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Stripping away the power and independence of the state courts has been a mission of Gov. Jeb Bush's and the Legislature's. In recent years, Bush has successfully gained greater control over judicial appointments by changing the way members of judicial nominating commissions are chosen. Now, all appointments to the 26 commissions are made by him. The Legislature has repeatedly tried to take over the Florida Bar budget and has even entertained the idea of removing the death penalty from the jurisdiction of the Florida Supreme Court.
The latest proposal comes from Rep. Gustavo Barreiro, R-Miami, the chairman of the House Public Safety and Crime Prevention Committee, who wants to alter the state Constitution to shift the judiciary's rule-making authority from the Florida Supreme Court to the Legislature. The power grab would seriously weaken the judiciary's ability to respond to general practice and procedure issues that arise within the court system. It would also discard a system of checks and balances that has been working well for the last 36 years.
As court rule-making currently works, the state Supreme Court has the authority to alter the manner, form and process of case-handling and court operations throughout the state. But the high court doesn't make changes in a vacuum. Recommended changes are typically vetted by a system of committees made up of 40 to 70 members. Meetings by these committees are open to the public. And when amendments are recommended, the high court welcomes public comment.
Even now, the ultimate power lies with the Legislature, which is free to repeal any rule with a two-thirds vote of both houses.
But Barreiro wants to dump this system because he is steamed that the court has recently made a few rules that he believes are more substantive than procedural, encroaching on legislative prerogatives. Rather than try to repeal the offending rules, he wants to eliminate the court's rule-making function entirely. Barreiro's proposed constitutional amendment would establish a judicial conference, with members chosen by the Legislature, to recommend rule changes that would be forwarded to the Legislature for approval. The high court would no longer have a say in the process.
This is another blatant assault on the power of the judiciary. Contrary to Barreiro's suggestion, there has not been an outbreak of irresponsible rule-making by the Supreme Court. But if legislators think the courts have been overreaching, they have a procedure in place to respond. Notably, the Legislature has exercised its power to repeal court-established rules only eight times.
The courts exist as a co-equal branch of government. The Legislature needs to learn to live with that fact.