On March 16, 2017, Florida’s Ninth Judicial Circuit State Attorney Aramis Ayala announced she would not seek the death penalty against Markeith Loyd, a man caught on camera executing a helpless police officer. In the process, she also announced she would not seek the death penalty in any murder case.

This was notable for many reasons, the least of which being she never mentioned, much less suggested, she would adopt such a radical position while she was running for the Office of the State Attorney. Nevermind, this would be an abrupt departure from sentencing policy in Florida, which is a death penalty state.

In justifying her decision, Ms. Ayala made the following five arguments about her rationale for abandoning the death penalty:

• The death penalty has no public safety benefit.
• The death penalty does not increase safety for law enforcement officers.
• The death penalty is generally not a deterrent.
• The death penalty gives families false promises of closure.
• The death penalty costs millions of dollars that far outweigh the cost of life-in-prison sentences.

The Backlash

Unsurprisingly, this caused a backlash from many in Florida and within the Central Florida community. But the real question by those opposed to her decision was, what could be done?

In response, Governor Rick Scott immediately called for her resignation, which she declined to do. When she declined to resign, he then assigned Fifth Judicial Circuit State Attorney Brad King to take over the prosecution of the Markeith Loyd case pursuant to Florida Statute 27.14 (Assigning State Attorneys to Other Circuits). Section 27.14 allows a governor to reassign State Attorneys for “any other good and sufficient reason, the Governor determines that the ends of justice would be best served.”

Initially, Ms. Ayala indicated she was not going to fight the reassignment of Mr. Loyd’s case, but then Governor Scott removed Ms. Ayala from 21 more capital cases based on Section 27.14, creating an untenable situation in Orange and Osceola Counties.

By What Authority

With her legitimacy as the duly elected State Attorney of the Ninth Judicial Circuit being called into question, Ms. Ayala had no choice but to fight back and she filed two civil actions: one in the Florida Supreme Court and one in Federal Court. (Since the federal action has been abated pending a decision by the Florida Supreme Court, I will focus on Florida case only.)

In the Florida Supreme Court, Ms. Ayala filed a Petition for Writ of Quo Warranto. Quo Warranto is a latin term that means “by what warrant” or, as more commonly stated, “by what authority.” Essentially, she is asking the Florida Supreme Court to determine whether Governor Scott has the authority to reassign her cases.

And, in her petition, she makes a compelling argument that section 27.14, which Governor Scott relied upon to reassign her cases, is an anachronism left over from the Florida Constitution of 1885, which unconstitutionally empowers the Governor to reassign her cases in violation of the current constitution. Specifically, her attorneys point out section 27.14 was first enacted in “1905, when the Governor appointed state attorneys and, moreover, the constitution did not designate state attorneys as the mandatory prosecutors for local crimes.”

And she has a point, because Article 5, Section 15, of the Florida Constitution of 1885 stated “The Governor […] shall appoint a State Attorney in each Judicial Circuit.” Whereas Article 5, Section 17 of the Florida Constitution of 1968 states “in each judicial circuit a state attorney shall be elected for a term of four years.”

The implication should be obvious, while a Governor (or the president of the United States) has the inherent authority to remove or reassign people they appoint to office, a Governor (or the president of the United States) does not have the authority to remove, or assume the responsibilities of, a constitutionally elected officer except as provided for in the constitution.

And the Florida constitution does not authorize the Governor to reassign a duly elected State Attorney (It does authorize him to suspend her though). Consequently, the argument is that Governor Scott has no authority to do what the constitution does not authorize. Therefore, any statute that attempts to confer such authority upon him is unconstitutional.

Bad Precedent

Unfortunately for Ms. Ayala, the Florida Supreme Court has addressed section 27.14 at least five previous times and in each instance, the Florida Supreme Court upheld the authority of the Governor to reassign a State Attorney. The most recent opportunity the Florida Supreme Court has had to address section 27.14 was in Austin v. State, 310 So. 2d 289 (Fla. 1975).

In Austin, the State Attorney of the Second Judicial Circuit refused to investigate the Commissioner of Education for alleged criminal conduct that occurred solely within the Second Judicial Circuit. Much like the reasoning Ms. Ayala gave regarding the cost of death penalty prosecutions, the Second Judicial Circuit State Attorney claimed the “investigation would tax the resources of his office.” Id. at 293.

As a result, the Governor assigned the State Attorney of the Fourth Judicial Circuit to investigate the allegations. This resulted in the Education Commissioner being indicted. In turn, the Education Commissioner challenged the authority of the Fourth Judicial Circuit State Attorney to prosecute him in the Second Judicial Circuit.

In finding the Governor’s assignment lawful, the Florida Supreme Court cited four prior Florida Supreme Court cases in support of their decision.

• Hall v. State, 187 So. 392 (Fla. 1939)
• Johns v. State, 197 So. 791 (Fla. 1940)
• Hart v. State, 198 So. 120 (Fla. 1940)
• Finch v. Fitzpatrick, 254 So. 2d 203 (Fla. 1971)

Notably, three of the cases were decided prior to the enactment of the Florida Constitution of 1968 and the fourth case specifically declined to pass on the constitutionality of section 27.14. See Finch at 207. (“The constitutionality of the statute was not properly before the trial judge.”)

So it is questionable how persuasive or authoritative the cases should be to the constitutional challenge raised by Ms. Ayala. Nevertheless, the Florida Supreme Court ultimately upheld the Governor’s assignment in Austin not just based on these prior decisions, but on constitutional grounds as well.

Specifically, the Florida Supreme Court cited Article IV, Section 1, of the Florida Constitution of 1968 as constitutional authority for the Governor’s assignment, which states “The governor shall take care that the laws be faithfully executed.” Id. at 207. The Court reasoned “this constitutional provision [was] sufficient to authorize the assignment of a state attorney by the Governor.” Id.

The Florida Supreme Court concluded: “that if for any good and sufficient reason the Governor thinks that the ends of justice would best be served, he may assign any state attorney of the State to the discharge of the duties of state attorney in any investigations in any circuit of the State.” Id. at 292.

Therefore, “under the provisions of Fla. Stat. § 27.14 and § 27.15, the Governor did have the authority to assign a state attorney from one circuit to another circuit for the purpose of conducting an investigation, participating in grand jury proceedings and conducting a trial even though the resident State Attorney was available.” Id. at 294.

So under controlling Florida Supreme Court precedent, it would seem Governor Scott has the authority to assign Mr. King to oversee Ms. Ayala’s capital cases for any “good and sufficient reason” in order to see that the (death penalty) laws of Florida are faithfully executed.

Suspension and Removal Powers

But what remedy would Governor Scott have if the Florida Supreme Court agrees with Ms. Ayala, recedes from their prior rulings, and finds the Governor’s reassignment authority to be unconstitutional?

Suspension of Elected Officers

Under the Florida Constitution of 1968, Article 4, Section 7, “the governor may suspend from office any state officer not subject to impeachment […] for malfeasance, misfeasance, neglect of duty, drunkenness, (mental) incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension.”

And since a State Attorney is not an officer subject to impeachment. See Art. III, s.7, Fla. Const. (Identifying governor, lieutenant governor, members of the cabinet, and judges as officers subject to impeachment.), Governor Scott could suspend Ms. Ayala if he believes her decision not to seek the death penalty in all cases constitutes “malfeasance, misfeasance, or neglect of duty.”

Importantly, in State v. Coleman, 155 So. 129 (Fla. 1934), the Florida Supreme Court defines what constitutes malfeasance, misfeasance, and neglect of duty in terms of the Governor’s authority to remove officers and defined them as follows:

• Malfeasance is an illegal deed. “The performance of an act by an officer in his official capacity that is wholly illegal and wrongful.” Id.
• Misfeasance is a legal act done for an illegal purpose. “The performance by an officer in his official capacity, of a legal act in an improper or illegal manner.” Id.
• Neglect of duty is “the neglect or failure of a public officer to do and perform some duty or duties laid on him as such by virtue of his office or which is required of him by law.” Id.

Given these definitions, the only legitimate basis Governor Scott would have to suspend Ms. Ayala would be to allege her decision not to consider the death penalty constitutes a neglect of her duty.

Candidly, the only person I have seen cite any authority that might arguably suggest Ms. Ayala lacks the authority not to consider the death penalty in all cases is former State Attorney Jeff Ashton, who has opined that Florida Statute 921.141 requires the State Attorney to weigh the mitigating and aggravating circumstances before affirmatively declining to seek the death penalty. In essence, he is saying her unilateral decision not to seek the death penalty is an abuse of discretion that runs contrary to law. (Notably, a judge’s refusal to consider all legal sentencing options would constitute an abuse of discretion, so he may have a point.)

Importantly, if Governor Scott suspended Ms. Ayala, the Florida Senate would then try her pursuant to the allegations alleged in his suspension order. See State v. Askew, 269 So. 2d 671, 677 (Fla. 1972) (“A suspension order is an indictment of the officer suspended and the Senate examines and tries it with a view of arriving at the truth of the charge. The [charge brought by the Governor] against the suspended officer is the issue that the Senate tries.”)

Removal of Elected Officers

Pursuant to Article 4, Section 7(b) of the Florida Constitution of 1968, once the Governor issues a suspension order, the case is then turned over to the Florida Senate who may then “in proceedings prescribed by law, remove from office or reinstate the suspended official.”

Pursuant to this constitutional authority, the Legislature has enacted statutes which address the executive suspension and removal process in Part V, Chapter 112, Florida Statutes, with the procedures of the removal process contained in Senate Rule 12.

Pursuant to these statutes and rules, Ms. Ayala would be afforded a hearing before a subcommittee, who would then make a recommendation to the full Senate, who would then vote to either remove her or reinstate her. Given the Republican makeup of the Senate, I would not be surprised if they decided to remove her – although it would be politically perilous given the racial undercurrents that would come with removing the first duly elected African-American State Attorney in Florida history.

My Two Cents

If you were to ask me in a vacuum if I supported the death penalty, I would probably say no; that my experience as a criminal defense attorney has taught me the death penalty is problematic, that the criminal justice system is racially biased, and law enforcement eagerness often results in wrongful convictions. It was a position I expressed in my first blog post ever when I authored Denying the Certainty of Death and opined that a life sentence was a better punishment than the death penalty.

But I’m a little different now and in those cases where there is no residual doubt, such as the cases of John Couey who kidnaped, raped, and then buried Jessica Lunsford alive or of Markeith Loyd, who was videotaped executing Officer Clayton in cold blood, I would not oppose the death penalty.

Which leads me to my opinion, my two cents if you will. I don’t agree with State Attorney Ayala’s decision to unilaterally discontinue seeking the death penalty in Orange and Osceola Counties, but only because she did not announce her position until after she was elected. Had she ran on an anti-death penalty platform and been elected, I would not remotely question her authority not to seek the death penalty in any case (even though I would disagree with her decision in the Loyd case).

However, I also do not agree with Governor Scott’s decision to remove Ms. Ayala from capital cases. I personally think his reassignment under section 27.14 constitutes an unconstitutional exercise of power notwithstanding the Florida Supreme Court precedent that supports his decision and it is my hope the Florida Supreme Court recedes from their prior rulings.

It goes without saying that I don’t think Ms. Ayala deserves to be suspended either, although I think the Governor has the authority to do so; thereby putting the decision to retain or remove Ms. Ayala in the hands of the Florida Senate.