Voters this year will decide whether Florida Supreme Court justices stay or go

Five face merit-retention elections, and activists want some gone

By: - October 31, 2022 7:00 am
Florida Supreme Court

Florida Supreme Court

Ordinary voters have no say in who gets to sit on the Florida Supreme Court, but voters can decide whether sitting justices get to stay there.

And in this year’s general election on Nov. 8, they’re being asked whether to retain five justices of the state’s highest court: Charles Canady, John Couriel, Jamie Grosshans, Jorge Labarga, and Ricky Polston.

Except for Labarga, the other four justices are members of the activist conservative supermajority now serving on the court — a faction that soon could invalidate protection for abortion rights under the Florida Constitution; that let the governor’s minority-unfriendly congressional redistricting plan prevail during these elections; and that has made it easier to apply the death penalty.

The election, therefore, gives voters an avenue to repudiate Gov. Ron DeSantis’ conservative policies; he appointed Couriel and Grosshans while Charlie Crist when he was governor appointed Canady and Polston.

The odds are stacked against that, truth be told; no sitting justice had been denied retention since Florida’s merit-retention voting began during the 1970s — Justices Leander Shaw and Rosemary Barkett survived conservative-backed campaigns in 1990 and 1992, Shaw with 59.6 percent of the vote and Barkett with 60.9 percent.

“Given the history of our retention elections, I would expect all five justices to be retained,” constitutional law professor Bob Jarvis of the Nova Southeastern University Shepard Broad College of Law told the Phoenix by email.

Furthermore, nothing would prevent DeSantis from reappointing any of the defeated justices or different judges with an identical philosophical bent. They’d just have to go through the usual process for these appointments: selection by the Supreme Court Judicial Nominating Commission and appointment by the governor.

“Thus, the defeated justice or judge would have to be one of the three to six persons nominated by the Supreme Court’s JNC and the governor would have to pick him or her, but if these things all happened, yes, that would be a way to thwart the will of the voters,” Jarvis said.

A coalition of voting rights groups called We Draw the Lines is giving it a go all the same, targeting ads at Black and Hispanic votes in Northeast, Central, and South Florida, plus the Tampa Bay region.

Equal Ground Education Fund

Those groups, including the Equal Ground Education Fund, Florida Rising, Black Voters Matter, and the League of Women Voters of Florida, are unhappy about the new congressional districts map DeSantis pushed through the Legislature in violation, they contend, of Florida’s Fair Districts Amendment.

They assert the governor’s plan diminishes Black voters’ ability to elect representatives of their choice. What’s more, it overtly favors Republicans, contrary to the amendment’s proscription against favoring any political party, giving them the advantage in 20 of Florida’s 28 districts.

“It’s our hope with this digital ad campaign that we can bring awareness to the role that the Supreme Court plays in this, and to educate voters about their process in the redistricting fight,” Equal Ground political director Genesis Robinson told the Phoenix in announcing the campaign on Oct. 20.

Democratic Party groups including the Hillsborough County Democratic Executive Committee have asked supporters to vote against retention for all of the justices up this year except Labarga.

The South Florida Sun-Sentinel and Orlando Sentinel offered the same recommendation in a joint editorial piece — no to every justice but yes on Labarga, described as “the court’s lone moderate, whose principled but lonely dissents in high-profile cases have exposed the majority’s radical activism.”

The newspapers called Canady, Couriel, Grosshans, and Polston “the nucleus of the harsh new majority.”

“Florida’s highest court has become breathtakingly activist, repealing precedents wholesale to make criminal laws harsher, the death penalty more likely, and civil courts more hostile to people with damage claims against Big Tobacco and other corporate defendants,” the Sun-Sentinel wrote.

That has been happening because DeSantis’ narrow victory over Democrat Andrew Gillum four years ago included a bonus prize: the impending retirement of three liberal justices gave him the chance to install his supermajority on the court of Federalist Society for Law and Public Policy Studies members who, like the governor himself, are doctrinaire conservatives.

Merit retention

Florida adopted its merit retention system during the 1970s, following a series of corruption scandals on the court. Governors are allowed to select justices from names submitted by a judicial nominating commission, but they eventually have to face the voters who decide, yes or no, whether to retain them.

The idea was to remove politics from the process, but Republican governors beginning with Jeb Bush have persuaded the Legislature to allow them to dominate justice selection. (Additional analysis available here.)

  • Canady, a Yale Law grad, has served both in the Florida House and U.S. House before becoming general counsel to former Gov. Jeb Bush. Bush later placed Canady on the Second District Court of Appeal and Crist named him to the Supreme Court in 2008. He has served three times as chief justice.
  • Couriel is a Harvard Law graduate and former assistant U.S. attorney in Miami who ran an unsuccessful campaign for the state House in 2016. Before DeSantis placed him on the court, Couriel was is a litigator at Kobre & Kim’s Miami and Buenos Aires offices, where he handled international disputes.
  • Grosshans was serving on the Fifth District Court of Appeal when DeSantis placed her on the Supreme Court in 2020. That was after the justice refused to seat Renatha Francis. Grosshans holds a degree from the University of Mississippi School of Law and spent most of her career practicing family law in Orlando.
  • Polston trained at first as a CPA before graduating from FSU Law. He served on the First District Court of Appeal before Crist placed him on the U.S. Supreme Court in 2008.
  • Labarga holds a law degree from the University of Florida and practiced as an assistant public defender and assistant state attorney before handling criminal defense and personal-injury cases in private practice. Former Gov. Lawton Chiles named him to the trial bench in Palm Beach County and later to the Fourth District Court of Appeal before Crist placed him on the Supreme Court.

On the matter of those congressional districts, the Supreme Court displayed a rare exercise in independence from the governor on his request for an advisory opinion about his map’s legality. But the court later voted, 4-1, vote to approve the DeSantis map “and as a result we no longer have two Black access seats in the congressional makeup of our state,” Robinson, of Equal Ground, observed.

Justice Labarga dissented; justices Canady and Alan Lawson abstained.

The court also bucked the governor in 2020 by refusing to seat Francis, a trial judge in Palm Beach County, because she hadn’t been a member of the Florida Bar for the constitutionally required 10 years. Voting against the governor were Canady, Labarga, Alan Lawson, Polston, and Carlos Muñiz, who’s not up for merit retention this year.

Couriel recused. Francis — who by then met the qualification — joined the court in September after DeSantis picked her again.

Death penalty

The death penalty has emerged as an active issue following the vote by the jury in the Parkland school shootings to return a life sentence. DeSantis has announced that he will seek legislation repealing the state law requiring unanimous jury verdicts to execute, and it’s safe to assume the GOP-controlled Legislature will go along.

The Supreme Court has already opened the door by reversing a precedent requiring unanimous jury verdicts to impose death sentences; the DeSantis court also has lowered the legal standard for weighing circumstantial evidence, made it easier to execute someone with intellectual disabilities, imposed tighter standards for determining the admissibility of expert testimony, and eliminating proportionality review in death cases, a safeguard supposedly guaranteeing that only the most serious cases end in execution.

Typically in these cases, Labarga has written a lone dissent against conservatives on the court. In the proportionality review case, for example, he voted against a majority that included Canady, Couriel, Polston and Muñiz. Grosshans, new to the court at the time, didn’t participate.

The court also made it easier to impose tough sentences in non-death cases, again overturning established constitutional law, by allowing a lower court to hold a defendant’s insistence he was innocent against him in a gun-possession case, concluding he’d failed to show remorse.

Canady wrote that opinion, which justices Alan Lawson, Muñiz, Couriel, and Grosshans joined. Polston and Labarga dissented.

The court has grown increasingly unfriendly to citizens’ initiatives — which are one way rank-and-file voters can go around the Republican-dominated Legislature to enact popular policies — generally by finding fault with the ballot language.

For example, in two marijuana legalization initiatives intended for this year’s general election ballot, the court ruled that the language risked misleading voters about what the measures would do. In both cases, Labarga and Justice Alan Lawson dissented from the conservative majority.

The court also blocked an assault weapons ban initiative from appearing before the voters.

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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.