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Old July 3, 2017, 07:35 PM   #1
mehavey
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"Presumed Innocent" legislation in Florida Stand-Your-Ground ruled "Unconstitutional"

> A judge in Florida ruled Monday that the state's updated "stand your ground"
> law, which required prosecutors to disprove a defendant's self-defense case
> at pretrial hearings, is unconstitutional, setting up a showdown that could
> make its way to the state's top court.
>
> Miami-Dade Circuit Judge Milton Hirsch ruled that the amendment to the law
> allowed lawmakers to overstep their authority, adding that it should have
> been crafted by the Florida Supreme Court in the first place....
>
> “As a matter of constitutional separation of powers, that procedure cannot be
> legislatively modified,” Hirsch wrote.
http://www.foxnews.com/us/2017/07/03...-by-judge.html

I find myself darkly "amused" by a judicialry that is increasingly deciding that Legislatures cannot write the law... particularly legislation expressly written to force presumed innocence after the FSC decided that presumed guilt should the going-in position.

But then lower court judges as both Legislator *and* Executive seems to be an emerging norm of late.
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Old July 3, 2017, 07:46 PM   #2
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Quote:
adding that it should have
> been crafted by the Florida Supreme Court in the first place....
Exactly the type of comment that proves liberal judges need to be removed; courts do NOT make the law, that is the job for the legislators.
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Old July 3, 2017, 09:26 PM   #3
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...

Last edited by armoredman; July 6, 2017 at 12:04 AM.
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Old July 3, 2017, 10:01 PM   #4
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Competence issue? !!! Is it not the duty of legislatures to enact laws? Is it not the duty of courts to apply laws in individual cases, including, if necessary, interpretation in some cases? Does Florida law empower judges to enact laws?
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Old July 3, 2017, 11:48 PM   #5
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I read the linked article, and before this thread goes off the rails, completely, I'd like to point out a few things.


First, while it is Fox News, some of the statements are from the Miami Herald, and clicking on the link to the Miami Herald gets me a page telling me I have viewed all my free articles this month. Which is kind of odd, because I have viewed NO Miami Herald articles this month, or this year. And, while its only $1.99 to subscribe, I'm not going to pay them to read what I believe will be "yellow journalism".

The Fox article also has an ending line stating the AP contributed.

The Fox article (which might simply be a regurgitation of an AP story with Fox's name on it) is full of statements that practically scream "taken out of context", and statements that, while factually technically accurate lack important information, creating an impression that is at odds with the actual facts. In other words, slanted or spun, aka propaganda.

I don't know everything the judge said, and its QUITE possible other statements he made would put the quoted statements in a much different light. I'm not trying to defend the judge, or his ruling, only pointing out that the snippets of conversation ascribed to him MIGHT have been deliberately chosen to give a misleading impression.

Quote:
The controversial self-defense law came into the spotlight during George Zimmerman's case in 2012, when the neighborhood watchman shot and killed the unarmed teenager Trayvon Martin in Central Florida.
This was in the Fox article, and shows me the intent of the unknown author. Do note the omission of what I consider an important detail, that the " neighborhood watchman shot and killed the unarmed teenager" while the unarmed teenager was beating the watchman's head into the pavement.

To me, that small detail is rather important. Without it, the quoted text implies that Zimmerman shot Martin without reason (possibly from a distance?). Which was not the facts in the case. Fox goes on with two more statements, neither one mentioning the facts in the shooting, one stating Zimmerman's lawyers argued he was justified, and the other that he was found not guilty by the jury. Neither one of those statements does anything to dispel the impression created by the opening statement about the case.

Considering how they treated this well known and widely publicized case (partial truth), I have to wonder what they LEFT OUT in reporting the statements made by Judge Hirsch.

I'm not saying the Judge is right, he might be completely in the wrong (which I FEEL is probably the case) I'm just saying we should not form conclusions based only on snippets of statements sold to us by people who in the very same article demonstrate their capacity to leave out important facts about other matters.

Also consider the headline, again, technically factual but intended to create an opinion more than inform. Again, without enough background information, one cannot form a valid opinion. The judge might have ruled the law unconstitutional, because he does not believe in the concept of lawful self defense, OR he might have ruled based on a procedural point of law (such as a law overriding the courts authority to make its own procedural rules, which might very well BE unconstitutional under the defined separation of powers)

The article simply does not give us enough information to determine which of these the case may be, or even if it is something else, entirely.

Seems to me, the most "fair and balanced" thing Fox News has done lately is to drop using the phrase "fair and balanced" about everything they report.
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Old July 4, 2017, 12:19 AM   #6
Frank Ettin
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Quote:
Originally Posted by mehavey
...I find myself darkly "amused" by a judicialry that is increasingly deciding that Legislatures cannot write the law...
Quote:
Originally Posted by FITASC
Exactly the type of comment that proves liberal judges need to be removed; courts do NOT make the law, that is the job for the legislators.
Quote:
Originally Posted by armoredman
I would have to agree that his simple statement right there should trigger an inquiry to his fitness to BE a judge, with such an fundamental misunderstanding on the roles of the three branches of government.
Quote:
Originally Posted by lefteye
Competence issue? !!! Is it not the duty of legislatures to enact laws?...
Exactly the kind of worthless comments I've come to expect from folks who can't be bothered to read the decision and who are too lazy to do the research.

Obviously none of you have read the ruling, so you actually have no clue why the judge decided as he did.

In fact Judge Hirsch based his decision on the separation of powers set out in the Florida constitution -- something none of you have bothered to find out about.

As Judge Hirsch writes (State v. Rutherford, Circuit Court for the Eleventh Judicial District, Miami-Dade County, F16-12827, at pg 7):
Quote:
...The version of separation of powers reflected in the Florida constitution differs in a number of respects from that implied by the Constitution of the United States. One instance of that difference is found in Art.V, 2(a), which provides:

The supreme court shall adopt rules of practice and procedure in all courts...
He then goes on to outline how and why he finds the changes relating to burdens of production, proof and persuasion effected by the legislation at issue are, under Florida law, matters of procedure within the the primary purview of the Florida Supreme Court.

Note that I had previously outlined here what the changes in the law were actually about
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Old July 4, 2017, 10:00 AM   #7
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The first two questions that came to my mind were (1) "who should decide legal matters of the kind in question, the legislature or the courts?", and (2) "have any of those making the comments here read or studied the court decision?".

Well, it seems that the answer to the first is set forth in the Florida Constitution for all to see, and that the answer to the second was "no" until Frank took the initiative to enlighten us.
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Old July 4, 2017, 07:36 PM   #8
mehavey
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Quote:
Exactly the kind of worthless comments I've come to expect from folks who can't
be bothered to read the decision and who are too lazy to do the research.
Thank you, thank you for that ad hominem attack.
We could have done totally without it while you simply explained the procedural difference for Florida.
Try it next time.


and I yet remain darkly amused....
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Old July 4, 2017, 07:56 PM   #9
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Quote:
Originally Posted by Frank Ettin
Exactly the kind of worthless comments I've come to expect from folks who can't be bothered to read the decision and who are too lazy to do the research.
Thank you for the personal slam, have a wonderful day sir, best to you and yours.
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Old July 4, 2017, 08:34 PM   #10
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Well, comments from those who have not read the decision have very little worth indeed.

And no, that is not an ad hominem attack.

Just who is it who has a "fundamental misunderstanding on the roles of the three branches of government". The Florida Constitution seems to be quite clear on the question.

Perhaps assuming that someone is "lazy" is a little strong, but if they haven't put in the effort. what else might one reasonable conclude?

Whether one is amused or not means less.
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Old July 4, 2017, 08:43 PM   #11
mehavey
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little worth indeed... think I'll bow out of this with an object lesson that that has nothing at all to do w/ the law.

...merely ostentation.

Next time educate instead of issuing outright and immediate insult... Something some of us in the more technical portions of this do quite often.
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Old July 4, 2017, 08:58 PM   #12
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Quote:
I find myself darkly "amused" by a judicialry that is increasingly deciding that Legislatures cannot write the law...
Quote:
....courts do NOT make the law, that is the job for the legislators.
That all sounds good, to the layman.

But in Florida, the state Constitution provides that "the supreme court shall adopt rules of practice and procedure in all courts...".

And a law that would attempt to do so would be unconstitutional.

Why the legislators would not have known that is a mystery, but in fairness, that kind of thing happens from time to time.
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Old July 4, 2017, 09:34 PM   #13
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Not to pile on, but...

Knee-jerk responses to court rulings perceived to be ‘anti-gun’ reflect poorly on Second Amendment advocates, and makes it that much more difficult to safeguard the rights enshrined in the Second Amendment – the response to the Florida ruling is just another unfortunate example.

Indeed, the ruling is purely procedural, in no manner seeking to place limits on the right to keep and bear arms pursuant to the Florida constitution or the Federal Constitution.
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Old July 4, 2017, 09:46 PM   #14
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Quote:
Originally Posted by OldMarksman
But in Florida, the state Constitution provides that "the supreme court shall adopt rules of practice and procedure in all courts...".

And a law that would attempt to do so would be unconstitutional.

Why the legislators would not have known that is a mystery, but in fairness, that kind of thing happens from time to time.
^^^ Perhaps they didn't view it as establishing (or altering) a rule of practice or procedure ...
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Old July 4, 2017, 10:00 PM   #15
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^^^ Perhaps they didn't view it as establishing (or altering) a rule of practice or procedure ...
Surely you jest!

More likely, they had in mind what they thought they wanted, and thought it within their purview to bring it about.

I wondered about it, but lacking sufficient knowledge, I chose to not comment.

I was "too lazy" to research the question for myself.

I considered asking about it, but I decided that the question would come up and bring us the answer.

That has happened.
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Old July 4, 2017, 10:49 PM   #16
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Although this judge has quite the following and has been affirmed by decision of the Florida Supreme Court, this decision seems to me a bit of a stretch. For example, the California supreme court establishes the rules of practice and procedure for the courts of the state, but that in no way precludes the Legislature from doing so as well. Moreover, this new law is more than a mere procedural rule, but has elements of substantive law, specifically as to where the burden of proof lies in any particular matter. It seems to me that the Legislature, as it did when it enacted Florida's original SYG law, has the power to establish presumptions affecting the burden of proof, and thus the burden of going forward (to use legalese). If the defendant is presumed to be acting in lawful self-defense, then it is the burden of the prosecutor to prove that he (or she) was not so doing. The new law merely provides that a pre-trial hearing on the SYG defense is no longer optional with the defendant, but mandatory with the State, and instead of the defendant having to prove a prima facie case of self-defense, it is the burden of the prosecutor to show that he was not acting in self defense, much as the prosecutor will have to do at trials in which the defense is asserted. why is it a mere "procedural" rule to require the same burden of proof at both proceedings?
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Old July 4, 2017, 11:18 PM   #17
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Quote:
Originally Posted by mehavey
Thank you, thank you for that ad hominem attack.
We could have done totally without it while you simply explained the procedural difference for Florida.....
Yes, I was harsh. I'm sorry, but I submit that I was provoked.
  1. I and others have consistently pointed out that the only way to understand a court ruling is to actually read the ruling. I and others have also consistently pointed out that news articles about court decisions gloss over or omit a lot of important details and therefore can not be relied upon for the purposes of understanding the law and the legal bases for a court ruling.

  2. Nonetheless, you and three other members, relying solely on the news article, assumed that you knew more about the law than the trial judge and made disparaging, critical and snarky comments about the decision. And you stated your positions with absolute authority and certainty that you were correct and that the trial judge was wrong and/or corrupt -- including --

    1. a claim that this decision is somehow evidence that the judiciary is increasingly deciding that the legislature can't write laws. (And on the other hand you'd no doubt endorse such a trend if we were discussing a judge's ruling against a gun control law).

    2. a comment that this ruling is evidence that liberal judges must be removed (holy non sequitur, Batman).

    3. the supposition that the ruling calls into question Hirsch's fitness to be a judge.

    4. that the ruling raises a competence question.

  3. Those opinions were specious, based on assumption, prejudice and guesswork rather than evidence and fact.
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Old July 4, 2017, 11:35 PM   #18
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Quote:
Originally Posted by 62coltnavy
Although this judge has quite the following and has been affirmed by decision of the Florida Supreme Court, this decision seems to me a bit of a stretch. For example, the California supreme court establishes the rules of practice and procedure for the courts of the state, but that in no way precludes the Legislature from doing so as well.....
One possible difference is that the provision of the Florida constitution relied upon by Hirsch specifically requires that laws affecting procedural matters be passed by a two-thirds supermajority.

Quote:
Originally Posted by 62coltnavy
....why is it a mere "procedural" rule to require the same burden of proof at both proceedings?...
But in Rutherford Hirsch cites Florida case law distinguishing substantive law and procedure and holding that burden of proof matters are procedural.

Of course what a Florida court of appeals will do with this remains to be seen. But Hirsch's ruling does appear to be based on the foundation of a provision of the Florida constitution and applicable Florida case law and is most likely not, therefore, merely a spasm of an incompetent judge.
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Old July 4, 2017, 11:41 PM   #19
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Quote:
Originally Posted by OldMarksman
Quote:
^^^ Perhaps they didn't view it as establishing (or altering) a rule of practice or procedure ...
Surely you jest!
Why would you assume I was kidding?

Some legislators are attorneys, but not all are. (And some who are may have graduated in the bottom half of their class at law school.) It's supposed to be a bedrock principle of our legal system that in a criminal case the accused is presumed innocent until proven guilty ("beyond a reasonable doubt"). Perhaps the legislators thought that a law calling for the burden of proof of innocence to fall on the defendant is contrary to the American legal system, and so they attempted to correct that.
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Old July 5, 2017, 12:46 AM   #20
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Quote:
Originally Posted by Aguila Blanca
Some legislators are attorneys, but not all are. (And some who are may have graduated in the bottom half of their class at law school.)....
But this is something of a technical issue. Also there is the matter of political theater -- what matters is the highly publicized gesture, even if it ultimately comes to nought.

And, as I outlined here, it doesn't necessarily make a significant, practical difference.

Quote:
Originally Posted by Aguila Blanca
...It's supposed to be a bedrock principle of our legal system that in a criminal case the accused is presumed innocent until proven guilty ("beyond a reasonable doubt")....
Except that not necessarily how affirmative defenses (which historically included self defense) worked Historically the defendant had the burden to prove an affirmative defense (such as self defense) by a preponderance of the evidence. Only relatively recently has the situation evolved to the now more common model in which the defendant has the burden of production; and if the defendant has produced evidence supporting prima facie self defense the burden shifts to the prosecution to disprove beyond a reasonable doubt the self defense claim.

And as has been noted many times, pleading self defense necessarily requires that the defendant effectively admit committing acts which are the elements of a crime.

And as has often been pointed out, common, lay understanding of certain legal principles (like the presumption of innocence) can often be incomplete or imperfect.
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Old July 5, 2017, 08:45 AM   #21
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Quote:
It's supposed to be a bedrock principle of our legal system that in a criminal case the accused is presumed innocent until proven guilty ("beyond a reasonable doubt").
Still is, or it least it is again in self defense trials, in Florida and in all other states but one.

Quote:
Perhaps the legislators thought that a law calling for the burden of proof of innocence to fall on the defendant is contrary to the American legal system, and so they attempted to correct that.
They didn't even try to address it. The law in question was about procedures to establish or deny immunity from prosecution in a preliminary hearing under the provisions of a law that was not addressed and that still stands.
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Old July 5, 2017, 11:02 AM   #22
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It sounds like the decision was based on a question of who gets to set burden of proof rules, the Florida Supreme Court or the Florida legislature and that the merits of the law itself weren't commented upon. Is this correct?
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Old July 5, 2017, 11:24 AM   #23
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Quote:
It sounds like the decision was based on a question of who gets to set burden of proof rules, the Florida Supreme Court or the Florida legislature and that the merits of the law itself weren't commented upon. Is this correct?
As it pertains to a preliminary hearing to rule on the question of immunity from prosecution, yes.
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Old July 6, 2017, 07:10 PM   #24
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It can often be instructive to look at how different news outlets treat the same story. We have a link to a Fax News story in the OP.

On the other hand, here is how The Wall Street Journal described Judge Hirsch's ruling in Rutherford:
Quote:
...A Florida judge ruled Monday that lawmakers’ changes to the state’s controversial “stand your ground” self-defense law violate the state’s constitution....
...
...

...In his ruling Monday, Circuit Judge Milton Hirsch in Miami found that the Legislature overstepped its authority in making the alterations. He said that because the changes were procedural rather than substantive, they could only be made by the Florida Supreme Court, which spelled out how pretrial “stand your ground” hearings should occur in a 2015 decision....
The WSJ is still too sketchy to help someone really understand the law involved in the ruling. But insofar as it clarifies that the constitutional issue is a matter of the state constitution, not the U. S. Constitution, and that the pivotal issue involves the distinction between substantive law and matters of procedure, it is more accurate.
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