Photo credit: Florida Supreme Court Justice Jorge Labarga by J. Albert Diaz
BY DON HAYDEN | Feb 25, 2023
For some of us, that can remember the days of Gore v. Harris, 772 So. 2d 1243 (Fla. 2000), the Florida Supreme Court was seen as an evenly divided court maybe veering slightly toward the left on issues bought before it (for the younger readers, the U.S. Supreme Court reversed the Florida Supreme Court’s ruling above that would have allowed the recount in South Florida to continue, and perhaps change history, or at least who would be in the White House for four years). Fast forward to 2023, the Florida Supreme Court is one now seen as one of the most conservative state supreme courts in the country with not one of the Florida Supreme Court justices appointed by a Democratic governor. In his first term, Governor Ron DeSantis was able to appoint seven justices (two of whom were almost immediately elevated to the federal Eleventh Circuit Court of Appeals under Trump). The other two justices to fill out the seven-person panel were appointed by Governor Charlie Christ, when he still counted himself as a Republican.
Recent court decisions indicate a much more activist court in many cases endorsing the culture war legislation and executive orders of Governor DeSantis and the heavily Republican-controlled Florida legislature. Most recently, the Florida Supreme Court has deleted a rule that allowed for judges to take courses in “fairness and diversity” to meet a continuing education requirement in a 6-1 ruling with a scathing dissent by Justice Jorge Labarga. In recent weeks, the Florida Supreme Court has agreed to take up a legal challenge to Florida’s 15-week abortion ban, which was one of the most controversial measures passed during the 2022 legislative session. The 4-1 decision not to block the law while it was pending on appeal, again with a scathing dissent by Justice Labarga falls in line with most commentators who anticipate that the Florida Supremes will overturn its prior decision back when the court was more evenly divided, which upheld the right to abortions in the state by citing a decades-old privacy clause in the state constitution that extends those rights to abortion.
Florida Supreme Court Justice Jorge Labarga/photo by J. Albert Diaz
But it is not only in the “culture wars” realm, but the reconstituted Florida Supreme Court has indicated an appetite to reconsider long-standing precedent in favor of business and executive privilege. Last fall, in just one of many examples of a more “business-friendly” court, the Florida Supreme Court, on its own motion, amended the Florida Rules of Civil Procedure to codify the “Apex Doctrine” to private corporate officers. In Re: Amendment to Florida Rule of Civil Procedure 1.280, 320 So.3d 459 (Fla. 2021) The Apex Doctrine prevents the deposition of any high level government or corporate officer “unless the party establishes that it has exhausted other discovery, that such discovery is inadequate and that the officer has a unique, personal knowledge of discoverable information.” Again, the court broke, 5-1 with the newest justice not participating, and again Justice Labarga giving a lengthy dissent, noting such amendment to provide high-level corporate officers any further special discovery protections was totally unnecessary. He noted that it broke with the five states who rejected the Apex Doctrine previously that each had in place a nearly identical rules framework to Florida Rule 1.280, dealing with abusive discovery tactics.
And there are many more changes on the horizon as the Florida Supremes have given various Florida bar committees and working groups until July of this year to come up with sweeping changes in the Florida rules that call for establishing a “differentiated case management” system and setting inflexible trial dates at the beginning of a case as well as rigid deadlines for motions and rulings. In particular, the Florida Supremes’ referral asked the bar committees to propose changes that would “provide that trial continuances should rarely be granted and then only upon good cause shown.” Watch for significant changes in civil trials across Florida in 2023.
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