U.S. Senate Dems ask Lagoa, Luck why they didn’t recuse from Amendment 4 appeal, as promised

By: - July 22, 2020 12:49 pm

The Florida Supreme Court as it stood on Sept. 25, 2019. Front row (l-r): Justice Ricky Polston, Chief Justice Charles T. Canady, Justice Jorge Labarga. Back row (l-r): Justice Robert J. Luck, Justice Alan Lawson, Justice Barbara Lagoa, Justice Carlos G. Muñiz. Lagoa and Luck have since departed. Credit: Florida Supreme Court website.

Democrats on the U.S. Senate Judiciary Committee want to know why judges Barbara Lagoa and Robert Luck didn’t recuse themselves from a federal appeals court’s decision to review the Florida law governing restoration of felon voting rights.

In letters sent by Democrats Tuesday to Lagoa and Luck, of the U.S. Court of Appeals for the 11th Circuit, the Democrats demand explanations.

At issue is the voting rights of some 750,000 former offenders or more in Florida during a historic presidential election year.

The Democrats cited the Code of Conduct for U.S. Judges, which directs judges to disqualify themselves from cases if they ruled in a previously held judgeship or have expressed a position on the case at issue.

The letters note that both Lagoa and Luck, while sitting on the Florida Supreme Court, participated in oral arguments about the law on Nov. 6 last year, although they’d won Senate confirmation to the 11th Circuit by the time the court released the ruling favoring the law on Jan. 16.

“In documents and written testimony submitted to the committee as part of your 11th Circuit nomination you promised under oath that, if confirmed to the 11th Circuit, you would recuse yourself from cases in which you participate as Florida Supreme Court justice,” the letter to Lagoa says.

“Your participation in the decision to grant en banc review in Jones, and any further participation in this case, appears to contradict your commitment to recuse yourself from any case in which you participated during tour time on the Florida Supreme Court,” it continues.

The letter to Luck contains similar language. Another letter went to Judge Andrew Brasher, who as solicitor general of Alabama participated in a similar case. The three letters are available here.

Asked for a response, the 11th Circuit clerk’s office said through a representative: “The longstanding policy of the Court is that there is no comment on pending litigation.”

Jones v. DeSantis is a class action challenging the law in question on behalf of voting rights groups and individuals with felony convictions who allege the Amendment 4 implementing law amounts to an unconstitutional poll tax. The voters overwhelmingly approved the constitutional amendment in 2018.

U.S. District Judge Robert Hinkle ruled that the law violated the U.S. Constitution because it predicates voting rights on the ability to pay so-called “legal financial obligations,” including fines, fees, and restitution, regardless of whether the person has the means to pay.

Hinkle noted the state’s failure to set up a system for screening financial obligations, many arising from convictions years old and poorly documented. According to testimony before Hinkle, the state had an 85,000-person backlog of former felons seeking to recover their voting rights but no good way to review their circumstances and would need years to vet the records.

A three judge panel of the appeals court, which reviews cases arising in Florida, Alabama, and Georgia, sided with Hinkle during an earlier stage of appeals but the full court voted earlier this month to stay enforcement of Hinkle’s ruling pending oral arguments on Aug. 11.

The U.S. Supreme Court has voted not to get involved at this point.

Gov. Ron DeSantis placed Lagoa and Luck on Florida’s high court soon after taking office in January 2019 and President Trump elevated them to the 11th Circuit last fall, tilting that court’s balance to majority Republican appointees.

Correction: An earlier version of this story reported the wrong year for the beginning of the DeSantis administration; it was 2019. Additionally, the original version misreported Lagoa’s and Luck’s role in the Florida Supreme Court’s advisory opinion on Amendment 4; they participated in oral arguments only, not the ruling.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.