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Backroom briefing: Vetoing budget a rarely used 'option'

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TALLAHASSEE, Fla. – An incensed Gov. Rick Scott this week raised the specter of vetoing the state budget, but history shows Florida governors rarely exercise their executive power to red-line the entire spending plan.

Angry about the Legislature refusing to go along with his funding requests for tourism marketing, business incentives and Lake Okeechobee dike repairs, Scott said vetoing the new $83 billion budget, which the Legislature is poised to pass on Monday, is “an option.”

It would be an extraordinary move. Lawton Chiles was the last governor to veto the annual appropriations bill in 1992.

Chiles, a Democrat, was locked in a bitter impasse with legislative leaders over a $1.35 billion tax package to revive state programs that had been slashed in two years of a prior economic downturn.

The veto came days before the start of a new fiscal year on July 1, forcing lawmakers to scramble to pass a compromise budget that fell short of Chiles' proposal but had enough new revenue for both sides to declare victory.

If Scott axes the new 2017-18 budget bill, lawmakers have the option of overriding his veto with a two-thirds vote by the House and Senate.

But budget veto overrides are even rarer than budget vetoes.

The last occurred in 1970 when the Democratic majority in the Legislature overrode Republican Gov. Claude Kirk's veto of the annual budget bill, which then totaled a whopping $1.3 billion.

A new balanced budget must be in place when the state's fiscal year begins July 1, otherwise there wouldn't be funding for schools, health care, transportation, law enforcement and the host of state employees and programs that rely on those dollars. Failure to agree on a new budget would lead to some form of a government shutdown.

It's the reason why the appropriations bill is the only measure that the Legislature must pass each year.

“No money shall be drawn from the treasury except in pursuance of appropriations made by law,” the state Constitution says.

DEATH PENALTY NOT A CHOICE FOR PROSECUTORS?

Lawyers for the Florida House filed a friend-of-the-court brief late Wednesday on behalf of Scott in the governor's legal skirmish with 9th Judicial Circuit State Attorney Aramis Ayala.

The House's filing in the Florida Supreme Court case was among myriad amicus briefs in the lawsuit, in which Ayala is challenging Scott's authority to strip her office of nearly two dozen death-penalty cases.

Scott removed Ayala, elected last year as state attorney in Orange and Osceola counties, from 23 cases after she announced in March she did not intend to seek death for accused cop-killer Markeith Loyd or any other defendants charged with capital crimes.

Ayala's decision sparked outrage from Scott and other GOP leaders, including House Speaker Richard Corcoran, who encouraged the governor to remove Ayala --- Florida's first black elected state attorney --- from office.

In the document filed late Wednesday, lawyers for the House accused Ayala of trying to rewrite state law by deciding not to pursue the death penalty.

“The Legislature --- and no other --- sets Florida's public policy regarding death as punishment for capital murder. The jury --- and no other --- decides, as part of a legislatively set capital sentencing scheme, whether death will be authorized as a punishment in any particular case following a capital murder conviction,” lawyers for the House maintained in the 30-page brief.
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The House's arguments echoed some of those made by the Florida Prosecuting Attorneys Association in separate brief filed this week.

Ayala and her supporters, including some law professors, former justices and prosecutors, argue that allowing Scott to oust a prosecutor from trying a case would undermine the independence of the criminal justice system. Scott's critics insist that prosecutors enjoy broad discretion, including in charging decisions, such as whether to seek the death penalty
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Ayala said she based her decision on research that shows the death penalty is not a deterrent to crime, is discriminatory, is costly, leaves the families of victims in limbo for too long, and is imposed on innocent people too often.

But the House's lawyers argued that Ayala “doesn't have the power to act on behalf of the people or her community to change” state law.

“Prosecutorial discretion … is not so broad that it allows the petitioner to categorically set aside legislative policy on the death penalty in favor of her personal views on its efficacy or fairness,” they wrote.

Florida law requires a sentencing hearing if a defendant is convicted of capital murder, and jurors must then decide whether to recommend death, the House's brief said.

“The state attorney has no authority to act as a `pretrial filter' for which cases should be death cases,” the lawyers for the House wrote.

But that argument doesn't hold water, according to defense lawyers. Prosecutors often opt to seek life imprisonment, instead of death, in first-degree murder cases.

“To make such a claim ignores the nearly unbridled discretion vested in the state's attorneys, who determine which cases to prosecute as capital crimes,” said 10th Judicial Circuit Assistant Public Defender Pete Mills, who also serves as chairman of the Florida Public Defenders Association death penalty steering committee.