Alvin Leroy Morton v. State of Florida

SC06-2091 | SC07-1201

>> THE NEXT CASE ON OUR CALENDAR
THIS MORNING IS MORTON V. STATE
OF FLORIDA.
READY TO PROCEED?
>> THANK YOU.
GOOD MORNING, CHIEF JUSTICE,
JUSTICES.
MAY IT PLEASE THE COURT --
>> MOVE YOUR MICROPHONE DOWN,
PLEASE.
>> YES.
IS THAT BETTER?
>> A LITTLE BIT CLOSER.
>> HOW'S THAT?
>> THAT'S GREAT.
>> THE ISSUE I WOULD LIKE TO
ADDRESS IS THE INEFFECTIVENESS
OF COUNSEL'S CLAIM, PARTICULARLY
THE LOWER COURT'S FAILURE TO --
RELEVANT TESTIMONY.
I THINK THERE'S THREE CRITICAL
FACTS IN THIS CASE WHICH
DISTINGUISH IT FROM HEARSAY, AND
THAT LINE OF CASE WHERE THIS
COURT HAS HELD IS IT'S
REASONABLE FOR AN EXPERT, FOR AN
ATTORNEY TO RELY ON AN EXPERT.
AND THOSE THREE FACTS ARE THE
RESENTENCING, THE BIRTH RECORDS,
AND THE FACT THAT THE DOCTOR IS
NOT A CREDIBLE WITNESS, AN
EXPERT WHO SHOULD BE RELIED ON
IN DETERMINING WHETHER OR NOT
SOMEONE CAN LIVE OR DIE.
>> AS TO THAT, WE CAN'T WEIGH
CREDIBILITY OF A WITNESS.
IF THE TRIAL COURT WEIGHED HIS
TESTIMONY AND SAID I FIND IT
CREDIBLE, WE CAN'T.
WE CONSIDER THAT, CAN'T WE?
>> I THINK YOU CAN.
THE CASE LAW SAYS THAT,
OBVIOUSLY, AN APPELLATE COURT
SHOULD DEFER TO A TRIAL COURT'S
FINDINGS, BUT THAT DOESN'T MEAN
THAT YOU WOULD JUST CARTE
BLANCHE ACCEPT A TRIAL COURT'S
FINDINGS, AND I THINK THIS IS
PRECISELY THAT TYPE OF UNIQUE
SITUATION, JUSTICE CANTERO.
>> CAN YOU POINT OUT ANY OTHER
UNIQUE SITUATION WHERE WE HAVE
REVERSED A TRIAL COURT'S
CREDIBILITY IN DETERMINATION OF
A WITNESS?
>> WELL, I THINK THERE ARE CASES
IN THIS COURT, AND I WOULD HAVE
TO REFER TO MY BRIEF.
THERE ARE CASES --
>> THAT WOULD BE PRETTY
IMPORTANT BECAUSE I DON'T THINK
IT'S VERY COMMON.
>> NO, IT'S NOT COMMON, BUT I
THINK IF YOU LOOK AT THAT, THE
TESTIMONY OF DR. DELBEATO, THIS
COURT HAS A ROLE THAT'S NOT JUST
SIMPLY TO SAY SIMPLY BECAUSE A
TRIAL COURT MADE A FINDING, AND
I THINK ONE -- IN ADDITION,
THERE ISN'T A SPECIFIC FINDING
THAT DR. DELBEATO'S -- WELL, LET
ME REVERSE THAT.
>> WAS THERE A FINDING HE WAS
CREDIBLE?

>> THERE'S NOT AN EXPRESS
FINDING THAT HE'S CREDIBLE,
THERE IS A FINDING THAT THE
COURT SAYS THAT HE RELIES ON DR.
DELBEATO AND DR. GONZALEZ OVER
THE DEFENSE EXPERTS.
>> THAT SEEMS A PRETTY CLEAR
STATEMENT THAT HE FINDS THEM
CREDIBLE.
>> HE DOESN'T EXPRESSLY SAY HE
FINDS THE DOCTOR TO BE CREDIBLE,
BUT EVEN IF HE DID, YOU HAVE TO
LOOK AT THE DOCTOR'S TESTIMONY.
THIS IS AN EXPERT WHO DESTROYED
HIS RECORDS, WHO SAID AT AN
EVIDENTIARY HEARING THAT THE BUG
MAN TOLD ME THAT CARPENTER ANTS
DESTROYED MY RECORDS AND THAT HE
WOULD NEVER, EVER DESTROY
RECORDS BECAUSE THAT WOULD BE
UNETHICAL IN A CAPITAL CASE, AND
HE WAS UNDER OATH.
AND AT TRIAL IN 1999 WHEN HE WAS
UNDER THE SAME OATH TO TELL THE
TRUTH, HE SAID HE'D SHREDDED HIS
RECORDS A YEAR AND A HALF AFTER
THE FIRST TRIAL.
NOW, ONE OF THOSE STATEMENTS OR
AT LEAST ONE OF THOSE STATEMENTS
IS UNTRUE.

>> [INAUDIBLE] SOMETHING FOR ME
BECAUSE I'M GOING TO, JUST FOR
THE SAKE OF THIS ARGUMENT,
ASSUME THAT AFTER THERE WAS A
11-1 DEATH PENALTY
RECOMMENDATION THAT MR. URSO
RECEIVED A CALL FROM SWISHER WHO
SAID THAT DELBEATO WASN'T A
GREAT WITNESS, THAT HE SHOULD
HAVE DONE SOMETHING ELSE.
LET'S JUST ASSUME HE THOUGHT,
I'VE GOT TO REALLY THINK THIS
OUT.
I'D LIKE YOU, IN TERMS OF THE
PREJUDICE, TO EXPLAIN TO ME.
BECAUSE I HAVE LOOKED AT
THE EXPERT YOU PUT ON,
DR. SILVA.
I KNOW YOU GET AN EXPERT FROM
SAN FRANCISCO COAND A SOCIAL
WORKER FROM SAN FRANCISCO, AND
THIS ATTORNEY FELT HE WAS
LIMITED AT THE TIME OF THE
TRIAL.
THERE'S SOMETHING WRONG WITH OUR
SYSTEM, BUT LET'S JUST ASSUME
THEY HAD THOSE TWO WITNESSES.
WHAT DO YOU THINK THAT THOSE
WITNESSES, LET'S JUST ASSUME
THOSE ARE THE WITNESSES THAT
SHOULD HAVE BEEN CALLED, REALLY
SAY THAT IS ALL THAT MUCH
DIFFERENT THAN DR. DELBEATO IN
TERMS OF THE, YOU KNOW, BRAIN
DAMAGE AND THE EXISTENCE OF
STATUTORY MENTAL MITIGATORS THAT
WOULD HAVE MITIGATED AGAINST
THIS HORRENDOUS CRIME WITH TWO
VICTIMS AND A JUST, JUST, YOU
KNOW, GRUESOME DETAILS?
SO, YOU KNOW, AND I REALLY, YOU
KNOW, ANYWAY, SO LET ME HEAR
YOUR BEST SHOT ON THE COMPELLING
TESTIMONY THAT REALLY, YOU KNOW,
IF SOMEBODY HAD BEEN LOOKING,
COULD HAVE GOTTEN JUST
EXTRAORDINARILY COMPELLING
TESTIMONY TO PUT ON, AND THEY
SHOULDN'T HAVE JUST DONE THE
SAME THING.
>> WELL, I THINK THERE ARE TWO
POINTS I WANT TO MAKE TO ADDRESS
THAT.
FIRST, THE DIFFERENCE BETWEEN
THE TESTIMONY KEEPING IN MIND
THAT WHAT DR. DELBEATO SAID
WASN'T HELPFUL, IT WAS VERY,
VERY HARMFUL.
BUT THEN LET'S LOOK AT --
>> WELL, I DON'T --
>> RIGHT.
>> I DON'T QUITE ACCEPT THAT
CONSIDERING HOW WE TALKED ABOUT
THE MITIGATION AND, YOU KNOW,
BUT ANYWAY, LET'S JUST ASSUME
THAT IT WASN'T HELPFUL.
>> AND SO LOOKING AT THAT, THEN,
LOOKING AT WHAT DR. SILVA HAD
AND WHAT DR. -- PRESENTED, FIRST
OFF THEY PRESENTED, THEY LINKED
THE BIRTH TRAUMA.
AND ANY JUROR WHO'S A PARENT AND
READS THOSE BIRTH RECORDS WOULD
HAVE TO BE, OBVIOUSLY, COMPELLED
AND CONCERNED.
THIS WAS, THIS WASN'T JUST A BAD
BIRTH, THIS WAS A REALLY, REALLY
BAD BIRTH.
>> WHO LINKS THE BIRTH TRAUMA?
I DON'T SEE DR. -- FIRST OF ALL,
WHO ALWAYS SAYS THERE'S
STATUTORY MITIGATION AT LEAST IN
MY EXPERIENCE OF BEING ON THIS
COURT DIDN'T FIND STATUTORY
MITIGATION.
AND THE TEST THAT HE
ADMINISTERED WAS THE MMTI.
DR. SILVA, WHO WAS THE OTHER
EXPERT, THE PSYCHIATRIST, SAID
HE WOULD HAVE DIAGNOSED HIM AS
HAVING ASPERGER'S SYNDROME AND,
YOU KNOW, THAT HE'S GOT AN
ABOVE, ABOVE-AVERAGE IQ.
SO I'M TRYING TO LOOK AT WHERE
THEY LINKED UP THE BIRTH
RECORDS, THAT IS THAT YOUR
THEORY WOULD BE THAT THERE WAS
AN -- BIRTH AND, THEREFORE, THIS
DEFENDANT SUFFERED FROM LIFELONG
BRAIN DAMAGE WHICH WOULD SOUND
LIKE A VERY GOOD CASE.
WHERE IS THAT IN TERMS OF WHAT
THESE EXPERTS TESTIFIED TO?
>> DR. SILVA SAID, FIRST OFF,
DR. SILVA, HE'S A
NEUROPSYCHIATRIST AND BOARD
CERTIFIED IN NEUROLOGY.
HE ADMINISTERED NUMEROUS TESTS
INCLUDING THE WHARTON MEMORY
TEST, AND HE TESTIFIED
SPECIFICALLY THAT THE -- BIRTH
INCLUDING THE TREMORS AND THE
RIGIDITY AND CONVULSIONS WERE
SPECIAL INDICATORS LEADING TO A
HIGH LIKELIHOOD OF BRAIN DAMAGE.
HE THEN EXPLAINED THAT
ASPERGER'S, WHAT WE KNOW OR WHAT
THEY KNOW ABOUT ASPERGER'S IS
THAT IT INVOLVES DEFICITS IN THE
FRONTAL LOBE AND, TO A LESSER
EXTENT, THE AMYGDALA.
BECAUSE OF THOSE, ALVIN MORTON
IS ABLE TO COGNITIVELY PLAN THIS
CRIME, BUT HE'S A PERSON WHO HAS
AN INABILITY TO REALLY FULLY
UNDERSTAND AND COMPREHEND
EMOTION.
AND SO HE'S LOOKING AT PEOPLE AS
IF THEY ARE ROBOTS, ROBOT-LIKE.
HE HAS, HE'S UNABLE TO
UNDERSTAND EMOTION AND TO HAVE
THE EMPATHY AND THINK THAT A
NORMAL PERSON WOULD HAVE.
HE HAD NO -- CLAUDIA BAKER
TESTIFIED HE'D HAD NO
INTERVENTION, NO TREATMENT, AND
THEN HE HAD THIS HORRIBLY
SADISTIC FATHER.
SO YOU COMBINE THAT WITH THE
ASPERGER'S, AND I THINK THAT'S
THE COMPELLING EVIDENCE.
I'D HAVE TO RESPECTFULLY
DISAGREE ABOUT DR. DELBEATO'S
TESTIMONY.
HE SAID THAT ALVIN MORTON HAD
THE TRAITS OF A SERIAL KILLER,
THAT HE WASN'T EVEN WORTH TRYING
TO REHABILITATE, THAT HE WAS
JUST AN AMOEBA, THAT HE WAS JUST
FLOATING AROUND, AND HE HAD NO
DIRECTION.
>> WELL, IT'S YOUR DESCRIPTION
OF MR. MORTON, ISN'T THAT SORT
OF WHAT WE SEE IN ALL OF THESE
CASES WHEN WE TALK ABOUT
ANTISOCIAL PERSONALITY, AND
DIDN'T ONE OF THESE EXPERTS SAY
THAT THAT WAS MR. MORTON'S
PROBLEM HERE?

>> WELL, DR. DELBEATO DID, THE
DEFENSE EXPERT AT TRIAL SAID,
YES, HE'S ANTISOCIAL, BUT I
THINK THAT THAT IS THE PROBLEM.
IT'S EXACTLY THE PROBLEM.
BUT I GUESS I SEE IT AS A
DIFFERENT PROBLEM IN THAT THE
JURY WAS TOLD.
WHAT THE JURY WAS TOLD HERE ARE
THESE HORRIFIC FACTS OF THIS
CRIME, AND ANY JUROR WOULD BE
THINKING WHO ARE THESE CRAZY
KIDS?
WHAT KIND OF A KID DOES THIS?
AND THEY WEREN'T GIVEN ANY
EXPLANATION OTHER THAN THAT
DR. DELBEATO'S, THAT HE'S A BAD
EGG AND NOT WORTH FIXING.
>> I GUESS THE QUESTION IS,
ANTISOCIAL, AS I UNDERSTAND IT,
IS INABILITY TO SHOW COMPASSION
AND CARE FOR OTHERS.
AND YOU ACT OUT ON THAT.
AND SO GIVE US A SUBSTANTIVE
DIFFERENCE BETWEEN THAT.

>> WELL, AND I'M GLAD YOU ASKED
THAT.
ANTISOCIAL IS A PERSONALITY
DISORDER.
ASPERGER'S IS A DISEASE WHERE
THERE IS A DYSFUNCTION IN THE
BRAIN.
AND IT IS A SOMETHING THAT ALVIN
MORTON PROBABLY HAD FROM BIRTH
AS A RESULT OF HIS TRAUMATIC
BIRTH, AND IT IS MORE THAN JUST
ACTING OUT AND A LACK OF
EMPATHY.
IT IS AN INABILITY, AN ACTUAL
PHYSICAL INABILITY IN THAT PART
OF HIS BRAIN TO UNDERSTAND
EMOTION, TO UNDERSTAND JOY, TO
UNDERSTAND PAIN, TO UNDERSTAND
LOSS AND SORROW.
SO IN THAT REGARD ANTISOCIAL IS
A PERSONALITY DISORDER, AND TO
MANY EXPERTS SIMPLY A CHOICE.
ASPERGER'S IS SOMETHING THAT
ALVIN MORTON WAS BORN WITH, AND
CERTAINLY IT WASN'T HIS CHOICE
TO BE BORN PREMATURE AND HAVE TO
BE RESUSCITATED, AND IT WASN'T
HIS CHOICE TO HAVE ASPERGER'S.
SO I THINK THAT'S THE
DISTINCTION.
I THINK THAT'S THE COMPELLING
DIFFERENCE.
SO THAT IF A JUROR DID HEAR
THAT, THERE'S AN UNDERSTANDING
OF A CONTEXT --
>> SO IT'S YOUR POSITION HERE
THAT A CHILD THAT GROWS UP IN AN
ABUSIVE HOME AND BECAUSE OF THAT
WITHDRAWAL DEVELOPS ANTISOCIAL
PERSONALITY DISORDER, THAT
THAT'S THE CHOICE OF THE ADULT
WHO LATER COMMITS A HEINOUS
CRIME?
>> NO, I THINK THERE IS
TESTIMONY FROM SOME EXPERTS THAT
ANTISOCIAL PERSONALITY DISORDER
THAT SOME OF THOSE CONDUCTS ARE
A CHOICE.
THAT'S WHAT I'M SAYING.
I'M NOT SAYING THAT A PERSON
CHOOSES, THAT A CHILD WHO'S
ABUSED CHOOSES TO HAVE AN
ANTISOCIAL PERSONALITY DISORDER.
IS THAT THE QUESTION YOU WERE
ASKING?
I'M NOT SAYING THAT A PERSON IS
CHOOSING TO HAVE AN ANTISOCIAL
PERSONALITY DISORDER, BUT IT'S
STILL ONLY A PERSONALITY
DISORDER.
I THINK ANOTHER THING THAT'S
SIGNIFICANT IS THIS COURT FOUND
THERE WAS NO ERROR IN THE TRIAL
COURT FINDING NO MENTAL HEALTH
MITIGATION.
AND THE OTHER THING IS THAT THIS
COURT --
>> WE FOUND IT WAS HARMLESS
ERROR.
>> YES, I'M SORRY.
>> COULD YOU ADDRESS, GOING BACK
TO WHAT JUSTICE CANTERO ASKED
ABOUT, I AGREE WE DON'T BLINDLY
JUST GO AND SAY JUST BECAUSE THE
TRIAL COURT SAID IT WE'RE NOT
GOING TO LOOK AT IT, BUT HERE,
AND WE GO BACK TO THIS
MAGIC ISSUE OF ORGANIC BRAIN
DAMAGE, NEITHER THE
DEFENDANT NOR EXPERT WITNESSES
WERE ABLE TO ESTABLISH
FROM ORGANIC DAMAGE.
HE FURTHER SAYS THAT THEY --
ALTHOUGH THERE HAS BEEN
TRIAL COUNSEL, FOR FAILURE TO
PERFORM NEUROIMAGING OF
DEFENDANT'S BRAIN HAS
NOT HAD OBJECTIVE EVIDENCE
THAT SUCH ORGANIC BRAIN
DAMAGE EXISTS.
>> CORRECT OR INCORRECT?
>> THAT IS INCORRECT, CLEARLY
ERRONEOUS FACTUAL FINDING.
THERE WAS NO NEUROIMAGING
PRESENTED, THAT IS TRUE.
BUT THERE WAS OBJECTIVE EVIDENCE
PRESENTED THAT WAS THE
OBJECTIVE TESTING BY DR.
SILVA, THE TOP 20 -- QUOTIENT
INVENTORY.
>> WHY WASN'T THERE ANY
MEDICAL TESTING DONE?
MY UNDERSTANDING IS THAT AFTER
THE FIRST PENALTY PHASE THAT
MR. URSO HAD URGED OR
SUGGESTED THAT MR. MORTON
HAVE, THIS IS MERELY TESTING,
AND HE REFUSED TO HAVE IT.
THAT HE HAS NEVER BEEN, AT
HIS OWN DOING, TESTED FOR
ORGANIC BRAIN DAMAGE; IS
THAT CORRECT?
>> WELL, THE TESTIMONY THAT
-- THAT FROM MR. URSO WAS
THAT THEY TALKED TO OTHER --
TALKED TO ALVIN MORTON ABOUT
A BRAIN SCAN.
AND HE ALSO SAID THAT HE
CONTACTED A NEUROLOGIST AND
LATER ON SAID CONTACTING
NEUROLOGIST -- I CALLED
UNIVERSITY OF SOUTH FLORIDA,
THAT IS CORRECT, THAT WAS THE
TESTIMONY THAT ALLEGEDLY
ALVIN MORTON TOLD HIM HE
DIDN'T WANT A BRAIN SCAN.
BUT THERE ARE MANY OTHER
WAYS TO TEST, TO OBJECTIVELY
SCIENTIFICALLY TEST FOR
BRAIN DAMAGE.
THE DOCTOR, A
NEUROPSYCHIATRIST, BOARD
CERTIFICATED NEUROLOGIST, HE
DID DO A THOROUGH
NEUROPSYCHIATRIC
NEUROLOGICAL WORKUP,
PRESENTED THAT.
I'M NOT AWARE
OF ANY CASE BY THIS COURT
THAT REQUIRES A TEST SCAN OR
MRI IN ORDER TO ESTABLISH BRAIN
DAMAGE, THERE IS NO ESTABLISHED
SCIENCE, NOT A REQUIREMENT OF
THE NEUROPSYCHIATRIST OR NEUROLOGIST
WHO DOES PROPER TESTING.
>> I'M GOING TO THE BOARD
OF EDUCATION PRONG, WHETHER
THIS EVIDENCE WAS PRESENTED TO
THE JURY WOULD HAVE BEEN POWERFULLY
DIFFERENT THAN WHAT THEY
RECEIVED FROM -- AT THE SECOND
PENALTY PHASE.
I'M STILL
PERSUADED THAT WHAT THEY NOW
COME UP WITH SO CHANGES THE
PICTURE OF WHAT WOULD HAVE
BEEN PRESENTED IN THE
PENALTY PHASE TO UNDERMINE
CONFIDENCE IN THE OUTCOME.
YOU ARE IN REBUTTAL,
BUT THAT'S WHAT REALLY
QUESTIONS ARE GOING TO, NOT
THAT I AGREE THERE ARE OTHER
WAYS TO ESTABLISH BRAIN
DAMAGE, THAT I MIGHT HAVE
APPROACHED THIS CASE VERY
DIFFERENTLY THAN MR. URSO
AS, OBVIOUSLY, YOU THINK, BUT
THE QUESTION REALLY IS IS
THIS -- HAS THIS PUT THE CASE
IN SUCH A DIFFERENT LIGHT AS
TO UNDERMINE OUR
CONFIDENCE IN THE OUTCOME OF
THE -- ASSUMING EFFICIENT
PERFORMANCES.
>> I THINK YOU HAVE TO LOOK
NOT JUST AT BRAIN DAMAGE BUT
THE TOTAL PICTURE.
I REALLY -- I DO THINK THE TOTAL
PICTURE HAS BEEN CHANGED IN
THIS CASE, WE GOT A VERY
MINIMAL PRESENTATION OF WHAT
ALVIN MORTON'S CHILDHOOD WAS
LIKE, IT WAS NOT A FULL AND
COMPLETE PICTURE, IN FACT IT
WAS A FALSE PICTURE ABOUT THE
MATERIAL WEALTH WHERE YOU
HAVE THE PROSECUTOR IN
CLOSING ARGUMENT SAYING HE
WAS NOT SOME KID FROM THE
GHETTO, HE HAD LIFE ON EASY
STREET.
WE NOW KNOW THAT
WASN'T TRUE.
LOOK AT THAT.
YOU WILL HEAR ABOUT HIM IN
A DISCONNECTED FREEZER, SO ON.
I THINK THE PICTURE HAS
CHANGED.
I WOULD LIKE TO --
UNLESS THERE ARE OTHER
QUESTIONS FROM THE COURT I
WOULD LIKE TO RESERVE
REMAINING TIME, IF I MAY.
>> RESPONSE?
>> GOOD MORNING.
SCOTT BROWNE FOR THE STATE OF
FLORIDA.
OF THE FOUR
POSTCONVICTION MENTAL HEALTH
EXPERTS WHO TESTIFIED BELOW
ONLY DR. SILVA TESTIFIED
THAT HE FOUND A STATUTORY
MENTAL MITIGATOR.
JUSTICE PARIENTE, YOU RECOGNIZED
EVEN NORMALLY RELIABLE
DEFENSE ORIENTED DR. BERLIN
COULD NOT SAY IS THE MENTAL
HEALTH MITIGATORS APPLIED IN
THIS CASE MOREOVER YOU DO
HAVE A DETERMINATION OF
CREDIBILITY BY TRIAL JUDGE
BELOW DR. SILVA, DR. BERLIN
DID NOT TAKE INTO ACCOUNT
ANTISOCIAL PERSONALITY
DISORDER, DR. BERLIN DIDN'T
DO IT, DID NOT FIND THAT
WAS MITIGATING, DIDN'T EXAMINE.
>> I'M GOING TO ASK YOU TO FOCUS
ON THE FIRST PRONG THAT IS
CONCERNING ME.
MR. URSO CERTAINLY WAS AN
EXPERIENCED LAWYER.
BUT HE HAD -- OTHER THAN THIS
CASE, WHICH HE TRIED ONCE
AND TWICE, NO PRIOR CAPITAL
EXPERIENCE.
AFTER THE FIRST PENALTY
PHASE WHICH REALLY HAD
REVEALED IN THE SENTENCING ORDER
VERY MINIMAL MITIGATION, HE
IS TOLD BY SWISHER, FAR MORE
EXPERIENCED, THOUGH NOT
A GREAT WITNESS, THAT DELBEATO
TOLD HIM "I'M NOT A GOOD
WITNESS FOR YOU," INSTEAD
OF A TWO-YEAR PERIOD REMAND
AND NEW PENALTY PHASE I
DON'T THINK THIS IS AN ISSUE
OF FAILURE TO INVESTIGATE.
I DON'T KNOW THAT ADDITIONAL
EVIDENCE THAT THEY WERE IN
BANKRUPTCY IS MUCH OF
ANYTHING.
BUT INSTEAD OF
REALLY LOOKING AND GOING I
THINK WE BETTER PURSUE A
DIFFERENT TACT, OR LOOK AT
MENTAL MITIGATION, JUST
GOES BACK TO THE COMPACT
SAME OLD THING THAT PRODUCED
THE 11-1 VERDICT AGAINST HIM, SO
HOW IS THAT -- HOW CAN WE SAY
THAT THAT IS ADEQUATE
PERFORMANCE IN THE CONTEXT
OF A RETRIAL WHERE YOU HAVE
GOT THAT ADVANTAGE OF SEEING
HOW DID YOUR WITNESSES DO.
>> WELL, YOUR HONOR --
>> I THINK THAT IS AN
IMPORTANT POINT, BECAUSE
JOHN SWISHER THE LEAD
ATTORNEY IN THIS CASE, WAS
AN EXPERIENCED CAPITAL
LITIGATOR, NOT AS IF THIS
CASE CAME BACK, THEY WANTED
TO IMPROVE UPON THE
PRESENTATION, AND THEY
TALKED ABOUT, THEY DISCUSSED
IT, ULTIMATELY MR. SWISHER
AGREED WITH GARY URSO, ON
THE STRATEGY THAT THEY DID
IN FACT EMPLOY.
>> EVEN THOUGH MR. --
THOUGHT DELBEATO WAS NOT
A GREAT WITNESS HE CONCURRED
THAT WAS STILL HER BEST
SHOT.
>> YES, YOUR HONOR, HE DID
HAVE A CONCERN, ULTIMATELY HE
TESTIFIED DURING
POSTCONVICTION HEARING THAT
HE AGREED WITH THE STRATEGY
THAT THEY PURSUED.
AND, AGAIN, THE PROBLEM FOR THE
APPELLANT IN THIS CASE
MR. MORTON IS THE POSTER
CHILD, FOR ANTISOCIAL
PERSONALITY DISORDER, EVERY
SINGLE MMPI IN THE RECORD
THAT MR. MORTON HAS TAKEN,
WHETHER IT IS ADMINISTERED
BY DELBEATO OR DR.
BERLIN IS A CLEAN MMPI, WITH
THE EXCEPTION OF A SPIKE ON
SCALE FOUR WHICH IS THE
PSYCHOPATHIC DEVIANT
SCALE.
MR. MORTON TORTURED
ANIMALS -- SET FIRES, HE
DROPPED OUT OF SCHOOL EVEN
THOUGH HE IS VERY
INTELLIGENT, WAS NOT
MOTIVATED, HE FITS THE
CRITERIA TO A TEE.
EVEN THE
DEFENSE EXPERT DR. SILVA
SAID WELL, IT IS VERY CLOSE,
IT IS VERY CLOSE IN THIS
CASE.
SO TRIAL COUNSEL TESTIFIED
MR. URSO, THE DR.
DELBEATO WERE AMONG THE MOST
RESPECTED PSYCHOLOGISTS IN
PASCO COUNTY IN DADE CITY,
HE TESTIFIED IN HUNDREDS OF
CASES, PRIOR CAPITAL CASES,
HIS TESTIMONY WAS NOT SHOWN
TO BE UNRELIABLE AT ALL.
NOW, LET'S TALK ABOUT THE
BIRTH RECORDS.
THE BIG GAP THAT THE DEFENSE
POINTS TO IN THE EXPERTS,
BOTH THE STATE EXPERT AND
DR. DELBEATO'S TESTIMONY,
THEY DIDN'T HAVE BIRTH
RECORDS.
WHAT DO THOSE BIRTH
RECORDS SHOW?
UPON DISCHARGE A PREMATURE
BABY, A SCORE OF THREE AT
BIRTH, BUT UPON DISCHARGE NO
ABNORMAL NEUROLOGICAL
FINDINGS WERE NOTED BY THE
DISCHARGING PHYSICIAN,
TRIAL COUNSEL KNEW ABOUT
THE DIFFICULT BIRTH EVEN IF HE
DIDN'T HAVE THOSE BIRTH
RECORDS THE MOTHER SAID IT
DIDN'T SEEM TO HAVE AN ADVERSE
IMPACT ON HIM.
NOW WE COME TO THE
POSTCONVICTION HEARING, AND
THOSE BIRTH RECORDS ARE
SHOWN TO DR. DELBEATO, HE
SAYS IT DOESN'T CHANGE MY
OPINION AT ALL.
THE STATE EXPERT DR. GONZALEZ, A
PSYCHIATRIST, MD, TESTIFIED
THAT THOSE BIRTH RECORDS
DON'T INDICATE TO ME ANY
BRAIN DAMAGE, ESPECIALLY
WHEN YOU CONSIDER MORTON WAS
122 IQ, NO CREDIBLE EVIDENCE
HE SUFFERED FROM BRAIN
DAMAGE WHATSOEVER IN THIS
CASE.
>> SO DO WE HAVE PEDIATRIC
RECORDS FROM ANNUAL PHYSICAL
EXAMS, ET CETERA, FOR HIM?
>> ONLY EARLY BIRTH RECORDS
AND I THINK HE CAME IN AT
THE AGE OF FIVE, AND HE WAS
ESSENTIALLY -- HE HAD
ALLERGIES, AND THE MOTHER
TESTIFIED TO THAT.
>> SO NOTHING IN SCHOOL
RECORDS OR OTHER EARLY CHILD
RECORDS, THAT INDICATE
NEUROLOGICAL --
>> ABSOLUTELY NOT, YOUR HONOR.
WE JUST HAVE BIRTH RECORDS,
AND, AGAIN, YOU HAVE NO
ABNORMAL NEUROLOGICAL
FINDING.
>> WHAT ABOUT DR. -- WASN'T
HIS TESTIMONY THAT THERE WAS
SOME BRAIN DAMAGE?
>> YES, YOUR HONOR.
>> SO HOW DO YOU DEAL WITH
YOUR CLIENT'S ARGUMENT THAT
THIS WAS HIS WHOLE -- NOT
PERSONALITY BUT ALL OF HIS
ACTIONS REALLY, WERE THE
RESULT OF THE BRAIN DAMAGE,
HE DIDN'T HAVE ANY CONTROL,
WHEREAS IF YOU WERE TALKING
ABOUT AN ANTISOCIAL
PERSONALITY DISORDER, THAT
YOU REALLY THEN MIGHT BE
SOME CHOICE, ON -- MADE IN
THAT KIND OF SITUATION.
>> I DON'T THINK DR. SILVA
EVEN TESTIFIED MR. MORTON
DIDN'T HAVE A CHOICE, AND
AGAIN, HE FOUND THAT MORTON
WAS UNDER AN EXTREME
EMOTIONAL DISTURBANCE, ONLY
FOUND A SINGLE STATUTORY
MENTAL HEALTH MITIGATOR,
DIDN'T RELATE THAT TO FACTS.
THIS WAS COLDLY PLANNED.
THIS WASN'T A REACTIVE MURDER
WHERE YOU COULD SAY --
ASPERGER'S SYNDROME CAUSED THE
COLDLY PLANNED EXECUTED
SLAUGHTER OF TWO
INDIVIDUALS IN THEIR OWN
HOME FOR MONEY, IT IS A
RATHER ABSURB PROPOSITION,
IT WOULD BE AN INSULT TO GO
TO A PASCO COUNTY JURY TO BRING
IN AN EXPERT, PAY HIM $40,000,
HAVE HIM --
>> WOULD YOU ELABORATE -- YOU
MENTIONED BEFORE, THAT --
THAT DR. SILVA AND DR.
BERLIN TESTIFIED IN EFFECT
IT WAS A VERY CLOSE CASE IN
TERMS OF THE ANTISOCIAL
BEHAVIOR DISORDER, SO --
>> AND I TAKE THAT TO BE
THAT EVEN UNDER THEIR
TESTIMONY, THAT THEY ARE
CONCEDING THAT A GOOD CASE
COULD BE MADE THAT HE IS
JUST SUFFERING FROM,
UNFORTUNATELY, WHAT HAS
BECOME A STANDARD ALMOST
ANTISOCIAL BEHAVIOR, WHICH IS,
YOU KNOW, HAS CERTAIN CLASSIC
SIGNS.
BUT IN TERMS OF THEIR
TESTIMONY, WOULD YOU
ELABORATE ON THAT A LITTLE
BIT?
IN OTHER WORDS, DID THEY
BOTH CONCEDE THAT, YOU KNOW,
THAT THEY WOULD REALLY IN
ESSENCE HAVE A HARD TIME
AGREEING OR DISAGREEING WITH
THE CONTRARY OPINION THAT
SAYS THIS IS AN -- YOU KNOW,
HELP ME WITH THAT,
BECAUSE IF IN EFFECT WE END
UP WITH A NOT VERY DIFFERENT
PICTURE, EVEN IF THEY WERE
THE ONLY EXPERTS, THAT
TESTIFIED, IT WOULD SEEM
THEN THAT THERE WOULD BE A
VERY -- A LOT OF DIFFICULTY
IN PROVING PREJUDICE IN THIS
SITUATION.
I'M LOOKING FOR
MEAT ON THE BONES ABOUT
THIS.
DID THEY BOTH IN
ESSENCE TESTIFY THAT, YOU
KNOW, WE REALLY CAN'T
DISPUTE WITH AN INDIVIDUAL
LIKE THIS WITH SOMEBODY
ELSE, THAT MAY JUST SAY THIS
IS CLASSIC ANTISOCIAL -- GO
AHEAD.
>> IF I COULD QUOTE IF I
RECALL CORRECTLY, DR.
SILVA, ON CROSS-EXAMINATION
WORDS WERE "IT IS CLOSE, IT IS
VERY CLOSE."
AND DR. BERLIN DIDN'T VIEW
THAT WAS HIS ROLE BUT CONFRONTED
WITH BEHAVIORS ONE
ASSOCIATES WITH ANTISOCIAL
PERSONALITY DISORDER I CAN'T
SAY DR. BERLIN SAID IT IS
VERY CLOSE.
HE SAID I DIDN'T
CONSIDER IT NOR DID HE ASK
ABOUT THE FACTS OF THE --
NOR DID DR. SILVA HAVE A
CLEAR CREDIBILITY FINDING.
LET'S ASSUME FOR A MOMENT
DEFENSE EXPERTS, DR. BERLIN
WITH A NONSPECIFIC
PSYCHOTIC THOUGHT DISORDER
WHICH WAS STRONGLY DISPUTED
BELOW, OR DR. VAIL, WITH
HIS DIFFERING TESTIMONY, A
CASE DEFENSE EXPERTS DIDN'T
AGREE, DR. BERLIN THOUGHT
BASED ON HIS UNIQUE
INTERPRETATION OF THE MMPI
HE HAD PSYCHOTIC
THOUGHT DISORDER, SAID
I SEE NO EVIDENCE OF THAT
AT ALL, DR. VAIL SAID IT IS
VERY CLOSE, I DON'T THINK
HE WOULD DISAGREE THAT YOU
CAN'T -- A PROFESSIONAL COULD
COME TO THAT CONCLUSION, AND
AGAIN -- MORTON IS THE
POSTER CHILD FOR ANTISOCIAL
PERSONALITY DISORDER, DR.
GONZALEZ, EXPERIENCED
PSYCHIATRIST SAYS IT
FITS ALL THE CRITERIA,
DR. DELBEATO, 30
YEARS' EXPERIENCE, HE FITS
THE CRITERIA.
>> LET'S GO BACK TO THIS
ANTISOCIAL PERSONALITY DISORDER.
ALTHOUGH WE HAVE SAID IT IS
MITIGATING, IT SOUNDS AS YOU
SAID LIKE SOMEBODY COMMITS
CRIMES -- SO IT IS NOT
REALLY SOMETHING THAT A JURY
GOES WAIT, THIS GUY HAS ANTISOCIAL
PERSONALITY DISORDER,
WE ARE NOT GOING TO IMPOSE A
DEATH PENALTY, ON THE OTHER
HAND, IF THE JURY HEARS THAT
A PERSON HAS BRAIN DAMAGE,
IN THE FORM OF A -- SYNDROME
THAT THERE IS THEREFORE AN
ORGANIC BASIS COMBINED WITH
THE TERRIBLE THINGS THAT
HAPPENED TO HIM DURING HIS
CHILDHOOD, DOESN'T THAT TAKE
IT OUT OF THE REALM OF NOT
THAT IT IS --
>> SO -- A MURDER BUT IN
TERMS OF IT BEING CERTAIN
MORE COMPELLING MITIGATION?
>> WELL, YOUR HONOR, THAT
DEPENDS, DON'T YOU LOSE
CREDIBILITY WITH THE JURY IF
YOU PRESENT HIGHLY CONTESTED
MENTAL HEALTH TESTIMONY AS
IN THIS CASE DIDN'T HAVE ANY
SOUND SCIENTIFIC BASIS?
>> AGAIN, WE'RE ASSUMING
THAT WHAT DR. DELBEATO
TESTIFIED TO WAS REMOTELY --
>> MAYBE YOU COULD
ELABORATE JUST ON THAT, THAT
THE WAY THAT THIS IS BEING
PORTRAYED THAT REALLY THERE
WOULD HAVE BEEN BIRTH OF --
NOT TO PUT ON ANY MENTAL
HEALTH MITIGATION IN THE
SECOND PENALTY PHASE PUT
ON DR. DELBEATO BASING --
THOUGHT THIS GUY WAS NOT
WORTH SAVING, WHATEVER, TELL
ME MAYBE, HOW IN FACT DR.
DELBEATO ACTUALLY HELPED THE
DEFENDANT THEREFORE, AGAIN,
AND IT IS NOT ALL THAT
DIFFERENT, GOING BACK TO
THAT QUESTION.
>> YES, YOUR HONOR, HERE IS
HOW DR. DELBEATO HELPED,
WHAT CAME BEFORE DR.
DELBEATO'S TESTIMONY FROM
THE MOTHER, SISTER,
THREE AUNTS ABOUT THE
HORRIBLE UPBRINGING THAT
MR. MORTON HAD FROM THE TIME
HE WAS BORN, TO THE TIME HE
WAS EIGHT YEARS OLD WHEN HIS
BIOLOGICAL FATHER WAS IN THE
HOME, HE WAS ABUSED ALMOST ON
A DAILY BASIS, THE JURY HEARD
THAT, THE JURY HEARD FROM PISTERS,
RETIRED MENTAL HEALTH WORKER,
SOCIAL WORKER DEVELOPED A
STUDY OF MORTON'S FAMILY
BACKGROUND, AN UNATTACHED UNWANTED,
CHILD, SHE WAS
EXPLAINING, THE DEFENSE TRIED
TO EXPLAIN HOW DO WE GET TO
THE POINT WHERE ALVIN MORTON
COMMITS THESE HEINOUS
CRIMES.
REMEMBER, THE FACTS
-- THESE CASES THESE TWO
MURDERS ARE HORRENDOUS, A
TROPHY FOR -- BEGGING FOR
YOUR LIVES, HE MURDERS, IT --
>> WHAT WAS THE THEORY THAT
THE DEFENSE WAS PUTTING
FORTH?
THE THEORY WAS EXPLAINING
HOW AT 19 1/2 YEARS OLD,
THIS MAN COULD PREPLAN A
MURDER, TAKE PLEASURE IN THE
MURDER, REMEMBER THAT IS A MAN
WHO CAME BACK AND TOLD
PEOPLE YOU SHOULD HAVE BEEN
THERE, IT WAS -- IT WAS GREAT,
HE WAS EXCITED HE WAS HAPPY
THAT HE HAD MURDERED TWO
PEOPLE, THERE WERE BLOOD AND
BRAINS EVERYWHERE, THE JURY
WAS GOING TO HEAR FACTS THAT
THEY TOOK A FINGER FOR A
TROPHY, HOW DOES A PERSON
GET TO THAT POINT?
THE DEFENSE PROBABLY -- THEY
TRIED.
>> WHAT I'M TELLING YOU, HAD
DR. DELBEATO HELPED THE
SITUATION.
>> AS YOU WERE THE LEADUP
HE -- THAT IS HIS PERSONALITY
WAS FOLLOWED, BY THE TIME HE
WAS EIGHT YEARS OLD WHEN
THERE WAS ABUSE IN THE HOME
AND ALSO, THAT THERE WAS AN
ELEMENT OF HEREDITY
THE FATHER PROBABLY HAD
ANTISOCIAL PERSONALITY
DISORDER HE SAID WE ARE NOT
SURE EXACTLY HOW ONE DEVELOPS
IT HE FIT IN NICELY WITHIN
THE DEFENSE CASE THEY
WEREN'T TRYING TO SHOW THE
JURY HERE, THIS IS HOW
MORTON COULD COMMIT THESE
HORRIBLE CRIMES.
AND HE HAD THE ADDED BENEFIT
OF THIS CASE IN BASICALLY,
AGREEING WITH THE STATE
EXPERT DR. GONZALEZ HE SAID LOOK
HE'S GOT ANTISOCIAL
PERSONALITY DISORDER
PERSONALITY BY THE TIME HE
WAS EIGHT HE IS THE POSTER
CHILD IF YOU GO THROUGH
EVERYTHING TORTURING ANIMALS
HE FITS IT TO A TEE.
>> GOING BACK TO ASPERGER,
SILVA TESTIFIED TO IT.
IS IT -- DID I SAY IT WRONG?
>> OKAY.
IS IT -- ASPERGER
SYNDROME, ASPERGER'S
SYNDROME, DR. SILVA TESTIFIED
TO IT.
HOW DO WE TAKE THE
RECORD AS TO WHETHER THAT
HAS BEEN ESTABLISHED OR IS
CONTROVERTED, THAT IS, WHETHER
HE HAS ORGANIC BRAIN
DAMAGE, IN THE FORM OF AUTISM?
>> IT IS CONTROVERTED
NEITHER GONZALEZ MEDICAL DOCTOR
TESTIFIED HE SAW NO EVIDENCE
MORTON SUFFERS FROM ANY
DEGREE OF BRAIN DAMAGE.
MOREOVER, DR. DELBEATO DIDN'T
SEE EVIDENCE OF BRAIN DAMAGE,
DR. DRLBEATO TESTIFIED HE
DOES NEUROPSYCH SCREENINGS
FOR BRAIN DAMAGE HAS SINCE
1975 ON S CONTRACT BASIS FOR
THE STATE OF FLORIDA, HE'S NOT SOME
INEXPERIENCED PSYCHOLOGIST,
AND THE EVIDENCE THAT CAME
OUT, DURING THE EVIDENTIARY
HEARING SHOWS THAT THE
DIAGNOSIS OF ASPERGER'S IS
HIGHLY SUSPECT THERE WAS NO
RELATION OF MILD FORM OF
AUTISM TO THE FACTS OF THIS CASE
IF YOU A INVESTIGATE AUTISM AT ALL,
KIND OF VIOLENCE ASSOCIATED
WITH IT, EMOTIONALLY REACTIVE,
MISREADING, NOT THIS
PREPLANNED DOUBLE HOMICIDE,
IT SIMPLY WOULD NOT --
>> IN FACE OF REASON --
>> WHEN DR. SILVA TESTIFIED
SOME -- BASIS INTO
ANTISOCIAL PERSONALITY
DISORDER SOME EXPLAINED BY
AUTISM PSYCHOPATH BIOLOGY
HE IS NOT TALKING ABOUT THIS
PARTICULAR CRIME.
>> HE NEVER RELATED THE
FACTS TO THIS CRIME, NOT
ONCE DID WE HEAR HIM SAY
WELL, YES, SURE, CUTTING THE
PHONE LINES, THAT IS PART OF
ASPERGER'S, YOU KNOW, PLANNING
TO MURDER PEOPLE FOR MONEY,
PICKING OUT THE HOUSE
BECAUSE THEY HAVE A
SATELLITE DISH AND A POOL,
TARGETING VICTIMS FOR DEATH,
TAKING PLEASURE IN THEIR
MURDER, HE CAME UP WITH AN
EXTREME EMOTIONAL
DISTURBANCE WITHOUT ONCE
RELATING ASPERGER'S TO THE
FACTS OF THE OFFENSE, A JURY
IS NOT GOING TO BUY THAT, WE
HAVE CLEAR CREDIBILITY
FINDINGS FROM THE TRIAL
COURT BELOW, THEIR TESTIMONY
THE DEFENSE EXPERTS
CONTRADICTED ONE ANOTHER, THEY
WERE NOT CREDIBLE.
THIS COURT HAS REPEATEDLY HELD THAT
SIMPLY BECAUSE A DEFENSE
ATTORNEY, IN POSTCONVICTION
CAN FIND MORE FAVORABLE
MENTAL HEALTH EFFORTS IS NOT
SUFFICIENT GROUND TO REVERSE
THE PENALTY PHASE.
>> DO YOU AGREE WHEN SECOND
PENALTY PHASE MIGHT HOLD A
DEFENSE LAWYER TO A SLIGHTLY
DIFFERENT STANDARD TO
REEXAMINE, WHAT HAS BEEN
PRESENT, AND TRY A DIFFERENT
STRATEGY, CERTAINLY, THAT IS
SOMETHING THAT YOU WOULD
HOPE A DEFENSE LAWYER WOULD
LOOK AT.
>> AND THEY DID LOOK AT IT.
THEY LOOKED AT THE
POSSIBILITY OF HAVING MENTAL
OR NEUROIMAGING DONE, IN
THIS CASE MORTON DECLINED,
THEY WERE DISCUSSING
STRATEGY, AND AGAIN THE
STRATEGY THE BENEFIT THAT
THEY GOT WHERE THEY WERE
CONSISTENT WITH WHAT THE
STATE EXPERT FOUND.
>> LET ME -- GO JUST ASK
ABOUT THIS SORT OF
ADDITIONAL -- MITIGATION
THAT THEY ARE CLAIMING
SHOULD HAVE BEEN DISCOVERED
THE PICTURE PRESENTED AT
THE SECOND PENALTY PHASE
EVERYBODY AGREES HE HAS A
HORRIBLE CHILDHOOD TO AGE 8,
THEN HE WAS RESCUED BY HIS
MOTHER MARRYING A WONDERFUL
GUY, AND HE HAD ALL THE
PLEASURE -- HE HAD ALL THE
LUXURIES THAT ANYBODY IN THE
WORLD WOULD YOU KNOW BE
HAPPY WITH, AND SO LOOK AT
AND LOOK WHAT HE DOES WITH
IT. WHEREAS, IN FACT, THEY ARE
SHOWING THAT HE REALLY -- THE
ENVIRONMENT WAS NOT A
LUXURIOUS ENVIRONMENT, THAT
THE THINGS HE GOT, LIKE A TV,
WERE SECONDHAND, THAT THERE
WAS NO -- THAT THEY WERE
IN BANKRUPTCY, A DIFFERENT
PICTURE REALLY OF WHAT
HAPPENED FROM AGES 8
TILL 19.
THE JURY
SHOULD HAVE HAD THAT
EVIDENCE TO SHOW, NO, IT
WASN'T LIKE HE WAS SAVED BY
A WHITE KNIGHT AT AGE 8, BUT
THINGS REALLY, THEY WERE
FORMED, PLUS THEY DIDN'T GET
BETTER.
>> YOUR HONOR, THERE WAS
ABSOLUTELY NO EVIDENCE
DURING THE POSTCONVICTION
HEARING BELOW THAT MR. STACY
OR THERE WAS ANY ABUSE IN
THE MORTON HOUSEHOLD AFTER
THE BIOLOGICAL FATHER LEFT
THE HOUSEHOLD, THE MOTHER --
>> -- BUT THAT, YOU KNOW,
THERE WAS THIS EVIDENCE THAT
THE STATE REALLY PICKED UP
ON, AT THE SECOND PENALTY
PHASE, THAT NOBODY DISAGREED
ABOUT THE FIRST EIGHT YEARS BUT
THEN HE HAD EVERY -- YOU
KNOW, BENEFIT ANY CHILD
COULD HAVE.
>> LET'S ASSUME ALL THAT
IS TRUE, THE MOST THE STATE --
COULD ELICIT BELOW WAS THAT
YES, HE GOT A TV, GAMES, A
SECONDHAND -- THE CAR WAS NOT A
GOOD CAR, BUT THE FAMILY WAS
POOR.
DOES THAT MAKE US FEEL
BETTER ABOUT MR. MORTON?
HE DIDN'T HAVE A JOB, HE IS
19 1/2 YEARS OLD, HE'S STILL
LIVING OFF HIS PARENTS, HE
IS NOT CONTRIBUTING ANYTHING
TO THE HOUSEHOLD, THEY HAVE
TO PAY $700 TO FIX AN ARSON
-- TO FIX A FIRE HE CAUSED,
AND HE IS NOT HELPING THE
FAMILY OUT AT ALL, NOT
REALLY SIGNIFICANT
MITIGATIONM THE FAMILY IS --
HE IS SITTING ON HIS BUTT,
NOT DOING ANYTHING.
THEY STILL PROVIDE BASICS FOR
HIM.
>> THE MOTHER'S WORKING HARD,
THE FATHER THE STEPFATHER
WORKED HARD.
DO WE FEEL
BETTER ABOUT MR. MORTON?
IN CLOSING, THIS IS A CASE
WHERE -- LITIGATION, THERE
WERE EIGHT AGGREGATING
FACTORS FOR TWO MURDERS
INCLUDING HAC, AND CCI.
THERE IS NO POSSIBILITY
THAT I THINK DEVELOPED
DURING POSTCONVICTION WOULD
HAVE MADE A DIFFERENCE IN
THIS CASE.
THE STATE HAS NOTHING FURTHER.
THANK YOU.
>> REBUTTAL.
>> THANK YOU, YOUR HONOR.
I WOULD LIKE TO ADDRESS SOME
POINTS THAT MY OPPONENT
MADE.
FIRST, HE SAID THAT
DR. BERLIN SAID THERE WAS NO --
THAT THERE WERE
NO STATUTORY MITIGATORS.
WHAT DR. BERLIN ACTUALLY SAID WAS
HE COULDN'T DETERMINE IF
THERE WERE ANY MENTAL HEALTH
MITIGATORS, HE DIDN'T HAVE
THE MMPI OR OTHER RECORDS,
BECAUSE THEY HAD BEEN
DESTROYED.
>> WAS THERE ANYTHING
PREVENTING DR. BERLIN FROM
DOING HIS OWN TESTING?
>> HE DID, BUT HE WANTED TO
BE ABLE TO RELATE BACK, TO
SEE HOW IT COMPARED TO WHAT
HAD BEEN DONE BEFORE.
AND, IN ADDITION, MY -- SAID THAT
EVERY MMPI SHOWED THAT IT
WAS A CLEAN MMPI WITH
THE EXCEPTION OF THE ELEVATED
SCALE FOUR.
WE DON'T KNOW
THAT BECAUSE, AGAIN, THAT
RECORD DOESN'T EXIST, NO ONE
EVER SAW -- THE RECORDS --
>> YOU ARE SAYING THERE WAS
ONLY ONE MMPI DONE BY THAT
ONE WITNESS?
>> NO.
THERE WERE TWO MMPI'S DONE, ONE --
WELL, DR. DELBEATO CLAIMED
HE DID AN MMPI IN 1994, BUT
A COUPLE OF WEEKS BEFORE
THE TRIAL.
NO ONE HAS EVER SEEN HIS
RECORDS.
DR. GONZALEZ DIAGNOSED ALVIN
MORTON WITH ANTISOCIAL
PERSONALITY DISORDER WITHOUT
EVER SEEING HIM, WITHOUT
SEEING DR. DELBEATO'S MMPI.
WHAT THE MMPI SAID, THE ONLY --
THE ONLY THING THAT WE KNOW
ABOUT THAT IS THAT DR.
DELBEATO SAID THE SCALE FOUR
ELEVATED, HE DIDN'T REMEMBER,
NOBODY SAW IT.
>> WHAT ABOUT THE
DESTRUCTION OF EVIDENCE
ISSUE, RATHER THAN EXISTENCE
OF WITNESSES TESTIFYING TO
SOMETHING, THAT HAS NO SUFFICIENT
EVIDENTIARY BASIS UNLESS SOME
INTENTIONAL DESTRUCTION OF
UNDERLYING RECORDS -- ISN'T
THAT WHAT IT DOES
BECOME --
>> I THINK IT DOES.
THERE IS THE ISSUE OF INTENTIONAL
DESTRUCTION HERE.
I THINK CONFLICTING STATEMENTS ABOUT
WHAT HAPPENED TO THE RECORDS.
THEY CAN'T BOTH BE TRUE.
THAT IS A CREDIBILITY FACTOR THAT
WE HAVE TO CONSIDER, ABOUT A
WITNESS WHO IS TESTIFYING IN
A CAPITAL CASE.
>> JUSTICE BELL HAD A
QUESTION.
>> I WAS SAYING SO YOU --
HOW MANY PEOPLE, HOW MANY
MENTAL HEALTH EXPERTS THAT
ARE ABLE TO DO AN MMPI HAVE
EXAMINED THIS DEFENDANT?
>> TWO.
DR. DELBEATO, DR. BERLIN.
>> DID DR. BERLIN DO AN
MMPI?
>> YES, IN EVIDENCE.
>> WHAT DID IT SHOW?
>> DR. BERLIN SAID THAT IT
SHOWED PSYCHOSIS, THAT WAS
DISPUTED AT TRIAL, BUT
THE SCALE FOUR WAS NOT
ELEVATED TO THE POINT OF
BEING ABNORMAL, AND DR.
DELBEATO LOOKED AT THE MMPI,
DR. BERLIN'S MMPI, SAID I
WOULDN'T DIAGNOSE ANTISOCIAL
PERSONALITY DISORDER BASED
ON THAT MMPI, THAT IS A
BEAUTIFUL MMPI, ALSO SAID HE
WOULDN'T DIAGNOSE BRAIN
DAMAGE.
THAT WAS THE TESTIMONY
ABOUT THE MMPI.
DR. SILVA
DIDN'T ADDRESS THE MMPI, DIDN'T
ADMINISTER IT, SO HE DIDN'T
ADDRESS THAT.
IN ADDITION, MY OPPONENT
MENTIONED THERE WERE NO
ABNORMAL NEUROLOGICAL
FINDINGS NOTED WHEN ALVIN
MORTON WAS RELEASED FROM THE
HOSPITAL AS AN INTERN -- BUT
DR. SILVA, BERLIN TESTIFIED

>> BECAUSE NEUROLOGICAL
FUNCTIONING WAS NOT ASSESSED
AND, DR.^DELBEATO SAID THAT'S
NOT TRUE.
HE WAS CONFRONTED WITH AN
AUTHORITATIVE TREATISE.
KAPLAN TEXTBOOK OF PSYCHIATRY
CITED BY THE UNITED STATES
SUPREME COURT, AS AUTHORITATIVE
TREATISE.
HE SAID HE DIDN'T HAVE TO
FOLLOW IT.
HE CITED HIMSELF AS AUTHORITY
FOR HIS OPINION.
AND THERE IS NOTHING IN THE
RECORD TO SUGGEST THAT THE
DR.^DELBEATO HAS WRITTEN A
TREATISE ON NEUROLOGICAL
EXAMINATIONS OF INFANTS.
IN ADDITION --
>> YOU HAVE EXHAUSTED MORE THAN
YOUR TIME.
>> THANK YOU.
>> WE'LL TAKE THIS CASE UNDER
ADVISEMENT.
THANK YOU BOTH FOR YOUR
PRESENTATIONS.
THANK YOU VERY MUCH.
THE FINAL CASE ON OUR CALENDAR
THIS MORNING IS THE CROSSINGS
AT FLEMING ISLAND VERSE
ECHEVERRI.
>> GOOD MORNING.
MAY IT PLEASE THE COURT.
I'M DON LESTER REPRESENTING
THE CROSSINGS OF FLEMING ISLAND
DISTRICT.
FOR PURPOSES OF TODAY'S
ARGUMENT I LIKE TO FOCUS OR
ZERO IN ON WHAT I THINK IS THE
KEY ULTIMATE ISSUE.
THAT IS, WHETHER THE SO-CALLED
DEFENSIVE POSTURE DICTA IN
LEWIS AND IN FUCHS
RECONCILED WITH THIS COURT AS
PREVIOUSLY ANNOUNCED RULES IN
ATLANTIC COAST.
>> LET ME ASK YOU A QUESTION
ABOUT THAT.
YOU MAY HAVE A POINT ULTIMATELY
AND JUSTICE BELL'S CONCURRING
OPINION IN SUNSET HARBOR WAS
ELOQUENT.
WE'VE ALREADY HELD SINCE 1922
YOU CANNOT USE OFFENSIVELY.
>> CORRECT.
>> YOU WANT US TO HOLD THAT YOU
CANNOT USE IT DEFENSIVELY.
>> CORRECT.
>> THEREFORE, WHEN A PUBLIC
OFFICIAL BELIEVES THAT A
STATUTE GOVERNING THE AD
VALOREM TAX OR ANYTHING IN THIS
FIELD IS UNCONSTITUTIONAL,
THEN, THERE IS NO WAY IN WHICH
TO CONTEST THE
CONSTITUTIONALITY OF THAT
STATUTE.
AND IF THE PUBLIC OFFICIAL
CANNOT CONTEST IT, WHO ELSE IS
THERE TO CONTEST IT?
>> JUDGE, IF I UNDERSTAND YOUR,
JUSTICE, IF I UNDERSTAND YOUR
QUESTION TO BE HOW WILL THE
ISSUE COME BEFORE THE COURTS, I
WOULD HAVE SEVERAL RESPONSES.
FIRST, THAT PRECISE ARGUMENT
WAS MADE IN ATLANTIC COASTLINE
AND JUSTICE WHITFIELD'S
DISSENT.
OBVIOUSLY CONSIDERED AND
REJECTED BY THE COURT IN THE
THAT CASE.
SECONDLY, NUMEROUS OPINIONS,
HORN, LEWIS, THE KREST CASE
AGAINST LANDIS, THIS COURT
OBSERVED THE ATTORNEY GENERAL
AS JUDICIAL OFFICER WITHIN THE
EXECUTIVE BRANCH HAS AUTHORITY
AND DUTY TO DO THAT.
MOREOVER, THIS COURT IN BOTH
THE LEWIS AND THE HORN CASES
AND IN OTHER CASES HAS
RECOGNIZED THAT THESE
OFFICIALS, IF THEY FEEL SO
STRONGLY ABOUT IT, CAN BRING
SUCH A SUIT IN THEIR INDIVIDUAL
CAPACITY WITHOUT VIOLATING THE
RULES SET FORTH IN ATLANTIC,
WHICH IS DISOBEYING THE LAW
PRIOR TO.
THEY CAN ALWAYS OBEY THE LAW,
AND IN THEIR INDIVIDUAL
CAPACITIES CHALLENGE THE
STATUTE.
>> WHAT YOU'RE SAYING THEN IS
THEY CAN DO IT BUT THEY DO IT
INDIVIDUALLY?
>> CORRECT.
>> WILL YOU PLEASE ADDRESS, AND
I'VE BEEN STRUGGLING WITH THIS,
SEEMS TO BE VERY, VERY CLEAR,
UNDER CHAPTER 194.036, IT
SPECIFICALLY ADDRESSES A
PROPERTY APPRAISER AND IT SAYS,
QUOTE, THE PROPERTY APPRAISER
DETERMINES AND AFFIRMATIVELY
ASSERTS IN ANY LEGAL PROCEEDING
THAT THERE IS A SPECIFIC
CONSTITUTIONAL VIOLATION.
WHAT DO WE DO WITH THIS?
THEN IT GOES ON TO SAY THEY
CANNOT INITIATE THIS AS A
SEPARATE INDEPENDENT SUIT.
>> JUDGE, JUSTICE, WHAT THE WAY
I READ THAT IS THAT THE
LEGISLATURE, YOU KNOW, WAS
CLEARLY TRYING TO, I THINK THIS
COURT LOOKS AT LEGISLATIVE
ENACTMENTS FOR EXAMPLE AS THE
COURT HELD IN THE SUN 'N LAKE
CASE, YOU LOOK AT THESE
STATUTES, PRESUMING THEIR
CONSTITUTIONAL VALIDITY,
INTERPRET THEM IN THE LIGHT OF
EXISTING CONSTITUTIONAL
PRINCIPLES OR PRECEDENT.
I THINK IF WE LOOK AT IT THAT
WAY, THE LEGISLATURE IS TRYING
TO SAY, INTO ACCORD WITH THE
SEPARATION OF POWERS DOCTRINE
WHICH THIS COURT HAS PREVIOUSLY
ENUNCIATED, THAT IS WHY WE
WOULD PUT SUCH LANGUAGE IN
THERE.
>> I'M SORRY, THAT IS NOT
SPEAKING -- DOES IT NOT SAY
THAT THE PROPERTY APPRAISER,
THIS IS SPECIFIC AUTHORITY TO
ASSERT IN A LEGAL PROCEEDING
THAT THERE IS A SPECIFIC
CONSTITUTIONAL VIOLATION?
I DON'T THINK YOU ANSWERED THAT
QUESTION.
>> I'M SORRY, I DID
MISUNDERSTAND THE QUESTION.
194 --
>> .036.
>> RIGHT.
>> SPECIFICALLY TALKS ABOUT THE
AUTHORITY OF THE PROPERTY
APPRAISER, NOT EVERYBODY IN
GOVERNMENT.
ARE WE NOT TALKING ABOUT A
PROPERTY APPRAISER HERE?
>> YES, SIR.
>> AND IT SPECIFICALLY SAYS,
ACKNOWLEDGES THAT THAT CAN BE
DONE.
NOW, HAS THIS STATUTE BEEN
CHALLENGED AS BEING
UNCONSTITUTIONAL ITSELF?
>> THAT PROVISION OF LAW, 194?
>> YES, SIR.
>> I DON'T BELIEVE SO.
>> SO I'M TRYING TO UNDERSTAND,
THIS STATUTE SPECIFICALLY SAYS,
IT DOESN'T SAY YOU CAN
GENERALLY SAY YOU CAN, YOU CAN
CHALLENGE IT.
BUT IT SAYS SPECIFICALLY.
A SPECIFIC CONSTITUTIONAL OR
STATUTORY BUT A CONSTITUTIONAL
VIOLATION.
>> I THINK I WOULD RESPOND TO
THAT PERHAPS WAY I DID BEFORE
BUT MAYBE TRY TO SAY IT A
LITTLE MORE ARTICULATELY.
I DON'T THINK THE LEGISLATURE
BY ENACTMENT OF THAT STATUTE
CAN TELL THIS COURT TO OVERRULE
ITS PREVIOUS PRECEDENT, FOR
EXAMPLE IN ATLANTIC AND IN
BARR, WHICH THIS COURT DID
SPECIFICALLY HOLD THAT, IF THE
OFFICIAL IS ASSERTING THAT IT
VIOLATES THEIR OATH OF OFFICE
TO ENFORCE A STATUTE, THAT
ALONE WILL NOT GIVE THAT --
>> WHY NOT?
IN OTHER WORDS, IF WHAT, IT
SEEMS HAS HAPPENED OVER THE
YEARS IS THAT WE'VE GONE FROM
AN INTERPRETATION OF
LEGISLATIVE POLICY THAT BECAUSE
WE ORIGINALLY INTERPRETED THAT
AND WE COMMENTED ON IT OVER THE
YEARS THAT WE'VE ALMOST
TRANSFORMED IT, YOU KNOW, TO
SOMETHING ELSE.
SO, AREN'T WE, I MEAN, LET ME
ASK TWO QUESTIONS.
>> OKAY.
>> ONE, AREN'T WE TALKING ABOUT
LEGISLATIVE POLICY ON THIS
ISSUE TO BEGIN WITH?
IT WAS THE LEGISLATURE THAT
LOGICALLY, YOU KNOW, MADE THE
CONCLUSION TO BEGIN WITH.
WAIT A MINUTE, WHATEVER WE'RE
GOING TO DO, WE DON'T WANT
MINISTERIAL OFFICIALS TO BE IN
A POSITION TO SAY, WELL WHAT
YOU DID IS UNCONSTITUTIONAL.
>> RIGHT.
>> WE WANT THEM TO SHUT UP AND
DO WHAT WE TELL THEM TO DO,
EXCUSE THE LANGUAGE.
>> SURE.
>> AND SO, WE ARE TALKING
ABOUT, ARE WE NOT, LEGISLATIVE
POLICY, WOULD YOU AGREE WITH
THAT?
>> I THINK, I AGREE,
YOUR HONOR --
>> ISN'T THAT THE CONTEXT
WE'RE -- NOT TALKING ABOUT
CONSTITUTIONAL POLICY OR
JUDICIAL POLICY OR EXECUTIVE
BRANCH POLICY, OR WE'RE TALKING
ABOUT THE INTENT OF THE
LEGISLATURE.
SO THAT'S WHY I, IF THAT'S WHAT
WE'RE TALKING ABOUT, AND THEN
WE SEEMINGLY, AS THE CHIEF
JUSTICE HAS QUOTED, IN THIS
INSTANCE WITH THIS PARTICULAR
MINISTERIAL OFFICER, THAT THE
LEGISLATURE HAS SEEMINGLY NOW
CREATED AN EXCEPTION TO THEIR
OWN ORIGINAL POLICY.
>> RIGHT.
>> OF SAYING, BUT, YEAH, WE
FEEL THAT WAY BUT WITH
REFERENCE TO PROPERTY
APPRAISERS, HERE'S WHAT WE HAVE
TO SAY.
AND, YOU KNOW, AT LEAST ON ITS
FACE, AS I THINK YOU REACTED
TOO, SEEMS LIKE THEY PRETTY
CLEARLY CREATED AN EXCEPTION TO
THE ORIGINAL POLICY OF JUST, BE
QUIET AND DO WHAT WE SAY, DON'T
CHALLENGE IT.
SO HELP ME WITH THAT.
>> I'LL TRY.
FIRST, I THINK IT GOES BACK TO
EARLIER JURISPRUDENCE OF THIS
COURT AND, THIS COURT HAS
PREVIOUSLY HELD ON ANY NUMBER
OF OCCASIONS ALL THE WAY UP
THROUGH FUCHS THAT THIS
CONSTITUTIONAL OFFICER CANNOT
INITIATE A CHALLENGE TO A
STATUTE.
WE'RE EXPECTING THESE OFFICERS
TO COMPLY WITH AND EXECUTE THE
LAWS THAT THEY'RE OBLIGED TO
DISCHARGE.
>> WHERE DOES THAT COME FROM?
>> I BELIEVE THAT COMES FROM
EARLIER CONSTITUTIONAL
JURISPRUDENCE OF THIS COURT.
>> BUT WASN'T THAT EARLIER
JURISPRUDENCE, ON BASIS THAT A
MINISTERIAL OFFICER IN
SEPARATION OF POWERS CONTEXT
HAS NO POWER TO DECLARE IS
SOMETHING UNCONSTITUTIONAL.
>> CORRECT.
>> ONLY A COURT CAN.
THAT'S WHERE YOU HAVE TO DO IT,
IN JUDICIAL, THAT IS THE
DIVISION OF POWERS AND THAT
THAT MINISTERIAL OFFICER
DOESN'T HAVE THAT POWER.
ISN'T THAT REALLY THE, THE
ORIGINATION OF THIS CONCEPT?
>> I THINK IT IS.
AND I THINK THAT CONCEPT
CONTINUES THROUGH TO TODAY WITH
THE RECENT PRONOUNCESMENTS OF
THIS COURT IN LEWIS AND FUCHS,
AND SO FORTH THAT A LAW IS
PRESUMED TO BE VALID AND
OFFICER MUST OBEY AND CONFORM
THAT LAW UNTIL THE COURT SAYS
OTHERWISE.
>> WHY WOULDN'T IT CONFORM WITH
THAT POLICY AND ALSO ALLOW A
PUBLIC OFFICIAL TO CONTEST THE
CONSTITUTIONALITY, IF THE PUBLIC
OFFICIAL COULD ENFORCE THE
STATUTE AS WRITTEN AGAINST
PROPERTY OWNERS, BUT MAY FILE
A DECLARATORY JUDGMENT ACTION
SEPARATELY TO HAVE THAT
DECLARED UNCONSTITUTIONAL?
>> AND I THINK THAT REALLY,
THANK YOU FOR MENTIONING THAT,
JUSTICE CANTERO.
BECAUSE I THINK THAT REALLY
DOES ALLOW US TO SEE A
DISTINCTION HERE.
THE OFFICER CAN CHALLENGE
CONSTITUTIONALITY WHILE NOT AT
SAME TIME DISOBEYING THE LAW.
THAT SEEMS TO ME TO BE THE
ULTIMATE RUB.
IS THE OFFICER GOING TO BE
ALLOWED TO DISOBEY THE LAW,
TRIGGER THE LITIGATION, FORCE
THEM TO BE SUED AND THEN BASED
SOLELY ON THE FACT THAT THIS
OFFICER IS IN DEFENSIVE POSTURE
WITHOUT THE PUBLIC FUNDS
EXCEPTION OR PERSONAL INJURY
EXCEPTION BE ABLE TO CHALLENGE
THE CONSTITUTIONALITY.
>> OF COURSE I SIGNED ON TO
JUSTICE BELL'S CONCURRENCE.
>> RIGHT.
>> I'M SOMEWHAT SYMPATHETIC TO
HIS VIEW.
SEEMS TO ME WHAT YOU'RE DOING,
WHAT A PROPERTY APPRAISER IS
DOING MAKING HIS OR HER OWN
DETERMINATION OF
CONSTITUTIONALITY ENFORCING THE
PROPERTY OWNER TO FILE.
>> RIGHT.
>> THE PROPERTY OWNER DOESN'T
HAVE THE WHEREWITHALL TO
DO THAT, THEY HAVE ESSENTIALLY
BECOME A LAW UNTO THEMSELVES.
THAT WOULD BE YOUR POLICY
ARGUMENT FOR WHY THIS COURT
ALSO SHOULD BE LOOKING AT IT.
BECAUSE IT DOESN'T SEEM TO ME
THAT'S WHAT WE EXPECT IN OUR,
WOULDN'T WANT A POLICE OFFICER
TO SAY, I THINK THIS LAW IS
UNCONSTITUTIONAL AND NOT
ENFORCE IT.
>> RIGHT, RIGHT.
EXACTLY.
>> SAYING EXACTLY BUT IT SAYS
IN THE STATUTE, MAYBE THIS IS
ALL IN CONTRADICTION OF ONE
ANOTHER BUT IT SAYS IF THE
PROPERTY APPRAISER DISAGREES
WITH THE DECISION OF THE BOARD,
VALUE ADJUSTMENT BOARD, IT SAYS
HE OR SHE MAY TAKE IT INTO
COURT AND DO THESE THINGS.
HOW DOES THAT SQUARE WITH THAT?
>> I THINK I WOULD RESPOND TO
THAT BY SAYING I'M NOT SO SURE
THAT PRESUPPOSE THAT IS THE
PROPERTY APPRAISER HAS CHOSEN,
UNILATERALLY TO NOT FOLLOW THE
LAW BY DETERMINING, IN GOOD
FAITH.
NOBODY HAS QUESTION THE
BONAFIDES OF PROPERTY
APPRAISERS.
>> I STRUGGLE WITH THE CONCEPT
OF OFFICER OR APPRAISER, THIS
SAYS I CAN DO IT.
YOU SAY NOT.
YET I CAN GO OUT AND AS THAT
APPRAISER YOU SAY I CAN FILE AN
ACTION, I HAVE NO STANDING AS
AN INDIVIDUAL TO CHALLENGE IT.
I'M NOT IMPACTED BY IT AS AN
INDIVIDUAL YET I HAVE THAT
POWER TO DO IT.
THIS WHOLE AREA SEEMS SOMEWHAT
CONVOLUTED. EACH TIME YOU TURN
YOU RUN INTO YOURSELF AGAIN.
>> I AGREE.
I THINK THEREFORE IS SOME
CONVOLUTION HERE.
I'M NOT SURE I AGREE THAT THE
PROPERTY APPRAISER IN HIS OR
HER INDIVIDUAL CAPACITY DOES
NOT HAVE INDIVIDUAL STANDING.
THE COURT RULED IN THE LEWIS
AND HORN, RICKMAN RULE
REQUIRING SPECIAL INJURY DOES
NOT APPLY IF ONE IS ALLEGING
THAT THE LEGISLATURE OR
WHATEVER THE ENTITY IS EXCEEDED
ITS CONSTITUTIONAL AUTHORITY.
>> SO THE PROPERTY APPRAISER
THEN AS THE STATUTES COME OUT
CAN TAKE OFF THEIR NAME
PROPERTY APPRAISER AND GO AHEAD
AND FILE ALL THESE LAWSUITS
CHALLENGING THEM?
>> I DON'T THINK THAT'S A
PROBLEM.
I BELIEVE IT WAS THE HORN CASE
WHERE THIS COURT DID NOTE,
INITIALLY THAT WOULD BE THE
ATTORNEY GENERAL'S JOB AND
PERHAPS IT WOULD BE A BETTER
PRACTICE AND PROCEDURE TO GET A
CERTIFICATE THAT THE ATTORNEY
GENERAL IS NOT GOING TO FOLLOW
UP ON THIS.
SO WE DON'T HAVE MULTIPLICITY
OF SUITS.
>> I APPRECIATE YOUR BRINGING
THIS MATTER BACK TO US BECAUSE
OBVIOUSLY WE DIDN'T SETTLE IT
ALTHOUGH, FROM MY POINT OF
VIEW I THOUGHT WE HAD SETTLED
IT.
>> RIGHT.
>> AND BECAUSE ONE THING THAT
I'M CONCERNED ABOUT WE MADE
PRETTY CLEAR STATEMENTS HERE
RECENTLY THAT THIS STATUTE
STATUTE AND THE ANALYSIS WAS
THEN MADE BY THE FIRST DISTRICT
IS WHERE MAJORITY OF THIS COURT
IS ON THIS POINT AND THAT IS
THAT THERE IS A DEFENSIVE EXCEPTION.
I DON'T KNOW ANYTHING REALLY
HAS CHANGED CHANGED SINCE WE
CAME OUT WITH FUCHS.
IT WAS RAISED IN DISSENT IN
ROBBINS BUT ONLY DREW TWO
VOTES.
>> MAY I RESPOND TO THAT THIS
WAY, JUSTICE WELLS.
>> PLEASE.
>> THE ONLY, THE FIRST TIME
THAT THE DEFENSIVE POSTURE
EXCEPTION APPEARS AS FAR AS I
CAN TELL IN FLORIDA
JURISPRUDENCE IS THE LEWIS
CASE.
IN WHICH IT IS CLEARLY DICTA.
THE FUCHS CASE PICKS UP ON THAT
DICTA.
THE QUESTION TO ME AS I SEE IT
IS CAN THE DEFENSIVE POSTURE
STANDING ALONE WITHOUT PUBLIC
FUNDS AND PERSONAL INJURE BE
RECONCILED WITH ATLANTIC AND
BARR?
I SUGGEST IT NOT.
THE ONLY WAY YOU GET TO THAT
DEFENSIVE POSTURE, BY OFFICIAL
MAKING UNILATERAL DETERMINATION
TO NOT FOLLOW THE LAW AND BE
SUED.
>> I UNDERSTAND THAT BUT WE
ALSO HAVE TO RECOGNIZE WITHIN
THE ANALYSIS THAT WE ARE
DEALING WITH IN MOST INSTANCES
CONSTITUTIONAL OFFICERS AND THE
PROPERTY APPRAISER.
>> CORRECT.
>> AND THAT WE HAVE TO ASSUME
THAT THEY'RE ACTING IN GOOD
FAITH AND THAT, AND THAT THERE
IS THE ADDITIONAL FACTOR HERE
OF THE STATUTE WHICH WE WERE
REALLY DEALING WITH IN THE
ANALYSIS IN FUCHS.
>> I UNDERSTAND THAT.
YOUR HONOR, I GUESS, AND I'M
COMING UP ON MY FIVE MINUTES
RESERVED HERE, IF I COULD I
WOULD JUST RESPOND BY SAYING I
DON'T THINK IT'S THE ISSUE OF
THEIR GOOD FAITH OR NOT.
IN BOTH ATLANTIC AND IN BARR,
I'M SURE THOSE OFFICERS WERE
ACTING IN GOOD FAITH AND THEY
TOOK THE POSITION THAT IT WOULD
VIOLATE THEIR OATH OF OFFICE TO
FOLLOW THE LAW.
THAT WAS THE SEPARATION OF
POWERS ISSUE THAT THIS COURT
HAD A PROBLEM WITH AND WAS
THESE OFFICERS NOT ONLY
BELIEVING THAT, BUT FAILING TO
FOLLOW THE LAW AS, BEFORE THIS
COURT HAD MADE A DETERMINATION
THAT THE LAW WAS CONSTITUTIONAL
OR NOT.
AND I THINK YOU CAN HARMONIZE
THE DICTA IN FUCHS AND IN LEWIS
BY LOOKING AT THE CASES THAT
LEWIS CITED TO.
ALL OF THOSE CASES DEALT WITH
THE PUBLIC FUNDS DISBURSEMENT
EXCEPTION AND COULD BE DECIDED
ON THAT BASIS.
SO AS LONG AS THE DEFENSIVE
POSTURE EXCEPTION IS COUPLED
WITH ONE OF THE TWO TRADITIONAL
EXCEPTIONS, PERSONAL INJURY OR
PUBLIC FUNDS, I THINK IT CAN BE
RECONCILED BUT, IF DEFENSIVE
POSTURE ALONE WITHOUT THOSE TWO
PREVIOUSLY RECOGNIZED
EXCEPTIONS IS ALLOWED, THEN I
DON'T THINK CAN YOU RECONCILE
THAT WITH THE CONCERNS IN
ATLANTIC COASTLINE AND BARR
ABOUT THE SEPARATION OF POWERS
ISSUE.
>> IS THERE, BECAUSE OF THE
NATURE OF THIS OFFICE OR
SOMETHING BECAUSE THIS DEALS
WITH THE PROPERTY APPRAISER'S
OFFICE, NOT SOME OF THESE OTHER
THINGS.
>> RIGHT.
>> SO ISN'T THAT A WAY?
WE LOOK AT THIS IN A DIFFERENT
POSTURE.
FUCHS WAS SPECIFICALLY
ADDRESSING THE STATUTE.
SO AS A PROPERTY APPRAISER FIT
INTO A DIFFERENT CATEGORY THAN,
I DON'T KNOW, THE DOG CATCHER?
>> WELL, THAT'S AN INTERESTING
QUESTION.
HOW FAR DO YOU EXTEND THIS
DOCTRINE THEN?
I THOUGHT ABOUT THAT.
AND I'M NOT ASKING THIS COURT,
THIS COURT CAN LIMIT AND I
THINK I CRAFTED MY BRIEF THAT
WAY, TO LIMIT IT TO THE
PROPERTY APPRAISER BECAUSE WHAT
I CONSIDER TO BE THE
MINISTERIAL NATURE OF THAT
OFFICE.
THIS COURT PREVIOUSLY HELD
COMPTROLLERS BACK WHEN WE HAD
THOSE INVOLVED PUBLIC FUNDS
OBVIOUSLY THAT WAS A LITTLE BIT
DIFFERENT.
I DON'T SEE ANYTHING OTHER THAN
MINISTERIAL DUTIES THAT IMPOSED
BY CONSTITUTION IN STATUTE ON A
PROPERTY APPRAISER THAT WOULD
EVER IMPLICATE
THE PERSONAL INJURY PUBLIC
FUNDS EXCEPTIONS.
IF THERE ARE --
>> SAVED SOME OF YOUR TIME.
>> YES, SIR.
THANK YOU.
>> PLEASE THE COURT.
MY NAME IS LARRY LEVY.
I REPRESENT THE APPELLEE TODAY,
THE PROPERTY APPRAISER.
LET ME MAKE SOME COMMENTS IF I
WILL.
THE CASE I CITED IN MY BRIEF
MAKES IT VERY CLEAR THAT IS THE
LEWIS CASE.
DEPARTMENT OF EDUCATION VERSUS
LEWIS.
DO IT DEFENSIVELY.
>> LET ME ASK YOU A QUESTION.
OVER HERE.
YOU AGREE THAT THOSE
DISCUSSIONS WERE DICTA, RIGHT?
IN LEWIS?
>> WHAT NOW?
>> WAS DICTA.
IT DIDN'T REALLY ADDRESS
ATLANTIC COAST?
>> NO, SIR.
I THINK THEY WERE EXACTLY WHAT
THEY WERE SAYING.
>> LET ME ASK YOU IN SECTION
193.06 THAT JUSTICE LEWIS IS
TALKING ABOUT, THAT IS IN THE
CONTEXT, VALUE ADJUSTMENT BOARD
DECISION, CORRECT?
>> THAT IS LITTLE DIFFERENT
ANIMAL, YES, SIR.
>> THAT IS NOT WHAT WE HAVE
HERE, CORRECT?
>> NO, SIR, IT'S NOT.
>> IN THAT IT ALLOWS
DEFENSIVELY FOR THE PROPERTY
APPRAISER TO CONTEST THE
CONSTITUTIONAL, TO SAY OR
ALLEGE THAT IN THAT DECISION OF
THE VALUE ADJUSTMENT BOARD
THERE WAS SOME CONSTITUTIONAL
STATUTORY VIOLATION IN THE
DECISION OF THE BOARD, ISN'T
THAT WHAT THAT STATUTE IS
ADDRESSING?
>> YES, SIR. THAT'S RIGHT.
LET ME JUST ADDRESS THAT
STATUTE.
>> SO WE'RE TALKING ABOUT A
DIFFERENT ISSUE TODAY THAN WE
WERE TALKING ABOUT IN THE FUCHS
CASE THEN?
>> WE'RE TALKING ABOUT HERE IS A
PROPERTY APPRAISER DEFENDING
HIS WORK PRODUCT.
>> SO IT'S DIFFERENT THAN IN
FUCHS?
>> YES, SIR.
VERY DIFFERENT FROM THE FUCHS.
STATUTE IN FUCHS, PARTICULAR
STATUTE THAT YOU'RE TALKING
ABOUT, THAT SERIES OF STATUTES
CAME INTO BEING IN THE MID
'70s.
>> TAX -- IS THE TREND.
>> YES, SIR.
PRIOR TO THAT IF A BOARD RULED
AGAINST A PROPERTY APPRAISER HE
COULD NOT DO ANYTHING.
HE HAD NO AUTHORITY TO DO
ANYTHING.
SIMPLY HAD TO GO HOME.
NO MATTER WHAT THEY DID.
THEY HAD A SITUATION IN OVER IN
GADSDEN COUNTY, SPOONER CASE
CAME HERE WHICH IS EXACTLY THAT
SITUATION.
THE VAB WENT HAYWIRE.
BROUGHT THE DOR IN.
WE GOT TO FIX THIS. WE DON'T
WANT THIS ANYMORE.
>> EVEN NOW UNDER 194.1815 OF
THE SAME CHAPTER IF CITIZEN OR
TAXPAYER HAS A QUESTION ABOUT
THE CONSTITUTIONALITY OF THE
STATUTE, THAT CITIZEN DOES NOT
SUE THE PROPERTY APPRAISER.
THAT CITIZEN SUES THE HEAD OF
THE DEPARTMENT OF REVENUE.
>> NO, SIR.
THEY WOULD SUE THE PROPERTY
APPRAISER.
NOT NECESSARILY
CONSTITUTIONALITY.
JUST SAYS THAT, IF IT'S IN
VIOLATION OF THE CONSTITUTION,
HE HAS TO ADD THE DEPARTMENT OF
REVENUE AS PROPERTY APPRAISER.
ALWAYS HAS.
>> ASSESSMENT OF ANY TAX IS
CONTESTED ON THE GROUNDS IT IS
CONTRARY TO THE STATE
CONSTITUTION, THE OFFICIAL OF
THE STATE GOVERNMENT
RESPONSIBLE FOR THE OVERALL
SUPERVISION OF THE ASSESSMENT
SHALL BE MADE A PARTY.
>> SHALL BE ADDED, MADE A
PARTY, PREVIOUSLY UNDER THAT
SAME STATUTE IT SAYS WHOS THAT
TO BE A PARTY DEFENDANT.
IT LISTS PROPERTY APPRAISER.
>> I GUESS WHAT MY BASIC
POLICY QUESTION IS, UNDER YOUR
SCENARIO AND ARGUMENT, THERE
ARE THE 67 PROPERTY APPRAISERS
WHO ARE PRIMARY MINISTERIAL
OFFICERS, DO YOU AGREE?
>> WELL, THEY'RE, THEY DON'T --
THEY'RE CALLED CONSTITUTIONAL
OFFICERS BECAUSE THEY EXERCISE
PART OF THE SOVEREIGNTY OF
GOVERNMENT IN TAXATION.
>> THEY DON'T COLLECT OR
DISBURSE FUNDS, CORRECT?
>> THEY CONTROL THEM.
THE STATUTORY ADMONITION TALKS
ABOUT CONTROL AND DISBURSEMENT.
THEY CONTROL THE MONEY COMING
IN.
THAT'S WHAT TAXATION DOES.
THE COLLECTOR DOES NOT
SPECIFICALLY DISPERSE.
HE DISTRIBUTES TO THE COUNTY
AND SCHOOL AND CITIES.
>> WHO COLLECTS THE MONEY WHEN
IT COMES IN?
IS, DOES THE PROPERTY APPRAISER
COLLECT MONEY?
>> NO, SIR.
THE PROPERTY APPRAISER --
>> DOES THE PROPERTY APPRAISER
DISPERSE MONEY.
>> NO. HE EXTENDS TAXES.
>> VALUATION.
>> NO. HE EXTENDS TAXES.
CALCULATES TAXES AND EACH PART
AND COLLECTOR COLLECTS IT.
>> HE DOES THAT IN -- EVERY ONE OF
THE 67 DO THAT UNDER THE
REGULATION AND SUPERVISION OF
THE DEPARTMENT OF REVENUE,
CORRECT?
>> NOT SPECIFICALLY.
THEY DO IT UNDER THEIR OWN
STATUTORY AUTHORIZATION.
THEY WOULD DO IT WITHOUT THE
DEPARTMENT OF REVENUE INVOLVED.
>> I GUESS THE POINT I'M TRYING
TO GOT TO CONSISTENCY IN THE
STATE.
UNDER YOUR VIEW, ANY INDIVIDUAL
PROPERTY APPRAISER CAN
CHALLENGE THE CONSTITUTIONALITY
OF A STATUTORY EXEMPTION OR ANY
OTHER STATUTE RELATED TO
ASSESSMENT?
>> WELL IT WOULD HAVE TO BE OF
A STATUTORY EXEMPTION OR SOME
THINGS THAT DIRECTLY AFFECTED
HIS DUTY AND PREVENTED HIM
BEING THE PROPER CONSTITUTIONAL
OFFICER IN ASSESSING PROPERTY.
>> WAIT A SECOND.
>> MA'AM?
>> MY PREMISE, AND MAYBE WE
WERE DEALING WITH THE DIFFERENT
SITUATION BECAUSE WE HAD THE
VALUE ADJUSTMENT BOARD IN FUCHS
BUT IS THIS CONCEPT THAT, BY
WHAT OCCURRED IN THIS CASE THE
PROPERTY APPRAISER HAD TO
DISREGARD A STATUTE PASSED BY
THE LEGISLATURE, CORRECT?
>> THAT WAS PART OF IT.
HE HAD TO RECOGNIZE THAT A
CONSTITUTIONAL AMENDMENT
FAILED.
>> THEY HAD TO IGNORE A
STATUTE?
HE HAD TO SAY THE STATUTE DOES
NOT APPLY
>> YES, MA'AM.
>> NOT JUST, BUT DOES IT APPLY
BECAUSE THE STATUTE IS NOT
CONSTITUTIONAL?
>> HE SAYING IT ISN'T, YES,
MA'AM.
>> THAT IS DIFFERENT.
THEY COULD MAKE DECISIONS TO
SEE IF THE STATUTE APPLY OR IT
DOESN'T.
AND THEIR GOAL IS TO GET AS
MUCH MONEY INTO THE COUNTY AS
POSSIBLE, CORRECT?
>> HE DOESN'T GET TOO MUCH
INVOLVED IN TRYING TO GET MUCH
MONEY.
YES, MA'AM.
>> BECAUSE I GUESS IT WOULD BE,
THE OTHER OPTION WOULD BE THEY
ACTUALLY GIVE EXEMPTIONS WHERE
CONSTITUTIONALLY PEOPLE AREN'T
REQUIRED TO DO IT BECAUSE THEY
THINK ANOTHER STATUTE IS NOT
CONSTITUTIONAL.
I GUESS MY PROBLEM WITH IT IS
THAT IN ANY OF EVENT WHETHER
IT'S GOOD FAITH, BAD FAITH,
POLITICALLY MOTIVATED OR NOT,
THEY ARE DISREGARDING A LAWFUL
STATUTE AND THEY ARE THEN
REQUIRING TAXPAYER TO BRING A
LAWSUIT.
AND --
>> THAT'S TRUE.
>> SEEMS TO ME, AGAIN, UNDER
WHAT CIRCUMSTANCE DO WE END UP
SAYING THAT REALLY PUTTING THE
PROPERTY APPRAISER BEING PLACED
AND RAISING IN DEFENSIVE
POSTURE WHEN WE KNOW IT'S THE
PROPERTY APPRAISER BY IGNORING
THE STATUTE THAT CREATED THIS
SITUATION TO BEGIN WITH?
>> LET ME SEE IF I CAN ANSWER
YOUR QUESTION LIKE THIS.
IF THE STATUTES ARE IN THERE,
194.036 HAD NOT BEEN ENACTED,
PROPERTY APPRAISER WOULD STILL
HAVE TO DEFEND THE LAWSUITS
EXACTLY THE SAME WAY.
>> YOU'RE NOT RELYING ON --
>> THEY'RE NOT INVOLVED IN
THIS.
>> YOU'RE NOT RELYING ON
194.036?
>> WE'RE NOT UNDER 036.
>> OKAY.
>> SO YOU'RE NOT RELYING
ON THAT. SO YOU'RE SAYING
THAT, IT IS JUST PART OF THE
PROPERTY APPRAISER'S
CONSTITUTIONAL DUTY TO IGNORE
LAWFULLY PASSED STATUTES?
>> IF, IF IT, IF HE HAS A
REASONABLE DOUBT AS TO THE
VALIDITY OF THE STATUTE AND IT
PREVENTS HIM FROM COLLECTING
ASSESSMENT OF PROPERTY.
>> HOW IS THAT NOT DIRECTLY
CONTRARY TO ATLANTIC COASTLINE?
>> IT'S CONTRARY TO ONE OF THE
STATEMENTS IN ATLANTIC
COASTLINE.
IT'S CONSISTENT WITH THE
STATEMENTS IN CITY OF PENSACOLA
VERSUS KING, STATE v. HALE,
LEWIS, THE OTHER CASE.
CONSISTENT WITH THE ACTION.
QUITE A FEW CASES READ IT LIKE
THIS.
THIS IS EXCEPTIONS.
OR THE CITING FROM OLD CASE THE
COHN CASE, HEAL SAID THE SAME
THING.
WHERE HE IS CHARGED WITH A
CONTROL AND DISPERSEMENT OF
PUBLIC FUNDS.
NOW HE HAS THE TOTAL CONTROL
OVER WHAT MONEY IS COMING INTO
THAT TREASURY, INTO THE COUNTY
COFFERS.
NOBODY ELSE HAS IT.
HE IS ONLY ONE.
>> IF WE ACCEPT YOUR ARGUMENT,
A CLERK OF THE COURT, THERE IS
NEW STATUTE PASSED TO RAISE
ADDITIONAL REVENUES FOR THE
STATE AND THE CLERK OF THE
COURT REASONABLY AND HONESTLY
BELIEVE THAT THAT IMPOSING THAT
STATUTE VIOLATES A
CONSTITUTIONAL PROVISION, THEN
THE CLERK OF THE COURT COULD
REFUSE TO --
>> KNOWS.
>> WHY NOT?
>> HE IS NOT A CONSTITUTIONAL
SOVEREIGN.
HE IS NOT EXERCISING ANY PART
OF THE SOVEREIGNTY IN
COLLECTION OF TAXES.
ONLY PROPERTY APPRAISER HIS.
>> HE IS CONSTITUTIONAL OFFICER
COLLECTING FEES.
>> HE IS COLLECTING FEES.
THE ASSESSOR IS THE ONLY
PERSON, PROPERTY APPRAISER IS
ONLY PERSON IN THE COUNTY THAT
CAN HAVE ANYTHING TO DO WITH
HOW MUCH MONEY COMES IN FROM AD
VALOREM TAXES.
>> YOU'RE LIMITING THIS TO
PROPERTY APPRAISERS.
>> SIR?
>> YOU'RE LIMITING YOUR ISSUE
TO PROPERTY APPRAISERS.
SEEMS TO ME THERE IS AT LEAST A
POTENTIAL FOR BROADENING A
HOLDING THAT A PUBLIC OFFICIAL
WHO IS IN CHARGE OF APPLYING
AND IMPLEMENTING A STATUTE, MAY
VIOLATE THE STATUTE IF THAT
PUBLIC OFFICIAL BELIEVES, EVEN
IN GOOD FAITH THAT THE STATUTE
IS UNCONSTITUTIONAL.
AND EVEN IF WE LIMIT IT TO
OFFICERS THAT ARE DESIGNATED IN
THE CONSTITUTION WE HAVE COUNTY
SHERIFFS, WE HAVE THE ATTORNEY
GENERAL, WE HAVE THE GOVERNOR,
WE HAVE SEVERAL OTHER EXECUTIVE
OFFICIALS WHO COULD USE A
HOLDING LIKE THAT AND SAY,
LOOK, WE'RE USING IT
DEFENSIVELY BUT, WE JUST, WE
BELIEVE THAT IT'S
UNCONSTITUTIONAL AND WE'RE NOT
GOING TO APPLY THE STATUTE AND
WE'RE GOING TO WAIT UNTIL WE
GET SUED AND ARGUE WHY IT'S
UNCONSTITUTIONAL.
THAT'S THE BASIC PROBLEM SOME
OF US ARE HAVING.
>> LET ME ANSWER YOUR QUESTION
LIKE THIS.
EARLIER CASES ONE HELD THAT THE
STATE ROAD DEPARTMENT COULD DO
IT BECAUSE IT WOULD HAVE TO
EXPEND MONEY AND COULD
CHALLENGE IT.
YOU HAVE TWO THAT I'VE CITED
IN THE BRIEFS; YOU HAVE THE
GREEN CASE, THE
DICKINSON CASE, BOTH SAID THE
STATE COMPTROLLER CAN DO IT.
AND THE REASON FOR IT IS
BECAUSE YOU HAVE THE PUBLIC
FUND ELEMENT OF IT INVOLVED.
YOU HAD, --
>> WHY ISN'T A BETTER
JURISPRUDENCE ACROSS
THE STATE --
>> SIR?
>> WHY ISN'T IT BETTER
JURISPRUDENCE ACROSS THE STATE
TO SAY A PUBLIC OFFICIAL MUST
ENFORCE THE LAW AS WRITTEN
UNTIL IT'S DECLARED
UNCONSTITUTIONAL AND IF THAT
PUBLIC OFFICIAL BELIEVES THAT A
STATUTE IS UNCONSTITUTIONAL,
THE OFFICIAL CAN FILE A
DECLARATORY JUDGMENT ACTION IN
THE MEANTIME TO HAVE IT
DECLARED SO BUT, MUST ENFORCE
IT UNTIL A COURT DETERMINES
OTHERWISE?
>> THEN YOU WOULD HAVE TO HAVE
A LEGISLATIVE ENACTMENT
AUTHORIZING THE PROPERTY
APPRAISER TO DO THAT.
SEE HE DOESN'T HAVE THE
AUTHORITY TO INITIATE SUITS
EXCEPT WHAT WAS DONE IN 194 IN
THE '70s.
HE CAN'T FILE A SUIT.
HE CAN ONLY DEFEND HIS
ASSESSMENTS.
>> ALLOW --
>> SIR?
>> LET THE LEGISLATURE AMEND
THE STATUTE.
>> AND THE OTHER SIDE --
>> OR LET THE PROPERTY
APPRAISERS, GET, WHO HAVE, I'M
SURE YOU HAVE AN ORGANIZATION
LIKE THE CLERKS, LOBBY THE
LEGISLATURE TO CHANGE WHAT THEY
PERCEIVE TO BE AN
UNCONSTITUTIONAL LAW.
>> WELL, I CAN'T REALLY ANSWER
WHY SOMETIMES THE LEGISLATURE
DOES THINGS IT DOES BUT --
>> LET ME ASK YOU --
>> THEY DO.
>> LET ME ASK YOU A SOFTBALL
QUESTION.
>> ALL RIGHT, SIR.
>> TO PLAY IT OUT BECAUSE PART
OF THE LANGUAGE IN THESE
DECISIONS HAVE HAD TO DO WITH
THE OFFICIAL HAVING SOME
PERSONAL STAKE OR EXPOSURE TO
THE THING.
LET'S SAY THAT THE LEGISLATURE
PASSED A LAW AND THEY HAD A
PROVISION IN THERE THAT SAID
THE APPRAISER, HERE'S THE
STANDARDS FOR APPRAISING
PROPERTY AND EVERYTHING.
AND THEN THEY HAD A CLAUSE, BUT
IN THE CASE WHERE THE PROPERTY
OWNER IS A FEMALE, THE
APPRAISER SHALL DOUBLE THE
VALUATION PREVIOUSLY DETERMINED
OKAY?
>> I DON'T THINK HE WOULD DO
IT.
>> TELL ME, TELL ME, WHAT THE
PROPERTY APPRAISER IS TO DO IN
A SITUATION LIKE THAT.
>> I THINK --
>> DIFFERENTIATE FOR ME THE
OFFICIAL LIABILITY OR THE
PERSONAL LIABILITY, WHAT WOULD,
HOW WOULD THAT PLAY OUT?
BECAUSE I'M TRYING TO GIVE
OBVIOUSLY AN EXTREME EXAMPLE.
>> I UNDERSTAND.
>> BUT ON THE OTHER HAND,
LOOKING AT OUR HISTORY, THAT SO
WHAT WOULD HAPPEN IN A CASE
LIKE THAT?
>> I WOULD THINK THAT, I WOULD
CERTAINLY HOPE THAT THE
PROPERTY APPRAISERS THAT I
REPRESENT WOULD NOT DO IT.
THAT WE'RE NOT GOING TO
DISCRIMINATE.
>> COULD YOU AS YOUR OPPONENT
ARGUED IN THAT CASE RAISE THAT
QUESTION WITH THE ATTORNEY
GENERAL AND SEEK THE ATTORNEY
GENERAL'S HELP IN CHALLENGING
THE CONSTITUTIONALITY OF THAT
LAW?
>> I DON'T KNOW IF HE COULD OR
NOT BUT IT'S A ROUNDABOUT WAY
TO GO.
PERHAPS THE ATTORNEY GENERAL
SAYS I'M TOO BUSY.
THEY DON'T HAVE TO DO ANYTHING.
THEY, HE DOESN'T HAVE TO FILE
-- WHERE HE WANTS TO FILE.
>> I DON'T KNOW IF YOU HAVE
READ, I DON'T WANT TO CATCH YOU
OFF-GUARD, SECTION 194.181,
SUBPARAGRAPH 6, SAYS, IN ANY
SUIT IN WHICH THE VALIDITY OF
ANY STATUTE OR REGULATION FOUND
IN OR ISSUED PURSUANT TO
CHAPTERS 192 TO 197, INCLUSIVE,
IS CONTESTED, THE PUBLIC
OFFICER AFFECTED MAY BE A PARTY
PLAINTIFF.
>> YES, SIR.
>> SO THAT SEEMS TO AUTHORIZE A
PROPERTY APPRAISER, IF AFFECTED
BY THE CONSTITUTIONALITY OF A
STATUTE WITHIN 192 TO 197, TO
FILE A DECLARATORY JUDGMENT
ACTION.
>> I WOULD BEG TO DIFFER, YOUR
HONOR.
THAT IS PART OF STATUTE NAMING
DEFENDANTS TO LAWSUIT.
THE DEPARTMENT OF REVENUE IS
NAMED AFTER THE ASSESSOR AND
PROPERTY APPRAISER AND --
>> SAYS THE PUBLIC OFFICER
AFFECTED MAY BE NAMED TO A
PARTY PLAINTIFF.
>> YES, SIR.
THAT PARTICULAR PART OF IT,
HAS NEVER BEEN TESTED AS TO
WHAT ACTUALLY IT IS INTENDED TO
MEAN.
IT'S BEEN THERE A LONG TIME.
>> BUT AGAIN, MAYBE THAT IS
BETTER THING FOR SOMEONE TO
TEST, WHETHER THEY CAN GET A
LAWFUL DETERMINATION OF
SOMETHING THAT IS OBVIOUSLY OF
CONCERN TO PROPERTY APPRAISERS.
>> YOU HAVE TO DECIDE WHO WOULD
THE PROPERTY APPRAISER SUE?
YOU GOT TO HAVE A PARTY.
ONLY PERSON THEY CAN SUE IS THE
ONE WITH INTEREST, TO BE THE
PROPERTY OWNER.
AND GENERALLY YOU DON'T, YOU
GENERALLY DEFEND SUITS FROM
PROPERTY OWNERS.
ACCOMPLISH THE SAME THING. IF
IT'S TAXABLE AS IN THIS CASE
WHEN THE CONSTITUTIONAL
AMENDMENT FAILED, YOU PUT IT ON
THE TAX ROLL, YOU CAN ACCEPT IT
OR CHALLENGE IT.
IF I HAVE ANY TIME LEFT CAN I
ADDRESS MY OTHER ISSUE?
>> YOU DO HAVE FIVE MINUTES
LEFT.
>> I DO?
ALL RIGHT.
THE OTHER ISSUE WHICH I BROUGHT
TO THE COURT WAS WE THINK THAT
THE DETERMINATION BY THE TRIAL
COURT WHICH WAS UPHELD BY THE
DISTRICT, THAT SAID THIS
DISTRICT PROPERTY IS EXEMPT, IS
ERRONEOUS.
WE THINK IT'S IN CONFLICT WITH
THIS COURT'S DECISION IN
GAINESVILLE, AND WHOLE LOT OF
OTHER CASES THAT DEAL WITH WHAT
CONSTITUTES A GOVERNMENTAL
PURPOSE.
THE DISTRICT IS AN INDEPENDENT
DISTRICT. IT WAS COMMUNITY
DEVELOPMENT DISTRICT. IT WAS
CREATED AT THE INSTANCE OF THE
DEVELOPER.
WHEN YOU HAVE THOSE SITUATIONS
THEY'RE FINANCING VEHICLES.
THIS COURT SAID IN FRONTIER
PROPERTIES IT'S NOT A
GOVERNMENTAL, GOVERNMENT LIKE A
COUNTY OR A CITY.
IN THIS CASE YOU HAD A
DEVELOPER THAT STARTED IT OUT,
THE GOLF COURSE, THE BAR, THE
RESTAURANT, AND THE TIDE SHOP
WERE NEVER OWNED BY THE
DISTRICT TO START WITH.
SOME YEARS AFTER THE LOTS ARE
SOLD AND EVERYTHING IS MOVING
ALONG GOOD, THEN THE DEVELOPER
SAYS I'M GOING TO GET OUT OF
THE GOLF COURSE BUSINESS AND
SELL OUT.
SO, HE IS READY TO DO THAT NOW.
AND THEN THE DISTRICT, HE SAID
I'LL SELL IT TO THE DISTRICT.
SO THE DISTRICT BORROWED 6.5
MILLION I THINK AND SIGNED A
CONTRACT FOR $180,000 A YEAR TO
PAY THE MANAGEMENT COMPANY OF
THE DEVELOPER TO DO EXACTLY THE
SAME THING IT HAD BEEN DOING
BEFORE -- GOLF COURSE.
>> WHAT IS THERE TO PROHIBIT A
PUBLIC ENTITY FROM HIRING A
MANAGEMENT COMPANY TO MANAGE
THE PROPERTY?
PUBLIC ENTITIES DO THAT ALL THE
TIME.
DOESN'T MAKE IT INTO A PRIVATE
PROPERTY, NOR PRIVATELY OWNED,
OR PRIVATELY OPERATED.
>> SOME DO IT AND SOMETIMES
THEY LEASE IT BUT THEY DO IT'S
TAXABLE.
>> LEASING IS DIFFERENT. I
DON'T THINK THERE IS ANY LEASE
HERE.
>> MANAGEMENT AGREEMENT FOR
9.9 YEARS.
AT 180,000 A YEAR AND THEY PAID
THEM 6.2 MILLION.
>> IS THE PROPERTY MAKING A
PROFIT?
IS THE GOLF COURSE SUPPOSED TO
MAKE A PROFIT?
>> THEY MAKE $180,000 A YEAR IN
FEES.
>> BUT ARE THEY SUPPOSED TO
MAKE A PROFIT?
>> THEY'RE PROFIT-MAKING
COMPANY, YES, SIR.
>> NOT WHETHER THEY'RE
PROFIT-MAKING COMPANY. IS THE
GOLF COURSE --
>> I DON'T HAVE ANY IDEA.
>> -- SUPPOSED TO BE MAKING A
PROFIT?
>> IT'S SUPPOSED TO MAKE ENOUGH
TO RETIRE ENDEBTNESS AND PAY
THE CONTRACT OBLIGATION.
IT'S A PRIVATE COMPANY.
IT DOESN'T CLAIM --
>> IS THE MANAGEMENT COMPANY
SUPPOSED TO BE RECEIVING ANY OF
THE PROFITS FROM THE GOLF
COURSE?
>> YES, SIR.
>> THEY'RE RECEIVING PROFITS?
>> NO. IT RECEIVES A FEE.
>> RECEIVES A FEE BUT DOES NOT
RECEIVE PROFITS?
>> THAT'S TRUE.
>> IS IT OPEN TO THE PUBLIC?
>> SIR?
TO ANYBODY.
FEES ARE 2500 TO $3800.
FEE, IT'S A MONTHLY FEE WHEN
YOU GO THERE.
JUST LIKE OTHER COURSES THAT
ARE IN THE COUNTY.
IN GAINESVILLE THIS COURT
SUGGESTED ON TELECOMMUNICATIONS
PART OF IT, THAT WHEN THE CITY
DECIDED IT WAS GOING TO GO INTO
THE TELECOMMUNICATION BUSINESS
IT DIDN'T APPEAR TO OFFER
ANYTHING OTHER THAN, ANYTHING
NEW.
THEY CLAIMED THIS IS BETTER FOR
THE PUBLIC WELFARE.
THIS WOULD NOT BE EXCLUSIVE
BECAUSE IT WAS ORIGINALLY OWNED
BY THE MANAGEMENT COMPANY
DEVELOPER AND STILL IS.
STILL IS OPERATED BY THEM
EXACTLY THE SAME WAY.
AND IS NOT ESSENTIAL BECAUSE IT
WAS NOT PART OF THE DISTRICT TO
START WITH.
>> WAS GOLF COURSES ONE OF
THOSE QUINTESSENTIAL KINDS OF
AREAS WHERE WE HAVE PUBLIC GOLF
COURSES ALL OVER THE UNITED
STATES?
IT'S NOT A NEW AREA LIKE
TELECOMMUNICATIONS.
>> AND A LOT OF PRIVATE ONES
TOO.
>> RIGHT.
BUT WE HAVE JUST ABOUT EVERY
COUNTY YOU FIND THERE IS PUBLIC
GOLF COURSE.
>> SOMETIME I WOULD SAY YES.
SOMETIMES I WOULD SAY NO.
SEE IN A GOLF COURSE.
HAS A LITTLE COURSE OUT THERE.
IT DEPENDS.
I THINK THAT'S WHAT IS THE CITY
OF GAINESVILLE POINTED OUT.
IT SAID IT HAD TO BE ESSENTIAL
TO IT.
COULD NOT HAVE BEEN ESSENTIAL
TO THE DISTRICT BECAUSE IT
WASN'T THERE TO START WITH.
IT WASN'T OWNED BY THE DISTRICT
TO START WITH.
OWNED BY DEVELOPER.
PRIVATE DEVELOPMENT.
THEY COULD GET MEMBERSHIP
THERE.
OPEN TO THE PUBLIC.
NOW -- SIR?
>> DOES THE CONCEPT YOU'RE
SAYING THESE MEMBERSHIP FEES
AND THOSE KINDS OF THINGS, DOES
THAT TAKE, IS THAT SOMETHING WE
SHOULD BE LOOKING AT?
THIS IS REALLY OPERATING LIKE A
PRIVATE COUNTRY CLUB UNDER THE
NAME OF BEING SOMETHING PUBLIC?
>> LATTER PART IS WHAT YOU JUST
SAID, YES, SIR.
>> IS IT?
>> THAT IS PERTINENT.
THE BAR, THE LIQUOR
LICENSE OF THE BAR AND
RESTAURANT, THAT WAS IN THE
NAME OF THE MANAGEMENT COMPANY,
NOT THE DISTRICT.
THE SHOP, THEY SELL CLOTHES.
THAT WAS HELD TAXABILITY.
GOLF COURSE IS WAS HELD EXEMPT.
>> LET'S MAKE SURE, RESTAURANT,
BAR AND CLOTHING STORE ARE NOT
SUBJECT?
>> NO, MA'AM.
THE SWIMMING POOL IS EXEMPTED.
THE SWIMMING POOL WAS DIFFERENT
NOW.
I SAY IT WRONG I'M SORRY.
>> THE PRO SHOP --
>> PRO SHOP IS TAXABLE.
>> IS TAXABLE.
>> PRO SHOP, BAR, RESTAURANT,
CLUBHOUSE WAS TAXABLE.
SWIMMING POOL, TENNIS COURTS
WERE EXEMPTED.
PARK AREA WAS EXEMPTED.
620 ACRES OF, I THINK THEY CALL
IT CONSERVATION LAND WAS HELD
TAXABLE.
AND SOME OTHER STRIPS OF
PROPERTY WERE HELD TAXABLE.
BUT THE GOLF COURSE WHEN TITLE
MOVED WAS EXEMPTED, HELD
EXEMPT.
>> I KNOW I HAVE JUST A COUPLE
OF MINUTES.
JUST BRIEFLY ON THE SECOND
ISSUE RAISED BY THE RESPONDENT.
I THINK THE COURT IS AWARE FROM
EVEN A BRIEF REVIEW OF THE
RECORD THAT THE TRIAL COURT
THOROUGHLY CONSIDERED VARIOUS
PARCELLS OF THE DISTRICT.
FOUND SOME OF THEM EXEMPT FROM
AD VALOREM TAXATION, SOME NOT.
WHAT THEY DID FIND OR WHERE THE
TRIAL COURT DID FIND AS EXEMPT,
WE BELIEVE AND CONTENDED AT
FIRST DISTRICT COURT OF APPEAL
WAS BASED ON COMPETENT
SUBSTANTIAL EVIDENCE.
THAT THE FIRST DISTRICT --
>> HOW MUCH IS THE MEMBERSHIP
FEE?
>> SORRY.
>> THERE IS MEMBERSHIP FEE TO
PLAY AT THIS GOLF COURSE?
>> NO. MEMBERS OF THE PUBLIC
CAN PLAY THERE WITHOUT HAVING
TO PAY A MEMBERSHIP FEE.
THERE ARE MEMBERS.
SO THERE --
>> GENERALLY OPEN TO THE
PUBLIC?
>> ABSOLUTELY.
>> GOT TO PAY THE GREENS FEES?
>> ABSOLUTELY.
I LIVE IN JACKSONVILLE.
I CAN DRIVE DOWN THERE PAY A
GREEN FEE AND RENT A CAR AND I
CAN PLAY.
THAT'S NOT AN ISSUE.
>> SO WHAT'S THE PURPOSE OF THE
MEMBERSHIP FEES?
>> YOU KNOW, QUITE FRANKLY I'M
NOT SURE THAT WAS REALLY EVEN
ADDRESSED AT TRIAL LEVEL AND --
>> THERE IS SOMETHING
DISCONCERTING ABOUT THAT MAKES
IT SOUND LIKE A COUNTRY CLUB.
>> IF I WERE TO SPECULATE, YOUR
HONOR, I WOULD SAY, MAYBE,
THERE IS SOME PART OF THE CLUB
OR MAYBE IT'S ACCESS TO THE BAR
AREA.
WELL, NO, I GUESS THE BAR WAS
OPEN TO THE PUBLIC AS WELL.
I QUITE FRANKLY DON'T KNOW THE
ANSWER TO THAT I WAS NOT TRIAL
COUNSEL.
I APOLOGIZE.
>> WAS IT CONTESTED BELOW
MEMBERSHIP FEES MADE IT A
PRIVATE ENTITY?
>> CERTAINLY THE FACT THAT
MEMBERSHIP FEES WERE CHARGED
WAS BEFORE THE TRIAL COURT AND,
I THINK MR.^LEVY DID INCLUDE
THAT AMONG HIS ARGUMENTS.
>> THERE WAS NO EVIDENCE
PRESENTED ON WHAT MEMBERSHIP
GOT YOU?
>> YOUR HONOR, THERE MAY VERY
WELL HAVE BEEN, I JUST HAVE TO
APOLOGIZE SAY I DON'T KNOW THAT
FROM THE RECORD.
I DON'T RECALL THAT.
REALLY TO CONCLUDE IN MY
REMAINING 38 SECONDS, WE WOULD
ASK THIS COURT TO LOOK AT THE
REASONING AND RATIONALE IN SUN
'N LAKE WHICH WE'RE ASKING
COURT TO APPROVE AND DISAPPROVE
THE ZINGALE DECISION.
WE BELIEVE SUN 'N LAKE ANALYSIS
OF AND UNDERSTANDING OF
ATLANTIC COASTLINE AND BARR,
CORRECTLY PERCEIVED OR
CHARACTERIZED THE SITUATION
BEFORE IT, WHICH WAS --
>> I TAKE IT WHAT YOU WOULD ASK
THE COURT TO DO WOULD BE TO
LIMIT ITS STATEMENTS IN FUCHS
TO WHAT MR.^LEVY WOULD, WOULD,
CONCEIVE WERE, HAVING TO DO
WITH APPEALS FROM THE
ADJUSTMENT BOARD?
>> THAT OR, IF ALSO IN
CONJUNCTION WITH OTHER TWO
RECOGNIZED EXCEPTIONS BY THIS
COURT SINCE 1922, PUBLIC FUNDS
OR PERSONAL INJURY, I DON'T
THINK THOSE APPLY HERE BUT, I
THINK THE DICTA IN FUCHS AND
LEWIS CAN BE HARMONIZED WITH
ATLANTIC IF THOSE
QUALIFICATIONS WERE ADDED.
>> SO WHY WOULD WE NOT JUST
ADDRESS THIS FOR WHAT IT IS
RATHER THAN SOME BROAD
STATEMENT FOR EVERY OFFICER IN
THE STATE OF FLORIDA IS
ADDRESSED TO THIS CASE?
THIS IS AN APPRAISER AND HOW
THIS ARISES?
IF THAT'S THE CASE, FUCHS
ADDRESSES WHAT IT ADDRESSES AND
THAT STATUTE APPLIES.
>> RIGHT.
>> SO IT'S REALLY DICTA.
IT'S WHAT THAT CASE IS ABOUT.
YET WE'RE SAYING THAT IS NOT
REALLY EVEN AN ISSUE HERE.
>> THE REASON I CALL IT,
CHARACTERIZE IT AS DICTA, YOUR
HONOR, IT REFERS BACK TO THE
LEWIS DICTA.
>> BECAUSE IT RELIED ON SOME
OTHER CASES?
>> RIGHT THAT'S WHY I
CHARACTERIZED IT THAT WAY.
IF I MIGHT RESPOND ONE MORE
THING THAT YOU SAID.
>> SURE.
>> I HAVE NO PROBLEM, AND I
THINK THE COURT CAN SEE I
DRAFTED MY BRIEF TO DEAL
SPECIFICALLY WITH PROPERTY
APPRAISERS.
I'M NOT NECESSARILY ASKING THIS
COURT TO MAKE A BROAD
CONSTITUTIONAL STATEMENT.
>> ALL RIGHT.
THANK YOU VERY MUCH.
THE COURT WILL TAKE THE CASE
UNDER ADVISEMENT.
WILL STAND IN RECESS UNTIL
TOMORROW MORNING.
>> ALL RISE.