By Noreen Marcus, FloridaBulldog.org
When Florida Supreme Court justices elect their in-house leader, tradition dictates that they honor seniority.
So it’s remarkable that on March 9, the justices ignored seniority and bypassed the obvious choice, Justice Alan Lawson, to tap a relative newcomer, Justice Carlos Muniz.
Incoming Chief Justice Muniz, 52, takes office July 1, following Chief Justice Charles Canady’s second consecutive two-year term. No longer the first among equals, Canady will remain on the court.
Lawson, now 60, moved to Tallahassee from the chief judge’s office at the Fifth District Court of Appeal. He had served as a trial and appellate judge for 14 years before reaching the courts’ summit, courtesy of Gov. Rick Scott, on April 15, 2017.
In contrast, Muniz, who arrived there after a politics-driven career, had a dizzying climb. Despite his complete lack of judicial experience, Gov. Ron DeSantis sent him straight to the state’s most powerful tribunal in 2019.
Much earlier Muniz made common cause with the Republican Party and its ally the Federalist Society. There’s nothing remotely bipartisan about his background.
MUNIZ, ETC. VERSUS LABARGA
He worked closely with influential Republicans including Florida Attorney General Pam Bondi, who went on to defend then-President Donald Trump at his first impeachment trial, and with Betsy DeVos, Trump’s controversial secretary of education.
Ballotpedia called Muniz a “Strong Republican,” as compared to Lawson, a “Mild Republican.”
With its conservative supermajority, the Florida Supreme Court is known for rulings that stretch the law to fit a far-right agenda. Decisions from the seven-member court tend to be either unanimous or 6-1; the usual dissenter is Justice Jorge Labarga.
For example, the court has degraded the concept of diversity by suggesting it’s an illegal quota system. Labarga wrote in a Dec. 16 dissent, “The majority’s decisions of late have ushered in a series of drastic changes in civil, criminal and rulemaking contexts.”
Last month, a Muniz opinion in a smoker’s wrongful death case upended settled law to favor Big Tobacco. The ruling in Prentice vs. R.J. Reynolds will make it easier for tobacco defendants to overturn any big jury awards like the one for $6.4 million that vanished in this case. Again, only Labarga dissented.
SOURCE: JUSTICES ‘TRUST’ MUNIZ MORE
Considering these dynamics, it’s conceivable that Muniz’s hard-line credentials gave him an edge over Lawson.
Muniz won the chief’s job after a power struggle, according to a court insider who communicated with Florida Bulldog on condition of anonymity because they didn’t have permission to discuss the justices’ talks.
This person described a selection process punctuated by verbal arm-twisting and split votes that dragged on for five months and played out, at least in part, at the justices’ Wednesday conferences.
Finally Muniz was elected “by acclamation,” to quote the March 9 conference minutes.
“DeSantis and the ultra-conservative justices he appointed think that Justice Lawson is squishy on issues like diversity,” the insider said. “They also don’t want him to preside over the Supreme Court cases that will come up soon, on apportionment and abortion in particular.
“They don’t trust him like they trust Justice Muniz.”
REASONS FOR MUNIZ CHOICE UNCLEAR
Florida Bulldog reviewed five months of justices’ conference agendas and minutes. There aren’t any references to discussions about choosing the next chief justice or to split votes. The way the minutes read, the justices spontaneously anointed Muniz on March 9, even though his selection had to be based on something other than seniority.
Seniority has been the touchstone for electing chief justices throughout modern court history. It would be surprising if the justices changed this process without any discussion.
Florida Bulldog asked court spokesman Paul Flemming about Muniz’s selection and whether the justices could have discussed it privately.
“It would be inappropriate for me to respond because I do not interpret decisions of the Court,” he wrote in an email. “Also, those questions represent the deliberations of the Court and would be both inappropriate and impossible for me to discuss – impossible, because they are part of confidential deliberations.
“There are no prohibitions to justices discussing the [chief justice] selection outside of conference,” Flemming wrote. “The judicial branch is not subject to the open meetings provisions of law or rule for deliberations or administrative meetings of justices or judges.”
CHIEF’S ROLE ISN’T ONLY FOR SHOW
The only hint of behind-the-scenes conversations appears in an email that Canady sent the other justices on March 9. Florida Bulldog was able to see the email because of a public records request.
In the March 9 email, Canady canceled a previously scheduled “informal discussion that will last no more than an hour.” Instead, “we will be having a formal conference … for the purpose of electing the next chief justice.”
Canady, Muniz and Lawson declined interview requests from Florida Bulldog through Flemming.
The chief justice position is more than ceremonial. The chief speaks for the court, issues administrative and procedural orders, runs conferences and oral arguments and monitors opinion-writing workloads that the chief may decide to tweak.
“The chief’s role has become increasingly important,” said Neil Skene, who has written extensively about the court. “There are some ceremonial prerogatives, but the chief is the top administrative officer of the court system” with the power to dictate policy.
BUSH BROUGHT MUNIZ TO FLORIDA
Because of the extra duties, the chief has a lighter caseload than the other justices. All are paid $220,600; the new state budget raises their salary to $239,442.
When DeSantis nominated Palm Beach Circuit Judge Renatha Francis to the Supreme Court in 2020, Muniz wrote a decision that told the governor to pick someone else. The reason was that Francis had not yet practiced law for a full 10 years, the constitutional minimum for justices.
Ironically, Francis offered more judicial experience than Muniz, who had none when DeSantis chose him. But that’s OK because justices aren’t required to have a background as judges.
In 2001, four years out of Yale Law School, Muniz launched his career in Florida as Gov. Jeb Bush’s deputy general counsel.
Later Muniz worked in the private sector on and off, but overall he did more political strategizing than trying cases, crafting appeals or advising corporate clients—the more typical pursuits of a lawyer.
Between April 2005 and October 2009 Muniz was general counsel to Bush’s Department of Financial Services, then policy director of the Republican Party of Florida, and then deputy chief of staff to House Speaker Marco Rubio.
DEFENDING BONDI’S TRUMP CONNECTION
“Muniz is cut from the same cloth as [Chief Justice] Canady,” said Robert Jarvis, a law professor at Nova Southeastern University in Davie.
“Both have had very similar careers. While Canady actually was directly in the political arena, Muniz from an early moment in his career was making political friends and holding positions that were close to important politicians like DeVos and Bondi,” Jarvis said.
Muniz was Bondi’s chief of staff from January 2011 to January 2014. In 2013 she declined to pursue complaints from Floridians who claimed Trump University had defrauded them.
Bondi solicited a $25,000 political contribution from Trump while her office was deciding whether to join a New York class action against his university, according to the Associated Press.
Emails the news service obtained show that when Bondi took heat over the Trump contribution, Muniz helped shape and publicize her defense.
MUNIZ LEFT LOBBYING FOR DEVOS
After his election in 2016, Trump settled the New York case by agreeing to pay former students $25 million in damages. Florida didn’t participate in the case or the settlement.
Muniz’s most recent private-sector position was senior vice president at McGuireWoods Consulting, the lobbying affiliate of a large law firm.
Trump plucked Muniz from there in March 2017, nominating him for general counsel to DeVos at the U.S. Department of Education. The Senate confirmed by a vote of 55 to 43, after what DeVos said at the time was “an unnecessarily protracted confirmation process.”
In another favorable nod from Trump, Muniz’s name appeared on the president’s wish list for the U.S. Supreme Court, along with Canady’s. Neither made the cut.
Muniz’s March 17 opinion in Prentice vs. R.J. Reynolds signals where the court is headed on his watch.
BIG WIN FOR BIG TOBACCO
In this case about a man who died of COPD (chronic obstructive pulmonary disease), jurors took for granted the fact that for decades the tobacco industry promoted a false narrative and fake controversy about the dangers of smoking.
The jury found that Reynolds fraudulently concealed those dangers and awarded the smoker’s estate $6.4 million. The trial judge and the jury followed the law, but were reversed anyway by the First District Court of Appeal and the Supreme Court.
When a different Supreme Court ruled in 2006 that thousands of Florida smokers would have to file separate claims instead of proceeding as a class, the court approved some shortcuts. Plaintiffs wouldn’t have to fight squads of tobacco lawyers to establish basic facts over and over again.
These are the carved-in-stone facts: Nicotine is addictive, smoking causes lethal diseases, and cigarette makers sold a product they knew was defective and unreasonably dangerous, while conspiring to conceal that information from the public.
Muniz’s March 17 ruling all but eliminates the shortcut that’s most costly to the tobacco industry. Now Florida plaintiffs must try to prove something that’s virtually impossible to prove: a specific statement from a tobacco company induced them to smoke.
END OF 28-YEAR JOURNEY
In his dissent, Labarga quoted from a videotaped deposition of John Price, the deceased smoker, to show that jurors had enough to go on. Price testified that images such as “Joe Camel” and “the Marlboro Man” made smoking “look like the thing to do, the in crowd. You’re in the in crowd.”
Labarga noted the other justices are fine with letting first-degree murder convictions stand based on circumstantial evidence. But when smokers seek significant money damages, the majority decided, circumstantial evidence isn’t good enough. Direct proof is required.
Labarga wrote that he was dissenting because he couldn’t sign onto “such a consequential and erroneous shift” in Florida law.
The precursor to the March 17 decision goes back to 1994, when Miami lawyers Stanley and Susan Rosenblatt filed a landmark class action, Howard Engle vs. Liggett Group. The lawsuit produced a two-year trial and, in 2000, a record $144.8-billion jury award against Big Tobacco.
The decision in Prentice, an “Engle progeny” lawsuit, looks like a bookend to the original Engle case.
Reynolds executives and the tobacco industry must be cheering, while smokers and their survivors must be mourning, the end of an era.
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