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May 27, 2018

Florida's Judiciary

A shift at Florida's 1st District Court of Appeal

Among Florida's appellate courts, the 1st is the only one whose judges have all been appointed by Republican governors.

Jason Garcia | 6/28/2016

Gov. Rick Scott’s selection of Allen Winsor for a judgeship on the 1st District Court of Appeal earlier this year was, on the surface, fairly unremarkable.

A 39-year-old white male and former GrayRobinson partner, Winsor had been serving as the state’s solicitor general under Republican Attorney General Pam Bondi. He was a member of the Federalist Society, the conservative legal group, and his references included Bondi and Pete Antonacci, Scott’s former general counsel. In his application he said Florida judges should “understand their role is to apply the law regardless of personal opinion or philosophy.”

Winsor’s appointment was significant, however. He replaced Judge Robert T. Benton III, who had retired after more than two decades on the court. Benton was the last remaining 1st DCA judge appointed by the late Gov. Lawton Chiles, a Democrat.

With Winsor’s appointment, the 1st DCA became the first appellate district in the state comprised entirely of judges appointed by Republican governors.

Based in Tallahassee, the 1st DCA hears appeals arising from Pensacola to Jacksonville and Gainesville. It is one of five regional appellate courts in the state. But among those courts, it’s the most important because its jurisdiction includes the state capital — it frequently hears appeals in which state agencies are the defendant and also hears all workers’ compensation appeals. As a result, the 1st DCA’s rulings frequently affect the entire state.

It has now become the Florida court that most reflects Scott, whose campaign promises included making the judicial system more responsive to businesses. Now in his sixth year as governor, Scott has already appointed nine of the 15 judges on the 1st DCA; he has yet to appoint a majority of the judges in any other appellate district.

Many attorneys and former judges familiar with the 1st DCA say the impact has been significant. Jason Gonzalez, an appellate attorney who is managing partner of Shutts & Bowen’s Tallahassee office, says most of the judges now serving on the 1st DCA philosophically resemble Antonin Scalia, the late U.S. Supreme Court justice who was a hero to many conservatives.

“At this time, the 1st District Court of Appeal is the only appellate court in Florida with a significant majority we would describe as “textualist” or “originalist” in the mold of Justice Scalia,” says Gonzalez, who is also the Florida director for the Federalist Society. “The other DCAs are moving in a similar direction, but the 1st DCA stands out largely due to the high number of appointments Gov. Scott has made.”

Scott says he has tried to populate the state judiciary with judges who “make sure they remember they’re the judiciary” and demonstrate deference to laws created by the state’s elected representatives. The governor says he has generally heard positive feedback about his judicial appointments from businesses and others who interact with the courts.

“I think what people are saying is they feel comfortable that whatever judge they go to, they’re going to get the same interpretation and enforcement,” Scott says. “Which is really what people want — they want whatever the Legislature passes and the governor signs, those laws to be enforced.”

The 1st DCA, in particular, has issued a number of decisions favorable to businesses. Last year, for instance, the court sided with Allstate in a dispute over whether the insurance company had clearly warned its car insurance customers that it could choose to pay health care providers based on fee schedules set by Medicaid, which are usually lower than the prices providers charge privately insured patients. By contrast, the 4th DCA, based in West Palm Beach, ruled against Allstate in a similar dispute; the issue is now pending before the Florida Supreme Court.

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Earlier this year, the 1st DCA ruled that Jacksonville’s Baptist Medical Center-South did not have to turn over records related to medical errors to a plaintiff suing the hospital for malpractice. The court decided that a federal law declaring the records confidential trumped an amendment to Florida’s constitution dealing with patient records.

In its decision, the three-judge panel that decided the case — which included appointees of Scott, former Gov. Jeb Bush and former Gov. Charlie Crist — made clear its distaste for medical malpractice lawsuits. “While medical malpractice litigation is one tool to address medical errors, other tools have emerged that seek to proactively prevent, rather than punish, medical errors,” Judge Clayton Roberts wrote.

In one of the most significant recent rulings, the 1st DCA sided with tech company Motorola and Attorney General Pam Bondi in a case that pitted the two against a whistleblower who accused Motorola of defrauding the state. The court ruled that Bondi could dismiss the whistleblower’s claim against Motorola, even though her office had initially declined to get involved in the case and ignored it for three years while the whistleblower pursued it on his own.

In some cases, Scott’s appointees have had an immediate impact. In early 2015, the court ruled that a small horse racing track in rural Gadsden County was eligible for a license to install slot machines. It was a 2-1 decision, with a pair of Chiles appointees in the majority and a Scott appointee dissenting.

Before the case was finalized, one of the Chiles appointees retired. The court subsequently revoked the opinion and issued a new one ruling that the track was not eligible for slots. Two Scott appointees then outvoted the Chiles appointee.

“What Gov. Scott has done is put in place a very talented group of lawyers and now judges that seem to have a real sense of what judges do best and what they don’t do best — and that is to apply the facts of a case to the law as written and let that determine the result,” says George Meros, a shareholder in GrayRobinson’s Tallahassee office whose many clients before the 1st DCA most recently included Southern Baptist Hospital of Florida.

“They have a sense that judges aren’t supposed to create the law,” Meros adds. “I think that’s certainly made the 1st DCA a leader in the state.”

Not everyone thinks the new court is an improvement. Some attorneys say the 1st DCA is now hostile territory for accident victims, workers, unions and criminal defendants, although few people are willing to publicly criticize the court for fear of antagonizing the judges.

“I think we always thought that the 1st DCA was the best of the five. I wouldn’t say that now,” says Bill Sheppard, a Jacksonville attorney who works on criminal and civil rights appeals.

“It’s a very conservative place now,” adds David King, an Orlando attorney who represented the coalition of plaintiffs who successfully fought to invalidate congressional and state Senate district boundaries drawn by the Legislature. Those plaintiffs initially suffered a key defeat before the 1st DCA, which ruled in 2013 that lawmakers and legislative staffers who helped draw the districts could not be forced to testify in the lawsuits.

But that decision was overturned by the Florida Supreme Court — the one appellate court to which Scott has not yet been able to make an appointment and which has overturned a number of recent 1st DCA rulings.

One of the most recent examples came in March, after the 1st DCA quashed a trial court injunction that blocked the Scott administration from enforcing a new law requiring women to wait 24 hours before they can get an abortion. The Supreme Court quickly reinstated the injunction, which will remain in place while plaintiffs challenge the law’s constitutionality.

Tags: Politics & Law

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