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A new battle dawns at the Florida Supreme Court

The Florida Supreme Court faces skirmishes with the Legislature over political redistricting, public defenders' duties and their own powers, but the most contentious issue is bound to be the budget.

by Daily Business Review | February 07, 2011

Case Digest Summary

The Florida Supreme Court faces skirmishes with the Legislature over political redistricting, public defenders' duties and their own powers, but the most contentious issue is bound to be the budget.

When Florida Supreme Court Chief Justice Charles T. Canady was called to task by a frosty state Senate budget committee to explain lavishly furnished interiors at the new 1st District Court of Appeal building, he came with the political credentials to weather the cold.

Yes, the building has 27 _at-screen TVs, granite counters and ostentatious vistas of mahogany. Granted, that looks bad on television newscasts when the state faces a minimum $3 billion budget shortfall.

But the former Republican congressman and state lawmaker who became chief justice last March wielded a reputation as a staunch conservative. Senators of the Republican majority expected to hear from a likeminded individual, and Canady did not disappoint.

He said he was implementing the recommendations of the Supreme Court inspector general on accountability in courthouse construction — courthouses should be durable, not grandiose, and functional, not luxurious.

Canady will be needing all the political capital he can raise.

A week later, he was back. This time before the Senate Judiciary Committee, Canady said Florida courts cannot bear further cuts.

Tight budgets are one of many challenges facing Canady, the Supreme Court and the state judiciary it oversees. Aside from the need to interpret issues of interest to citizens and commerce, Canady and Co. face skirmishes with the Legislature over hot-button topics including political redistricting, the duties of public defenders and even their own power to govern the judicial branch.

But for a Supreme Court overseeing a distressed court system drowning in foreclosure cases, much of what concerns the justices comes back to a lack of money.

Canady told senators that Florida ranks 45th of the 50 states in judges per capita.

“I raise these comparisons … to emphasize that Florida has a lean, efficient judicial system,” he said.

There are plenty of signs, however, that the Republican majority harbors more ill will than generosity. Three constitutional amendments proposed by the Legislature and stripped from the Nov. 2 ballot by the court enraged Republican leaders and revived the cries of “activist judges” heard after the court struck down former Gov. Jeb Bush’s school voucher program.

As soon as Canady administered the oath to newly elected House Speaker Dean Cannon on Nov. 16, the speaker complained how the work of elected representatives was “demolished by five unelected justices on the Supreme Court.” Cannon has since called for major court reform.

Senate President Mike Haridopolos has suggested justices be confirmed by the Senate; constitutional amendments should be exempt from judicial review; and justices should deliberate in open sessions.

Good for Business

From 2007-2010, the state court system’s budget was cut 10.6 percent. Politicians focusing on the lagging economy should keep in mind that the Florida Chamber Foundation said a key component for a healthy business climate is an efficient and hospitable forum for resolving business and regulatory disputes, Canady said.

His claim of efficiency may sound a little rosy. In the same speech, he as much as admitted electronic filing is barely underway and will take years to fully implement. In the meantime, 290 positions were lost and case processing times slowed.

The state’s high court may benefit from a perception that it’s more conservative than its predecessors.

Barry Richard, a veteran Greenberg Traurig appellate attorney in Tallahassee, describes today’s court as a more conservative body that “might appeal to the legislature. I think this is a very nonpolitical court.”

There may always be a knee-jerk tendency to accuse judges of political activism when they reject the work of legislators, Richard added, but he is hopeful critics will moderate their positions after reading the court’s opinions.

Legislators are watching to see how the court rules on a long column of issues sensitive to corporate boardrooms.

For example, Sylvia Walbolt, an appellate attorney with Carlton Fields in Miami, said the court is expected to act this year on a long-awaited revision of standard jury instructions for product liability cases. The Supreme Court created a committee that has worked on this since 2009, and oral arguments were heard last May.

Corporate and consumer positions were received and hotly debated, Walbolt said.

Fort Lauderdale appellate attorney Bruce Rogow believes the court is even-handed enough to retain the confidence of consumer advocates and the business community.

“I think the court is sensitive to both individual rights and business interests,” Rogow said. “If you have a leftright axis thinking, I would say if anything the court would be in the middle or just a smidge to the left, assuming ‘left’ is concern for individual rights.”

But Miami appellate attorney Joel Perwin offers a harsher view of legislative-judicial relations. Citing past examples of tort reform where the high court defended individual rights under one law, Perwin said lawmakers would change the law to undercut a whole class of consumers. For instance, caps now exist on many types of medical malpractice.

“They made the recovery so low that lawyers either don’t take the case or plaintiff’s resort to lawyers that aren’t the best,” Perwin said.

The Supreme Court has yet to review caps under that statute, Perwin said, but the court upheld a law that forces plaintiff’s into arbitration.

“A doctor defendant simply says ‘arbitration’ and non-economic money damages are slashed to between $200,000 to $300,000,” Perwin said. “The plaintiff could be a quadriplegic who is 20 with a life expectancy of 60 years, and there’s nothing they can do about it.”

Looking ahead, Perwin said plaintiff lawyers know they are viewed in Republican-controlled Tallahassee as “predatory lawyers,” and the Legislature is “going to be going after the rights of consumers with everything they’ve got.”

Tort Reform

New Year’s hangovers were barely regrets when a Senate committee passed a bill that would reverse a 2001 Supreme Court ruling on what trial evidence gets to jurors in auto defect cases.

The high court set Florida apart from most states by removing from consideration other possible causes of crashes, such as drunken driving. The only subject for consideration in crashworthiness cases would be the suspect product. Ford Motor attorney Doug Lampe told the Senate that barring juries from assigning a percentage of fault based on a review of all accident causes led to a steep rise in litigation costs.

Before the 2001 opinion, Ford had about 10 cases a year in Florida at an annual cost of $2.5 million. Since then, lawsuit filings steadily rose and are now at more than 40 at an annual cost of $30 million.

Critics of the bill claim it waters down potential damages for catastrophic injuries and gives manufacturers less incentive to make products safer.

Asked if the Legislature might go too far in protecting corporate interests, William Large, president of Florida Justice Reform Institute, said no. The institute was created by the Florida Chamber of Commerce and functions as a pro-business lobby.

“We’re trying to make sure that justice is blind. But justice isn’t deaf. We’re advocating for fairness here,” Large said. “This bill is protecting the sanctity of the jury process.”

As each tort reform bill becomes law, Perwin said trial lawyers will try to challenge them on constitutional grounds, but that doesn’t mean the Supreme Court can overturn them.

“The Legislature has a lot of latitude to interfere with consumer rights,” he said.

The Legislature is also exercising latitude in constraining the Supreme Court’s power to govern the judicial branch.

State Senate President Haridopolos expressed approval for the House Civil Justice Subcommittee’s efforts to curtail the high court’s ability to make rules on court practices and procedure. For example, the subcommittee is arguing lawmakers, not justices, should decide how speedy the speedy trial doctrine should be.

Public Defenders

This issue hints at another looming battle. The state’s overworked public defenders are gearing up for a hearing before the high court to ask for the right to turn away cases. Appealing a 3rd District Court of Appeal denial — pointing public defenders to seek a legislative solution — the Miami-Dade public defender’s office is dissecting the 5th Amendment and asking how a defendant can be guaranteed “due process of law” if he doesn’t have effective counsel.

If state law won’t let public defenders withdraw from cases due to large caseloads, they argue the law violates the separation of powers doctrine since the Supreme Court should regulate The Bar.

Judging by the Legislature’s willingness to take sides on the separation of powers doctrine, it’s likely the Republican super majority would take a dim view of a Supreme Court decision that would pressure them to beef up public defender budgets.

Haridopolos already views the high court as far more liberal than the one Richard described. Haridopolos criticized the Supreme Court for removing legislative amendments from the November ballot on the federal health care overhaul, redistricting and a property tax break.

Haridopolos and House Speaker Dean Cannon are hoping to somehow come up with a way to give the attorney general, an elected member of the executive branch, the right to review proposed amendments if the Supreme Court rejects them.

“Judicial review of amendments … continues to feed unwarranted controversy about the court’s role,” said Ronald Meyer, the Tallahassee attorney who argued against the Legislature’s redistricting amendment.

The rejected amendments lacked the “clear and unambiguous language” needed to meet judicial precedent going back to the early 1900s, he said.

Citing persistent anger over the stripped amendments, former Justice Gerald Kogan anticipates a rough year for the Supreme Court.

“I expect the environment between the Supreme Court and the Legislature will be very, very strained. Redistricting in particular is a very important topic for members of the Legislature. It’s going to be done by an independent commission. Heretofore, it was done by the Legislature,” Kogan said.

If the Supreme Court weighs in, it will be after the commission’s work is done. A legal challenge may not get to the court until 2012.

Bull’s Eye on Justices

Trial attorney Neal A. Roth of Grossman Roth in Miami has other worries about the court. Last fall’s election season included campaigns to remove judges because of their vote on one issue.

The purpose of appellate judge retention elections has been to deal with unfit judges, he said. But last year, Justices Jorge Labarga and James Perry were targeted for voting with the majority to remove the health care ballot item.

“It was a somewhat organized but unfunded Internet campaign,” Roth said. “It never became a true campaign.”

Roth’s concern is that Republican Party dominance in the executive and legislative branches might motivate party leaders to mount a serious campaign to remove justices up for retention if the high court keeps making rulings the majority party dislikes.

“Separation of powers exists in order to preserve co-equal powers of government,” Roth said. “If we get into a position where socially controversial decisions lead to replacing someone we don’t like with someone who shares our views, then what happens to checks and balances? They don’t exist.”

Not everything that happens between the branches has to be contentious, at least in Michael Minerva’s experience. As CEO of the Innocence Project of Florida, he supported creation of the Supreme Court’s Innocence Commission, which was created by Canady last year with help from Haridopolos.

“Sen. Haridopolos was instrumental in bringing that about,” Minerva said. “He really was the person in the Legislature who spearheaded the funding.”

The commission’s mandate is to examine the causes of wrongful convictions and develop policies and procedures to avoid them. He describes the commission as entirely nonpartisan — evenly represented across political parties and criminal justice jurisdictions.

“It’s entirely dedicated to fairness,” Minerva said. “And even though that may sound polyannish, I think this is one of those issues that overrides politics. No one wants a person to be convicted if they’re not guilty.”

Canady and Co. face skirmishes with the Legislature over political redistricting, public defenders’ duties and their own powers, but the most contentious issue is bound to be the budget.

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