Lakeland Ledger – March 20, 2011
TALLAHASSEE | Florida courts are facing an unprecedented assault on their independence this year as state lawmakers are pushing more than a half-dozen measures that could weaken judicial power and could give the Legislature and governor more influence in selecting judges from the county courthouse to the Florida Supreme Court.
The changes also would make it easier for special-interest groups angered by any court decision to oust judges they don’t like.
House Speaker Dean Cannon, R-Winter Park — and powerful business groups — are driving the sweeping changes, which will likely find a receptive audience in the strongly conservative leaders running the Florida Legislature.
The business groups want provisions that would dismantle existing judicial nominating commissions, giving Gov. Rick Scott more power in selecting judges, to eliminate commission members they see as too close to the state’s trial lawyers.
Cannon, a lawyer, said he respects the judicary’s independence but wants to curb its power because he argues it has exceeded its constitutional limits. Exhibit 1 of that overreach, according to Republican legislative leaders: the Supreme Court’s rejection of three constitutional amendments drafted by lawmakers last year aimed at preserving their power to draw the boundaries for the districts they represent.
Lawmakers are also upset over earlier rulings by the court on the death penalty law and procedures.
But legal scholars, judicial members, The Florida Bar Association and other groups are raising questions about the scope and intent of the changes that, if approved by the Legislature, would be put before voters in the 2012 general election.
The proposals would:
Require all newly appointed Supreme Court justices and judges on the state’s five district courts of appeal to face a confirmation vote in the state Senate.
Raise the retention vote standard for appellate judges from a majority vote in an election to 60 percent.
Give the governor the power to appoint all members of commissions that nominate judicial candidates, eliminating the role of the Florida Bar, the state’s top legal organization.
Allow the Legislature to write procedural rules for the courts.
Divide the Florida Supreme Court into two new courts, with one handling criminal cases and the other civil cases. It would give Scott the ability to appoint three new justices.
‘TO GET BACK AT THE COURT’
Critics call the moves a blantant power grab by the conservative Legislature, where Republicans hold an overwhelming number of seats.
“I see something that I’ve never really seen before: a huge theme to get back at the court in some way,” said former Supreme Court Justice Leander Shaw. “That’s the only way I can think about it. I don’t see the court as being broken.”
Shaw, an 80-year-old retired jurist living in Leon County, questioned the rationale behind the moves, saying the state’s highest court will, by design, always be involved in contentious cases where rulings are bound to anger one constituency or another.
“If they’re not controversial, they normally don’t make it to the Supreme Court,” Shaw said of cases.
Shaw, the first African-American chief justice on Florida’s highest court, would have been impacted by one of the legislative initiatives — which would require appellate judges to win a 60 percent approval rate from voters when they are up for a merit-retention vote.
In 1990, he retained his court seat when 59.6 percent of the voters supported him after groups who opposed his authorship of a controversial abortion case decision had tried to defeat him.
Current Supreme Court Justice Jorge Labarga would have lost his seat last year with 59 percent of the retention vote.
Seven judges on Florida’s 1st District Court of Appeal, which has been embroiled in a controversy over the construction of a costly new court building in Tallahassee, would have lost their seats in the 2010 election under the proposed standard.
House proponents said that no judges have ever lost seats through the existing merit-retention system, which dates to 1972, saying it fosters “an environment of autonomy without accountability.”
Shaw said raising the retention vote standard would allow more judges to be targeted by special interest groups. It would be easier for a judge to be “painted into a corner,” as either a liberal or conservative, making them more prone to be “knocked off the court,” Shaw said.
University of Florida law professor emeritus Joe Little called the court proposals “troubling,” saying they appeared to be aimed at challenging the American constitutional governance system that was created in the 1803 U.S. Supreme Court decision in Marbury vs. Madison, which gave the courts the “last say on what the constitution and laws mean.”
“The genius of American constitutionalism has been that the legislatures and executives always comply — with a few sad exceptions, later righted,” Little said. “The apparent basis of the attack here is to gain control in the Legislature. This would be calamity.”
He also criticized the moves by lawmakers to allow the state Senate to confirm appellate judges as it is at the federal level and to raise the retention vote standard.
Little said the merit retention-nominating process was created to “take politics” out of the judicial system. It may need to be modified, he said, but “I see no reason to abandon it.”
Lawmakers want to change another portion of the merit-retention system put into place after a series of scandals on the Florida Supreme Court in the 1970s raised questions about the qualifications of appellate judges.
A House measure would give the governor the power to appoint all JNC members, eliminating the role of the Florida Bar in recommending some of the members. It would also remove all the current JNC members, allowing Scott to make new appointments.
Business groups, including Associated Industries of Florida and the Florida Chamber of Commerce, are lobbying for the changes.
Barney Bishop, head of AIF, said his business lobby wants to change the JNC process to at least make sure the members are subject to Senate confirmation.
Although he said he thought Florida appellate courts have been fairly even-handed on business cases, Bishop said business leaders were upset that former Gov. Charlie Crist appointed some 40 JNC members that business groups consider too friendly to trial lawyers.
“That’s an anathema to the business community,” Bishop said. “We want to wipe the slate clean and start over again.”
Bishop said a Democratic lawmaker told him he wouldn’t like the proposed judicial changes so much if a Democratic governor were elected and could use the new appointment power.
“I told him, ‘Then we would want to change it back,'” Bishop said.