In one of his earliest --- and most far-reaching --- actions as the state’s chief executive, Gov. Ron DeSantis reshaped the Florida Supreme Court, with the appointment of three justices who have cemented a decidedly conservative majority.
And now, with the help of two fellow Republicans who serve on the Florida Cabinet, DeSantis has delivered the same brand of conservative jurisprudence to an administrative court system that has been a go-to place for citizens and businesses to redress grievances against state agencies.
DeSantis, Attorney General Ashley Moody and state Chief Financial Officer Jimmy Patronis this week named John MacIver, a Tallahassee lawyer who’s the head of the local Federalist Society, to take over as chief judge of the state Division of Administrative Hearings. Agriculture Commissioner Nikki Fried, a Democrat, was the lone holdout on the appointment, which requires confirmation by the Republican-controlled Florida Senate.
The Division of Administrative Hearings, located just a mile from the state Capitol, handles cases ranging from big-money fights involving gambling operators and medical-marijuana companies to a dispute about bakers who refused to make a pastry with an anti-gay slogan.
Decisions issued by administrative law judges, known as ALJs, are often the first step in lengthy court battles challenging agencies’ rules or actions.
In his new role, MacIver will have the ability to hire and fire administrative law judges and assign cases. MacIver, who openly spoke during Tuesday’s Cabinet meeting about a rocky start to his adult life that involved being thrown out of the Navy, worked for former Gov. Rick Scott’s administration as a lawyer at the Department of Business and Professional Regulation before joining Scott’s legal team. DeSantis kept MacIver on as deputy general counsel after the governor was elected in November.
MacIver told DeSantis and the Cabinet his goal will be to hire “the correct ALJs who have the correct judicial philosophy,” one that he called “apolitical.” The Federalist Society in Florida and nationally is perhaps the most-prominent conservative legal organization.
“The Legislature should be able to look to both the courts and the administrative courts and say I can write a law … and there aren’t going to be creative ways to try to redraft that,” MacIver said.
MacIver, who’s been a member of the Florida Bar for seven years, replaces Robert Cohen, who had been the chief judge since 2003 and resigned in March.
Fried, a lawyer, said she opposed MacIver and the only other applicant for the position --- Kristin Bigham, an assistant deputy general counsel at the Department of Environmental Protection --- because of their lack of experience.
The Division of Administrative Hearings can “be a check on an overreaching executive branch --- and checks and balances matter,” Fried said, pointing out that Cohen had practiced law for two decades before he was appointed as chief judge.
But for litigants who’ve relied on administrative law judges to rein in agency actions, or to nix rules that do not properly carry out state laws, MacIver’s critique of the Division of Administrative Hearings signals a sea change that some critics privately said could result in giving state agencies unfettered power.
“The best place where improvement can be made is in the culture of judicial philosophy at DOAH,” MacIver told the Cabinet Tuesday, responding to a question posed by Moody.
MacIver pointed out that, since DeSantis, a Harvard Law School graduate, has taken office, the governor has appointed judges who “respect the separation of powers, respect the rule of law, follow the text of the law based on its common understanding.”
Florida businesses, citizens and legislators, who craft laws, need to have “some predictability in the law” and shouldn’t be “subject to the whim” of judges who have their own policy preferences, MacIver said.
The chief judge’s “greatest impact is on her or his selection of new judges,” Seann Frazier, a Tallahassee lawyer who frequently represents clients at the Division of Administrative Hearings, told The News Service of Florida.
“There will be several upcoming vacancies as sitting judges approach retirement. DOAH has a long history of hiring highly qualified, independent administrative law judges. I hope that trend continues,” Frazier said.
The change in leadership comes following several high-profile decisions that particularly irked Republican lawmakers and Scott’s administration.
For example, Administrative Law Judge John Van Laningham has been involved in a protracted tug-of-war with state health officials over their handling of medical-marijuana rules and license applications.
Last year, Van Laningham accused Department of Health officials of a “colossal blunder” that created a “dumpster fire,” and recommended that the state grant a highly sought-after medical marijuana license to a South Florida nursery.
Van Laningham excoriated the Office of Medical Marijuana Use for using a flawed system to decide which applicants should receive the coveted licenses. His July 2018 recommended order in favor of Nature’s Way Nursery of Miami, Inc. accompanied a separate order in which Van Laningham scrapped an emergency rule crafted by health officials. That rule was written after passage of a 2017 law aimed at implementing a constitutional amendment that broadly legalized medical marijuana.
In 2017, lawyers representing the health department made a rare --- and futile --- attempt at trying to get Van Laningham removed from a separate marijuana case, with one state health official saying in an affidavit that his department “cannot receive fair consideration of the issues and will not receive a fair final hearing in this matter if ALJ Van Laningham remains assigned as the administrative judge.”
Van Laningham was not removed from the case, and he has continued to preside over other medical marijuana-related challenges.
The Republican-dominated Legislature has in the past considered attempts to give the governor more power over the Division of Administrative Hearings. Those efforts failed to gain traction.