The Florida Supreme Court once again bows to corporate interests

Relentlessly and remorselessly, the Florida Supreme Court is hollowing out the state Constitution’s guarantee that “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

For the third time in barely two years, the court has made it more difficult to win against corporate defendants over such issues as faulty brakes, exploding tires, consumer swindles, environmental pollution, dangerous drugs or any other hazards.

This time it was a 6-1 decision to change Florida’s judicial rules to help corporate CEOs avoid pre-trial depositions that might embarrass them.

How the court came to that conclusion was as foul as the outcome itself.

“Today, on its own motion, effective immediately, and with the ease of a rule amendment, the majority abandons Florida’s long-standing refusal of affording special discovery protections to top-level corporate decision-makers,” Justice Jorge Labarga complained in dissent.

Labarga, the only moderate on a court that has gone to the dark side of the law, wrote that Florida rules already equipped trial judges “with the necessary authority and tools to deal with any potential abuse or harassment … ”

The court cloaked corporate bigwigs with the same relative immunity long enjoyed by state agency heads under what is known as the “apex rule.” That was judge-made law, never enacted by the Florida Legislature.

Beneficiaries can ward off a subpoena by submitting an “I know nothing” affidavit, forcing opposing lawyers to work their way up the ladder to prove they need to question the boss.

“They can go after the top executives only if anything has been left undiscovered,” a lawyer familiar with the issue who didn’t want to be named out of concern for retribution explained to the Sun Sentinel Editorial Board. “It saves high-level executives from the many embarrassments of a deposition and makes it easier for them to blame others.”

In the earlier cases, the majority invoked its authority over Florida’s court rules to stiffen the standards for admitting evidence and to make it easier for trial judges to dismiss cases in which they find no disputes over the facts. The U.S. and Florida Chambers of Commerce, Associated Industries and other corporate fronts were involved and are celebrating their victories.

The apex ruling was an astonishing display of judicial activism, something Florida wasn’t supposed to expect from a court stacked with Republicans vetted by the Federalist Society, an organization of conservative legal professionals that continually argues against judges legislating from the bench.

In a lawsuit still pending in Jacksonville, in which there has already been a mistrial, Scott Winckler seeks damages for his partial paralysis from a motorcycle crash. He claims that Suzuki Motor Corporation knew about a faulty brake cylinder issue that it didn’t recall until four months after his accident in 2013. His attorney tried to subpoena Osamu Suzuki, the chairman and former CEO, for pre-trial testimony. When the judge agreed, Suzuki’s attorneys, including former Florida Supreme Court Justice Raul Cantero, appealed to have the apex rule extended to corporate defendants. Other corporate attorneys filed supporting briefs.

The First District Court of Appeal, bound by precedents, turned Suzuki down 2-1. But the panel subsequently agreed to pass it on to the Supreme Court as a question of “great public importance.”

By then, Winckler’s lawyer had already notified the court that he would not be questioning Suzuki and suggested the case was moot. It should have been dismissed.

At the Supreme Court, it took an even weirder turn. Seeing no constitutional jurisdiction, the justices dismissed the appeal. Then they opened a new rulemaking docket and expanded the apex rule without giving anyone a chance to argue for or against it. The corporate bar’s briefs in the Suzuki appeal had given them ample encouragement.

As an afterthought, they gave interested persons 75 days to file comments. Those will likely be as futile, however, as were the ones that flooded the court after it issued a rule discouraging diversity on the panels that teach continuing education for lawyers and judges. More than 40 objections were docketed, eight of which asked, fruitlessly, for oral argument.

The majority decision on the apex rule was written by Justice Carlos Muñiz, the court’s arguably most right-wing member. Joining were Chief Justice Charles Canady and justices Ricky Polston, Alan Lawson, John J. Couriel and Jamie Grosshans. Canady, Polston and Labarga were appointed by then-Gov. Charlie Crist when he was a Republican. Gov. Rick Scott appointed Lawson. Muñiz, Couriel and Grosshans were appointed by Gov. Ron DeSantis, who like Scott was unabashedly determined to pack Florida’s appellate bench with members of the Federalist Society.

Of note: The Suzuki case marked yet another successful appearance for the Shutts & Bowen law firm, which has become known in the legal community as the gatekeeper to the Supreme Court and the First District Court of Appeal.

Two of its partners in Tallahassee, Jason Gonzalez and Daniel E. Nordby, served Scott as general counsels, advising him whom to appoint to the Judicial Nominating Commissions and to the courts. The firm’s website touts their influence in judicial selection. Gonzalez served on the Supreme Court Judicial Nominating Commission under Scott, as has Nordby under both governors. Every justice except Canady, Polston and Labarga owes them at least in some measure for their appointments.

Gonzalez and Amber Stoner Nunnally, another Shutts & Bowen partner, were among the lawyers filing briefs in Suzuki’s behalf for the Florida Justice Institute and the U.S. Chamber of Commerce. In 2019, they represented the National Shooting Sports Association among other successful opponents to an assault weapons initiative that the court barred from the ballot. Those are just a sample of the firm’s high-profile cases.

Generally speaking, Bar and judicial ethical rules call for a judge’s recusal only in cases involving a recent law partner, business partner or relative. There apparently is nothing to discourage lawyers from arguing cases before judges they helped to put on the bench or the judges from hearing them.

That needs to change. It is a fatal weakness for a judicial nominating system that was originally supposed to keep politics and the courts at arm’s length.

The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.