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Report from conservative legal group: Florida justices are not activist

A Florida professor commissioned by the conservative Federalist Society to review controversial cases of the three Florida Supreme Court justices up for merit retention concluded Wednesday that some of the most loaded charges used by opponents against the justices are unfounded.  Download Federalist Society

“There does not appear to be a pattern of unprincipled decision-making by any of the justices of the Florida Supreme Court,’’ wrote Florida International University profressor Elizabeth Price Foley after analyzing nine controversial cases since 2000. “There are disagreements, true. But disagreements do not suggest that those with whom you disagree are unprincipled.”

Although the Federalist Society does not take a position in the merit retention races, Foley said in a conference call with reporters that her review found that the controversial rulings “are in fact supported by some prior precedent and they do involve acceptable methods of legal reasoning.” 

Opponents who want to accuse them of judicial activism, she said, are “going to have a hard time making that label stick.’’ 

Justices R. Fred Lewis, Barbara Pariente and Peggy Quince are on the ballot in a yes or no vote and, for the first time, the Florida Republican Party has mounted a campaign to encourage voters to reject them.

In a press release last month, the party said there is “collective evidence of judicial activism” against the justices and House Speaker Dean Cannon has accused them of using their rulings to legislate from the bench. 

Conservative groups such as Americans For Prosperity and Restore Justice 2012 have also produced television and web ads critical of the justices and accuse them of activist records.

Foley, a constitutional law scholar and law professor at FIU, said she chose cases that have been most frequently used by opponents seeking to oust the justices from the bench.

The goal was to provide “a balanced, honest analysis of the most contentious decisions about which these justices have been in agreement,” she said.

Foley said however, that the rulings should not be the only measure voters use when evaluating the justices in November. Other factors can include their demeanor, judicial education, strength of their judicial analysis and ideology.

“All of that is fair game,’’ she said, adding that while the merit retention and selection process has helped to remove politics from judicial races in general, politics will never be removed completely from the process. 

“The fact that voters vote to retain every six years suggests there is a political factor at play here,’’ she said. 

In a statement released Wednesday, Restore Justice 2012 director Jesse Phillips did not comment on the report's conclusion that their activism claims were inappropriate but said the report validates their belief that the justices base their rulings on ideology.

"Of course, reasonable people will disagree with a point or two of analysis, but the Justices campaigns can no longer hide behind the myth of their own supposed objectivity,'' he said. "The Federalist Society and legal experts nationwide have recognized their propensity to make ideologically-based rulings, for which voters will hold them accountable."

Slade O'Brien, director of the Florida chapter of Americans for Prosperity, criticized Foley for "little more than apologist piece for the most activist court in our country."

Foley said that nine cases reveal a tension between the court and the Republican-led legislature, particularly with its decision to reject constitutional amendments proposed by lawmakers because of misleading ballot summaries. 

“The court will often rule one way and say very explicitly to the Florida Legislature you can fix this; you can avoid this problem if you’ll only do x, y and z, and then, of course, the Florida Legislature won’t do x, y and z,’’ she said. “In some instances the Florida Supreme Court does feel somewhat handcuffed” and “wants clearer language.”

She said there is a need for “better communication between the Florida Legislature and the Florida Supreme Court” especially as it relates to ballot amendments.

“We need to try as best we can to come up with some clear standard for ascertaining when something is misleading or not,’’ she said.

Foley said the case that troubled her most was the one criticized by the Republican Party and Restore Justice 2012, Nixon v. State. The Florida Supreme Court ordered a new trial for the murderer based on previous U.S. Supreme Court decisions and the U.S. Supreme Court reversed the ruling saying the Florida court was misleading their precedent.

“Florida clearly got it wrong at least in the eyes of the U.S. Supreme Court but it doesn’t mean it was unprincipled,” Foley said. “It means they steadfastly refused to understand the difference” between a guilty plea and a trail strategy that focuses on sentencing.

“I think it was wrong, personally, but I’m not going to say there was not precedential support for their decision,” she said. 

Foley noted that supporters of the justices add the adjective “merit” in front of the requirement about the elections but notes “the truth is that the word ‘merit’ appears nowhere in the Florida Constitution, and is itself an inherently subjective term.”

The Federalist Society for Law and Public Studies was formed 30 years ago to provide conservative and libertarian ideas to college campuses. The report says it was founded on “the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

Here is a summary of some of Foley’s conclusions:

  • Florida Department of State v. Mangat, 2010 – In this case, the court rejected the proposed constitutional amendment written by the Florida Legislature and designed to nullify the individual mandate requirements of the Affordable Care Act by ruling that the summary was misleading. Foley concluded that the legislature’s complaint that the court should have substituted the full text of  the amendment “would have been contrary to the law enacted by the legislature.”
  • Roberts v. Doyle, 2010  – Here the court rejected another ballot amendment written by the Florida Legislature, this time relating to homestead exemptions because of a misleading ballot summary. While Lewis, Quince and Pariente ruled with the majority and rejected the amendment, two dissenting justices concluded that the ballot summary was not misleading enough to reject it. Foley concludes that the case shows that when the legislature fails to provide clear instructions to voters, the court has a tendency to be divided over “a fundamental disagreement about whether to err on the side of keeping or striking the amendment in situation that is not entirely clear-cut.”
  • State v. McMahon (2012) – The three justices ruled with a five-justice majority and concluded that the state could not appeal the sentencing decision of a trial judge who had failed to give a defendant a special hearing to determine if the accused was a habitual offender. Under state law, prosecutors could only if the sentence was illegal but the justices disagree over the meaning of the word illegal. Foley concluded that while the majority construed the meaning narrowly, the dissenters more broad interpretation. “…While they clearly made different choices, it is difficult to characterize either as unsupportable by existing law,’’ she wrote.
  • Scott v. State (2011) – First degree murderer Kevin Jerome Scott was sentenced to death for shooting killing the owner of a laundry during an attempt armed robbery with two accomplices. The court ruled that the death penalty was “disproportionate” given the mitigating factors in the case and ordered the trial court to impose a life sentence without possibility of parole. “The disagreement in Scott, once again, seems to be a disagreement about how much to defer to trial court determinations about the propriety of the death penalty, which itself involves a disagreement about how much “weight” to assign to various facts,’’ Foley wrote.
  • State v. Cable (2010) – The three justices were in the majority on a 4-3 ruling involving whether the evidence in a drug trafficking case should be suppressed because a police officer who arrested the suspect failed to knock and announce that he had a warrant for her arrest. The justices ruled there was no legal precedent to allow the evidence but instead there was conflicting case law. Foley concluded that while the justices could have to reconsider a 1964 case, as the dissenting justices suggested, it didn’t. “It was not required to do so, and it chose not to,’’ Foley wrote.

Here is the full statement of Slade O'Brien of Americans for Prosperity: 

"I'm truly shocked by the position taken by Elizabeth Price Foley and believe it is completely contrary to the Federalist Society's own mission statement, which states specifically, "that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." (Emphasis added)

"Ms. Foley has written a paper that amounts to little more than apologist piece for the most activist court in our country.  In analyzing the Supreme Court's decisions we are all in agreement that the merit of the justices shouldn't be based on the results of the cases, but rather on their reasoning. Ms. Foley's superficial analysis summarizes and rehashes the majority's opinions, in defense of how they could be viewed, instead of looking at why the justices arrived at those decisions.
"You either believe in judicial restraint or you don't. You are either a strict constitutionalist or you are not.  You don't get to have it both ways. To state there are many paths to reach a decision is to admit the law can be bent toward a desired outcome.

"This is exactly what we have argued -- that this court has abused it's power to achieve a desire result.   It is indeed a shame that Professor Foley didn't have the courage to state that fact."