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A Perfect Road Map

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Harry Lee Anstead said he was proud to serve on the Florida Supreme Court on May 25, 1999, when Chief Justice Major B. Harding gathered the family of Virgil Hawkins for a ceremony to apologize for decisions rendered in the 1950s and 1960s that excluded Hawkins and other minorities from law schools.

In similar spirit, Anstead said he was proud to author the opinion in Powell v. Allstate Insurance Co., 652 So. 2d 354, 358 (Fla. 1995), that granted a new trial because white jurors made racial jokes in the jury room about the black plaintiffs.

“Here we are still fighting that battle in the beginning of the 21st century,” Anstead said. “But how important that is to be able to say that in a court opinion that contrasts sharply with some of those opinions we had to apologize for in the late 1950s and 1960s. What an incredible privilege of this court to have that opportunity.”

In Powell v. Allstate, an all-white jury awarded a black couple damages—$29,320 to Derrick Powell and nothing to his wife, Eugenia Powell, for injuries sustained in a car crash. They had asked for $200,000. After the verdict, one of the jurors brought to the court’s attention that various jurors had made racial remarks and jokes during the trial, and she believed the verdict was the result of racial bias. Among many racial slurs and jokes was this one told by the jury foreman: “There’s a saying in North Carolina, ‘Hit a n—– and get 10 points, hit him when he’s moving, get 15.’” An alternate female juror supposed that because the Powells had their grandchildren living with them, their children were probably drug dealers, and the other jurors laughed.

In remanding the case back to the trial court, Anstead wrote:

“The founding principle upon which this nation was established is that all persons were initially created equal and are entitled to have their individual human dignity respected. This guarantee of equal treatment has been carried forward in explicit provisions of our federal and state constitutions. It is not by chance that the words ‘Equal Justice Under Law’ have been placed for all to see above the entrance to this nation’s highest court. If we are to expect our citizens to treat one another with equal dignity and respect, the justice system must serve as the great example of maintaining that standard. And while we have been far from perfect in implementing this founding principle, our initial declaration and our imperfect struggle and efforts have served as a beacon for people around the world.

“It is with great dismay then that we must acknowledge, more than 200 years after declaring this truth to the world, that there are still those among us who would deny equal human dignity to their brothers and sisters of a different color, religion or ethnic origin. The justice system, and the courts especially, must jealously guard our sacred trust to assure equal treatment before the law. We attempt to hold that trust today.”

In a special concurring opinion in State of Florida v. Keith Bernard Brown, 655 So. 2d 82 (Fla. 1995), Anstead humbly acknowledged that the courts are human, too, and make mistakes, and should not be overly concerned to correct its mistakes. The tone of his opinion garnered much feedback from appreciative attorneys.

Brown had appealed his life sentence for second-degree murder and armed robbery, on the grounds that sentencing guidelines had recommended 22 to 27 years, and the trial court failed to provide written reasons for the departure at the time of sentencing.

The First District Court of Appeal reversed and remanded for resentencing based on subsequent case law. Because of confusion over the application of the case law to collateral cases involving the contemporaneous writing requirement, the district court certified the case to the Supreme Court.

While Brown’s sentence was being appealed, the Supreme Court had decided in Ree v. State, 565 So. 2d 1329 (Fla. 1990) that reasons for departing from sentencing guidelines must be issued at the time of sentencing and held that requirement “shall only be applied prospectively.”

In Brown’s case, the Supreme Court approved the decision of the First DCA and remanded it to the trial court to impose a guideline sentence on the grounds of fairness.

In his concurring opinion, Anstead wrote: “Once in a while the courts, like other institutions composed of human beings, make mistakes. Further, because judicial procedures are not always easily understood by all, and the system uses a technical vocabulary, our mistakes are sometimes compounded when we try to correct and explain them. As a result, we certainly get our share of criticism, some good-natured and some more pointed. Our treatment of the issue involved herein is a good example.

“Mr. Brown came along after Mr. Ree and made the same claim that Mr. Ree made, carefully preserving his claim at each stage of the legal proceedings. In fact, even before Mr. Brown’s case moved within the appellate pipeline to this court, Mr. Ree essentially ‘won’ Mr. Brown’s case for him by getting this court to agree with the position advocated by Brown. You would think that Brown, following Mr. Ree, would not even have to advance his case to this court, since the issue was resolved with the answer Brown had advocated all along.

“While Mr. Brown was celebrating Mr. Ree’s victory, however, this court was trying to figure out whether the Ree holding had been law all along, or whether it was some new law that should only be applied ‘prospectively,’ a word of legal art that may have more than one meaning, and sometimes requires explanation. But would not one thing at least be certain, that Mr. Brown, having preserved the same issue and waiting in the wings after Mr. Ree, should at least be treated like Mr. Ree? After all, if Mr. Ree had dropped the ball and somehow failed to get the issue to this court, would not Mr. Brown have been right here asking for the same ruling, having ‘properly preserved the issue’ just like Ree? However, notwithstanding Mr. Ree’s success, both the district court and this court denied Brown’s appeals.

“In the meantime, in a series of unclear rulings, initially and in opinions on rehearing, the air was ‘finally cleared’ when we held in Smith [ Smith v. State, 598 So. 2d 1063 (Fla. 1992)] that Ree ‘shall apply to all cases not yet final when mandate issued after rehearing in Ree.’

“We are now holding, in essence, that Brown was right all along, since he, like Ree, did everything he could to preserve the issue, and his appeal was still pending when the mandate issued in Ree.

“In this case at least, justice delayed may not be justice denied.”

The gravity of death penalty cases—six percent of the cases taking up half of justices’ time—weigh heavily upon Anstead.

When the Supreme Court upheld the constitutionality of Florida’s electric chair in Leo Alexander Jones v. Robert Butterworth in

1997, Anstead joined Justices Gerald Kogan and Leander Shaw in dissenting.

In his dissent, Anstead pulled no punches: “Unfortunately, the outcome is this case was essentially determined months ago when a majority of this court refused to permit a full hearing in the trial court on the issue of the constitutionality of electrocution as a means of execution under contemporary circumstances. Instead, the majority opted to limit any inquiry to the question of whether state officials could avoid a repeat of the botched Pedro Medina execution, an issue that serves as only a small part of the larger constitutional puzzle as to the continuing constitutional validity of electrocution. The limitation on the trial court hearing virtually assured the outcome announced by the majority today. . . . ”

“Finally, of course, it is worth acknowledging in a positive way that, indeed, almost every jurisdiction that once embraced the electric chair has since abandoned it, and there is every reason to believe, as evidenced by the work of the Corrections Commission, that this tiny step to advance civilization will also be taken in Florida. Surely, our evolving standards of decency should compel us to join with those states that have rejected the use of the now antiquated electric chair.”

In a special legislative session in January 2000, Florida did just that, replacing the electric chair with lethal injection.

Several cases written by Anstead exemplify his scholarship and intelligence in creating a clear road map of how he reaches his opinions, woven with a detailed historical perspective:

Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995), is an often cited decision that provides a historical perspective on the use of the common law writ of certiorari in Florida, defining the cert standard that district courts of appeal and circuit courts of appeal must follow and rely on in exercising their power to review writs.

In his Fourth DCA opinion approved by the Supreme Court, Anstead untangled a web of conflicting sentencing statutes—the discretion of a trial judge to suspend a sentence and spare a defendant a criminal record, the sentencing guidelines, and minimum mandatory sentences—in State of Florida v. John McKendry, 614 So. 2d 1158 (Fla. 4th DCA 1993).

Anstead’s opinion: The mandatory minimum sentence, provided for in the sentencing guidelines, must trump a judge’s discretion, even if it doesn’t seem fair in a particular case.

“While we sympathize with the plight of a trial judge who believes the mandatory sentence to be too harsh under the circumstances of a particular case, we are constitutionally bound to apply the punishment philosophy adopted by the legislature regardless of our opinion as to whether it makes good sense,” Anstead wrote.

Clashing sentencing statutes created such a conundrum that Anstead certified this as a question of great public importance to the Supreme Court: “Do the provisions of Section 948.01, Florida Statutes (1989), authorize the imposition of a sentence other than as provided in section 790.221(2), Florida Statutes (1989)?”

In McKendry v. State of Florida, 641 So. 2d 45 (Fla. 1994), the Supreme Court answered in the negative, approved Anstead’s 4th DCA decision, and agreed that the legislature acted within its constitutional authority.

McKendry, who had never been in serious trouble, testified he didn’t know it was against the law when he cut off the barrel of his father’s shotgun because it was bent, and fired it in his own backyard. He was tried and convicted of possession of a short-barreled shotgun, a second-degree felony. The recommended guidelines sentence ranged from community control or 12 to 30 months in prison. However, section 790.221(2), Florida Statutes calls for a five-year minimum mandatory sentence.

Adding to the confusion, section 948.01, on the books in one form or another since 1941, gives discretion to trial judges to withhold sentencing, and place a defendant on probation to spare him a criminal record.

Because the defendant’s record and facts of the case didn’t justify prison, the trial court suspended McKendry’s sentence with credit for time served and ordered that he be placed on community control for one year followed by three years’ probation.

The state appealed.

In his opinion, Anstead concluded: “There is a clearly a tension, if not a conflict between section 948.01 and sentencing guidelines, as well as the provisions for minimum mandatory sentences contained in various other statutes. The discretionary application of section 948.01, in all cases, without consideration of the guidelines, would negate the complex and comprehensive provisions of the sentencing guidelines and their underlying policy to standardize sentencing throughout the state. . . . ”

“We conclude that the only way that section 948.01 can be reconciled with the sentencing guidelines is to limit application to those situations where the guidelines themselves permit a suspended sentence.”

Anstead also noted that the guidelines specifically provide in Rule 3.701(d)(9) for the enforcement of minimum mandatory sentences.

When the case hit the high court, it sparked debate about the wisdom of replacing judicial discretion with mandatory sentences.

Another example of one of many of Anstead’s opinions while serving on the Fourth District Court of Appeal later adopted by the Florida Supreme Court is Mozo v. State, 632 So. 2d 623 (Fla. 4th DCA 1994).

Plantation Police Department officers had purchased an electronic scanning device from Radio Shack and were randomly monitoring telephone calls at an apartment complex, hoping to come across illegal activity.

Without a warrant, they intercepted drug-dealing conversations.

The issue was a new one for the court and had not been addressed by either the U.S. Supreme Court or the Florida Supreme Court: Should privacy protections accorded traditional telephones be extended to cordless telephones used in the privacy of one’s home?

Anstead reversed the convictions and remanded the case back to the trial court, saying the officers’ conduct violated Article 1, Sections 12 and 23 of the Florida Constitution.

“Florida has chosen to explicitly protect the private communication of its citizens from unreasonable government intrusion by not one, but two, express and forceful provisions in its constitution. We apply those provisions today to private telephone conversations in the home, whether they be wire or cordless,” Anstead wrote.

The Florida Supreme Court approved that decision at 655 So. 2d 1115 (Fla. 1995). But Justice Charles Wells wrote in the opinion that such wireless phone conversations are also protected under Florida’s Security and Communications Act, F.S. Ch. 934 (1989).

Finally, in a more recent case, Gary Herzfeld v. Frank Herzfeld, 781 So. 2d 1070 (Fla. 2001), Anstead held that the parental immunity doctrine did not apply to intentional sexual abuse.

A 16-year-old son, a former foster child, sued his adoptive father for intentional torts stemming from sexual abuse. The trial court dismissed the first three counts, on the ground that intentional tort claims are barred by parental immunity. After finding out the father’s insurance policy did not cover the fourth count—a negligence claim—the trial judge granted the defendant’s motion for summary judgment on that count, too.

“We agree with the district court that the fear of disrupting the fabric and nucleus of families by allowing actions based upon intentional sexual abuse simply appears to be without merit,” Anstead wrote.

“If indeed the principal reason for the parental immunity doctrine is to preserve family harmony, then it appears that the immunity can have no justification in such cases of intentional and malicious sexual abuse, for in those cases the inescapable conclusion is that the family fabric has already been tragically disrupted by the serious misconduct alleged.

“We agree that the mere additional stress of a lawsuit in such circumstances is insufficient reason by itself to bar a claim for that misconduct.”