Jones v. DeSantis Response Opposing Motion To Disqualify

Case: 20-12003 Date Filed: 07/22/2020 Page: 1 of 16
No. 20-12003
In the United States Court of

Appeals for the Eleventh Circuit
KELVIN LEON JONES, ET AL.,
Plaintiffs–Appellees,
v.
RON DESANTIS, ET AL.,
Defendants–Appellants.
DEFENDANTS-APPELLANTS’ RESPONSE IN OPPOSITION TO

PLAINTIFFS-APPELLEES’ MOTION TO DISQUALIFY JUDGES
ROBERT LUCK AND BARBARA LAGOA
ON APPEAL FROM THE

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
NO. 4:19-CV-300-RH-MJ
CHARLES J. COOPER JOSEPH W. JACQUOT BRADLEY R. MCVAY

PETER A. PATTERSON NICHOLAS A. PRIMROSE ASHLEY E. DAVIS
STEVEN J. LINDSAY JOSHUA E. PRATT FLORIDA DEPARTMENT OF
SHELBY L. BAIRD EXECUTIVE OFFICE OF THE STATE
COOPER & KIRK, PLLC GOVERNOR R.A. Gray Building, Suite
1523 New Hampshire Ave., 400 S. Monroe St., PL-5 100
N.W. Tallahassee, FL 32399 500 South Bronough St.
Washington, DC 20036 Telephone: (850) 717-9310 Tallahassee, FL 32399
Telephone: (202) 220-9660 Fax: (850) 488-9810 Telephone: (850) 245-6536
Fax: (202) 220-9601 joe.jacquot Fax: (850) 245-6127
ccooper@cooperkirk.com @eog.myflorida.com brad.mcvay
ppatterson@cooperkirk.com nicholas.primrose @dos.myflorida.com
slindsay@cooperkirk.com @eog.myflorida.com ashley.davis
sbaird@cooperkirk.com joshua.pratt @dos.myflorida.com
@eog.myflorida.com
Counsel for Defendants-Appellants
CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit
Rule 26.1, I certify that Defendants-Appellants’ Amended Certificate of Interested
Persons and Corporate Disclosure Statement filed on July 14, 2020 is to the best of
my knowledge, complete and correct except for the following additional interested
persons or entities:
1. Bangert, Ryan, Counsel for Amicus Curiae
2. Becker, Sue, Counsel for Amicus Curiae
3. Fitch, Lynn, Attorney General of Mississippi, Counsel for Amicus

Curiae
4. Hawkins, Kyle, Counsel for Amicus Curiae
5. LaFond, Jason, Counsel for Amicus Curiae
6. Mateer, Jeffery, Counsel for Amicus Curiae
7. State of Mississippi, Amicus Curiae
8. The Public Interest Legal Foundation, Amicus Curiae
9. Thompson, William, Counsel for Amicus Curiae
Dated: July 22, 2020 s/Charles J. Cooper

Charles J. Cooper
Counsel for Defendants-
Appellants
C-1 of 1
INTRODUCTION
Over the last 36 hours, two members of this Court have become the targets of
extraordinary attacks by the Democratic members of the Senate Judiciary Committee
intended to intimidate them into recusing themselves from this case. See Notice to
Counsel re: Ex Parte Communications (11th Cir. July 22, 2020). Verbal assaults on
the judiciary have become regrettably common in American politics, and they pose
a growing threat to the rule of law. The Framers anticipated this type of attack on
the courts: because of “the natural feebleness of the judiciary,” it would be “in
continual jeopardy of being overpowered, awed, or influenced by its co-ordinate
branches.” The Federalist No. 78 (Alexander Hamilton). That, Alexander Hamilton
explained, is why Article III gives federal judges lifetime tenure. Id.
Ironically, while Movants and their Senate allies invoke statutes and ethical
canons designed to promote public confidence in the judiciary, it is they who
threaten the judiciary’s independence by calling into question the integrity of two of
this Court’s Members without even a colorable basis for doing so. As the Chief
Justice recently said in response to threatening statements made by a United States
Senator about Justices Gorsuch and Kavanaugh, such statements “are not only
inappropriate, they are dangerous.” Office of Public Info., Statement of Chief Justice
John G. Roberts, Jr., Supreme Court of the U.S. (March 4, 2020), available at
1
https://bit.ly/2WNWuNn. No less than the Supreme Court, the Judges of this Court
should “continue to do their job, without fear or favor, from whatever quarter.” Id.
The motion to disqualify Judges Luck and Lagoa is frivolous, and it ought to
be denied.
ARGUMENT
I. There is no basis for disqualification of Judges Luck and Lagoa.
Although the practice was once common, see Laird v. Tatum, 409 U.S. 824,
835–36 (1972) (Rehnquist, J., in chambers) (collecting examples), Congress long
ago prohibited federal judges from sitting in review of their own decisions on appeal,
see 28 U.S.C. § 47. The animating principle behind the prohibition is that a
reasonable person might question a “judge’s impartiality in judging his or her own
past works.” Clemmons v. Wolfe, 377 F.3d 322, 327–28 (3d Cir. 2004). Significantly,
“this rule only applies to federal judges who had served as a judge beforehand, were
subsequently appointed to the federal bench, and are now being asked to review
decisions made based on their previous judgeship.” In re Smith, 2019 WL 7037416,
at *3 (N.D. Ohio Dec. 20, 2019) (emphasis added). This principle poses no obstacle
to Judges Luck and Lagoa hearing the appeal in this case for at least three reasons.
First, unlike a habeas case in which a federal court is asked to decide whether
state criminal proceedings violated the federal constitution, there is no sense in
which this appeal calls upon the Court to review the Florida Supreme Court’s
2
advisory opinion. The only questions that the Florida Supreme Court addressed, or
was asked to address, were issues of Florida law, and “the Florida Supreme Court
‘is unquestionably the ultimate expositor of [Florida] law.’ ” J.R. v. Hansen, 803
F.3d 1315, 1320 (11th Cir. 2015) (alteration in original) (quoting Riley v. Kennedy,
553 U.S. 406, 425 (2008)). Indeed, Governor DeSantis’s request for an advisory
opinion explicitly stated that he was not asking the Florida Supreme Court to address
the federal constitutional issues involved in this case or the legislation implementing
Amendment 4. Request for Advisory Op. from the Governor 4, Doc. 138-1 (Sept.
10, 2019) (attached as Exhibit A); see also Advisory Op. to the Governor re:
Implementation of Amendment 4, 288 So. 3d 1070, 1074 (Fla. 2020). In our federal
constitutional system, this Court has no power to review the Florida Supreme
Court’s resolution of these issues of state law. For that reason, the advisory opinion
is nothing like a lower court decision subject to appellate review; instead, it more
closely resembles the text of a statute that this Court is obliged to accept as a given
for purposes of its decision. Cf. Laird, 409 U.S. at 831 (describing Justice Black’s
practice of hearing cases concerning the Fair Labor Standards Act, of which he was
one of the principal authors).
Second, although Judges Luck and Lagoa participated in the oral argument
over the advisory opinion, they were no longer members of the Florida Supreme
Court by the time that court rendered its decision. Movants make much of questions
3
Judges Luck and Lagoa asked during the argument, but every seasoned litigator has
had the experience of being asked seemingly sympathetic questions at oral argument
only later to be disappointed by the court’s decision. Judges ask questions during
oral argument for a variety of reasons, and such questions do not come remotely
close to implicating the concerns that arise when judges sit in review of their own
prior rulings.
Third, even if this appeal and the Florida Supreme Court’s advisory opinion
proceeding concerned the same legal issues and even if Judges Luck and Lagoa had
expressed views in a decision on the merits of those issues while serving on the
Florida Supreme Court, there still would be no bar to Judges Luck and Lagoa
participating because this is a different case. “Courts have uniformly rejected the
notion that a judge’s previous advocacy for a legal, constitutional, or policy position
is a bar to adjudicating a case, even when that position is directly implicated in the
case before the court.” Carter v. West Pub. Co., 1999 WL 994997, at *9 (11th Cir.
Nov. 1, 1999) (Tjoflat, J., in chambers). The most authoritative exposition of this
rule is Laird v. Tatum, 409 U.S. 824, 831 (1972) (Rehnquist, J., in chambers), in
which Justice Rehnquist explained his rationale for declining to disqualify himself
from a case that concerned legal issues he had addressed when testifying before a
Senate Subcommittee on behalf of the Justice Department less than two years earlier.
Despite having helped formulate and defend the Department of Justice’s position on
4
those issues, Justice Rehnquist explained that he would not recuse because he did
not play any role in the Laird litigation itself while working at the Department of
Justice. Id. at 829. Justice Breyer took the same approach when explaining his
rationale for hearing cases about the Federal Sentencing Guidelines, of which he was
the principal author. See United States v. Wright, 873 F.2d 437, 445 (1st Cir. 1989)
(Breyer, J., in chambers). Similarly, Justice Kavanaugh wrote the main dissent in
PHH Corp. v. CFPB, 881 F.3d 75 (D.C. Cir. 2018) (en banc), only to later cast the
deciding vote in a different case that presented the same issues at the Supreme Court
in Seila Law v. CFPB, 2020 WL 3492641 (U.S. June 29, 2020).
This Court confronted a similar situation in Evans v. Stephens, 387
F.3d 1220, 1227 n.13 (11th Cir. 2004), in which a litigant suggested that Judge Pryor
should be disqualified due to statements he had made about the merits of a different
but similar case while serving as Alabama’s Attorney General. Chief Judge
Edmondson said that this argument was borderline “frivolous,” explaining that
“[m]ere representation and opinions about a previous unrelated matter . . . do not
disqualify a judge.” Id.; see also United States v. Bray, 546 F.2d 851, 857 (10th
Cir. 1976) (“The mere fact that a judge has previously expressed himself on a
particular point of law is not sufficient to show personal bias or prejudice.”). Justice
Kagan made the same point before she ascended to the bench: “Judges are not partial
in deciding cases because they have strong opinions, or previously have expressed
5
strong opinions, on issues involved in those cases.” Elena Kagan, Confirmation
Messes, Old and New, 62 U. Chi. L. Rev. 919, 938 (1995). Thus, even if Judges
Luck and Lagoa had made comments at oral argument while serving on the Florida
Supreme Court that could somehow be construed as expressions of opinion about
the merits of the issues in this case, they would not be required to recuse because
this is a different case. 1
Without citing any relevant precedent, Movants argue that Judges Luck and
Lagoa must be disqualified based upon a tortured reading of 28 U.S.C. § 455(b)(3)
and Judicial Canon 3(C)(1), both of which say that a judge must recuse if he or she
previously served in governmental employment and in that capacity “participated
. . . concerning the proceeding.” Appellees’ Mot. to Disqualify Judges Robert Luck,
Barbara Lagoa, and Andrew Brasher 14–15 (11th Cir. July 15, 2020), (“Mot.”).
Movants emphasize a dictionary definition of the word “concerning,” but they never
acknowledge how courts have interpreted the phrase “the proceeding.” There is a
circuit split over whether judges may recuse themselves for purposes of some issues
1
Movants note that the State’s Civil Appeal Statement in the prior appeal
identified the advisory opinion matter as concerning “substantially the same, similar,
or [a] related . . . issue.” Case No. 19-14551 Civil Appeal Statement 2 (11th Cir.
Dec. 3, 2019) (alteration added). But in that same filing, the State also indicated that
the advisory opinion matter before the Florida Supreme Court did not “arise[ ] from
substantially the same case or controversy.” Id. Regardless, in completing such
forms parties “are encouraged to err on the side of caution,” and such disclosures are
“the beginning of the analysis, not the end.” See In re Bernard, 31 F.3d 842, 845
(9th Cir. 1994) (Kozinski, J., in chambers).
6
but not others, but courts on both sides of the split agree that “the proceeding” refers
to only a single “stage[ ] of litigation”—not the entire case. See 28 U.S.C.
§ 455(b)(3), (d)(1) (emphasis added); compare Decker v. GE Healthcare Inc., 770
F.3d 378, 389 (6th Cir. 2014) (permitting issue-specific recusal and observing that
“the reasons for questioning impartiality in one ‘proceeding’ of a case do not
necessarily obtain to every ‘proceeding’ of that case”), with United States v.
Feldman, 983 F.2d 144, 145 (9th Cir. 1992) (concluding that issue-specific recusals
are prohibited and explaining that “when a judge determines that recusal is
appropriate it is not within his discretion to recuse by subject matter or only as to
certain issues and not others. Rather, recusal must be from a whole proceeding, an
entire ‘stage of litigation.’ ”). As the Seventh Circuit has explained, “[t]he
proceeding means the current proceeding.” United States v. Lara-Unzueta, 735 F.3d
954, 959 (7th Cir. 2013) (emphasis in original). This appeal plainly is not the same
proceeding as the one that took place in the Florida Supreme Court, even if the two
matters could somehow be said to be part of a single controversy. It follows that
Section 455(b)(3) and Canon 3(C)(1) are wholly inapplicable.
Finally, Plaintiffs place great weight on statements that Judges Luck and
Lagoa made about their recusal policies in connection with the confirmation process.
But every one of the statements Plaintiffs identify was a pledge, consistent with 28
U.S.C. § 455 and the authorities cited above, to recuse from the cases in which they
7
had previously played some other role. This is the rule that should guide Judge
Luck’s disposition of the disqualification motion: “I will consult 28 U.S.C. § 455
and the Code of Conduct for United States Judges.” Mot. Ex. C at 15–16. And this
is the pledge that Judge Lagoa made to the Senate that is most relevant to the present
matter: “I would conscientiously review and follow the standards for judicial recusal
set forth in 28 U.S.C. § 455(a) and the Code of Conduct for United States Judges.”
Mot. Ex. A at 25. Judges Luck and Lagoa should follow the applicable legal and
ethical standards for recusal and not be cowed by Movants and their political allies
in the Senate.
II. The disqualification motion should be denied because it is untimely.
Even if the disqualification motion were not completely devoid of merit, it
should still be denied because Movants waited to make the motion until after the en
banc court ruled on the State’s stay application. Movants offer no explanation for
the timing of their motion, but they were apparently content to have Judges Luck
and Lagoa participate in this case until July 1, when the Court granted en banc
hearing and stayed the district court’s injunction. The State first sought en banc
review in this case on February 26, and it petitioned for initial en banc hearing in
this appeal on June 2. Yet for months Movants remained silent on the question of
recusal by Judges Luck and Lagoa. At last, after the en banc Court signaled through
its stay order that the State is likely to succeed on the merits and Movants’ prospects
8
for prevailing in this litigation were dim, Movants sprung the trap. But this Court
has said that a party “may not lie in wait, knowing facts supporting [recusal], and
raise [the] issue only after [the] court’s ruling on [the] merits.” United States v. Kelly,
888 F.2d 732, 746 (11th Cir. 1989). That is what Movants did, and it would cause
extraordinary prejudice to the State for Judges Luck and Lagoa to recuse themselves
now that the en banc Court has decided to stay the district court’s injunction with
their participation.
This Court has held that motions to disqualify under 28 U.S.C. § 455 are
subject to a timeliness requirement, and such motions “must be filed within a
reasonable time after the grounds for the motion are ascertained.” Summers v.
Singletary, 119 F.3d 917, 921 (11th Cir. 1997). Although there is no bright-line rule
as to how quickly a motion to disqualify must be filed, where “the facts are known
before a legal proceeding is held, waiting to file such a motion until the court has
ruled against a party is untimely.” Id. The entire basis for the motion is the
participation by Judges Luck and Lagoa in an oral argument (but not the decision)
of the Florida Supreme Court in an entirely separate matter in which Movants
themselves filed briefs and presented argument. See Advisory Op. to the Governor,
288 So. 3d at 1071 (listing Movants as parties). Movants knew about the issues
raised in their disqualification motion long before the State first requested en banc
9
review, and their failure to file their motion sooner is a patent abuse of the recusal
statute of the sort that this Court “will not tolerate.” Kelly, 888 F.2d at 747.
A chorus of judicial opinions echoes this Court’s repeated admonitions
against strategically delaying the filing of recusal motions. The Fifth Circuit has read
Section 455 to prohibit “knowing concealment of an ethical issue for strategic
purposes.” United States v. York, 888 F.2d 1050, 1055 (5th Cir. 1989). The Second
Circuit has said that litigants are prohibited from “holding back a recusal application
as a fall-back position in the event of adverse rulings on pending matters.” LoCascio
v. United States, 473 F.3d 493, 497 (2d Cir. 2007) (emphasis omitted). And in the
criminal context, the Fourth Circuit has said that a defendant “cannot take his
chances with a judge and then, if he thinks that the sentence is too severe, secure a
disqualification and a hearing before another judge.” United States v. Owens, 902
F.2d 1154, 1156 (4th Cir. 1990) (quoting Taylor v. United States, 179 F.2d 640, 642
(9th Cir. 1950)). As these cases underscore, Movants’ decision to wait to file their
motion until after the en banc Court stayed the district court’s injunction is by itself
a sufficient basis for denying the motion.
Incredibly, without acknowledging how their strategic delay affects the
equities of this situation, Movants argue that all doubts should be resolved in favor
of recusal. Mot. 7. To the contrary, “where the standards governing disqualification
have not been met, disqualification is not optional; rather, it is prohibited.” In re
10
Aguinda, 241 F.3d 194, 201 (2d Cir. 2001). Indeed, at this late date any uncertainty
must be resolved against disqualification, especially when this Court is sitting en
banc and recused judges cannot be replaced through random reassignment. See
Cheney v. United States District Court, 541 U.S. 913, 915 (2004) (Scalia, J., in
chambers).
In 1973, Congress substantially revised Section 455 to conform the federal
statutory recusal standard to the ABA’s recently overhauled canons of judicial
conduct. Explaining the revisions to the statute, the Senate Report said this:
[I]n assessing the reasonableness of a challenge to his impartiality, each

judge must be alert to avoid the possibility that those who would
question his impartiality are in fact seeking to avoid the consequences
of his expected adverse decision. . . . Nothing in this proposed
legislation should be read to warrant the transformation of a litigant’s
fear that a judge may decide a question against him into a “reasonable
fear” that the judge will not be impartial. Litigants ought not have to
face a judge where there is a reasonable question of impartiality, but
they are not entitled to judges of their own choice.
S. Rep. No. 93-419, at 5 (1973). The Senate Report offers sound advice that all
judges should heed. 2
2
The disqualification motion is directed to the Court as a whole, but it is the
settled practice for the subject of a disqualification motion to rule on it individually.
See, e.g., Carter v. West Pub. Co., 1999 WL 994997 (11th Cir. Nov. 1, 1999)
(Tjoflat, J., in chambers); Baker & Hostetler LLP v. Dep’t of Commerce, 471 F.3d
1355 (D.C. Cir. 2006) (Kavanaugh, J., in chambers); In re Bernard, 31 F.3d at 845;
United States v. Wright, 873 F.2d 437, 445 (1st Cir. 1989) (Breyer, J., in chambers).
11
CONCLUSION
“[M]otions to recuse should not be viewed as an additional arrow in the quiver
of advocates in the face of anticipated adverse rulings,” In re Kansas Pub. Employees
Retirement System, 85 F.3d 1353, 1360 (8th Cir. 1996) (quotation and alteration
omitted), and federal judges are required to hear the cases that come before them
when there is no valid basis for recusal, see In re Aguinda, 241 F.3d at 201. The
motion to disqualify Judges Luck and Lagoa is an abuse, and it ought to be denied.
Dated: July 22, 2020 Respectfully submitted,
Joseph W. Jacquot s/ Charles J. Cooper

Nicholas A. Primrose Charles J. Cooper
Joshua E. Pratt Peter A. Patterson
Executive Office of the Governor Steven J. Lindsay
400 S. Monroe Street, PL-5 Shelby L. Baird
Tallahassee, FL 32399 COOPER & KIRK, PLLC
Telephone: (850) 717-9310 1523 New Hampshire Avenue, N.W.
Fax: (850) 488-9810 Washington, D.C. 20036
joe.jacquot@eog.myflorida.com (202) 220-9601
nicholas.primrose@eog.myflorida.com Fax: (202) 220-9601
joshua.pratt@eog.myflorida.com ccooper@cooperkirk.com
ppatterson@cooperkirk.com
Bradley R. McVay slindsay@cooperkirk.com
Ashley E. Davis sbaird@cooperkirk.com
Florida Department of State
R.A. Gray Building Suite, 100
500 S. Bronough Street
Tallahassee, FL 32399
Phone: (850) 245-6536
Fax: (850) 245-6127
brad.mcvay @dos.myflorida.com
ashley.davis@dos.myflorida.com
Counsel for Defendants-Appellants
12
CERTIFICATE OF COMPLIANCE
I hereby certify that this motion complies with the type-volume limitations
of FED. R. APP. P. 27(d)(2)(A) because this motion contains 3,014 words,
excluding the parts of the motion exempted by FED. R. APP. P. 32(f).
This motion complies with the typeface requirements of FED. R. APP.
P. 32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because this
motion has been prepared in a proportionately spaced typeface using Microsoft
Word for Office 365 in 14-point Times New Roman font.
Dated: July 22, 2020 s/ Charles J. Cooper

Charles J. Cooper
Appellants
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of Court
for the United States Court of Appeals for the Eleventh Circuit by using the appellate
CM/ECF system on July 22, 2020. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
Dated: July 22, 2020 s/ Charles J. Cooper

Charles J. Cooper
Appellants
EXHIBIT A
CaseE-Filed
Filing # 93922778 4:19-cv-00300-RH-MJF Document
08/09/2019 11:06:57 AM 138-1 Filed 09/10/19 Page 1 of 9
Case: 20-12003 Date Filed: 07/22/2020 COMPOSITE
Page: 2 of 10
EXHIBIT A
RoN DESANTIS
GOVERNOR
August 9, 2019
Honorable Charles T. Canady

Chief Justice and
the Justices of the Supreme Court ofFlorida
Tallahassee, Florida
Dear Chief Justice Canady and Justices of the Supreme Court of Florida:
Pursuant to Article IV, section 1(c) of the Florida Constitution, I hereby request your
opinion on a question involving the interpretation of a portion of the Constitution affecting my
executive powers and duties. The question pertains to the meaning of Article VI, section 4 of the
Florida Constitution as it affects my constitutional power as the supreme executive to take care
that the laws be faithfully executed and to transact all necessary business with the officers of the
government under Article IV, section 1(a) ofthe Florida Constitution. This question also affects
my direct administration and supervision of the Department of State under Article IV, section 6
of the Florida Constitution to ensure the proper administration of voter registration and
disqualification.
On November 6, 2018, Florida voters approved a constitutional amendment, known as
Amendment 4, to automatically restore voting rights for some convicted felons-namely, felons
who have been convicted of offenses other than murder or a "felony sexual offense" upon
"completion of all terms of sentence including parole or probation." See Art. VI, § 4, Fla. Const.
(20 18). I request your interpretation of whether "completion of all terms of sentence"
encompasses financial obligations, such as fines, fees and restitution ("legal financial
obligations" or "LFOs") imposed by the court in the sentencing order.
Prior to Amendment 4' s placement on the ballot, this Court was asked to determine
whether the amendment met the legal requirements under Florida's Constitution. On March 6,
2017, during a colloquy between the justices and Amendment 4's sponsor, Floridians for a Fair
Democracy ("Sponsor"), this Court was assured the Amendment presented a "fair question" and
"clear explanation" to voters. Transcript of Oral Argument at 2, Advisory Op. to the Attorney
General Re: Voting Restoration Amend., 215 So. 3d 1202 (Fla. 2017) (Nos. SC16-1785 and
THE CAPITOL
32399 • (850) 717-9249
TALLAHASSEE, fLORIDA
Case 4:19-cv-00300-RH-MJF Document 138-1 Filed 09/10/19 Page 2 of 9
and the Justices ofthe Supreme Court of Florida
August 9, 2019
Page 2
SC 16-1981 ). I Addressing a question posed by Justice Polston as to whether "completion of [all]

terms" included "full payment of any fines," the Sponsor responded, "Yes, sir ... All terms
means all terms within the four comers." ld. at 4. Justice Lawson similarly asked, "You said that
terms of sentence includes fines and costs ... that's the way it's generally pronounced in
criminal court, would it also include restitution when it was ordered to the victim as part of the
sentence?" Id. at 10. The Sponsor answered, "Yes." Id. Justice Pariente posited the inclusion of
fees, fines, and restitution as part of the completion of sentence "would actually help the state
because if fines, costs and restitution are a requirement ... for those that want to vote, there's a
big motivation to pay unpaid costs, fines and restitution." ld. at 11 . Ultimately, the Court found
Amendment 4 clearly and unambiguously informed voters the chief purpose ofthe proposed
amendment was to "automatically restore voting rights to felony offenders, except those
convicted of murder or felony sexual offenses, upon completion of all terms of their sentence."
Advisory Op., 215 So. 3d at 1208 (emphasis added).
In alignment with the colloquy with the Florida Supreme Court, after Amendment 4 was
approved by voters, the ACLU of Florida, League of Women Voters of Florida, LatinoJustice,
and the Florida Rights Restoration Coalition delivered a letter to former Secretary of State Ken
Detzner regarding implementation of Amendment 4. Exhibit 1, December 13,2018 Letter. In
part, the letter explained,
The phrase "completion of all terms of sentence" includes any
period of incarceration, probation, parole and financial obligations
imposed as part of an individual's sentence. The financial
obligations may include restitution and fines, imposed as part of a
sentence or a condition ofprobation under existing Florida statute.
Fees not specifically identified as part of a sentence or a condition
of probation are therefore not necessary for 'completion of
sentence ' and thus, do not need to be paid before an individual may
register. We urge the Department to take this view in reviewing
eligibility of individuals registered to vote as outlined in Chapter 98,
Florida Statutes.
Ex. 1, p. 3 (emphasis added).
During the 2019 Legislative Session, legislators in both chambers debated legislative
implementation of Amendment 4. Ultimately, both chambers passed CS/SB 7066 and, on June
28, 2019, I signed it into law. See Ch. 2019-162, Laws of Fla. In relevant part, chapter 2019-162,
section 25 , Laws of Florida, creating section 98.0751, Florida Statutes, provided guidance on
restoration of voting rights and determination of ineligibility pursuant to the amendment of
Article VI, section 4 of the Florida Constitution. Section 98.0751 , Florida Statutes, defines
I The transcript of oral argument is available here:

https://wfsu.org/gavel2gavel/transcript/pdfsll6-1785 16-198l.pdf. A video ofthe oral argument
is available here: https://wf<>u.org!'gavel2gavcl/viewcase.ph_p?eid=2421 &jwsource=cl.
and the Justices ofthe Supreme Court of Florida
August 9, 2019
Page 3
" [c ]ompletion of all terms of sentence" as "any portion of a sentence that is contained in the four
comers ofthe sentencing document."§ 98 .0751(2)(a), Fla. Stat. (2019). The Legislature
provided five categories of terms included in the sentencing document: (1) release from any term
of imprisonment; (2) termination of any term of probation or community control; (3) fulfillment
of any term ordered by the court as part of the sentence; (4) termination from any term of
supervision monitored by the Florida Commission on Offender Review; and (5) full payment of
LFOs ordered by the court as part ofthe sentence. See§ 98.0751(2)(a)l.-5., Fla. Stat. (2019).
On June 15, 2019, Luis Mendez filed a complaint in the Northern District ofFlorida
seeking injunctive and declaratory relief and mandamus challenging chapter 2019-162, Laws of
Florida. In part, Mendez alleges chapter 2019-162, Laws of Florida, violates Article VI, section 4
of the Florida Constitution because it adds requirements for the restoration of voting rights above
what was prescribed in the Florida Constitution. Additional complaints were filed by numerous
plaintiffs, including organizations referenced above, alleging provisions of chapter 2019-162,
Laws of Florida violate the First, Eighth, Fourteenth and Twenty-Fourth Amendments ofthe
United States Constitution. These challenges are only directed at chapter 2019-162, Laws of
Florida, and do not question the constitutionality of Article VI, section 4 of the Florida
Constitution.
Article IV, section 1(a) ofthe Florida Constitution prescribes the supreme executive
power shall be vested in the Governor, that he "shall take care that the laws be faithfully
executed" and "transact all necessary business with the officers of government." Article IV,
section 6 of the Florida Constitution places direct administration and supervision of all functions
of the executive branch, including the Department of State, under the constitutional authority of
the Governor. See also § 20.02(3), Fla. Stat. (the administration of any executive branch entity
shall at all times be under the constitutional executive authority of the Governor"); § 20.1 0, Fla.
Stat. (creating the Department of State, headed by the Secretary of State who is appointed by the
Governor). Furthermore, the Secretary of State is the chief elections officer with the
responsibility to maintain uniformity in the interpretation and implementation of voter
registration and election laws. See§ 97.012, Fla. Stat.
The Executive Branch is entrusted with implementing voter registration. See Part II of
chapter 97 and chapter 98, Fla. Stat. Specifically, section 98.075(5), Florida Statutes, directs the
Department of State to identify registered voters for eligibility under Article VI, section 4 of the
Florida Constitution and section 98.0751 , Florida Statutes. It is ultimately my responsibility,
through the Department of State, to "protect the integrity of the electoral process" by maintaining
accurate and current voter registration records, including ensuring only eligible voters remain on
the statewide voter registration system. See also§§ 98.075(1), 98.035, Fla. Stat. Essential to my
duty is a proper interpretation of Article VI, section 4 of the Florida Constitution.
I, as Governor of Florida, have the constitutional responsibility and duty to take care that
the Constitution and laws of Florida are faithfully executed. I, as Governor of Florida, have the
constitutional duty to transact business with officers of government, including, but not limited to,
local supervisors of elections, local clerks of court, the Florida Department of Corrections, the
and the Justices of the Supreme Court of Florida
August 9, 2019
Page 4
Florida Department of Law Enforcement, the Florida Commission on Offender Review and the
Florida Department of State regarding the collection of information related to the eligibility of
voters under Article VI, section 4 of the Florida Constitution. We share the task of protecting the
integrity of elections throughout Florida. I, as Governor of Florida, want to ensure the proper
implementation of Article VI, section 4 of the Florida Constitution and, if applicable, chapter
2019-162, Laws of Florida. This includes the ability to direct the Department of State to fully
implement Article VI, section 4 of the Florida Constitution by determining whether a convicted
felon has completed all terms of their sentence, including the satisfaction of LFOs. I will not
infringe on the proper restoration of an individual's right to vote under the Florida Constitution.
Understanding there is ongoing litigation in federal court challenging chapter 2019-162,
Laws of Florida under the First, Eighth, Fourteenth and Twenty-Fourth Amendments of the
United States Constitution, I do not ask this Court to address any issues regarding chapter 2019-
162, Laws of Florida or the United States Constitution.
Therefore, I respectfully request an opinion ofthe Justices of the Supreme Court of
Florida as to the question of whether "completion of all terms of sentence" under Article VI,
section 4 of the Florida Constitution includes the satisfaction of all legal financial obligations-
namely fees, fines and restitution ordered by the court as part of a felony sentence that would
otherwise render a convicted felon ineligible to vote.
Sincerely,
!Exhibit 1
Florida
FR~C LEAGUE OF WOMEN VOTERS'

. OF FLORID/\
December 13, 2018
The Honorable Ken Detzner

Secretary of State
State of Florida
R.A. Gray Building
500 South Bronough Street
Tallahassee, Florida 32399
Re: Implementation of Amendment 4, tbe Voting Restoration Amendment
Dear Secretary Detzner:
On November 6, 2018, Florida voters approved Amendment 4, the Voting Restoration

Amendment with a vote of 64.55 % in support, reflecting the clear will of the people of Florida
that those individuals with felony convictions who have paid their debt to society have their
eligibility to vote restored to them. We write to request that you take immediate administrative
action to coordinate with relevant state and local agencies as required by Chapter 98 Florida
Statues and to provide guidance to relevant state and local agencies on the proper administration
of voting registration for this newly enfranchised population of Florida's citizens as soon as
possible. To that end, we would like to take this opportunity to share our analysis and views on
various provisions of the Amendment and corresponding issues.
Amendment 4 is Self-Executing
Amendment 4 is self-executing in that the mandatory provisions of the amendment are effective
on the implementation date (Jan. 8, 20 19). This is the very position that the State of Florida has
acknowledged in its own legal filings in the Hand v. Scott case. The Amendment alters Florida
Constitution Article VI, Section 4. Disqualifications, to state as follows:
(a) No person convicted of a felony, or adjud icated in this or any other state to be
mentally incompetent, shall be qualified to vote or hold office until restoration of civil
rights or removal of disability. Except as provided in subsection (b) of this section, any
disqualification from voting arising from a felony conviction shall tenninate and voting
rights shall be restored upon completion of all terms of sentence including parole or
probation.
(b) No person convicted of murder or a felony sexual offense shall be qualified to vote
until restoration of civil rights. (... ).
That language is specific and unambiguous. As the Florida Supreme Court stated in its
unanimous opinion approving the amendment for placement on the ballot, "Read together, the
title and summary would reasonably lead voters to understand that the chief purpose of the
amendment is to automatically restore ••oting rights to felony offenders, except those convicted
of murder or felony sexual offences, upon completion of all tenns of their sentence. (emphasis
added.) Advismy Opinion to the Attorney General Re: Voting Restoration Amendment, 215 So.
2d 1202, I208 (Fla. 20 17).
Since these mandatory provisions will now be in the Florida constitution, the Legislature does
not need to pass implementing legislation in order for the amendment to go into effect. That said,
the Legislature should exercise its normal and proper oversight function of relevant state
agencies to ensure that they implement the amendment in accordance with the will of Florida's
voters and without delay.
The burden is on the state, not the individual, to establish whether a voter is ineligible utilizing
current administrative practices, databases and resources as defined in Chapter 98 and other
relevant provisions ofthe Florida Statutes.
The plain language of the Amendment makes clear that it restores the voting rights of Floridians
with felony convictions after they complete "all tem1s of their sentence including parole or
probation." The Amendment does not apply to those who have completed a sentence for murder
or a felony sex offense. Individuals in those categories can only have their right to vote restored
by the Governor and the Board of Executive Clemency.
Pursuant to Article XI, Section 5 (3), the Amendment goes into effect on January 8, 2019. Thus,
starting January 81h, any individual with a felony conviction who has completed all the terms of
their sentence should register to vote by completing a voter registration form.
Page 2 of4
Completion of all terms of Sentence
The phrase "completion of all terms of sentence" includes any period of incarceration, probation,
parole and financial obligations imposed as part of an individual's sentence. These financial
obligations may include restitution and fines, imposed as part of a sentence or a condition of
probation under existing Florida statute. Fees not specifically identified as part of a sentence or a
condition of probation are therefore not necessary for 'completion of sentence' and thus, do not
need to be paid before an individual may register. We urge the Department to take this view in
reviewing the eligibility of individuals registered to vote as outlined in Chapter 98, Florida
Statutes.
Existing Voter Registration Forms are Sufficient
We assert that the unifom1 stateside voter registration application is sufficient to immediately
register individuals impacted by the Amendment' s provisions. Question #2 of that fom1 asks
individuals to "affirm that I am not a convicted felon, or if I am, my right to vote has been
restored. " The responsibility of the citizen is to honestly affirm that, by completing the terms of
their sentence, their voting rights have been restored. Individuals may also register via the
Florida Online Voter Registration System at https://re~istertoyotetlorida.~ov/.
Process to Confirm Eligibility is Already in Place
The existing provisions of Chapter 98 ofthe Florida Statutes provide the Department with
sufficient authority to coordinate across state and local agency databases to identify impacted
individuals, to promptly and efficiently register to vote those individuals who wish to do so, and
to confirm.their eligibility in the same way the Department confirms the eligibility of all other
Florida residents when they complete a voter registration application.
We understand that the current registration process includes the following steps:
• An individual returns a completed voter registration form to the Supervisor of Elections;

• The Supervisor transmits an electronic copy of the application to the Department of State
Division ofElections;
• The individual who completed the form is at that time considered registered and will
receive a voter ID card in the mail;
• The Department of State then has the duty to review the voter's registration to determine
if there is credible information that the voter is ineligible;
This is the very same process that should be used to register those impacted by Amendment 4.
Page 3 of4
In closing, we appreciate the difficult task you face in administering elections in Florida. We
hope that the discussion above will help you ensure that Amendment 4 is implemented in a
timely and smooth fashion , without delay or undue burden on individual eligible voters.
Florida's citizens spoke clearly on election day and we look forward to working with you to
ensure their will is carried out.
Thank you for your attention to this important matter.
Sincerely,
Desmond Meade, Melba Pearson,

Executive Director, Florida Rights Interim Executive Director
Restoration Coalition ACLU of Florida
Patricia Brigham, Kira Romero-Craft,

President Managing Attorney
League of Women Voters of Florida LatinoJustice PRLDEF
cc: Maria Matthews, Director, Division of Elections

Florida State Association of Supervisor of Elections
Page 4 of4
CaseE-Filed
Filing # 94958024 4:19-cv-00300-RH-MJF Document
08/29/2019 10:13:24 AM 138-1 Filed 09/10/19 Page 9 of 9
Supreme Court of Florida

THURSDAY, AUGUST 29, 2019
CASE NO.: SC19-1341
ADVISORY OPINION TO THE RE: IMPLEMENTATION OF

GOVERNOR AMENDMENT 4, THE VOTING
RESTORATION AMENDMENT
Pursuant to article IV, section 1(c), Florida Constitution, on August 9, 2019,

the Governor of Florida requested this Court’s opinion on a question of
constitutional interpretation affecting his executive powers and duties.
The Court has determined that the request is within the purview of the
above-noted constitutional provision and the Court will exercise its discretion to
provide an opinion in response to the Governor’s request.
Interested parties shall file their initial briefs on or before Wednesday,
September 18, 2019, and serve a copy on the Governor. Initial briefs are not to
exceed 50 pages in length. The interested parties may file reply briefs by
Thursday, October 3, 2019. Reply briefs are not to exceed 20 pages in length.
Oral argument is scheduled for 9:00 a.m., Wednesday, November 6, 2019.
A maximum of twenty minutes to the side is allowed for the argument. Parties
who have filed a brief and have asked to be heard may, in the Court’s discretion,
be permitted to participate in oral argument.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and

MUÑIZ, JJ., concur.
A True Copy
Test:
db
Served:
MELBA V. PEARSON HON. JOSE R. OLIVA

DESMOND MEADE LAURA M. LEE
HON. RON DESANTIS, GOVERNOR

Jones v. DeSantis Response Opposing Motion To Disqualify

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Case: 20-12003 Date Filed: 07/22/2020 Page: 1 of 16

In the United States Court of

RON DESANTIS, ET AL.,

DEFENDANTS-APPELLANTS’ RESPONSE IN OPPOSITION TO

ON APPEAL FROM THE

CHARLES J. COOPER JOSEPH W. JACQUOT BRADLEY R. MCVAY

CERTIFICATE OF INTERESTED PERSONS

Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit

Rule 26.1, I certify that Defendants-Appellants’ Amended Certificate of Interested

1. Bangert, Ryan, Counsel for Amicus Curiae

2. Becker, Sue, Counsel for Amicus Curiae

3. Fitch, Lynn, Attorney General of Mississippi, Counsel for Amicus

4. Hawkins, Kyle, Counsel for Amicus Curiae

5. LaFond, Jason, Counsel for Amicus Curiae

6. Mateer, Jeffery, Counsel for Amicus Curiae

7. State of Mississippi, Amicus Curiae

8. The Public Interest Legal Foundation, Amicus Curiae

9. Thompson, William, Counsel for Amicus Curiae

Dated: July 22, 2020 s/Charles J. Cooper

extraordinary attacks by the Democratic members of the Senate Judiciary Committee

continual jeopardy of being overpowered, awed, or influenced by its co-ordinate

branches.” The Federalist No. 78 (Alexander Hamilton). That, Alexander Hamilton

canons designed to promote public confidence in the judiciary, it is they who

Justice recently said in response to threatening statements made by a United States

I. There is no basis for disqualification of Judges Luck and Lagoa.

835–36 (1972) (Rehnquist, J., in chambers) (collecting examples), Congress long

decisions made based on their previous judgeship.” In re Smith, 2019 WL 7037416,

state criminal proceedings violated the federal constitution, there is no sense in

one of the principal authors).

in Seila Law v. CFPB, 2020 WL 3492641 (U.S. June 29, 2020).

This Court confronted a similar situation in Evans v. Stephens, 387

“[m]ere representation and opinions about a previous unrelated matter . . . do not

strong opinions, on issues involved in those cases.” Elena Kagan, Confirmation

Supreme Court that could somehow be construed as expressions of opinion about

this is a different case. 1

Lagoa must be disqualified based upon a tortured reading of 28 U.S.C. § 455(b)(3)

previously served in governmental employment and in that capacity “participated

. . . concerning the proceeding.” Appellees’ Mot. to Disqualify Judges Robert Luck,

to only a single “stage[ ] of litigation”—not the entire case. See 28 U.S.C.

§ 455(b)(3), (d)(1) (emphasis added); compare Decker v. GE Healthcare Inc., 770

“the reasons for questioning impartiality in one ‘proceeding’ of a case do not

necessarily obtain to every ‘proceeding’ of that case”), with United States v.

appropriate it is not within his discretion to recuse by subject matter or only as to

matters could somehow be said to be part of a single controversy. It follows that

Section 455(b)(3) and Canon 3(C)(1) are wholly inapplicable.

Luck’s disposition of the disqualification motion: “I will consult 28 U.S.C. § 455

II. The disqualification motion should be denied because it is untimely.

Even if the disqualification motion were not completely devoid of merit, it

subject to a timeliness requirement, and such motions “must be filed within a

of the Florida Supreme Court in an entirely separate matter in which Movants

A chorus of judicial opinions echoes this Court’s repeated admonitions

Section 455 to prohibit “knowing concealment of an ethical issue for strategic

as a fall-back position in the event of adverse rulings on pending matters.” LoCascio

a sufficient basis for denying the motion.

Incredibly, without acknowledging how their strategic delay affects the

of recusal. Mot. 7. To the contrary, “where the standards governing disqualification

have not been met, disqualification is not optional; rather, it is prohibited.” In re

must be resolved against disqualification, especially when this Court is sitting en

In 1973, Congress substantially revised Section 455 to conform the federal

statutory recusal standard to the ABA’s recently overhauled canons of judicial

[I]n assessing the reasonableness of a challenge to his impartiality, each

judges should heed. 2