2022 session is already spinning lawsuits; a conservative FL Supreme Court awaits

Meanwhile, the state has a new chief justice, Carlos Muñiz

By: - March 14, 2022 4:12 pm
Florida Supreme Court

Florida Supreme Court. Credit: Shutterstock.com

As the curtain dropped on a legislative session almost certain to spin off legal challenges to multiple new culture-war laws, not to mention the 15-week abortion ban, the Florida Supreme Court acquired a new chief justice.

He is Carlos Muñiz, who’d been placed on the state’s highest court by Gov. Ron DeSantis soon after taking office in 2019.

Muñiz’s colleagues elected him to a two-year term as the state’s highest-ranking jurist, the court has announced, replacing Charles Canady, who has completed his third term as chief and will remain on the court.

Gov. Ron DeSantis at Jan. 22 press conference in Tallahassee, with newly appointed Florida Supreme Court justice Carlos Muñiz. Credit: Julie Hauserman

The court released a written statement last week from the new chief justice, who will begin his role July 1: “I’m grateful for the privilege of serving in this capacity, and I join my colleagues in thanking Chief Justice Canady for his outstanding leadership. Our court’s focus will remain on serving the people of our great state and supporting all the judges and staff who work with us in the judicial branch to administer justice on a daily basis.”

As the legislative session’s work product, litigation — and the threat of it — has already started flying.

Common Cause and FairDistricts Now have asked a federal judge to draft a congressional redistricting plan for the state, and Democratic elections lawyer Marc Elias has asked a state judge to do the same, amid disagreement between DeSantis and the Legislature about the matter.

Meanwhile, Equality Florida, the LGBT civil-rights group, has promised to sue the state over the so-called “Don’t Say Gay” bill that the Legislature passed to restrict discussion of gender identity and sexual orientation in public schools.

“Let us be clear: should its vague language be interpreted in any way that causes harm to a single child, teacher, or family, we will lead legal action against the State of Florida to challenge this bigoted legislation,” the organization said in a press release last week.

Another bill ripe for a legal challenge is the new so-called “Stop Woke” legislation limiting conversations about racism and sexism in schools and at work.

So, too, with legislation denying state contracts for carriers who work with the federal government on transporting asylum-seekers into Florida and creating an election-fraud investigation unit, both bills sought by the governor. U.S. District Judge Mark Walker in Tallahassee could rule at any time in a lawsuit targeting voting restrictions the Legislature approved in 2021.

As for abortion, more on that below.

Conservative credentials

Muñiz’s elevation doesn’t foretell the fate of any legal challenges — the chief justice serves a largely administrative role. As the court’s announcement put it, “Florida’s chief justice serves as the administrative officer of the judicial branch and of the Supreme Court. Authority and powers of the chief justice include the responsibility to serve as the primary spokesperson for the judicial branch about policies of statewide import, including the management, operation, legislative agenda, and budget priorities of the state’s courts.”

“I do not expect to see any change between a Canady-led court and a Muniz-led court,” Bob Jarvis, a constitutional law professor at the Nova Southeastern University College of Law, told the Phoenix via email.

Still, the court has turned decidedly rightward since DeSantis appointed Muñiz and three other conservatives shortly after taking office, replacing three more liberal justices who’d reached the mandatory retirement age.

“Muñiz definitely is far right — he worked, after all, for both Pam Bondi and Betsy DeVos,” Jarvis wrote.

“On the other hand, so is the court, so there’s no real change going on here. Moreover, considering who is on the court, whoever was going to be picked as chief justice was going to be far right (there are, of course, no liberals, or even Democrats, on the court at this moment — Jorge Labarga is the closest we get to a centrist judge).

Justice Labarga was placed on the court in 2009 by former Gov. Charlie Crist, then a Republican but now a Democratic congressman.

Muñiz’ conservative credentials are strong — that’s perhaps DeSantis’ top criterion for selecting judges.

As Jarvis noted, he’d served as general counsel to the U.S. Department of Education under Secretary Betsy DeVos during the Trump administration — her contentious tenure infuriated critics — as chief of staff to former Florida Attorney General Pam Bondi, a Trumpist Republican, and as deputy general counsel under Gov. Jeb Bush.

The Trump White House included Muñiz’ name on a list of potential U.S. Supreme Court nominees in 2019, before the death the next year of Ruth Bader Ginsburg. The seat went to Amy Coney Barrett.

He’s affiliated with the Federalist Society for Law and Public Policy Studies, the conservative-to-libertarian organization that grooms young conservatives for legal careers, to which DeSantis turns when shopping for judges and members of the state’s judicial nominating commissions.

The result is a reliably conservative Supreme Court, and one perfectly happy to abandon stare decisis — respect for precedent, the principle that courts shouldn’t veer sharply from established law to score ideological points. According to the U.S. Supreme Court, the principle “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

Since 2019, the Florida high court, for example, has reversed its own requirement for unanimous jury verdicts to impose death sentences; lowered the legal standard for weighing circumstantial evidence; made it easier to execute someone with intellectual disabilities, and abandoned proportionality review in death cases. Additionally, the court reversed a year-old decision and imposed tighter standards for determining the admissibility of expert testimony.

Which perhaps bodes ill for any challenge to Florida’s new 15-week abortion ban, which DeSantis has promised to sign into law.

In 1989, the Supreme Court invalidated a parental consent requirement for minors seeking abortions under the privacy rights contained in the Florida Constitution, which says: “Every natural person has the right to be let alone and free from governmental intrusion into his private life.” The court reaffirmed that holding in 2003. Voters okayed the privacy rights language in 1980.

If the court bows to those precedents, it could protect abortion rights even if the U.S. Supreme Court upholds Mississippi’s 15-week ban, as expected during the summer. We’ll likely find out.

It’s worth bearing in mind, however, that the justices have parted ways with DeSantis before, batting back his attempt to place Judge Renatha Francis on the high court before she met the mandatory 10 years’ membership in the Florida Bar.

In what must have been a bitter irony for a governor who prizes judges who follow a law’s text, the justices called that requirement a “bright-line textual mandate.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

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