Observers say tensions between lawmakers and courts are normal, but Florida is unique.
By JENNIFER LIBERTO
Published April 14, 2004
TALLAHASSEE - Former Chief Justice Arthur England spent two years planning to get a new appellate court created in 1979.
But two weeks ago, the Florida House did it in 20 minutes, approving a new appeals court the Florida Supreme Court never requested.
It's the latest sign of strained relations between the courts and the Legislature. In recent years, lawmakers have cut court spending and passed myriad laws to circumvent controversial rulings.
They threatened term limits for appellate judges and suggested spectators shouldn't have to stand when a judge enters a courtroom, two ideas that failed.
While tension between the legislative and the judicial branches is natural, legal experts say the Legislature nipping at the court's heels has hit a longtime high. And many observers say it is rooted in the Florida Supreme Court's decision to order recounts in the 2000 election, which was later overturned by the U.S. Supreme Court.
"I think there was some hostility that grew out of Bush v. Gore, and that gets played out as accusations of "activist' judges," said University of Florida constitutional law professor Jon Mills, a former House speaker.
Consider recent events pitting lawmakers and the governor against the Florida courts:
The Legislature empowered Gov. Jeb Bush to order Terri Schiavo's feeding tube reinserted, reversing an appellate court's decision that Schiavo is in a persistent vegetative state and would not want to live that way.
The Legislature waited until the last moment to meet a 6-year-old constitutional mandate forcing the state to take a bigger role in financing the courts. Judges spent the past year warning that lawmakers were jeopardizing the courts with spending cuts in programs ranging from teen courts to law libraries.
House Appropriations Chairman Bruce Kyle, R-Fort Myers, tried to force 70 judges, including Florida Supreme Court Chief Justice Harry Lee Anstead, to retire early or lose thousands of dollars in deferred retirement. He tucked the provision into a bill financing 51 new judges but withdrew it under Democratic criticism.
Lawmakers have proposed transferring the power to write court rules from the Florida Supreme Court to a committee appointed by the Legislature.
The House passed a bill backed by Bush that would ensure state prosecutors always get the last word in criminal trials.
Some of the recent tension grows from clashes between the courts and a Republican governor and legislators who say the state Supreme Court is making law rather than interpreting it.
Five of the seven justices were appointed by former Gov. Lawton Chiles, a Democrat. Many of the court's constitutional decisions have been close 4-3 votes, including the 2000 recount.
In the next legislative session, the Legislature gave the governor unprecedented power in shaping the judiciary by allowing him to appoint all members of the judicial nominating commissions, which recommend judges for the governor to appoint.
The 2002 session "was the high mark of tension between the two bodies," said Stephen Metz, a Florida Bar lobbyist. "This one has not been as rough, but it certainly has had its share of tension."
Some tension stems from new legislators misunderstanding the courts' role, said former Chief Justice Stephen Grimes, who retired in 1997. Grimes pointed to term limits as part of the problem.
"Legislators impose these bills that are well-intentioned, but they've not been around long enough to understand the relationship between the courts and the Legislature and the separation concept," Grimes said.
In the past year, debate has centered on how lawmakers should shift the responsibility of paying for the courts from counties to the state, as required by a constitutional amendment voters approved in 1998. The deadline is July 1.
The courts want $173-million. The Senate proposes $111.6-million and the House $137.4-million.
Lawmakers and judges working on the court budgets say the discussions have been cordial. But lawyers and judges, including Anstead, have accused lawmakers of putting the courts at risk.
For example, teen courts are in danger. Neither proposed budget pays for the diversionary program that allows teenagers accused of minor crimes such as vandalism or shoplifting to avoid the full brunt of the criminal justice system by appearing before a mock judge and jury comprising peers. However, lawmakers have filed a separate bill in an attempt to save teen courts with a court filing fee.
"We're moving forward, and I think we're getting very close to a global solution to provide for a fair distribution of responsibilities," said Sen. Rod Smith, D-Alachua, who said critical parts of the system, such as drug courts, will be funded.
The Senate's proposed court budget has forced judges into the unlikely position of cozying up to the more generous House, despite House bills that meddle with judicial independence.
Another House initiative threatens the balance of power by giving the state Supreme Court's rulemaking authority to a Legislature-appointed committee.
The Supreme Court makes its own rules, most of which are technical. The court also can strike down laws that invade its rulemaking authority. The Legislature can repeal a court rule with a two-thirds vote of each chamber.
Rep. Gus Barreiro, R-Miami Beach, has spearheaded the measure on court rules because he said the Supreme Court has changed or ignored state statutes.
"When we create statutes, their responsibility is to interpret that statute, not to change that statute, and they've been changing the statutes," said Barreiro, who chairs Public Safety and Crime Prevention.
For example, the Supreme Court struck down a 2001 law giving felons two years to ask for DNA testing to prove their innocence, indefinitely extending the DNA testing window.
But House proposals that tinker with court rules could lose steam in the Senate.
"The House is a chamber much angrier at the court system than is the Senate," Senate President Jim King said in March. "I've been disappointed at some of the decisions the court has made, but I don't think this chamber is up in arms."
- Staff writer Lucy Morgan contributed to the report.
