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Martin Dyckman: Donald Trump pick Charles Canady could bring ‘dog whistles’ to SCOTUS

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martin dyckman
Martin Dyckman

What sort of Supreme Court justices would Donald Trump appoint?

For an insight, consider the case of Kathy Johnson v. Omega Insurance Co., decided by the Florida Supreme Court Sept. 29.

One of his prospective nominees was on the wrong side of that.

The business model of an insurance company is to take as much of the policyholder’s money as possible and pay back as little as the law allows. To use a currently familiar phrase, its “fiduciary responsibility” is to the stockholders, not the policyholders.

It sometimes takes an expensive court case like Johnson’s to put the relationship in a better balance. That’s what the Florida Supreme Court did when it ruled, 6-1, that an insurance company had to pay the legal fees and costs she racked up in proving that a sinkhole was responsible for the major damage to her home in Marion County. It ultimately cost $213,465 to repair.

Omega Insurance denied her claim on the basis of an engineering firm’s finding that the damage owed to something other than a sinkhole. Johnson hired lawyers to file suit. They hired another engineering consultant, who opined that yes, it was a sinkhole, and that Omega’s report was badly done.

When a third consultant confirmed the sinkhole verdict, Omega gave up and agreed to pay for the damages, but not for Johnson’s yet-to-be-decided attorney fees or some $100,000 in court courts. The trial judge ruled Omega should pay those too. The 5th District Court of Appeal disagreed.

At Tallahassee, the Supreme Court chastised the 5th District for not paying attention to what it had already said in such cases.

“We have consistently explained that the purpose of this statute is to provide an adequate means to afford a level process and make an already financially burdened insured whole again, and to also discourage insurance companies from withholding benefits on valid claims,” wrote Justice C. Fred Lewis.

The need is “deeply rooted in public policy,” he explained.

Indeed it is. Otherwise, insurance companies would have a compelling incentive to deny claims on the basis of “evidence” that hapless policyholders couldn’t afford to contest.

Omega argued that it should be on the hook for Johnson’s fees and costs only if it had deliberately acted in what lawyers call “bad faith.” Not so, countered Lewis.

“It is the incorrect denial of benefits, not the presence of some sinister concept of ‘wrongfulness,’ that generates the basic entitlement to the fees if such denial is incorrect,” Lewis wrote, quoting from an earlier decision.

The national significance in this is that the solitary dissent was by Justice Charles Canady, the Florida Court’s most conservative member. He is among 21 people Trump has said he would consider for the nation’s highest court.

Canady’s dissent — which Lewis wrote extensively to rebut — turned on technicalities. He argued that the court didn’t have jurisdiction to hear Johnson’s appeal. The merits of her case didn’t matter.

Justice Ricky Polston is the court’s other frequent conservative dissenter, but even he broke with Canady this time, concurring only in the majority’s result but not in its reasoning. He didn’t say why.

Both of them dissented in April when the majority agreed to stay Florida’s latest anti-abortion law, a 24-hour waiting period, while the court decides whether to hear an appeal on the merits.

Although many of the court’s decisions are unanimous, dissents by Canady and Polston are common on questions of access to the court by individuals doing battle with corporations. The stock conservatism of either justice would appeal to the U.S. Chamber of Commerce and other business lobbies that appear to have the Trump campaign’s attention.

They dissented also when the court overturned the Republican Legislature’s congressional redistricting as a violation of Florida’s constitutional “fair districts” amendments.

Canady’s name, in particular, is a dog whistle to the anti-abortion lobby. As a member of Congress, he claimed credit for crafting the emotionally laden phrase “partial birth abortion.”

He was one of the managers the House appointed to prosecute its unsuccessful impeachment case against President Bill Clinton.

On the infrequent occasions when the court overturns a murder conviction or reduces a sentence from death to life, Canady and Polston usually dissent. In one case, however, they voted as the condemned man wished: to let him die. The liberal justices ordered a new trial.

It would be difficult to find a more sanguinary opinion than the dissent they filed in March 2014, when the majority upheld the Jacksonville murder conviction of Michael Yacob but reduced his death sentence to life in prison.

Florida’s law requires the court to review every death sentence for “proportionality” — in other words, does the condemned person deserve execution as much as others?

Writing the dissent, Canady agreed that “the death sentence in this case is not proportionate.” But he argued that Florida’s Constitution bars the court from considering proportionality because the U.S. Supreme Court doesn’t require it.

That point of view could become the majority’s following the mandatory retirement of the court’s four most liberal members by January 2019. Gov. Rick Scott‘s hand-picked nominating commission will select all the finalists.

The Canady dissent shocked Chief Justice Jorge Labarga into writing an extensive rebuttal.

” … Unless an edict is handed down by the (U.S.) Supreme Court declaring that comparative proportionality review is inconsistent with proper capital sentencing review, I will continue to make a proportionality review in every case in which I am called upon to place my judicial imprimatur on a sentence of death. It is my fervent hope that this Court will also continue to do so as a body,” he wrote.

With Canady and other like-minded Trump appointees on the U.S. Supreme Court, his hands could be tied.


Martin Dyckman is a retired associate editor of the newspaper now known as the Tampa Bay Times. He lives in suburban Asheville, North Carolina.


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