Florida Trend | Florida's Business Authority

Florida's Supreme Court in transition

Michelle Evette McCall gave birth to a healthy boy on Feb. 23, 2006. Four days later, McCall was dead after a series of mistakes, including a more than one hour delay of a critical blood test.

McCall's family sued for medical malpractice. A district court determined her family had suffered $2 million in "noneconomic damages" — penalties for pain and suffering. But the court awarded them only half of that amount because a 2003 law, part of an overhaul of medical malpractice laws, limited noneconomic damages in such cases to $1 million.

Last March, however, the Florida Supreme Court ruled the non-economic damages cap unconstitutional. In its ruling, the court rebuked the Legislature, suggesting that it had an invented an "alleged medical malpractice crisis" to justify the strict lawsuit limits.

The case was decided on a 5-2 vote, with Justices Charles T. Canady and Ricky Polston dissenting. A Florida Trend analysis of nearly 1,000 opinions issued since the current seven justices have been on the court since early 2009 shows that nearly one of every 10 cases is decided by that same 5-to-2 split.

More than 70% of the court's decisions, many of which involve death-penalty appeals or court rules, are unanimous. But when there is dissension, it most often pits Canady and Polston, widely regarded as the court's most conservative justices, against the other five.

Altogether, Canady has been on the prevailing side of a decision 83% of the time, while Polston has been so 86% of the time. By comparison, Justices Peggy A. Quince and Barbara J. Pariente have been on the winning side 95% of the time, while Justice R. Fred Lewis is at 96%. The court's two newest justices, Jorge Labarga and James E. C. Perry, have been on the prevailing side of more than 97% of decisions, reflecting their roles as the closest thing the current court has to swing votes.

Lewis and Pariente were both appointed by the late Lawton Chiles, a Democrat, while Quince was a joint appointee of Chiles and former Republican Gov. Jeb Bush. The remaining four were appointed by former Gov. Charlie Crist, who was elected as a Republican but left office as an independent; Canady and Polston were appointed in the first half of Crist's tenure; Labarga and Perry, in the latter half.

The divide hasn't gone unnoticed by court watchers. "Observers of the court have noted that there is a consistent 5-to-2 result on certain rulings," says William Large, president of the Florida Justice Reform Institute. The organization lobbies for reforms that limit lawsuits against businesses.

"There seems to be a healthy tension between the two factions as to what the proper role of the court is," Large says.

That tension is particularly visible in cases, like McCall's, that involve the power of the governor and the Legislature.

In recent years, for example, the court has rejected a law that would have allowed people who sign petitions for constitutional amendment campaigns to later take back their support. It has ignored attempts by the Legislature to retroactively intervene in lawsuits, including in one case against home builder Maronda Homes and in an array of cases involving asbestos litigation. It has ruled that lawmakers could Be forced to testify in a trial over how they drew the state's political boundaries. And it has blocked Gov. Rick Scott from unilaterally halting rule-making by executive agencies. All were 5-to-2 decisions.

In a single day in 2010, the court stopped three constitutional amendments proposed by the Legislature from appearing on the ballot — one attempting to undermine two citizen-led redistricting proposals, one protesting the federal Affordable Care Act and a third mandating deep property-tax cuts. Four years later, the court overruled objections from the Legislature and allowed a medical-marijuana amendment to stay on the ballot. All but the marijuana decision were decided by a 5-to-2 margin; in the marijuana case, Labarga joined Canady and Polston in dissenting.

The series of decisions has infuriated Florida Republicans, who have controlled the executive and legislative branches since 1998. Many view the Chiles appointees, in particular, as the final Democratic weeds to be rooted out of state government.

In 2012, the executive board of the Republican Party of Florida voted to oppose the merit retention votes of Lewis, Pariente and Quince, the first time either party had taken sides in such a vote. All three were retained. The year before, then-House Speaker Dean Cannon (R-Winter Park) proposed a plan that would have split the court into criminal and civil divisions and forced the Chiles appointees onto the criminal side, where they would presumably rarely have decided cases involving the Legislature or tort reform. The plan failed to pass, though some GOP lawmakers have privately begun discussing whether to resurrect the concept.

"I think they take great pride in being that last bastion of liberal control in Florida government," Rep. Matt Gaetz (R-Fort Walton Beach) says of the Chiles appointees. Gaetz says he considers them "an outcome-driven group of liberal ideologues."

Change is coming to the court. Mandatory retirement will force Perry from the bench in 2017, giving the newly re-elected Scott his first appointment to the state's high court. And Scott will most likely get to choose the replacements for Lewis, Pariente and Quince, since all three must retire as Scott's term ends.

The law is unsettled, but the most likely scenario appears to be that Scott will get to appoint their replacements. A Republican gubernatorial successor would be unlikely to challenge Scott's end-of-term appointments. A Democrat successor could try to negotiate joint appointments, as with Chiles and Bush, or would have to sue to block Scott.

Most expect Scott to seek out justices closer in philosophy to Canady and Polston. The governor has been aggressively remaking the state's Judicial Nominating Commissions, the nine-member panels that screen and recommend judges for appointments. Under a rewrite of the process championed by Bush, the governor gets to choose five of the nine members on each JNC himself and picks the remaining four from slates nominated by the Florida Bar. Neither Bush nor Crist ever rejected a list of nominations sent by the Bar; Scott has done so 19 times, forcing the organization to send new sets of nominees more to his liking.

Among those the governor has added so far to the Supreme Court JNC: A GrayRobinson attorney who represented George W. Bush during the 2000 presidential re-count, and the former general counsel in the Florida House of Representatives under former Republican House Speaker Will Weather ford.