TALLAHASSEE — A Florida professor commissioned by the conservative Federalist Society to review controversial cases of the three Florida Supreme Court justices up for merit retention concluded Wednesday that some of the most loaded charges used by opponents against the justices are unfounded.
"There does not appear to be a pattern of unprincipled decision-making by any of the justices of the Florida Supreme Court,'' wrote Elizabeth Price Foley after analyzing nine controversial cases since 2000. "There are disagreements, true. But disagreements do not suggest that those with whom you disagree are unprincipled."
Although the Federalist Society does not take a position in the merit retention races, Foley said in a conference call with reporters that her review found that the controversial rulings "are in fact supported by some prior precedent and they do involve acceptable methods of legal reasoning."
Opponents who want to accuse them of judicial activism, she said, are "going to have a hard time making that label stick.''
Justices R. Fred Lewis, Barbara Pariente and Peggy Quince are on the ballot in a yes or no vote and, for the first time, the Florida Republican Party has mounted a campaign to encourage voters to reject them.
In a news release last month, the party said there is "collective evidence of judicial activism" against the justices and House Speaker Dean Cannon has accused them of using their rulings to legislate from the bench.
Conservative groups such as Americans For Prosperity and Restore Justice 2012 have also produced television and Web ads critical of the justices and accuse them of activist records.
Foley, a constitutional law scholar and law professor at Florida International University, said she chose cases that have been most frequently used by opponents seeking to oust the justices from the bench.
The goal was to provide "a balanced, honest analysis of the most contentious decisions about which these justices have been in agreement," she said.
Foley said, however, that the rulings should not be the only measure voters use when evaluating the justices in November. Other factors can include their demeanor, judicial education, strength of their judicial analysis and ideology.
Foley also said that the nine cases reveal a tension between the court and the Republican-led Legislature, particularly with its decision to reject constitutional amendments proposed by lawmakers because of misleading ballot summaries.
"The court will often rule one way and say very explicitly to the Florida Legislature you can fix this; you can avoid this problem if you'll only do x, y and z, and then, of course, the Florida Legislature won't do x, y and z,'' she said. "In some instances the Florida Supreme Court does feel somewhat handcuffed" and "wants clearer language."
She said there is a need for "better communication between the Florida Legislature and the Florida Supreme Court" especially as it relates to ballot amendments.
"We need to try as best we can some clear standard for ascertaining when something is misleading or not,'' she said.