of this amendment is that it would return some degree of the power that the Arkansas legislature once held — the power to write procedural rules — back to the Arkansas legislature. Currently, that power is held solely by the Arkansas Supreme Court.
In fact, Arkansas law is even more unbalanced than Florida law in this respect. The current law in Florida is that a legislative supermajority can write procedural rules, which is a kind of balance of power between the legislature and the courts. No matter how big a supermajority the Arkansas legislature can produce, our Supreme Court has decided that it has sole authority over procedural rules.
The Supreme Court’s decisions in this area are largely based on Amendment 80 of our state Constitution. Amendment 80 was passed by the voters in 2000; it states that the Supreme Court “shall prescribe the rules of pleading, practice and procedure for all courts.”
Before Amendment 80’s passage, the legislature held primary rulemaking power for the courts; in practice, however, the legislature delegated away a significant portion of that power.
Next year, Arkansas voters will have the opportunity to block what happened in Florida, and what has happened many times in Arkansas — namely, the overstepping of judicial boundaries by judges who want to make policy. If voters pass the tort reform amendment, they’ll be able to shift some policymaking power back to the state legislature. Over the last decade, the state Supreme Court has repeatedly struck down legal reforms that had been passed by the legislature — because our courts have adopted an expansive view of what a procedural rule is.
Some opponents of tort reform have suggested that the proposed amendment will remove the constitutional separation of powers between the legislative and judicial branches of government. They are wrong. The tort reform amendment will normalize the relationship between these two branches; it places them back into their historical relationship — back to the system that was in place in Arkansas as recently as 2000, and back to the relatively balanced system that many states and the federal government have today.
(Notably, the tort reform amendment would only allow the Arkansas legislature to make procedural rules if a supermajority voted to do so. Another way to think of this is that Arkansas’s system is even more unbalanced than Florida’s — and that the passage of the tort reform amendment would bring Arkansas into the realm of moderate, rather than extreme, judicial control over policy.)
The Florida legislature overwhelmingly passed “stand your ground” legislation a few months ago. Now it’s gone — because the courts have overstepped their boundaries in Florida. Next year, the proposed tort reform amendment will give Arkansans the opportunity to avoid repeat episodes of judicial imperialism in the Natural State.