A federal judge appeared unconvinced Friday that state proceedings resulting in the ouster of former Broward County Sheriff Scott Israel violated the veteran law enforcement officer’s due-process rights.
Gov. Ron DeSantis made the suspension of Israel one of his first acts after taking office last year. He accused Israel of “incompetence” and “neglect of duty” for the handling of the 2018 massacre at Marjory Stoneman Douglas High School that killed 17 students and faculty members and a 2017 mass shooting at the Fort Lauderdale-Hollywood International Airport that killed five people.
The Senate formally removed Israel from office during an October special session, prompting the former sheriff to file a federal lawsuit alleging the Senate process was unfair.
Lawyers for DeSantis and Senate President Bill Galvano asked U.S. District Judge Mark Walker to dismiss the case. The governor’s attorneys have argued that DeSantis is not responsible for any alleged violation of Israel’s rights, because the Senate conducted the proceedings leading to the vote that resulted in the sheriff’s removal. The Senate’s lawyers argue, in part, that the Senate is shielded from liability for legislative acts.
During a 3 1/2-hour hearing conducted by telephone Friday, Israel’s lawyer, Ben Kuehne, told Walker that the legislative immunity did not apply in the Senate’s removal of Israel because the Senate essentially was behaving as a court and not as a legislative body deciding on political or policy-related matters.
Kuehne argued that the Florida Constitution requires that the removal of an elected official be based on “evidentiary consideration.” He maintains that the Senate changed its rules after a special master, appointed by Galvano, held a trial, concluded that DeSantis’ lawyers failed to present adequate evidence to justify Israel’s removal and recommended that the lawman be reinstated.
The Senate Rules Committee in October considered Special Master Dudley Goodlette’s report and heard emotional testimony from members of the public, including two parents of children who died in the Parkland school massacre. Days before the meeting, the committee accepted testimony that had not been submitted during the June trial. The committee supported removing Israel, a Democrat, from office. In a 25-15 vote on Oct. 23, the Republican-dominated full Senate stripped Israel from office.
Kuehne insisted throughout Friday’s hearing that, following the trial, Israel was denied a “meaningful” opportunity to be heard as required by the due-process clause of the 14th Amendment.
DeSantis and the governor “decided to throw the rules of fairness out the window and utilize either raw political power or the inability of Sheriff Israel to do anything to present facts and contest positions taken by the governor that were not established” during the special master process, Kuehne told Walker.
But Walker appeared unpersuaded by his arguments.
“For the life of me, I don’t understand where … the fact that there was a deviation from the Senate rules is determinative of if there is or is not a due-process claim,” the judge said. “At each step of the way, he had an opportunity to respond and be heard. Help me understand why that’s not the right way to look at the allegations in your complaint.”
But “it was not real notice,” Kuehne argued.
“It was not a real opportunity to contest, and it was not a real opportunity to be heard and submit our version in contrast to what the governor’s office did submit,” he added.
The removal process “is subject to review by this court if the process does not comport with federal constitutional standards,” Kuehne told Walker.
But Walker told Israel’s lawyer he did not “see a single allegation where you’re told you can’t talk,” a position DeSantis attorney Nicholas Primrose backed.
“There’s no allegation that Scott Israel was denied the same opportunity the governor’s office was to present information” to the Senate committee, Primrose said.
Kuehne said the state Constitution “imbues in the Florida constitutional officer a right to that office that cannot be taken away, cannot be deprived, absent an evidentiary foundation.”
Galvano lawyer Jeremiah Hawkes, however, said Kuehne’s focus on the need for an elected official’s removal to be based on evidence ignores the subjectivity involved in determinations about incompetence and neglect of duty.
Case law establishes that the governor has discretion when exercising his authority to remove someone from office, Hawkes argued.
“What one person thinks is incompetence may not be what the next person thinks is incompetence,” he said. “There is a policy element to this. Are the people of Florida being well-served by this official?”
The governor makes that determination, and legislators decide if they agree, Hawkes added.
Primrose, a deputy general counsel in the governor’s office, told the judge that “federal courts should be very reluctant to decide” about the way a state removes its officials.
“There are certainly aspects that Scott Israel is grumbling about and (he) doesn’t like the outcome,” but Israel failed to demonstrate that he was denied due process, Primrose argued.
Kuehne is asking Walker to order DeSantis to restore Israel as sheriff. The complaint strikes at the heart of citizens’ ability to choose their leaders, Kuehne argued in closing.
“The result of this case essentially will, without being overly dramatic, test whether the people in Florida have the right to elect their elected officials or instead officials, when elected, are subject to the arbitrary and capricious action of a governor and a Senate without any opportunity for fairness, for due process and to have those decisions based on a fair and meaningful presentation of evidence and an opportunity to discuss the impact of that evidence,” he said.
The Senate proceedings last fall sparked an emotional outcry from Parkland parents, who supported DeSantis’ decision to remove the former sheriff. Israel’s backers, meanwhile, showed up en masse to defend the long-serving law enforcement officer.
Speaking to reporters in October, Tony Montalto, whose daughter Gina was among the 14 students slain at the Parkland school, said the “systemic failures can only be blamed on incompetent leadership.”
He called it “unfathomable” that Israel is seeking to be reinstated to his old job.
“Our 17 families have learned that without safety and security, nothing else matters,” Montalto said, adding that Israel and his deputies “failed us when we needed them the most.”