Recent editorials from Florida newspapers:


Feb. 24

Tampa Bay Times on a bill that would modify Florida’s vote-by-mail system:

Following a smooth, high-turnout election in 2020, some Republican lawmakers can’t resist tinkering with Florida’s vote-by-mail system. A bill moving through the state Senate would hit the reset button on all mail ballot requests, no doubt creating confusion among voters. This is a solution in search of a problem that also reeks of partisanship.

Under current law, when voters request a mail ballot, the request is good for two general election cycles. SB 90, sponsored by Sen. Dennis Baxley, R-Ocala, would reduce that to one election and require everyone who signed up for a mail ballot in 2020 to reapply to receive it in 2022.

Baxley claimed the change could “invigorate” turnout. Other Republicans used words like “reset” and “refresh” to describe the effect on Florida’s voting system. But in a state with a notorious history of fumbling the ball on Election Day, “refreshing” a system that’s finally working is just asking for trouble — not to mention more embarrassing headlines.

The bill also creates an unfunded mandate. A legislative analysis notes that counties would bear more processing costs if the change prompted a higher number of ballot requests. But the real cost would be in getting the word out. First, there are the voters who have already requested a mail ballot, who think they’re covered but who would have to resubmit their request. Then there’s the wider public education that would be required. Paul Lux, the supervisor of elections in Okaloosa County, told legislators: “A big concern to the supervisors is it ‘clean slates’ everything.”

This wouldn’t be the first time the slate has been wiped clean. Since the establishment of Florida’s vote-by-mail system, the law has changed four times regarding how many elections one mail ballot request would cover. Baxley’s bill would mark the fifth change. Continually changing these small but important details of state election law is not how you create an informed electorate, not how you run smooth elections and certainly not how you encourage strong turnout.

That’s the stated concern of some Senate Democrats, who suspect that lower participation is the real goal. In 2020, 2.1 million Democrats voted by mail, compared to 1.5 million Republicans and 1 million no-party voters. Shuffling the rules for mail ballot requests could dampen those numbers going into 2022. Baxley’s weak defense: “Why not try this?” The stronger argument: “Why change what’s working?”

Baxley’s bill would also extend the number of days officials have to count mail ballots from 22 days before Election Day to 35-40 days. That would codify an element of Gov. Ron DeSantis’ executive order last year that extended the canvassing period in response to the coronavirus. The change makes sense. Confusion and distrust erupted in other states that didn’t start counting ballots until Election Day. It’s prudent to provide sufficient time to count mail-in ballots so voters know the accurate outcome as early as possible. Still, the bad far outweighs the good in Baxley’s bill.

Pinellas Supervisor of Elections Julie Marcus told a House committee last week, “Our election code works.” That fact, supported by the exemplary, problem-free election Florida conducted last year, should be all the reason needed to abandon this unnecessary change to the state’s vote-by-mail system.



Feb. 23

The Sun-Sentinel on ‘strategic lawsuits against public participation’ in Florida:

Gov. Ron DeSantis and some other Florida Republicans are worked up over a perceived threat to the freedom of speech of politicians, but they’re ignoring a more significant threat to the public’s right to speak.

They’re upset that Facebook, Twitter, and other social media platforms have begun to suppress posts they deem flagrantly false or socially offensive, particularly those from their favorite ex-president.

But that isn’t a First Amendment issue. Those are private corporations, not government entities.

The legitimate First Amendment threat they are ignoring is the misuse of Florida’s courts to suppress and punish attempts by citizens to influence government agencies on issues involving public versus private interests.

At every level of appeal, including the U.S. Supreme Court, environmentalist Maggy Hurchalla found no relief from a $4.4 million SLAPP suit judgment that punished her attempt to stop a rock mining and water storage project in Martin County.

Florida has a law that’s supposed to prevent such cases, but she was sued before it took effect, and the law seems weak.

The high courts in both Tallahassee and Washington refused to hear her appeal despite strong support from both liberal and conservative organizations warning against the danger to the First Amendment.

Hurchalla, 79, the surviving sister of former U.S. Attorney General Janet Reno, won’t have to pay the judgment because she doesn’t have the money. But she persisted in her appeals because of the issue at stake.

A citizen wanting to object to, say, a developer’s permit to drain wetlands must now take care to misstate not a single fact, and to confine his or her objections to a public meeting or official correspondence. Otherwise, the business interest might file and win a lawsuit over “tortious interference.”

The trial judge and appeals court were incensed that Hurchalla sent personal e-mails to county commissioners who were friends of hers and over a factual error as to whether environmental studies had been completed on the project she opposed. There had been some, although they weren’t peer-reviewed.

Neither issue would have mattered had developer George Lindemann Jr., the owner of Lake Point Restoration, sued her for libel or slander. The precedents on defamation are far more tolerant of the public interest than Florida’s case law on tortious interference with a contract.

The Legislature should forbid a claim of tortious interference if the issue involves a public agency. Tortious interference is judge-made law intended primarily for business disputes.

Another lesson is to remodel Florida’s anti-SLAPP law on a much stronger statute recently enacted in New York. The Public Participation Project, an entity that opposes SLAPP suits, gives New York’s a grade of A, but Florida gets only a C. Twenty-six states have even weaker laws or none at all.

Hurchalla’s objection was to a contract and a permit Lake Point Restoration had obtained to store water in a rock mine and sell it to West Palm Beach.

The legal system’s disdain for her case contrasted sharply with earlier precedents.

In 1984, the Florida Supreme Court overturned the $5,000 judgment that a jury and court had awarded to an English teacher who had been denounced to the school board by a parent upset over his son’s B grade.

The parent may have been negligent in his remarks, wrote then-Chief Justice Joseph A. Boyd Jr., but he still had the same right as the media “to discuss, comment upon, criticize, and debate” in his comments to the school board. That right required a certain latitude — what lawyers call privilege.

Hurchalla deserved the same.

In 2008, the Florida Supreme Court banned the use of a cause of action called false light invasion of privacy because it was “largely duplicative of existing torts, but without the attendant protections of the First Amendment.” (The case, involving a Jewish woman’s claim that Jews for Jesus Inc., had falsely identified her as a believer, continued on other grounds before being dropped in 2014.)

Through their appointments, recent governors have steered Florida’s appellate courts on a hard-right course. There wasn’t even one dissent when the Fourth District Court of Appeal upheld the $4.4 million judgment and the Florida Supreme Court refused to review it. The U.S. Supreme Court denied review without comment.

It seemed to be a textbook example of a SLAPP suit. That stands for Strategic Lawsuits Against Public Participation, the subject of a state law passed in 2000 and amended in 2015.

But they are not “prohibited,” as the law’s title claims. One apparent weakness is that it protects only statements made “before” a governmental agency. And it entitles the defendant only to an intermediate ruling, with no deadline, on whether the suit was filed “primarily” over the defendant’s constitutional right of free speech. It also allows the award of legal fees to the prevailing party, which could mean the developer or agency suing the citizen.

The New York law, on the other hand, protects not only speech “in a place open to the public” or a “public forum,” but also “any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest.”

“Public interest,” it adds, “shall be construed broadly, and shall mean any subject other than a purely private matter.”

Moreover, all proceedings must stop until a court has ruled on a defendant’s motion to dismiss the suit. That halts the costly process of taking pre-trial depositions.

The potential legal expense is often enough to make citizens abandon protests in the face of actual or threatened SLAPP suits, especially if the entity filing or threatening suit is a utility or development corporation with deep pockets.

New York’s superior law is an excellent model for the Florida Legislature to copy.



Feb. 23

The Gainesville Sun on the need for increased oversight of Florida prisons:

The Florida Department of Corrections has long been shown that it needs independent oversight, with two recent examples further making the case.

A federal report released in December found that prison officials failed to protect inmates at Florida’s largest women’s prison from sexual abuse by the staff there for more than a decade. Instead of acknowledging the need to do more to stop abuse at Lowell Correctional Institution near Ocala, The Department of Corrections has pushed back against the report’s findings.

The investigation also revealed a pattern in which prisoners who reported abuse faced retaliation. The same pattern has been shown in a continuing legal battle over the excessive use of solitary confinement in Florida prisons.

A federal magistrate judge issued an order last week that said evidence and testimony showed “actual overt retaliation by prison officials, as well as threats of retaliation” against inmates who participated in the lawsuit. Inmates said correctional officers withheld food and threatened and intimidated them for taking part in the case, which contends that Florida prisons excessively use solitary confinement without regard for inmates’ mental health.

These examples are just the most recent in a long history of claims against the Department of Corrections for abuse of inmates. Given that history, it is no wonder why reformers are pushing for the Legislature to finally approve an independent oversight board to respond to prison complaints.

Legislation filed by state Rep. Diane Hart, D-Tampa, would create a volunteer Citizens Oversight Council to act as a liaison between inmates and administrators. The council would be able to conduct regular unannounced visits and interview prison staff in order to make recommendations on improving conditions.

Deborrah Brodsky, the former director of Florida State University’s Project on Accountable Justice, told the Orlando Sentinel that the body would be a step forward for the department. Brodsky said that oversight bodies are a “sustained, systemic, deliberate, proactive method, as opposed to waiting for something really terrible to happen.”

The Department of Corrections has already allowed terrible things to happen, so an oversight body at this point would help prevent them from continuing to occur.

A history of abuse at Lowell Correctional Institution is a glaring example. An investigation by the U.S. Department of Justice’s Civil Rights Division and Florida federal prosecutors found reasonable cause to believe “varied and disturbing reports” of rape and other abuse by correctional officers and other staff at the women’s prison.

A report on the investigation noted that several Lowell staff members have faced criminal charges over sexual abuse of prisoners — and that “many more” have been investigated for credible accusations of rape and other sexual abuse of inmates in exchange for contraband and basic necessities such as toilet paper.

The report noted that state officials have documented and been aware of sexual abuse at Lowell since at least 2006. Rather than recognize the overdue need for reform, a lawyer for the state Department of Corrections sent a letter to the Justice Department disputing the findings and seeking for confidential sources to be revealed in order for the state agency to investigate.

Florida prison officials should have ample evidence already about abuse at Lowell, including an inmate who was reportedly beaten so badly by corrections officers that she was left paralyzed. An independent oversight board would be a step toward correcting problems there and at other Florida prisons, but further reform is needed.