Florida's state constitutional adjudication: a significant shift as three new members take seats on the state's highest court?

• Author: Heskin, Shane R.
• Position: High Court Studies

1. INTRODUCTION

   One of the powers of Florida's governor is to make appointments to the state's Supreme Court.(1) As governor, Lawton Chiles made five appointments to the Supreme Court and made a sixth appointment in conjunction with then-incoming Governor Jeb Bush; all of these appointments are considered to be moderate to liberal justices.(2) Generally, appointments reflect the political philosophies of the appointing governor.(3) As such, many agree that former Governor Chiles has constructed the Supreme Court of Florida to be a moderate court, reflecting his moderate political philosophy.(4) The final appointments made by Chiles have been viewed as perpetuating the court's moderate philosophies.(5)

   The changing composition of the Supreme Court of Florida makes it an opportune time to conduct a high court study of Florida's high court. The court is going to experience three new faces and viewpoints,(6) and it is going to experience the departure of three veteran members, and their attendant judicial philosophies.(7) In addition, the court has recently changed chief justices, as Gerald Kogan, who was widely touted as the most liberal on the bench,(8) was replaced by Justice Major Harding, who is recognized as a moderate to conservative.(9) The result of the recent changes to the court's composition make it difficult to predict how the court's judicial philosophies will change.(10) In short, the current judicial philosophies of the Supreme Court of Florida are uncertain, thus making a high court study proper at this time. An examination of the individual members' judicial philosophies and their respective approaches to state constitutional issues will help identify which philosophies and approaches the court is losing and which are the unknown variables of the new court.(11) Although the justices are usually labeled either liberal, conservative, or moderate by commentators and practitioners, those labels do not always reflect the way the justices vote.(12)

   A high court study, such as this one, is a way to determine the individual philosophies by examining the individual votes and opinions.(13) This High Court Study will examine each individual justice's voting patterns, judicial philosophies, and approaches to state constitutional issues.(14) In addition, this Study will compare the judicial philosophies of the departing justices to the expected judicial philosophies of the incoming justices in the hope of ascertaining the future direction of the court related to state constitutional adjudication.(15)

   Part II of this Study will identify the methods used to conduct this Study and will outline the nature and process of state constitutional adjudication.(16) Part II will also discuss the benefits of understanding how a court approaches constitutional issues and the individual judicial philosophies of the justices.(17) Part III will discuss briefly the structure of the Florida Constitution and the significant differences between this state constitution and the Federal Constitution that affect state constitutional adjudication.(18) In addition, Part III will delineate the organization of the Supreme Court of Florida and discuss how the current court evolved into the court that exists today.(19) Part IV will identify the individual justices and examine the results of this Study.(20) Part V will look at the court as a whole, and assess its independence and judicial philosophies.(21) Part VI concludes that former Governor Chiles' efforts to insure a moderate court before the end of his term has paid dividends, as the court has seen a moderate shift in the court according to this Study.(22)

2. THE STUDY

   The fundamental principles of federalism can be evidenced by the way some state courts address constitutional issues.(23) The more independent the state, the more federalist principles are demonstrated by the court's adjudication of constitutional issues.(24) In turn, a state high court's independence can be determined by how the court analyzes constitutional issues.(25) There are four methods courts typically use to address constitutional issues: lockstep,(26) primacy,(27) supplemental or interstitial,(28) and dual reliance.(29) The application of these methods provides a substantial indication of the extent of a court's independence or reliance upon federal interpretation.(30) However, an understanding of the basic principles of federalism, and more specifically, judicial federalism, is essential to understanding the significance of the four basic approaches to constitutional adjudication. First, as has been stated, the federal standard announced by the United States Supreme Court is only the floor, and not the ceiling, of constitutional rights.(31) The Supreme Court only decides whether a right guaranteed by the U.S. Constitution has been offended.(32) A state court is free to afford more protection to individual rights than the U.S. Constitution, and can accordingly declare a law unconstitutional under its state charter that the Supreme Court previously declared valid under the Federal Constitution.(33) A state court may also declare a law or government action constitutional under its charter that the U.S. Supreme Court has declared offends the U.S. Constitution.(34) This basic principle underlies the four approaches typically used to adjudicate state constitutional issues.(35)

   One approach is the lockstep approach. The lockstep approach is the most restrictive method by which a state court may adjudicate state constitutional issues because it simply mimics federal law.(36) Under the lockstep approach, the court looks at federal law and follows federal precedent.(37) A second approach is the primacy approach--the best illustration of a independence in state court adjudication because it focuses primarily on the state's own constitution.(38) Under the primacy approach, the court first decides whether a right has been violated under the state constitution.(39)

   A third approach often utilized is referred to as supplemental or interstitial.(40) Here, federal law is deemed to be presumptively valid and a determination is made under the Federal Constitution before a state constitutional analysis is begun.(41) This approach does lend to some independent state constitutional adjudication, but comparatively, it gives more significance to federal interpretation than does the primacy approach.(42) The last commonly used approach is dual reliance. As the name indicates, this approach places reliance upon both federal and state constitutions.(43) Under the dual reliance approach, a court reviews both the federal and state constitutions.(44)

   The approach a court takes in determining constitutional issues is obviously important for practicing attorneys, yet it is frequently overlooked and misunderstood.(45) In fact, state constitutional issues are often inadequately raised and argued by attorneys due to misperception or ignorance about the difference between the federal and state constitutions.(46) This may lead to a failure to present an important state constitutional issue to the court, thereby waiving the issue.(47) Moreover, understanding how a court or individual justice places value on state and federal law is important.(48) If an attorney knows how the court will analyze a particular issue, the attorney can couch his argument to the interests of the court.(49) The attorney that understands how the court thinks is the attorney that is at an advantage.

   Another important factor to understand when arguing to a court is the judicial philosophies of each individual justice.(50) For example, if one knows that three justices frequently vote to uphold a statute questioning an individual's privacy rights and three typically vote to protect privacy interests, those proclivities, as well as that of the swing justice, are crucial to know. If the opinions of the swing justice typically emphasize the dangers of regulating an individual's private life, then one would want to emphasize or avoid that issue depending on the position advocated.

   The following High Court Study analyzes the divided state constitutional decisions of the Supreme Court of Florida between 1989 and 1998.(51) Only state constitutional civil (non-criminal) cases were included in the study of this ten-year period.(52) The divided cases with separate opinions were chosen because they best reflect and reveal an individual justice's philosophy, since the justice necessarily felt strongly about the issue to air a disagreement publicly in a separate opinion.(53) The justices' votes were characterized as either liberal or conservative; a vote that protected an individual right or liberty was labeled liberal, while a vote that limited the scope of protection was labeled conservative.(54)

3. THE ORGANIZATION OF FLORIDA'S CONSTITUTION AND SUPREME COURT

   1. Florida's Constitutional Organization

      The Florida Constitution is unique in many respects. Unlike the United States Constitution, the Florida Constitution is extremely detailed and provides explicit provisions for each branch of the government.(55) The Florida Constitution does mimic the U.S. Constitution in some respects,(56) but the differences need to be enumerated for the purposes of this Study.(57) For example, the Florida Constitution provides for a constitutional revision committee to convene every twenty years to propose needed amendments to the constitution,(58) and only the people of the state vote on any proposed amendments(59); the legislature does not participate.(60)

      Two provisions that have been incorporated into the Florida Constitution are significant to this Study. As discussed above, some states take the lockstep approach to state constitutional adjudication.(61) Sections 12 and 17 of the Florida Constitution mandate that the courts of Florida take a lockstep approach to all search and seizure and excessive punishment issues.(62) In the Florida Declaration of Rights, section 12 states that the...