This article was published by The McAlvany Intelligence Advisor on Wednesday, July 5, 2017:  

One of the essential doctrines involved in limiting government is the separation of powers. By putting governmental powers into separate hands, the founders hoped that each would constrain the other and thus protect liberty. Article I of the federal states that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article III states that “The judicial of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

Florida’s is very similar:

The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts, and county courts. No other courts may be established by the state, any political subdivision, or any municipality.

When it comes to practices and procedures, however, it’s different:

The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought….

In other words, when it comes to practices and procedures, the court makes its own rules. And it’s these powers that Circuit Court Judge Milton Hirsch used on Monday to declare that a law previously passed by the state’s legislative body couldn’t later be modified.

At issue is the still highly controversial “Stand Your Ground” law that the Florida legislature passed back in 2005. That law says that “A person is justified in the use of deadly force and does not have a to retreat if: He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” also empowered judges to dismiss charges against the defendant if they believed reasonable self-defense was used in the particular case.

In 2015, in Bretherick v. State of Florida, the Supreme Court set for itself the rules under which a defendant could claim immunity from prosecution. In a pre-trial hearing, he or she would have to prove his or her own innocence in order to claim immunity under “Stand Your Ground.” This decision apparently so annoyed enough of Florida’s legislators that in June it passed a law turning that decision on its head, declaring that in the future the prosecution would have to prove the defendant’s inability to make such a claim, and further, it would have to prove it through “clear and convincing evidence” that his claim for immunity didn’t apply.

Hirsch had a chance to rule on the matter when a case came before him that claimed exactly that: the prosecution had to prove, through “clear and convincing evidence,” that she couldn’t claim immunity under Florida’s  “Stand Your Ground” law. On Monday he ruled that the legislature couldn’t change it had previously written.

Hirsch reviewed the Supreme Court’s ruling in 2015, noting that the state’s high court ruled that any time that a defendant seeks immunity from prosecution under the state’s “Stand Your Ground” law he or she “bears the burden of proof, by a preponderance of the evidence, to demonstrate entitlement to Stand Your Ground immunity at the pretrial evidentiary hearing.” Hirsch explained:

This was entirely in keeping with settled practice. invariably places the burden of establishing entitlement to any form of immunity on the claimant, rather than placing the burden of establishing disentitlement to immunity on the opponent of the claim [the prosecution].

In June the Florida legislature decided to flip it, with prejudice. Wrote Hirsch: “The statutory change [just signed into law by Florida’s Governor Rick Scott] at issue here, however, displaces that law. It purports to shift the burden of proof at a pretrial hearing on a “Stand Your Ground” claim from the defendant to the prosecution; and to elevate that burden to require clear and convincing evidence [in that hearing that the defendant’s claim to immunity shouldn’t be allowed to stand].

After quoting from the powers granted to the state government in Florida’s constitution, Hirsch explained:

The foregoing language is generally understood to mean that the legislature makessubstantive law, but that the judiciary makes procedural law…. [Emphases added]

Because questions of burden of proof are procedural rather than substantive, however, I necessarily find the demised legislative changes to be unconstitutional. [Emphases added]

Hirsch’s ruling only applies to local courts and doesn’t need to be followed by others in the state. Florida’s Attorney General, Pam Bondi, indicated she would appeal Hirsch’s ruling. Richard Corcoran, the Republican leader of Florida’s House of Representatives, expects Hirsch’s ruling to be tossed: “It is the role of the legislature to write the laws that govern how Floridians may exercise their statutory and rights. The Florida House will continue to stand with ordinary citizens who exercise their right to self-defense.”

So does the bill’s author, Senator Rob Bradley: “I would be surprised if this decision is upheld at the appellate level.”

There are several salient points to be noted here. First is that constitutions still mean something. Second is that jealousies over powers granted are still alive and well, at least in Florida. Third, upon appeal, Florida’s Supreme Court is going to have the chance to discern persuasively the difference between procedural law and substantive law. In addition, that ruling could have significant across the land: nearly two dozen states have taken Florida’s lead and passed similar “Stand Your Ground” laws.


Florida’s Constitution

The Wall Street JournalFlorida Judge Rules ‘Stand Your Ground’ Law Is Unconstitutional

Business InsiderJudge rules Florida’s ‘stand your ground’ law revisions are unconstitutional

Fox NewsFlorida’s ‘stand your ground’ law ruled unconstitutional by judge

The BlazeMiami judge rules Florida’s new ‘Stand Your Ground’ changes unconstitutional

FindLaw:  Stand Your Ground Laws

ReutersFlorida ‘Stand Your Ground’ law revisions unconstitutional, judge rules

Ruling by Judge Milton Hirsch

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