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Weekly Roundup: Courting Opposition

February 17, 2017 - 5:30pm

There was already plenty of anti-judiciary invective being hurled around the Legislature in the run-up to the 2017 legislative session, and this week may have intensified the tension.

In legal battle after legal battle, the state or the Legislature suffered a loss. A special master appointed to referee the latest battle in the “water war” between Florida and Georgia essentially said Florida's case was all wet. State laws on abortion and guns were blocked by the courts.

Meanwhile, a more purely political skirmish continued to grow, as Gov. Rick Scott and the House traded more shots over the future of economic incentive programs. There were no courts in the offing to resolve that fight, which will likely be decided in the old-fashioned way after the session begins March 7.


There's little question, according to Maine lawyer Ralph Lancaster, that Georgia's use of water that would otherwise flow into the Apalachicola River is causing problems downstream. But Lancaster, who was appointed by the U.S. Supreme Court to oversee a fight between Georgia and Florida over those flows, said this week that there was little he could do about it.

Especially since Florida's lawsuit targeted the wrong party.

Lancaster's recommendation, which now heads to the U.S. Supreme Court, is the result of a 2013 lawsuit filed by Florida, alleging Georgia diverts too much water from the Apalachicola-Chattahoochee-Flint river system and that the diversions have damaged Apalachicola Bay and Franklin County's seafood industry.

Georgia countered that any limits on its water use will undermine its economy, including the growth of the Atlanta area and the state's agriculture industry in southeastern Georgia.

A key finding in Lancaster's report was that, since the U.S. Army Corps of Engineers --- which controls water flow through the region in a series of dams and reservoirs --- was not a party to the lawsuit, he could not devise a settlement between Florida and Georgia without the Corps' participation.

“Because the Corps is not a party, no decree entered by this court can mandate any change in the Corps' operations in the basin,” Lancaster wrote. “Without the ability to bind the Corps, I am not persuaded that the court can assure Florida the relief it seeks.”

That didn't mean there was nothing to the state's account of the damage, Lancaster wrote in a 137-page report.

Lancaster supported several key assertions by Florida including the cause of the 2012 collapse of the Apalachicola oyster industry, which normally supplies 90 percent of the oysters in Florida and 10 percent of the nation's oysters. He rejected Georgia's argument that it was Florida's mismanagement of the oyster beds that led to the 2012 collapse rather than the decreased water flow that led to higher salt levels in Apalachicola Bay.

The fault rests elsewhere, Lancaster implied, pointing a finger at the Corps.

“The evidence presented at trial suggests that the Corps' reservoir operations are a significant, and perhaps the primary, factor influencing the amount of streamflow crossing the state line during times of drought and low flows,” Lancaster wrote.

Being wrong has not been cheap. Through November, Florida had paid out more than $35 million to four law firms involved in the U.S. Supreme Court case during the last two fiscal years, according to data collected by the Florida House.

Since 2001, Florida has paid out $72 million in legal fees for the current case and previous litigation, the House data shows. If the projection of more than $40 million in legal fees for this year holds steady, the total legal tab since 2001 could well exceed $90 million.

In an interview Thursday with The News Service of Florida, House Speaker Richard Corcoran, R-Land O' Lakes, didn't sound inclined to pay. He said a House review of the legal fees is ongoing.

Corcoran also said House legal staff members are scrutinizing the special master's report, which was issued Tuesday. The speaker raised the prospect of the House “aggressively” pursuing refunds after looking at issues involved in the case.

Meanwhile, in Washington, D.C., Florida's representatives in the federal government were trying to save the day.

And Democratic Sen. Bill Nelson may have given himself a campaign issue to use if Scott, a Republican, challenges him in 2018.

Nelson filed a bill to require the U.S. Army Corps of Engineers to increase the freshwater flow from Georgia south into the Apalachicola River and Apalachicola Bay. Republican Congressman Neal Dunn, whose Northwest Florida district includes Apalachicola Bay, called on the Corps to suspend new plans to allow more water use in Georgia until the federal agency meets with Florida officials and others to discuss the impact of the court report.

Nelson and Republican Sen. Marco Rubio urged the U.S. Army Corps of Engineers to not finalize water-control standards for the river basin.

"While we do not agree with his final recommendation, the special master correctly points out that Florida has indeed suffered real harm due to Georgia's unrestrained overconsumption of water," Nelson and Rubio wrote in a letter to Lt. Gen. Todd Semonite, the commanding general and chief for the Corps in Washington. "The master's report also emphasizes the need for the Army Corps to reevaluate its position with respect to the impacts on the Apalachicola River and Bay."


As the Legislature has pursued more and more culturally conservative legislation on issues like guns and abortions in recent years, critics have warned that the Republican majorities were in danger of running afoul of the courts.

This week, those warnings came true. In separate rulings this week, courts ruled against a waiting period for women seeking abortions and a law meant to keep doctors from asking patients if they have any firearms lying around the house.

The Florida Supreme Court blocked the abortion law, a 2015 measure that would have required women to wait 24 hours before undergoing the procedure. Thursday's 4-2 decision was the second time the state high court kept the law from taking effect.

In the majority opinion, Justice Barbara Pariente wrote that enactment of the law "would lead to irreparable harm."

"Indeed, under Florida's pre-existing informed consent law, a woman can already take all of the time she needs to decide whether to terminate her pregnancy, both before she arrives at the clinic and after she receives the counseling information," she wrote for the majority. "No other medical procedure, even those with greater health consequences, requires a twenty-four hour waiting period in the informed consent process."

But, in a dissent joined by Justice Ricky Polston, Justice Charles Canady accused the majority of taking "an unreasonably narrow view of the purpose of informed consent" and argued that the plaintiffs had not presented any evidence to prove that the 24-hour waiting period imposed "a significant restriction on the right to abortion."

Hours later, a federal appeals court sided with a coalition of individual doctors and medical groups in finding unconstitutional major portions of a controversial Florida law restricting physicians and other health-care providers from asking patients about guns.

The statute, dubbed the "docs vs. glocks" law, included a series of restrictions on doctors and health providers. For example, it sought to prevent physicians from entering information about gun ownership into medical records if the physicians know the information is not "relevant" to patients' medical care or safety or to the safety of other people.

Also, the 2011 law said doctors should refrain from asking about gun ownership by patients or family members unless the doctors believe in "good faith" that the information is relevant to medical care or safety. And the law sought to prevent doctors from discriminating against patients or "harassing" them because of owning firearms.

In its ruling Thursday, the 11th U.S. Circuit Court of Appeals found that the record-keeping, inquiry and anti-harassment provisions of the law are unconstitutional, but upheld the portion of the law that bars doctors from discriminating against patients who have guns.

"Florida may generally believe that doctors and medical professionals should not ask about, nor express views hostile to, firearm ownership, but it 'may not burden the speech of others in order to tilt public debate in a preferred direction,' " Judge Adalberto Jordan wrote in one of two majority opinions issued by the full appellate court.

In a dissent, Judge Gerald Tjoflat argued that the state law was narrowly drawn and is an "attempt to regulate a very specific part of the relationship" between a health care provider and a patient.

"It does not prevent medical professionals from speaking publicly about firearms, nor does it prevent medical professionals from speaking privately to patients about firearms so long as the physician determined in good faith the relevancy of such discussion to the patient's medical care, safety, or the safety of others," he wrote.


Back in the political realm, Scott got some new ammunition in his battle with the House --- and particularly Corcoran --- over business incentives.

The governor was able to announce that Florida hit record tourism numbers in 2016.

The surge in visitors came despite reports during the past year of toxic algae blooms in Florida waterways, the spread of the mosquito-borne Zika virus, damage from a pair of hurricanes and a terrorist-related attack at an Orlando nightclub.

"I don't understand how anyone can look at Florida's booming tourism industry, and the more than 1.4 million jobs it supports, and vote to kill it," Scott said in a prepared statement. "The legislation the Florida House is pushing puts more than 1.4 million jobs at risk and we cannot let that happen."

But Corcoran told The News Service the governor needs to prove to lawmakers that tourism spending is directly tied to the increase in tourists.

"Show me how Pitbull's video brought more millennials to the state of Florida? You just can't do it," Corcoran said, referring to a controversial $1 million contract Visit Florida inked with Miami hip-hop artist Armando Christian Perez, better known as Pitbull. "We're in la la land."

Anyone familiar with the new movie of the same name knows, of course, that (spoiler alert) both parties go their separate ways in order to find their dreams. That is a resolution not available to Scott and Corcoran.

STORY OF THE WEEK: A special master in the latest “water wars” lawsuit issued a report favoring Georgia, a major blow to efforts by Florida officials to increase the flow of water in the Apalachicola River.

QUOTE OF THE WEEK: "It's almost as if we are being asked to accept the bogeyman's argument that refugees in this state are the problem. What the bill does is, it sends red meat to the base of a political party in order to justify future elections. It's wrong."---State Rep. Kionne McGhee, D-Miami, on a bill seeking to withdraw Florida from a federal refugee-assistance program.

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