Big Tobacco’s powerful ally: The Florida Supreme Court

Special interests have many friends at the Florida Supreme Court. The people have one — Justice Jorge Labarga.

The court’s stridently right-wing future was foretold when Gov. Ron DeSantis packed it with Federalist Society ideologues. The court made that reality brutally clear with a 6-1 decision to insulate the tobacco industry from potentially hundreds of millions of dollars in damages for Floridians it sickened and killed.

Twelve years ago, in the nation’s most closely-watched class action against Big Tobacco, the court overturned a $145 billion punitive damage award and said some 8,000 plaintiffs would need to sue individually for their illnesses or the deaths of loved ones. It also held that they would not have to prove what the big trial already had: that cigarette smoking causes many kinds of heart and lung diseases and cancer and that the industry had misled people to believe smoking was safe.

The intent was to make the individual trials simpler, swifter, and less susceptible to costly delaying tactics. On balance, it was a major victory for the public interest, but those justices are all long gone. Now, in Prentice v. R. J. Reynolds Tobacco Co., the court essentially took it back. The new fiercely conservative bloc of six justices held that each of the “Engle progeny” plaintiffs must prove that they relied on specific tobacco ads that misrepresented smoking as safe. That is impossible for the dead, and virtually impossible for the living.

As Labarga wrote in a dissent, “By requiring reliance on a specific statement, the majority has removed all permissible inferences of fact concerning the causal relationship between the tobacco industry’s advertisement campaigns and the smoking decisions of Engle progeny plaintiffs.”

Why governors matter

The majority ruling exemplifies what DeSantis and his predecessor, former Gov. Rick Scott, intended with their appointments to the appellate bench. It’s what the tobacco industry hoped to achieve with nearly $12 million in Florida political contributions over the past decade.

A Reynolds subsidiary accounted for much of it, including nearly $2 million to the Republican Party of Florida and its campaign arms since 2017. The minority Democrats got just under $400,000.

DeSantis’ Supreme Court appointees are Justices John Couriel, Jamie Grosshans and Carlos Muñiz, who wrote the tobacco opinion. They have formed a bloc with holdover Justices Charles Canady, Ricky Polston and Alan Lawson, and precedents are falling like hunted ducks. The six barely acknowledge Labarga’s frequent emphatic dissents.

The tobacco ruling upheld a decision of the far-right First District Court of Appeal that was at odds with how the other four district courts had ruled in similar cases.

There are ominous consequences beyond the injustice to smoking victims. The outcome bodes poorly for how the high court will rule on the Legislature’s batch of new laws of dubious constitutionality and on the congressional redistricting snarl that will likely call for a court to draw new maps.

It also confirms that the court’s dominant member is Muñiz, the justice with by far the most partisan résumé.

A ‘chief ’ concern

Jaws dropped in law offices statewide when the court announced that Muñiz will rotate into the chief justice’s office on July 1 instead of Justice Alan Lawson. Traditionally (though not always), the next turn has gone to the most senior justice who had not been chief. That’s Lawson.

Lawson has voted as conservatively as Muñiz, but with one obvious difference: Lawson was appointed by Scott and Muñiz by DeSantis, who’s no friend of Scott.

Muñiz, 52, has the least experience as a judge, consisting only of his three years on the high court. Lawson has worn robes for 20 years, including three as a trial judge, 11 on the Fifth District Court of Appeal and six on the Supreme Court.

The chief justice has only one vote in how the court decides a case but has influence over the judges of lower courts and the Florida Bar and its committees. The chief also supervises the entire judicial system and can temporarily assign a replacement for a justice who is ill or has stepped aside from a case for ethical reasons. Who’s chosen can determine how a close case is decided.

Canady, the departing chief, flexed his powers to censor a diversity training program for new judges and got the court to overturn a Bar rule requiring diverse panels in continuing education courses.

Since 2012, the rules have said the chief justice should be chosen “on managerial, administrative, and leadership abilities, without regard to seniority only.”

That makes the elevation of Muñiz to chief justice even more conspicuous.

Interspersed with stints at the politically-connected law firm of GrayRobinson, which has a high-profile lobbying presence and often represents the House of Representatives, Muñiz served as a deputy general counsel to Gov. Jeb Bush (20012003); general counsel to Bush’s Department of Financial Services (2005-06); deputy chief of staff and counsel to House Speaker Marco Rubio (2007-09); former Attorney General Pam Bondi’s deputy and chief of staff (2011-14); and general counsel to the U.S. Department of Education under President Trump (2018).

From December 2006 until Rubio hired him seven months later, Muñiz was policy director for the Republican Party of Florida. On his application to the Florida Supreme Court, Muñiz said he had never tried any case to verdict or judgment.

Lawson declined to discuss the situation with the Sun Sentinel.

Four of the seven justices face statewide retention votes this year if they want new six-year terms. They are Canady, Poston, Grosshans and Labarga. Voters should remember in November.

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.