A Court Under Siege

As the Florida Supreme Court inches to the left, conservative social and business interests attack



Mary Hladky
Miami Daily Business Review
February 22, 2000 


As the state's top arbiter of laws and lower court decisions that can dramatically impact people's lives, the Florida Supreme Court is perpetually on the hot seat.

But right now, the court is facing something quite different than the predictable post-decision criticism from the losing side.

The court is under attack, and its independence is threatened.

That threat is the result of decisions the court has made on the most contentious issue before it, the death penalty. But the pressure is almost certain to become more intense over the next two years as the court rules on other cases involving social issues that stir intense passions: affirmative action, school vouchers, abortion and tort reform.

Conservative lawmakers already have clearly signaled they will lash out against the court if they don't like its decisions on their pet issues.

One group that wants to speed the rate of executions launched the first salvo against the court in January, when the court passed death penalty legislation that established new procedures governing post-conviction appeals. In so doing, the Legislature usurped the court's authority to adopt such procedural rules.

The court's response earlier this month enraged those legislators and Gov. Jeb Bush. Citing the confusion among judges and lawyers created by the new rules and more than a dozen constitutional challenges to the new death penalty laws, the court readopted its old rules until the justices can sort everything out.

Bush sharply criticized the court's decision. Pro-death-penalty legislators -- already infuriated by what they perceive as death penalty foot-dragging by the court -- went further. They have proposed a constitutional amendment, supported by Legislative leaders, that would strip the Supreme Court of virtually all its rule-making authority by giving the Legislature carte blanche to repeal or modify any court rule.

"They negated the effect of the law, said state Rep. Victor Crist, R-Temple Terrace, a key proponent of the January death penalty legislation. "I am not happy about it. I filed [the proposed constitutional amendment] because it became necessary to do that because of what the court did and what the court might do in the future."

What's at stake in this showdown goes far beyond difficult issues regarding the death penalty, seasoned court-watchers say. The court's very independence, guaranteed by the state constitution, is at risk as a group of legislators effectively try to bring the court within their control.

"This is a critical moment for the Florida Supreme Court," said Stephen Hanlon, who heads a pro bono team of lawyers at Florida's largest law firm, Holland & Knight, and has represented inmates in a death penalty challenge.

"There is a much larger issue here than the death penalty, as important as that issue is. That is the issue of the separation of powers. What is immediately at stake here is whether we have an independent judiciary in the state of Florida."

This situation is complicated by the fact that the court now must decide if the new death penalty laws are constitutional. Even some supporters are dubious the laws will withstand the challenge, saying a strong argument can be made that the Legislature's foray into rule-making does in fact violate the separation of powers provision of the constitution.

This, though, is far from the only emotion-laden matter before the court that could result in additional legislative meddling. In fact, the next two years will be particularly intense for the court.

That's because other cases already before it or soon on the way involve social issues that stir strong emotions and political debate.

A TOUGH TWO YEARS The confluence of so many hot-button issues before the court in such a compressed time period stems from the fact that a conservative Republican-led Legislature is now joined by a conservative Republican governor. In the year he has been in office, Bush has supported or initiated the new measures that have drawn legal challenges.

That, then, leaves the Florida Supreme Court as the only potential countervailing force against the two other branches of government with similar political agendas, the governor and the Legislature.

They will fulfill that role by deciding the constitutionality not only of the death penalty measures but also of new tort reform, abortion and school voucher laws. On affirmative action, the court will soon decide whether a constitutional amendment proposed by California businessman Ward Connerly is clear enough to appear on the November ballot and constitutionally sound in limiting itself to one subject.

"The next two years will be very much a test" of the court, said one partisan in the epic battle between the state's trial lawyers and business interests over tort reform.

Whether the court passes or fails the test depends, of course, on who is making the call. Yet there's wide expectation that the court will toss out many, if not all, of the measures.

Here's why: The court ruled in 1989 that a law requiring parental consent to perform abortions was unconstitutional. So, a new law enacted last year requiring parental notification by doctors of a teen-age girl's plans to get an abortion would appear doomed if the court follows the standard practice of relying on its own precedent.

Bush pressed hard to get school vouchers, which allow children in failing public schools to attend private schools with the state picking up the tab. But vouchers have run into trouble with other courts around the country for violating the constitutional separation of church and state. In the most important decision so far, an Ohio federal judge in December threw out a taxpayer-funded voucher program.

Any number of appellate lawyers and lawyer-legislators see significant problems with last year's massive overhaul of the state's civil justice system that limits citizens' ability to file lawsuits, and doubt the so-called tort reform will pass muster with a court that is perceived to have a majority that strongly supports a citizen's right to access to the courts. Even though the court's role regarding Connerly's four proposed constitutional amendments -- which would end race- and gender-based preference policies in state contracting, hiring and university admissions -- is limited, it could prove just as pivotal as a ruling on their constitutionality. Many critics, including Attorney General Bob Butterworth, say that each amendment covers more than one subject and therefore should be stricken from the ballot.

With these measures in potential jeopardy, conservative legislators aren't the only ones drawing aim on the court. In particular, the state's business interests and law enforcement groups are both worried and critical.

"Plenty of people are saying, and are saying with real concern, that the court in recent years has been almost overtly hostile to the Legislature and to the interests of small business in Florida," said one leading tort reform advocate who, like many others asked about the court, requested anonymity.

"Law enforcement sees this as a very unfriendly Supreme Court," said a Tallahassee lawyer who is an advocate for public safety issues.

SHARED POLITICAL AGENDAS The result is a growing antipathy to the court by those who perceive it as the sole roadblock to their efforts to enact popular, or at lease desired, legislation.

These same people have been critical of the court for several years, but the intensity of their complaints is increasing now that the court is the only potential obstacle to the new laws.

Efforts to try to force the court to do conservative legislators' bidding have been tried before, such as a bill that would take capital cases away from the Supreme Court and hand them over to a criminal court of appeals composed of elected judges.

So far, such attempts have gone nowhere. But that could change, especially since the court has become such a pivotal player.

That worries appellate lawyers with no connection to social-issue cases before the court, who believe that maintaining an independent judiciary that operates outside the realm of politics should be the paramount priority.

"I don't think this is a court that belongs to the Democratic party, or that it necessarily disagrees with the fundamental policies of the governor and Legislature," said one Miami appellate lawyer. "But when you have got a Legislature with an agenda and a governor with the same agenda, it is important to have some balance. I think this is a court that will look carefully to see things are done right, which is as it should be. That is our system of checks and balances."

But the fact that emotions are running so strong places the court is a very difficult situation. Any ruling that counters the prevailing political agenda will be perceived as court playing politics itself.

"I have heard business interests saying they are very worried about whether this court appears to be willing to legislate on its own," said the tort reform partisan.

Yet there is no doubt that this court is a yin to the Legislature's and governor's yang.

DON'T TREAD ON RIGHTS During his eight years in office, the late Gov. Lawton Chiles appointed all but one of the seven justices. While Chiles made an effort to appoint justices with different perspectives and ideologies, the court nonetheless has become less conservative.

With two justices joining the court within the past year, court-watchers have looked closely for signs of more change. Yet Miami appellate lawyer R. Fred Lewis, selected by Chiles to replace liberal Gerald Kogan, and 2nd District Court of Appeal Judge Peggy Ann Quince, named jointly by Chiles and then governor-elect Bush, haven't made a clear impact yet, prominent appellate lawyers say.

As a result, the court remains relatively predictable: likely to knock out any law that infringes on citizens' access to the courts as well as get-tough-on-crime laws that they see as violating constitutional rights.

The current court is largely unified in civil law matters. Of 12 major civil case decisions in 1999, the court issued unanimous decisions in all but four cases. And in those four, only one justice dissented.

The justices show greater division in criminal law matters, most notably in cases involving the death penalty. This can produce disparate results. The court voted 4-3 this year to uphold the constitutionality of the electric chair as a method of execution, but also held 4-3 that the death penalty cannot be imposed on 16-year-olds.

The justices lined up as expected. On whether 16-year-olds can be executed, the majority included Justices Leander Shaw Jr., Barbara Pariente, Harry Lee Anstead and now retired Justice Kogan. Chief Justice Major Harding and Justices Charles Wells and Ben F. Overton, now also retired, were on the other side. On the electric chair, the majority included Harding, Wells, Lewis and Quince. Shaw, Anstead and Pariente dissented.

This, then, is not the court business interests and anti-crime crusaders would have picked.

In the civil arena, the court issued four notable decisions in 1999 that sided with plaintiffs over business interests. For example, the justices pruned back significantly the impact of their so-called economic-loss rule, which had been interpreted by lower courts as barring tort causes of action in certain kinds of commercial litigation. They also determined that people with a tort claim are not subject to binding arbitration, a decision disappointing business interests who increasingly insert arbitration clauses in contracts to avoid the cost of litigation.

The court also let stand a $31 million punitive damage award against the asbestos manufacturer Owens Corning in an asbestos-related death, saying the company had shown a "blatant disregard for human safety." Another example was a decision the justices decided not to make: By saying the court would not rule on a case involving a man who smokes marijuana to keep his glaucoma at bay, defendants will now be able to continue to argue in court proceedings that marijuana is a "medical necessity" to reduce symptoms of their disease or chemotherapy.

"I think this court's instincts are to be very wary of undermining the rights of ordinary people," said Joseph Little, a University of Florida constitutional law professor.

In the criminal law arena, cops and prosecutors had little to cheer. The court set a new standard for when cops must halt the interrogation of a suspect. Previously, if a defendant had waived his right against self-incrimination, interrogation could continue unless the suspect specifically asked for a lawyer. Now, the cops must shut down questioning even if the suspect is far less direct in asking for counsel.

Much to the chagrin of get-tough-on-crime legislators, the court struck down two anti-crime laws. In rejecting the Criminal Street Gang Prevention Act of 1996, a unanimous court held that criminals can't be punished more severely just because they belong to a gang. The law, Pariente wrote, punishes mere association based on membership in a criminal gang even when the membership had no connection with the crime.

Toughening sentences for career criminals was not the issue when the court struck as unconstitutional the Officer Evelyn Gort and All Fallen Officers Career Criminal Act of 1995, named after a Metro-Dade police officer killed in 1993 by a repeat offender who tried to rob her. The problem, the 5-1 decision said, was that the Legislature did not stick to a single subject in writing the law. The law not only dealt with sentencing measures, but also created a civil-law cause of action for damages for anyone injured by domestic violence.

Such rulings didn't bolster Crist's confidence in the court.

"I think there is a level of discomfort" between the governor and Legislature, and the court, he said. "From my perspective, I think the court has taken too many liberties and have overstepped their bounds. It is not their role to make the law." 




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