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How Florida's Remade — and Conservative — Supreme Court Will Affect State Law

Florida Supreme Court. Photo: royalty free

Prior to November’s midterm election, much was made of the new form the Florida Supreme Court would take once the ballots were counted. With the mandatory retirements of Justices Barbara Pariente, R. Fred Lewis and Peggy Quince looming, it would be up to the new Florida governor to fill their slots from a roster given to them by the Supreme Court Judicial Nominating Commission. As replacing half of a high court is wont to do, the governor’s choices stood poised to affect the direction of Florida for years, and likely decades, to come.

But a little less than two months into Gov. Ron DeSantis’ tenure and with all seats on the Florida Supreme Court now filled, it’s still unclear just how the new justices — Barbara Lagoa, Robert Luck and Carlos Muñiz — will wield their power in the state’s judicial branch alongside Chief Justice Charles Canady and justices Ricky Polston, Jorge Labarga and Alan Lawson.

Although not all were prepared to comment on the record, the Daily Business Review spoke with several legal figures on what the Florida Supreme Court’s new composition forecasts for the state’s future. And although each of them agreed significant changes were in store, none were prepared to say for sure how the court will swing.

Even in its early days, the court has already signaled a change in the matters it will review. A glimpse at the Florida Supreme Court’s docket shows that several cases the court had agreed to hear have since been dismissed. Notably, this included City of Miami Beach vs. Florida Retail Federation, handing a victory to businesses who’d bristled at Miami Beach’s 2016 ordinance to raise the minimum wage.



Read the dismissal:  





The only two dissents in the dismissal came courtesy of two of the new justices, Luck and Lagoa. As a longtime South Florida litigator, appellate attorney Bruce Rogow — who recently made news by joining Roger Stone’s legal team — is familiar with Luck and Lagoa. He said it would be a mistake to presume the new justices would blindly adhere to a new conservative jurisprudence, especially in light of their respective backgrounds.

“In a state like Florida the personal histories of judges are … of much greater variety than they might be in other states, and I think that’s what makes it an interesting court,” Rogow said. He asserted even in a court made up entirely of ostensibly conservative justices, the diversity of Florida inevitably produces differences in judicial philosophy.

“Two new justices, Barbara Lagoa and Robert Luck, come from South Florida and I think that that has an effect on one’s perception of the world,” Rogow said. “We’re a more liberal community and they have lived and practiced in this community. Fort Walton Beach and Miami Beach are not the same places, and I think that people are an outgrowth of their experience.”

Even if the justices all hail from different places, activist Damien Flier points out they all run within the same circles. Flier, the communications director for Progress Florida, noted justices Lagoa, Luck and Muñiz are all members of the Federalist Society, a self-described “conservative and libertarian intellectual network that extends to all levels of the legal community.”

“I would like to give this new court the benefit of the doubt and hope that it will function the way it has in recent years when it was a more balanced court,” Flier said. “During the Rick Scott administration there were a number of times with bills that came up where the court played the role and served the function as it was intended, as a check and balance on other branches.”

Flier and several attorneys said the court’s treatment of controversial bills proposed by the state legislature will be one of the strongest litmus tests for determining how the court will conduct itself moving forward.

“The political makeup of this legislature and new governor are such that it’s likely one or more of these attempts to restrict abortion in Florida will pass, and if it does happen I think it’ll be challenged in court,” Flier said. “This may be the policy area where we will most likely be able to compare and contrast the makeup of this new Florida Supreme Court with what it’s been in recent years.” Along with abortion access, Flier mentioned legislation on school vouchers and union busting — both issues championed by the conservative movement — may very well end up before the court following legal challenges.

Conflicts concerning corporate liberty versus individual protections were widely cited as an area likely to change under the current court. Pariente, Lewis and Quince often made up the majority in rulings favoring plaintiffs or individual litigants in medical malpractice and insurance claim cases.

With all three gone, future rulings could begin benefiting corporate defendants.

“The more conservative philosophy is probably not plaintiff-friendly in those kinds of cases, and if I were a personal injury or medical malpractice lawyer, I might be concerned the change in the court would have some impact on the legal issues that arise,” Rogow said.

But even with the concerns raised and issues at stake, no one was prepared to definitively state how they foresee the new Florida Supreme Court behaving. Former appellate judge Philip Padovano observed even the most philosophically rigid of justices are keenly aware of the power of precedent both legally and in the public eye.

“Most of these folks are in their 40s or 50s, and they have a lifetime of ideas. They’re not blank slates,” Padovano said. “But still I think they try to make decisions that are faithful to the constitution they are interpreting. … Obviously things are going to be different. There’s no question about that. For all intents and purposes it’s a different court. But I don’t think the changes are going to be as radical as some people think.”

Related stories:

GC Carlos Muñiz Rises to Florida Supreme Court, as Some Cite Lack of Judicial Experience

DeSantis’ New Justices Could Refuel Workers’ Compensation Fight

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