Panel debates court’s procedural rulemaking Senior EditorA prominent attorney who argued the Legislature should not interfere with the Supreme Court’s procedural rulemaking authority got a chilly reception from a House subcommittee studying the issue.Tallahassee attorney and constitutional lawyer Barry Richard told the House Civil Justice Subcommittee on February 9 that unlike what they had been told at a previous meeting, the court and the Legislature have a long history of mutual respect and cooperation on rules matters. He also proposed that the court and Legislature establish a liaison committee to avoid any future problems over rules.It was the committee’s second workshop on procedural rules, and some members have suggested Florida should switch to the federal system, where all procedural rules are submitted to Congress for review. Currently, the Florida Supreme Court has exclusive oversight of procedural rules, although the Legislature can repeal a rule by a two-thirds vote.Richard told the panel that the Florida Constitution, as a “bedrock” principle, establishes a separation of powers among the branches of government and further specifies that the legislative and judicial branches are each in charge of their own procedural rules. “To the great credit of the Legislature and the Supreme Court. . . our history has been one of enormous deference and mutual respect by the two branches. And the record bears that out,” Richard said.Since 1975, 68 cases have reached the Supreme Court alleging that a legislative enactment improperly rewrote court procedural rules, Richard said.“Of those 68 cases, the Supreme Court has held that only 16 of them were procedural and has held that 52 of them were substantive and the exclusive domain of the Legislature,” he said.“In some of those cases where the Supreme Court has held it [the law] was procedural, it has proceeded to adopt, in deference to the Legislature, the exact same language that the Legislature had in the statute.”Likewise, in 1972, the Legislature drafted the constitutional amendment approved by voters that limited lawmakers’ intrusion into court’s procedural rules. That amendment provided that the Legislature could repeal a procedural rule by two-thirds vote, and that while the Legislature could repeal a procedural rule, it did not have the authority to write or amend one.“Since that two-thirds rule was embedded in the constitution, this Legislature has only repealed 12 rules that were adopted by the Florida Supreme Court, and the Florida Supreme Court has only one time readopted a rule that this Legislature has repealed, and that was the three rules in the Death Penalty Reform Act (DPRA) of 2000,” Richard said.Subcommittee Chair Rep. Eric Eisnaugle, R-Orlando, noted the court has also reinstated rules struck by the Legislature in State v. Raymond, 906 So. 2d 1045 (2005). However, that case shows that, like the DPRA, the court only temporarily reinstated old rules because its invalidation of the Legislature’s statute left no rules in place.Further, Richard said, several cases that challenged House and Senate procedural rules have reached the Supreme Court. In every case, the court has turned aside the appeal, saying under the separation of powers doctrine it cannot intervene in the internal workings of the Legislature.Richard had been preceded at the committee by Assistant Attorney General Carolyn Snurkowski, who oversees death penalty appeals for the state. She extensively discussed DPRA, which ultimately the court threw out for improperly rewriting court procedural rules, especially on collateral appeals (See story, What happened to dual tracking in death penalty cases? ). Snurkowski said the act attempted to speed up death penalty appeals by setting up a dual track system where direct and collateral state appeals could proceed simultaneously.“Contrary to what you’ve heard today, I will tell you that I believe the Death Penalty Reform Act of 2000, and the way that those three repealed rules were handled, is an extraordinary example of cooperation between the two branches,” Richard said. “And if you read the act, and then you read the three opinions decided by the Supreme Court since that time, I believe you will agree with me.”For example, he said the Legislature specifically deferred to the court in the act and invited it to replace the procedural rules that the Legislature repealed. It also “expressly provided. . . that the act was to be effective until and unless the Supreme Court adopted rules inconsistent with the provisions of the act. That’s what it says,” Richard said.Rep. Eisnaugle asked Richard if the Legislature had authorized the court to readopt the stricken rules 24 days after the DPRA became law. Richard replied that was necessary because the Legislature’s repeal had left a void that would invite a rash of defense challenges because no rules existed.The court said, “The problem was in order to adopt new rules that worked with the United States Constitution and were consistent with the legislative will as expressed in the act, that it needed more time.. . . So what the court did, and you can read the opinion, is say we are readopting this rule as an interim measure until we have enough time to study the issue. . . and adopt a rule that works with the legislative will.”In the following two years, the court struggled with the law and wrote two more opinions.“You can see if you read these opinions, the struggle that the Supreme Court was going through, in an effort to make this work within the confines of the federal court decisions and the United States Constitution, and the practicality of how the system works,” Richard said.The justices also embraced the Legislature’s goal of a dual track system, he said, even though it proved difficult.That statement prompted Eisnaugle to say: “Mr. Richard, you said that you feel that they are committed to a dual track system.”“The court said that,” Richard replied.“So, we do have a dual track system right now?” Eisnaugle asked.“I’m not sure what system we have right now.” Richard replied. “I’m not a criminal defense lawyer. I only know what I read in these opinions.”Eisnaugle said: “So you’re not going to dispute what Ms. Snurkowksi testified, which is that there is no dual track system.”“I dispute vigorously her suggestion that what the Supreme Court did here was in defiance of the Legislature,” Richard said.After conceding that Snurkowski was correct that there currently is no dual track system, Richard added, “The point I am making. . . is this: We have not had a history of either branch acting in defiance of the other. Quite the contrary, both branches have acted with commendable deference and mutual respect, and in many instances have worked cooperatively on the adoption of rules and making rules work with the Legislature’s substantive acts.”While a few instances might be high-profile, he said, actual disputes between the court and Legislature over procedural rules are rare considering the hundreds of times the procedural rules have been amended.With that in mind, Richard said, “The Legislature and Supreme Court should have a liaison committee to meet regularly and discuss rules and proposed rules. That’s an important step to take and certainly a more prudent step to take than to attempt to amend the constitution.”Eisnaugle questioned whether such a committee would be more useful than when the Legislature called a special session for the DPRA and expressly stated its intentions. “You think meetings might be more productive than that?” he asked.Richard replied that since the DPRA contained both substantive and procedural issues, it would have been helpful to discuss those ahead of time, rather than pass a law and wait for the Supreme Court to respond.He also addressed whether the federal model of having Congress review procedural rules would work in Florida — something some committee members have suggested. Richard said the country’s founders assumed that virtually all cases would be resolved in state courts, and the U.S. Supreme Court was the only federal court expressly created by the Constitution. Congress, however, was given the power to create lesser courts, and hence those courts are the creatures of Congress.Florida’s courts are created in the state Constitution, not by the Legislature, he said.Further, he said, the jurisdiction of federal courts was much more limited than it is currently.Richard also said in practice, even though Congress has a review, the federal procedural rules systems works much like Florida’s, with the court’s proposing rules that are rarely altered by Congress.In her presentation, Snurkowski said that death penalty appeals have not speeded up since DPRA, despite attempts by the court system to streamline appeals and other efforts. She also said the court formally abandoned the dual track approach in a July 12, 2001, opinion.Currently, death penalty defendants get a direct appeal and a collateral appeal to the Florida Supreme Court, and they have a year after the decision in the direct appeal to file the collateral appeal, Snurkowski said.But what frequently happens after those appeals is a defendant may claim mental retardation, which sets off another round of appeals. If that fails, the defendant may claim newly discovered evidence, which sets off another round, and then raise a DNA claim, which starts another round. Only after those are done will the defendant begin federal appeals.Snurkowski said the goal of DPRA was to reduce both state and federal appeals to five years, which could be done with contemporaneous direct and collateral appeals and other changes.The law, she added, barred filings that weren’t done within strict time standards and said the determination of mental retardation had to be made during the original trial or the defendant was barred from making that claim.“The Death Penalty Reform Act was about you requiring an individual to litigate his post-conviction claims as closely as possible with his direct appeal claims, so he could exhaust all of his [state] appeals in two to three years and then you could go to federal court,” she said.Rep. Darren Soto, D-Orlando, asked: “Do you believe that we could put something together that would be able to comply with the decision and lower our costs?”She answered: “I think the court itself tried to do dual tracking and didn’t get it very well, because they didn’t like the part of dual tracking that was substantive. So I think that while there are issues. . . the court isn’t going to allow that to happen, because they didn’t like it either.” March 1, 2011 Gary Blankenship Senior Editor Regular News Panel debates court’s procedural rulemaking
Researchers find possible cause of severe second dengue infectionsInfectious disease experts have long puzzled why people who are infected for a second time with a different strain of dengue virus have a more severe illness course, but new findings in the latest issue of Science may provide a clue. Researchers from Imperial College of London report that they have identified a set of antibodies called precursor membrane (prM) protein that “awaken” during the first infection and help infect more cells during the second infection, the college said in a press release. Dr Gavin Screaton, the study’s lead author, said in the statement that the findings will help with vaccine development, because scientists can avoid including prM in any future vaccines. “Our new research gives us some key information about what is and what is not likely to work when trying to combat the dengue virus,” he said. “We hope that our findings will bring scientists one step closer to creating an effective vaccine.” Dengue fever is a mosquito-borne viral disease found in tropical and subtropical regions. The virus occurs in four serotypes, and infection with one induces immunity only to that serotype. A second infection with a different serotype increases a person’s risk for dengue hemorrhagic fever, which involves bleeding and the possibility of life-threatening shock.May 6 Imperial College of London press releaseMay 7 Science abstract May 7, 2010 WHO reports progress toward eradicating guinea worm diseaseThe World Health Organization (WHO) said today that though the world won’t meet the goal of eradicating the parasitic disease dracunculiasis (guinea worm disease) this year, significant progress has been made, with disease transmission interrupted in 8 of the 12 African countries where it is endemic. The WHO published a status report on dracunculiasis in today’s issue of its Weekly Epidemiologic Record. The disease is spread by drinking water that contains fleas that have ingested Dracunculus larvae, the WHO said. In humans, the larvae invade body tissues, where they grow before emerging through the skin. There is no vaccine or treatment, and the only prevention is protecting and filtering water sources. In 2004 at the World Health Assembly countries signed a declaration to eradicate the disease by 2010. In addition to the eight countries that have interrupted transmission, three more are close to reaching that goal, the WHO said. Sudan, with the world’s highest number of cases is the only country in which transmission interruption doesn’t appear to be a realistic near-term goal. The WHO said the passing of the eradication target date signals a need to reassess the situation and move forward with new efforts. It added that elimination is still a realistic goal.May 7 WHO Weekly Epidemiologic Record reportWHO dracunculiasis background
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Photo by Kevin Warren STARKVILLE – Dak Prescott hoped to fix accuracy issues that plagued his performances the last two weeks. Earlier in the week, the Mississippi State quarterback admitted to pressing during the games.It continued Saturday against Arkansas — for a half.The quarterback returned to the form that helped him become a Heisman Trophy candidate in the second half of MSU’s 17-10 win.Turning point: Redmond saves the day for Mississippi StateMeanwhile, the Bulldogs’ defense took advantage of Arkansas’ misfires. Will Redmond secured the win with seconds remaining with an interception.Prescott led MSU to its 11th-straight win with a rollout in the fourth quarter. Facing third-and-4 from his own 31, Prescott rolled to his right. He squared his shoulders on the run and found a wide-open Fred Ross for a 69-yard touchdown. It gave MSU its first lead with 13:21 left in the fourth quarter.“That was a huge win for our team tonight against an excellent Arkansas football team,” MSU coach Dan Mullen said. “Fortunately we were able to make one more play at the end of the game.The junior finished with a career-high and his first 300-yard passing game. He finished with 331 yards with a touchdown.Prescott threw for better than 60 percent for the first time in three weeks. He started the game 10 of 16 in the first half.Arkansas held Mississippi State to seven points at halftime. It was the fewest MSU scored through the first two quarters since last year’s Egg Bowl. It was the first time MSU didn’t score at least 10 in the first half when Prescott started a game. The Bulldogs had scored at least 17 in the first half in each of their first seven games.Special teams nearly cost the Bulldogs big against ArkansasThe Razorbacks consistently pressured the junior, which resulted in hands in his face as well as being hit as he threw.The constant pressure led to two more interceptions in the first half. Prescott has five interceptions in the last three games. He threw two in MSU’s first five games.“He was a little bit more relaxed in the second half,” Mullen said. “I don’t know if he’s made bad interceptions this year. Those two interceptions tonight weren’t good.”Prescott didn’t play his best against Kentucky or Auburn, but his supporting cast picked up the slack. That wasn’t the case Saturday until the fourth quarter.Jamoral Graham mishandled a punt for the fourth straight game. Fred Ross replaced the true freshman. The miscue led to seven points for Arkansas.The Bulldogs were also flagged at inopportune times. Malcolm Johnson picked up an unsportsmanlike penalty as Mississippi State took the ball to the Arkansas 31. The drive ended in a punt in the first quarter.Gus Walley was flagged for illegal touching in the third. It killed another drove in Arkansas territory. Dillon Day was penalized twice on MSU’s scoring drive that tied the game at 10-10 in the third. His second negated a 14-yard reception. Mississippi State didn’t get the yards back and settled for a 37 yards field goal.The Bulldogs entered the game with the 10th fewest penalties in the country. Mississippi State ended with eight penalties for 45 yards“That’s just sloppy play. Here’s my issue with those. Those are mental penalties,” Mullen said. “Those are certainly avoidable penalties.”The defense followed Prescott’s suit in the fourth quarter. Arkansas averaged better than five yard per carry as it stood on the Mississippi State two yard line on third down last in the fourth. The Razorbacks lost yards on third and fourth down.The defense needed on more stand.Redmond’s interception secured the win and one more week at No. 1“Our guys are finding ways to win,” Mullen said. “We won high scoring games now we won a low scoring game. I told people we were going to have to do that.”Contact Michael Bonner at (601) 961-7289 or mbonner @jackson.gannett.com. Follow @MikeBBonner on Twitter.Key PlayerDak Prescott, Mississippi StateQuarterback threw two interceptions in the first half but bounced back for a career-high 331 passing yards.Key Figure7Arkansas limited Mississippi State to seven points in the first half. That’s the fewest points in the first half in a game started by Dak Prescott.