Canady, Polston often dissent in Florida Supreme Court cases

 Jim Saunders - 7:42 p.m. Tuesday, Nov. 29, 2011 | Filed in: News

For Florida Supreme Court justices, the numbers are familiar: 5-2.

The court in recent months has split by that margin on a series of cases, with Chief Justice Charles Canady and Justice Ricky Polston siding together and offering conservative --- and sometimes-stinging --- dissents.

The cases have included controversial issues such as injury lawsuits against businesses, Gov. Rick Scott's attempt to exert more control over state rule-making and, in a few instances, death sentences.

 Justices Jorge Labarga, R. Fred Lewis, Barbara Pariente, James E.C. Perry and Peggy Quince made up the majority in the cases.

The most-recent examples came last week when the court ruled against nursing homes and the auto-insurer Geico in separate cases. Two of the decisions invalidated parts of arbitration agreements that nursing homes used to limit their legal liability if residents suffered injuries or died.

 Tampa attorney Jim Wilkes, who argued the cases on behalf of nursing-home residents, praised the ruling, which found that using arbitration agreements to limit damages violated the "public policy" of the state. The invalidated limits affected punitive and pain-and-suffering damages.

 "The Florida Supreme Court took a very reasoned approach,' Wilkes said after the decisions were issued.

But Polston wrote a dissent that said the Legislature, not the court, should decide public policy --- a common refrain among those who differ with the majority.

"There is an apparent divide on the Florida Supreme Court,' said William Large, president of the Florida Justice Reform Institute, a business-backed legal group.”The majority seems to perceive its role as the policy-making branch of government. They seem to be intent on articulating what the law should be, instead of what the law is. The minority on the court seems to be saying that the policy-making branch of government is the legislative branch, not the judicial branch.'

At times in recent months, opinions exposed sharp differences among the justices. As an example, the five-member majority last month ruled that Death Row inmate Robert Gordon could not represent himself in an appeal, a practice known as appearing "pro se."

"Based on our solemn duty to ensure that the death penalty is imposed in a fair, consistent and reliable manner --- as well as our administrative responsibility to work to minimize delays inherent in the postconviction process --- we hold that death-sentenced appellants may not appear pro se in postconviction appeals,' the majority wrote.

That drew a dissent by Canady, who went straight to the point.

"This is Mr. Gordon's case, and it is a case in which Mr. Gordon's life is at stake,' the dissent said in its first line.” I would not presume to impose postconviction appeal counsel on Mr. Gordon if he has made a knowing, informed and voluntary choice to repudiate that counsel.'

In one case this month, all seven justices agreed that Central Florida Circuit Judge N. James Turner should be removed from the bench because of a "pattern of misconduct" that included campaign-finance violations.

Canady and Polston, however, wrote an opinion that veered in another direction, saying they think a state ban on judicial candidates soliciting campaign contributions is unconstitutional.

Such disagreements occur in courts across the country, as is evidenced by controversial 5-4 splits on the U.S. Supreme Court. Also, a review of cases during the past six months shows members of the Florida Supreme Court often vote unanimously --- particularly in death-penalty cases.

But conservative politicians and activists, including Florida Republican leaders, have frequently attacked judges for what they describe as overstepping the judicial branch's role in government.

The Florida Supreme Court is made up almost exclusively of appointees of former Republican-turned-independent Gov. Charlie Crist and former Democratic Gov. Lawton Chiles. The only exception is Quince, who was a joint appointment of Chiles and former Republican Gov. Jeb Bush.

Crist appointed Canady, Polston, Labarga and Perry, while Chiles appointed Pariente and Lewis. Bush appointed two justices, Raoul Cantero and Kenneth Bell, but both left the Supreme Court in 2008.

Perhaps the highest-profile case involving a dissent by Canady and Polston came in a dispute about state agency rule-making. The majority found that Scott exceeded his authority by putting a hold on agency rules until his office could review them --- a position that Canady criticized as "ill-conceived interference with the constitutional authority and responsibility of Florida's governor.'

Other disputes arose in cases such as a challenge to a 2005 law that made it harder to sue for asbestos-related injuries. The court majority rejected a key part of the law that sought to require plaintiffs to show "physical impairment" before they could pursue asbestos-related lawsuits.

"Here, a foreign substance --- asbestos fibers --- were inhaled and became embedded in the lungs of the plaintiffs without their knowledge or consent,' Lewis wrote for the majority in the July 8 opinion.” To contend, as the dissent does here, that a certain level of impairment is absolutely necessary for a cause of action to accrue is incorrect and contrary to longstanding Florida common law.'

Canady, however, fired back in a dissenting opinion.

 "No case decided in Florida prior to the adoption of the (2005) act recognized a right of recovery for a plaintiff asserting an asbestos-related claim whose health had not been adversely affected,' Canady said.