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July 29, 2010 |
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| February 08, 2010 |
By: Jordana Mishory |
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n a year of transition, the Florida Supreme Court lambasted the governor for failing to follow the state Constitution on judicial appointments and tackled the court-clogging foreclosure crisis.
Behind the scenes, the justices got acclimated to a new majority following four departures from the seven-member court.
But compared with previous sessions, the state’s high court experienced a relatively low-key year — issuing fewer opinions in 2009 than any of the past five years. High-profile issues made infrequent appearances on the 2009 docket.
The court wrote 27 percent fewer opinions in 2009 than in each of the last two years, with 191 decisions released last year compared with 262 each in 2008 and 2007, according to preliminary figures.
The court pushed to decide pending cases before the four justices departed within seven months, court spokesman Craig Waters said. Time was of the essence because two justices almost immediately entered private practice and couldn’t help decide cases after retirement. Justices who leave the bench but aren’t practicing law can continue serving to help wrap up cases they heard.
Controversial cases handled by the departing majority “had to be resolved before they left,” he said. “That left us with a docket that was much smaller than you would normally expect” last year.
It was a banner year in 2008 as justices cleared a number of major cases off their docket.
While there was a slight lull in legal cases last year, the court was busy on the administrative front. Chief Justice Peggy Quince and her colleagues campaigned to protect courts from budget cuts and championed a bill redirecting fees from clerk coffers to the courts’. Following a vitriolic legislative session, Quince pushed to enhance communication between the judiciary and clerks.
The court also established a 15-member task force to address the foreclosure crisis. Quince, who did not provide comment for this article, issued an order in late December mandating mediation for all homestead foreclosure cases.
The court was lucky to avoid juggling a bloated docket and a large administrative to-do list, Waters said.
“To a large degree in recent years, the court has been blessed that it has not had to deal with a very detailed and time-consuming administrative agenda plus a time-consuming appellate agenda,” he said. “It’s almost like a gift from heaven that we have not been hit with a double whammy as has happened in the past.”
Waters cited 2000 and 2001 when the court dealt with the political hot potato presidential recount followed by security issues after the Sept. 11 terrorist attacks.
Turnover Effects
Appellate attorneys and former justices suggested a number of reasons for the quieter year in 2009: the turnover of justices, a less litigious governor’s office and cost-benefit tests for appeals in a down economy.
The foreclosure crisis could be affecting the number of cases tried and appealed because civil judges with overburdened dockets have less time for trials. Budget cuts mean fewer staffers to help process, prepare and research cases.
Former Florida Supreme Court Chief Justice Arthur England said it’s not entirely unheard of for courts to have slow years. The Greenberg Traurig appellate attorney said he saw both peaks and valleys during his tenure on the high court from 1975 to 1981.
“In the early years, 1975-1979, we had everything in the world: strict liability, cameras in court, interest on trust accounts and on and on and on. We were on the cutting edge of everything,” he said. “In the last two years I was there, it was like taking a holiday. We had cases that came in, and we said, ‘Ho hum. What is all this about?’... You may be wrong in even looking at a rationale; things go in cycles.”
Former Justice Gerald Kogan echoed the same sentiments: “Every so often, you run into a year where you’re not going to have the big-ticket items.”
The makeup of the 2009 court was vastly different than a year before.
Second District Court of Appeal Judge Charles Canady and 1st DCA Judge Ricky Polston joined the court in fall 2008. Palm Beach Circuit Judge Jorge Labarga started in January 2009, and Gov. Charlie Crist appointed Seminole Circuit Judge James E.C. Perry last March. They joined Quince, Barbara Pariente and R. Fred Lewis, who were appointed in the late 1990s.
Appellate attorneys suggest it takes time for justices to get accustomed to being on the court, and veterans have to adjust to their new colleagues’ rhythms and personalities.
Former Florida Supreme Court Justice Major B. Harding said it takes time to get adjusted to life on the high court, especially for judges arriving from circuit court.
“I used to laugh and say when I was a trial judge it didn’t take but one person to make a decision, and when you got on the Supreme Court you had to get at least three other people to decide to go along with you to make a decision,” said Harding, who served from 1991 to 2002. “I think it would be fair to say the new ones are very cautious and thoughtful in realizing the impact that their decisions make.”
On the Radar
Justices tackled a few high-profile issues last year. The court ruled Crist could not reject a slate of judicial finalists supplied by a judicial nominating commission.
It was the second consecutive year the court found Crist failed to follow the state Constitution. In 2008, the justices ruled he lacked the power to enter into a compact that would permit gambling at Indian casinos that is illegal elsewhere in the state.
The court also instituted a 15-member task force to figure out how to manage the foreclosure crisis jamming financially strained courts. Quince issued an administrative order in late December mandating mediation for all homestead foreclosure cases.
The justices also issued rules banning the widespread practice of shackling juveniles and shot down a proposal requiring chief judges to review audio recordings of court proceedings before their release.
When asked about important cases decided since last February, some appellate attorneys struggled to come up with much of a list. It was much easier for them to rattle off pending cases.
The court will hear oral arguments this week in a case testing retroactivity on a 2005 law setting a scale of impairment standards to be met before plaintiffs can pursue asbestos injury suits. Next month, an insurance company is scheduled to argue it can’t be sued for breaching implied warranty of good faith for taking too long to appraise hurricane damage.
A number of high-profile cases have been appealed but not yet accepted. Miami-Dade Public Defender Carlos Martinez wants the court to reverse a 3rd DCA decision rejecting his office’s attempt to withdraw from third-degree felonies based on high caseloads for attorneys in his office. The same court is reviewing a challenge to the constitutionality of a state ban on gay adoptions, and that case is expected to reach the high court as well.
Lower Court Reluctance
The Florida Supreme Court has broad discretion in deciding what cases to take. Although it’s required to hear death penalty cases and appellate decisions finding a state law unconstitutional, it can decline jurisdiction even when appellate courts certify conflicts or important questions.
Fort Lauderdale appellate attorney Bruce Rogow said the court carefully selects cases, partially to keep caseloads manageable and because the justices have confidence in a lower court ruling.
“The message is out there that the DCAs are courts of last resort except in those extraordinary cases,” said Rogow, special counsel with Alters Boldt Brown Rash Culmo.
Retired 5th DCA Judge Robert Pleus said he believes appellate courts are cutting down on certified questions and conflicts. They’re “reluctant to certify conflict unless it’s pretty clear cut,” he said. He sued Crist in the Supreme Court last year for failing to appoint a replacement, generating a decision that states Crist does not have the power to reject a slate of finalists supplied by a nominating commission.
Miami appellate attorney Joel Perwin said it’s difficult to attribute any patterns to the district courts of appeal, however.
“There’s five of them,” he said. “It’s extremely difficult to establish practices common to all five that would significantly affect the number of cases appropriate for review.”
Waters suggested the court is deciding fewer explosive cases because controversial areas of law are becoming more settled.
“The district courts of appeal believe there is adequate law and are reaching results based on existing Supreme Court precedent,” he said.
Politics Aside
The past few years haven’t seen the types of large political controversies and separation of powers issues that boiled up during the tenure of Gov. Jeb Bush.
In 2004, the court ruled a law spearheaded by Bush to reinsert feeding and hydration tubes into Terri Schiavo was unconstitutional. In 2006, the court also shot down Bush’s signature school voucher program.
Kogan said Bush seemed to push for confrontations, while Crist does not.
“Crist is a lawyer, and he understands the problems inherent in any court system and doesn’t look for fights,” Kogan said. “It may very well be that he feels the courts are having a rough time because they’re not adequately funded so there is no sense in giving them a hard time.”
Veteran appellate attorney Barry Richard of Greenberg Traurig in Tallahassee agrees.
Crist “shies away from that type of controversy because he thinks it’s not productive. He’s very unlikely to intentionally precipitate a separate battle or other battle that creates constitutional issues that have to be resolved,” he said. “By the same token, we have had a couple of [House] speakers and [Senate] presidents that are more low key, don’t fight with each other as much, with the governor as much and don’t pick fights with the courts.”
Rogow suggested the economy could be slowing inter-governmental fights.
“I don’t think it’s so much a matter of the personality of the governor or the Legislature, but I think it may have something to do with the kind of ennui that sets in in an economy that is faltering,” he said. “The energy is being spent on trying to cure serious problems, and confrontational litigation takes a back seat to that.”
All of this may just be a phase.
Former Justice Raoul Cantero III, who resigned in 2008 to join White & Case in Miami, said he thinks the volume of opinions is going to pick up again.
“It’s just a matter of those new cases are going through the oral argument phase and the briefing stage and opinion stage,” he said. “I think you’ll probably see more decisions coming out in 2010.”
Jordana Mishory can be reached at (954) 468-2616.
Supreme Court Monthly and Yearly Statistics
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