Judge Lagoa and the Recusal Smear

The confirmation process for Supreme Court Justices has gone far downhill over the years, beginning with the dirty attack on Judge Robert Bork in 1987. Anyone nominated to the high court can expect to be smeared. Now we seem to have gone a step further, where simply being on the “short list” brings out the smear-mongers.

Eleventh Circuit Judge Barbara Lagoa is on the short list. As far as I can determine from reading her opinions over the last two days, she appears to be a solid, mainstream jurist. She is under attack for not recusing herself from a case involving Florida’s felon re-enfranchising law. There is nothing to this attack.

Nearly all states in the United States take the vote away from people who have been convicted of serious crimes. The terms on which they give it back vary widely.

In 2018, Florida voters approved Amendment 4, which greatly increased restoration of voting rights to convicted felons upon “completion of all terms of sentence.” In a pre-election court proceeding, the sponsor of the initiative assured the Florida Supreme Court, and indirectly the voters, that “all” meant all. It included fines and, most importantly, restitution to the victims of the crime.

After the voters approved the measure, in a pattern that has become all too familiar, felon-voting advocates set to work trying to demolish the limitation that they had used to get the measure enacted. They claimed that “all” didn’t really mean all after all. They filed suit in federal court attacking implementing legislation in which the Legislature took the sponsors at their word and said that a felon must complete all terms, including restitution, to get the vote back.

In Florida, unlike the federal system, the state supreme court can issue advisory opinions. The Governor asked for an advisory opinion on the meaning of “all” in the initiative constitutional amendment. The Florida Supreme Court heard oral argument on November 9, 2019. Judge Lagoa was a member of the court and participated in the argument. She had resigned to take her seat on the Eleventh Circuit before the court decided the case and issued its opinion on January 16, 2020. Not surprisingly, the short-handed court decided 4-1 that “all” does indeed mean all in the constitutional provision.

We answer Governor DeSantis’s question by stating that it is our opinion that the phrase ‘all terms of sentence,’ as used in article VI, section 4, has an ordinary meaning that the voters would have understood to refer not only to durational periods but also to all [legal financial obligations] imposed in conjunction with an adjudication of guilt. We express no opinion on any question other than the narrow one presented to us.

Advisory Op. to the Governor Re: Implementation Of Amendment 4, The Voting Restoration Amendment, 288 So. 3d 1070, 1084 (Fla. 2020).

Notice that the Florida Supreme Court did not opine on whether the provision as so interpreted violates the Constitution of the United States. It was not asked to answer that question, and it expressly disclaimed any opinion on any question other than the one it was asked.

The federal case eventually reached the Eleventh Circuit as Jones v. DeSantis, No. 20-12003. The District Court had enjoined enforcement of the condition on re-enfranchisement in some applications. The Eleventh Circuit took the case en banc and stayed the injunction, with Judge Lagoa participating. The Supreme Court refused to lift the injunction, three Justices dissenting. See this opinion.

At this point, a number of Senate Democrats sent letters to Judge Lagoa and others questioning their participation. The letter says:

The Jones v. DeSantis case addresses whether Florida can require individuals with past felony convictions to pay fines, fees, and other costs before regaining the right to vote. While a member of the Florida Supreme Court, you participated in an Advisory Opinion on this very issue at the request of Governor Ron DeSantis.

This is just wrong. The issues in the two cases are not the same. The state court case asked for the interpretation of the amendment to the Florida Constitution. The federal case asks if the amendment violates the United States Constitution.

Incidentally, notice how the letter sneakily tucks restitution for victims under the umbrella of “other costs.” The authors do not want to honestly and forthrightly admit that they are taking a position contrary to full restitution for victims.

The letter goes on to note that Judge Lagoa made a commitment during her confirmation process to “recuse [herself] from any case in which [she] participated as a justice on the Supreme Court of Florida.” (Emphasis added.) Sure, that’s standard. The letter goes on to claim:

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

Wrong again. This is not the same case.

The state court case was an advisory opinion on the interpretation of the amendment. The federal case is not a review of that decision; it is a different case. Indeed, at least some of the plaintiffs filed their federal suits before the Governor commenced the state case. See 288 So. 3d, at 1073-1074.

Neither the federal district court nor the federal court of appeals has jurisdiction to review the decision of the Florida Supreme Court. In civil matters, at least, such review can only be had in the Supreme Court. (We will put to one side, for this post, the question of whether a lower federal court can “review” a state court criminal decision in habeas corpus.) Further, the state court action was an advisory opinion, and no federal court has jurisdiction to issue or review an advisory opinion in any case.

The letter invokes Canon 3(C)(1)(e) of the Code of Conduct for United States Judges, which requires recusal when:

(e) the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.

Again, Judge Lagoa has not “participated as a judge (in a previous judicial position) … concerning the proceeding“, i.e., Jones v. DeSantis. Nor had she “expressed an opinion concerning the merits of the particular case in controversy,” i.e., whether the Florida amendment as written violates the United States Constitution.

The Eleventh Circuit decided the case on the merits September 11 and vacated the disputed parts of the injunction.

The Florida Supreme Court case and the Eleventh Circuit case are different cases with different legal issues. There is no merit to the claim that Judge Lagoa was required to recuse.