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Backseat Driving From The Bench

Ron DeSantis.
Fla. Gov. Ron DeSantis. Photo by Gage Skidmore.

Gov. Ron DeSantis has been Florida’s chief executive for less than a week, but he is already doing some serious housekeeping. Unfortunately, he shares power in Tallahassee with a federal judge whose legal reasoning is a mess.

Upon taking office, DeSantis almost immediately asked the entire South Florida water management board to resign so he can pick replacements who are more committed to cleaning up the Everglades and the periodically foul, algae-laden discharges from Lake Okeechobee that make life miserable for coastal residents.

On Friday, he followed up by suspending Broward County Sheriff Scott Israel and appointing Gregory Tony – a former sergeant in the Broward community of Coral Springs who is a specialist in active-shooter training – to take Israel’s place. This decision is hardly a surprise, given that DeSantis called for Israel’s removal as part of his campaign.

Israel’s tenure has been marked by not one, but two major fails in active-shooter situations. The first was at the Fort Lauderdale airport in January 2017, and the second – even worse – was the massacre last Valentine’s Day at Marjory Stoneman Douglas High School in Parkland.

Israel, who has touted his own “amazing leadership” and is not a big believer in accountability for his department, and especially for himself, has said he will not willingly give up his seat. He is entitled to a hearing before the state Senate, which convenes in March. The Senate can either reinstate or remove him. With reinstatement about as likely to happen as a takeover of Walt Disney World by Caribbean pirates, my guess is that Israel will stop short of taking matters that far, to avoid further humiliation. But when it comes to this particular sheriff and his ego, I wouldn’t bet a new broom on it.

One cleansing step that the new governor did not need to take was the removal of Broward County Elections Supervisor Brenda Snipes. Her incompetence has been on vivid display even longer than Israel’s, most recently and dramatically in the failures of ballot design and vote-counting execution in last fall’s razor-close state elections. DeSantis doesn’t need to act because his predecessor, Rick Scott, suspended and replaced Snipes before leaving for his new post as the state’s junior senator in Washington.

Snipes, like Israel, would have been entitled to a state Senate hearing. Except that before Scott acted, she had already resigned on Nov. 18. Snipes made her resignation effective in January; Scott’s action merely served to accelerate her departure, allowing him (rather than DeSantis) to appoint a replacement.

Although it is questionable whether DeSantis, who, like Scott, is a Republican, would have selected Peter Antonacci as Snipes’ replacement, there is no reason to believe he is unhappy with Scott’s choice. He may well have appreciated having one less issue to clean up as he installs his new administration. Once Scott suspended and replaced her, Snipes sought to revoke her resignation, a move the former governor disregarded. Antonacci took control of the Broward County elections office on Dec. 3.

But along comes U.S. District Judge Mark Walker of Tallahassee. Walker is no fan of former Gov. Scott, but with Scott now out of reach, Walker seems intent on dumping the Snipes mess into DeSantis’ lap instead.

In a ruling that I would describe as two parts spleen and one part gibberish, Walker acknowledged that he has no power to put Snipes back in her old job. But he nonetheless ruled that Scott violated Florida law and the U.S. Constitution’s due process clause by denying Snipes “a meaningful opportunity to be heard.”

“This Court emphasizes that it is not requiring a specific outcome,” Walker wrote. “It is merely requiring a meaningful process—as the Constitution demands. This Court also emphasizes that, although Governor DeSantis has been substituted as a party, he has been accused of no wrongdoing but must, by law, inherit what his predecessor has left him.”

Walker took the opportunity to excoriate Scott for asserting “some falsehoods of a stigmatizing nature” in his order suspending Snipes, citing an instance in 2016 when early voting results were posted 30 minutes before the polls closed. Scott’s so-called falsehood was to hold Snipes responsible for this lapse (among many others), when “Snipes provides evidence that this error was a vendor’s technician’s unintentional mistake.”

Walker ordered DeSantis to provide Snipes with notice of a hearing by Jan. 31 and with an actual “meaningful opportunity to be heard” by March 31. But he noted that Snipes’ resignation was unconditional and binding, that the job has been filled, and that he has no power to reinstate her (nor, apparently, does DeSantis). So what, exactly, would be “meaningful” about this hearing, other than allowing Snipes to make her case about why she thinks she was competent to hold the job that she herself resigned to avoid a clearly inevitable gubernatorial suspension?

It was not former Gov. Scott who deprived Snipes of the opportunity for a hearing; it was Snipes herself. Had she clung to her job the way Broward’s embattled Sheriff Israel has, she would be as entitled as he is to a hearing before the state Senate. And her chances of thereafter returning to her post would be just about as good.

In several places, Walker’s ruling descends to a level that makes me question his reading comprehension, or that of his law clerks, or both.

Walker cited Florida Statutes Sec. 112.47, which stipulates that procedures for the removal or reinstatement of an official must “afford due process” to both the governor and the suspended individual. That statute actually calls for a hearing before a Senate committee. Not surprisingly, incoming Senate President Bill Galvano is also party to Snipes’ lawsuit, and to Walker’s order.

But Walker is not ordering the state Senate to provide any sort of hearing to Snipes; he is ordering DeSantis to do so. “A meaningful opportunity to be heard means an opportunity to present evidence to the Governor, either in writing or through witnesses, and an opportunity to present argument to the Governor, either in writing or orally,” Walker’s order states.

No it doesn’t. Not under Florida law, anyway; the state puts the responsibility for such a hearing on the Senate. But the Senate has no reason to hold a hearing in the spring for Snipes, or to potentially return her to a position she herself vacated months earlier and which has since been filled. Since Scott himself was never obliged to offer a hearing to Snipes, how can DeSantis now have that duty?

To get to this unlikely place, Walker flatly misstates a 1974 Florida Supreme Court decision to assert that Snipes’ resignation, although supposedly taking effect on Jan. 4, actually was effective on Nov. 18 when she submitted it to Scott.

The earlier case involved Supreme Court Justice Richard Ervin, who submitted his resignation early in 1974 in anticipation of reaching mandatory retirement age in 1975. Ervin made his resignation effective in early 1975, to allow voters to choose his successor in the 1974 elections, rather than having a governor replace him later in 1975. Ervin’s delayed effective date for resignation was respected by the Florida courts, not denied as Walker indicated.

Walker claimed Scott’s suspension was an “effective termination.” It wasn’t. Snipes was in office as the Broward elections supervisor until Nov. 30, when Scott suspended her; she became the former supervisor by her own action on Jan. 4, when her prior resignation took effect.

Let’s cut through the mess and be real. Snipes wanted to leave office with her head held high and under her own terms. Walker thinks it was mean and unfair for Scott to deny her that opportunity. Maybe it was. But if Snipes thought she deserved to keep her job and wanted to do so, she could have behaved as Israel did and refused to quit. In that case, her hearing would be set for the Senate calendar later this year.

Walker can still grant Snipes the “meaningful opportunity to be heard” he thinks she should have. He can do it right there in his own courtroom, wasting his own time rather than that of the state’s duly elected governor. Ron DeSantis has plenty to clean up without a bored, annoyed, backseat-driving federal judge adding to the pile.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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