With Election Day less than a week away, Sunshine State News continues its review of several of the most controversial rulings of three Florida Supreme Court justices up for retention on the ballot. In this installment, we take a look at a pair of landmark decisions concerning drug possession.

Although Justices Barbara Pariente, R. Fred Lewis, and Peggy Quince are insisting that voters should ignore their rulings when they head to the polls, and consider only whether these jurists have ever committed a crime, their critics and other legal scholars say otherwise -- i.e., that it is absolutely relevant to their retention that voters consider whether these justices are interpreting relevant law according to its original public meaning, or whether they are left-wing activists who ignore the law and impose their own personal moral philosophy on cases that come before them.

(For the last several weeks Sunshine State News has reached out to the three justices [who are traveling around the state to sit down with newspaper editorial boards] to interview for this series. In September, we were notified by a representative of their joint campaign that they are specifically refusing to interview with the News.)

In the 1996 case Chicone v. State, the defendant had been charged with possessing cocaine, in violation of Section 893.13(6)(a) of the 1995 Florida statutes:

“It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual or constructive possession of a controlled substance ...”

The defendant argued that he could only be convicted of violating this statute if the state proved that he knew that the substance he possessed was, in fact, cocaine. As readers can see, such a scienter (i.e., “knowledge”) requirement is nowhere found in the statute. Compare this omission with how Section 193.135 of the same statutes defines the crime of drug trafficking:

“Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of 100 pounds of cannabis ...” (emphasis added)

Because the crime of drug possession  does not contain this knowledge requirement, it seems on its face to be a “strict liability” offense.

Strict liability crimes are rare in statutory law. They are a special type of offense that do not carry a specific knowledge requirement; an offender is guilty of a strict liability crime so long as it is proven he voluntarily did the defined act, even if he did not intend to act criminally. The classic example of a strict liability offense is statutory rape: if an adult has voluntary sex with a minor, he will be found guilty of that offense even if he does not know that his “victim” is a minor, even if he makes an honest mistake as to that minor’s age after taking every possible reasonable precaution.

The question before the Supreme Court in Chicone was whether the Legislature had intended the crime of drug possession to include “knowledge.”

The prosecution argued the Legislature manifestly did not. Interestingly, the prosecution did not insist that possession was a strict liability offense; rather, it said the Legislature’s omission should be interpreted to mean that mere possession of the illegal substance created a presumption of a criminal intent, but that this presumption could be rebutted during trial by an “affirmative defense,” by the defendant, that he did not know that the substance he possessed was legally prohibited.

Six justices – including Barbara Pariente and R. Fred Lewis (Peggy Quince had not yet been appointed to the high court) – denied the prosecution’s suggestion, on the grounds that the statute did not explicitly contain an “affirmative defense” provision. However, the court went on to rule in favor of the defendant’s claim that the statute should be construed as containing a knowledge requirement, even though such a provision isn’t explicitly in the text of the law either.

The court’s then-most conservative justice, Charles T. Wells, had recused himself from the Chicone case, but he had the opportunity to weigh in on that decision six years later, in Scott v. State, when the Supreme Court – now including Quince – reaffirmed  its ruling on Chicone. (Quince authored the Scott opinion, and was joined by Pariente, Lewis, and two other justices.)

In his Scott dissent, Wells articulated his frustration with the ruling in Chicone, and suggested – seemingly reluctantly – that if the Supreme Court had to read something into the drug possession statute, it should have been the state’s suggested possibility of affirmative defenses:

“I ... fail to see how it follows that it is for the Legislature to define elements of crimes but, when the Legislature does not include an element, that this court corrects the Legislature’s definition by writing the element into the crime. I conclude that what the state proposed in Chicone and which the Chicone court rejected would be a more logical and less problematic approach. Lack of knowledge should be an affirmative defense. The state carries its burden by proving the possession of the contraband. ... [T]he defendant should then proceed to prove lack of knowledge and overcome the presumption through an affirmative defense.”

Wells went on to argue this construction would be more consistent with rulings in prior cases that dealt with drug possession. The majority (in Chicone) cited several other precedents for its construction.

Shortly after the court’s 2002 ruling in Scott, the Florida Legislature amended the statutes by adding Section 893.01, which declared that the Florida Supreme Court had ruled – in Chicone and Scott – contrary to legislative intent, and which adopted into law the suggestions of the Chicone prosecution and, later, of Justice Wells: “[K]nowledge of the illicit nature of a controlled substance is not an element of [drug possession]. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense ...” This is where the law stands today.

Were these decisions by Justices Pariente, Lewis, and Quince faithful to the original public meaning of then-existing Florida law, or were they an exercise in judicial law-making? Or did the fault lie squarely with the Legislature, which promulgated an ambiguous statute that had to be corrected several years later?

Readers should review the opinions for themselves, in conjunction with others by these justices, and reach their own informed conclusions.


Reach Eric Giunta at egiunta@sunshinestatenews.com or at 954-235-9116.