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The new Florida Supreme Court

On the evening of Feb. 1, conservative lawyers, judges and legal scholars from across Florida gathered for dinner inside a ballroom at Walt Disney World’s Yacht and Beach Club Resort. The banquet was part of the Federalist Society’s Florida chapter conference, and Gov. Ron DeSantis, who had taken office one month earlier, was the keynote speaker.

The crowd welcomed the new Republican governor like a conquering hero. The reason: DeSantis had just made three appointments to the seven-member Florida Supreme Court. DeSantis chose a trio of jurists — Barbara Lagoa, Robert Luck and Carlos Muniz — each of whom had been thoroughly screened by Federalist Society members. They replaced Justices Barbara Pariente, Fred Lewis and Peggy Quince, who had all reached mandatory retirement age and who had been the final remaining appointees of the late Democratic Gov. Lawton Chiles.

“Probably nothing we will do will end up having a longer impact than what we’ve already done in the first month, which is put three people on the Supreme Court,” DeSantis told the crowd in between repeated standing ovations. “And not just putting three justices on any seven-member court. You’re putting three justices on a court that, in my judgment, over the last generation had really gone astray. So this was a chance to transform our court from kind of a super-Legislature aligned with the Democratic Party into a legal institution, which it was meant to be.”

In just its first few months, the newly remade Florida Supreme Court has already delivered a string of decisions upending previous rulings in ways that have helped businesses and other defendants in civil lawsuits, affirmed the powers of the governor and shown much greater deference to the state’s GOP-controlled Legislature.

Glass v. Nationstar Mortgage

On Jan. 4, just days before the Florida Constitution forced the Chiles justices off the bench, the Florida Supreme Court issued a 4-3 ruling that sent tremors through the mortgage industry.

The case involved a Broward County homeowner who won an attempted foreclosure suit brought by Nationstar Mortgage, the Dallas- based lender that now operates under the name Mr. Cooper. The homeowner won by arguing that Nationstar was not a proper party to foreclose on a reverse mortgage that was originally issued in 2007 by Countrywide and later sold to Nationstar after Bank of America purchased Countrywide during the housing collapse. After getting the suit dismissed, the homeowner sought to have Nationstar pay her attorney fees.

The 4th District Court of Appeal sided with Nationstar, ruling that a borrower who wins a foreclosure case by arguing the lender is not a party to the loan cannot then use the loan contract to make the lender pay their attorney fees. But on its way out the door, the previous incarnation of the Florida Supreme Court overturned the decision and said those borrowers could make their lenders pay, at least in some circumstances. The ruling raised the litigation risks for banks and other real estate lenders pursuing foreclosures.

Days after the Chiles justices left the bench, Nationstar asked for a rehearing. The new court granted it — and ultimately undid the ruling. In a 6-1 decision issued in April, the new Supreme Court announced it shouldn’t have accepted the case in the first place, withdrew the January opinion and allowed the 4th DCA’s decision — which sided with Nationstar — to stand.

Miami Beach v. Florida Retail Federation

The case pitted the city of Miami Beach against one of the state’s biggest business lobbying groups. In 2016, the city, led at the time by a Democratic mayor, Philip Levine, planning a run for governor, enacted an ordinance to require businesses operating within its limits to pay a minimum wage of $13.31 — a more than $5 increase over the statewide minimum wage. Miami Beach’s living wage ordinance was in clear defiance of a 2003 law passed by the Legislature, in response to business lobbying, that explicitly prohibited cities and counties from setting their own minimum wages. The Florida Retail Federation, whose members include Publix, Walmart and Walgreens, sued to have the ordinance thrown out.

Lower courts sided with the Retail Federation, but Miami Beach appealed to the Florida Supreme Court. And by a 4-3 vote — with all three of the Chiles justices in the majority — the court agreed to hear the case. That set the stage for a high-stakes ruling about the Florida Legislature’s power to limit local government wage laws.

But in early February — two weeks after DeSantis made the last of his three appointments and one month before the court was to hear oral arguments — the court, by a 5-2 vote, decided not to hear the case. The move effectively upheld the lower appellate court’s ruling, tossing Miami Beach’s living wage and affirming the Legislature’s preemption power.

Orange County v. Singh

This case was another test of the Legislature’s power to pre-empt local governments. It involved a battle between elected officials in Orange County, which includes Orlando and has transformed in recent years from a Republican-leaning swing region to a Democratic stronghold. In 2014, the county commission — controlled at the time by Republicans — put a charter amendment on the ballot making changes to the county’s constitutional offices, which, after the 2012 elections, were all held by Democrats.

The proposal imposed term limits, which are usually popular with voters, and made the offices non-partisan. Removing the Democratic and Republican identifiers from the ballot would have helped GOP candidates in a Democratic-leaning county. Voters approved the amendment. But the constitutional officers sued — including Orange County Property Appraiser Rick Singh — arguing that Florida law prohibited counties from making the races non-partisan.

The previous court, led by the Chiles appointees, disagreed, ruling 4-3 that Orange County had the home-rule authority to make the offices non-partisan. But three months later, the new court ruled 6-1 that the Legislature had reserved that power to itself and said that the county’s constitutional offices must continue to run in partisan elections.

The Orange County demonstrated — like judges across the political spectrum often say — that judicial philosophy trumps political result. In this case, justices appointed by a Democratic governor ruled in a way that would have benefited Republicans while justices appointed by Republicans came down on the side that ultimately helped Democrats.

Amendments to the Florida Evidence Code

In 2013 — after years of lobbying by businesses and intense opposition from plaintiffs attorneys — the Florida Legislature adopted stricter standards for expert witnesses. The new rules, known by legal shorthand as the Daubert standard, replaced the longstanding and more lenient Frye standard. The Daubert standard was already in use in many other states and the federal courts, where it often has the effect of helping businesses and other defendants in civil lawsuits to get expert witness testimony excluded from their trials.

The previous iteration of the Florida Supreme Court, which was often regarded as sympathetic to negligence victims and plaintiffs attorneys, refused to implement the standard, however.

In a pair of rulings issued in 2017 and 2018, the court said that the Legislature had infringed upon the court’s rule-making authority by trying to impose the Daubert standard.

In May, the new court reversed those decisions and adopted the more restrictive Daubert standard. In its 5-2 ruling, the court said the constitutional concerns cited in the previous court’s opinions “appear unfounded.”

The opinion was also a clear window into how it thinks about civil litigation. “The Daubert amendments,” the court wrote in a joint opinion, “will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.”

 

Read more in Florida Trend's July issue.

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