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Palm Beach Post

Conservative hopes for new Florida Supreme Court fading in Senate

Florida Supreme Court

Members of the Florida Supreme Court listen to a speech by Florida Governor Ron DeSantis, Tuesday,
March 5, 2019 in the Florida House during a joint session of the Florida Legislature.
From left, Chief Justice
Charles T. Canady, Ricky Polston, Jorge Labarga, Alan Lawson, Barbara Lagoa, and Robert J. Luck.
(Scott Keeler/Tampa Bay Times/TNS)

 By John Kennedy
GateHouse Capital Bureau
Posted Apr 26, 2019 at 2:34 PM

Abortion legislation and other bills that would revisit earlier high-court rulings on workers compensation and medical malpractice lawsuit limits have hit a roadblock in the more moderate Senate.

TALLAHASSEE — Gov. Ron DeSantis’s appointment of three new, conservative justices to the Florida Supreme Court raised expectations that an array of red-meat policies would swiftly emerge from the Republican-controlled Legislature.

But as lawmakers enter the final scheduled week of the 2019 session, only a dramatic expansion of private school vouchers, using taxpayer dollars, appears poised to win approval and then face a likely legal test before the new-look court.

Controversial abortion legislation and other bills that would revisit earlier high-court rulings on workers compensation and medical malpractice lawsuit limits have hit a roadblock in the more moderate Senate.

“With a very different Florida Supreme Court in place, we hoped the Legislature would revisit important workers’ compensation and medical malpractice laws invalidated by the previous court,” said William Large, president of the Florida Justice Reform Institute, a business-backed advocacy organization.

“Unfortunately, the Legislature missed an opportunity by failing to do so,” he added.

John Stemberger, president of the Florida Family Policy Council, also said he was disappointed that the Senate is apparently unwilling to take up a House-backed measure that would demand that minors get notarized permission from their parents or a court before obtaining an abortion.

The measure, if approved, would undoubtedly be challenged as clashing with a 30-year-old Florida Supreme Court decision, which ruled the state constitution’s privacy provision bans such requirements.

But Stemberger and many other social conservatives are hoping that the restructured Supreme Court, now packed with conservative justices, could have a different view of consent laws.

“This court is going to see its rightful role in interpreting state law, and won’t just be following earlier, judge-made decisions,” Stemberger said.

Stemberger on Friday sent an email appeal to conservative activists urging they contact Senate President Bill Galvano, R-Bradenton, and DeSantis, demanding that the Senate take up the parental consent bill.

With a number of states enacting abortion restrictions this year, mostly prompted by a more conservative U.S. Supreme Court, Stemberger said Florida could “become the only conservative state in the country not to pass pro-life legislation.”

Also unlikely to win Senate support is the House’s push for restoring caps on “pain and suffering” damages awarded in medical malpractice cases, which the Supreme Court in 2017 found unconstitutional.

The Legislature also hasn’t advanced legislation sought by the Florida Chamber of Commerce, Associated Industries of Florida and the National Federation of Independent Business, which seeks to reinstate caps on attorneys’ fees in workers compensation cases, declared unconstitutional by justices in 2016.

Instead, the Republican-led Legislature’s support for a new voucher program, dubbed Family Empowerment Scholarships, looks bound to be the lone significant test of whether the recast court is willing to rethink past decisions.

The scholarships would send taxpayer dollars to private schools, a redirection which even most supporters acknowledge would defy a 2006 Florida Supreme Court decision.

Thousands of students from families earning as much as $77,250 annually could qualify — although lower-income families would have preferred status. But financing the program with general revenue has been seized on by supporters of traditional public schools, including the Florida Education Association, the state’s largest teachers union.

The FEA spearheaded the legal challenge which led to the 2006 decision overturning then-Gov. Jeb Bush’s first-in-the-nation statewide private school voucher program for steering tax dollars to private schools.

The court’s 5-2 ruling found Bush’s Opportunity Scholarship program violated the state constitution’s requirement that Florida have a “uniform” system of public schools for all students.

The decision has guided Republicans in the Legislature who, while steadily expanding school choice options, have avoided voucher proposals that would conflict with the court — until now.

The new voucher legislation is expected to win final approval before lawmakers are scheduled to adjourn May 3.

“If the bill is signed into law, the FEA will be exploring all possible options in response to the new voucher program,” FEA President Fedrick Ingram said of the new Family Empowerment Scholarships. “At this point, nothing is off the table.”

DeSantis’s three new court appointments, Justices Barbara Lagoa, Robert Luck and Carlos Muniz, were named within the governor’s first two weeks in office. They replaced retired Justices Barbara Pariente, Peggy Quince and Fred Lewis, the last justices appointed by a Democratic governor, the late Lawton Chiles.

With the liberal-leaning justices gone from the court, the seven-member panel is widely expected to exert its conservative viewpoints.

But to act, and potentially shape state law into the future, justices need the Legislature to enact measures that could draw legal challenges. In the view of anti-abortion groups and businesses seeking to blunt the risks of costly lawsuits, the Florida Senate isn’t cooperating.

The House has been the more free-swinging conservative chamber for the more than two decades Republicans have controlled the Legislature.

Republican senators bristle when their conservative credentials are questioned, although that chamber is where the powerful trial lawyers association has often fended off lawsuit restrictions and social conservative legislation frequently dies.

State Sen. Joe Gruters, R-Sarasota, who doubles as chair of the Florida GOP, pushed back when asked about the Senate’s resistance to embracing legislation pushing boundaries — and the Florida Supreme Court.

“I think it’s very conservative,” Gruters said of the Senate. “But you can’t pass every bill every year. I think all in good time.”

Some disappointed by what’s emerging from the Legislature have said election-year politics could be a factor.

Under Florida law, the three new justices will be up for merit retention for the first time on the 2020 presidential ballot, and Republican leaders may be wary of having them become a lightning rod on issues that could further rally the Democratic voting base.

House Speaker Jose Oliva, R-Miami, though, wouldn’t blame the Senate for missing what he called “an opportunity” for the Supreme Court to act.

“Certainly having passed those here in the House, we would’ve loved to see those bills pass and become law,” Oliva said.