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'An encroachment on our courts'

Every governor has stubbed his toe on the Florida Supreme Court from time to time, but only Jeb Bush has sought revenge. That unseemly side of him is on display in his support for a constitutional amendment to strip the court of its power to control the rules of civil and criminal procedure. It is more than a turf fight. Everyone's civil rights are at stake.

The offensive measure, HJR 1007, is payback to the court for overturning a law that was intended to speed up executions, for waiving the Legislature's arbitrary deadline on DNA testing to support claims of innocence, and for asserting that dependent children should have access to lawyers before commitment to residential treatment programs. It is accompanied by another bill, HB 1005, that would speed up executions. The House Criminal Justice Committee approved both with too little debate this week. Rep. Everett Rice, R-Indian Shores, cast a decisive vote in favor of HJR 1007.

One of the three votes against it was cast by a legislator whose full-time job is that of a prosecutor in the Broward state attorney's office, but who has the proper respect for the separation of powers. "I just think it's an encroachment on our courts," explained Rep. Ari Porth, D-Coral Springs.

As the amendment moves through the legislative process, Rice and others who are disposed to support it ought to reread what Alexander Hamilton wrote in The Federalist on the importance of judicial independence:

"In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws."

Florida leads the nation in the number of people - 24! - who have been set free from death row on account of proof of innocence or grievous flaws in their convictions. DNA exonerated another after he died of cancer. One came within 16 hours of execution. This is no time, and Florida is certainly no place, to be short-circuiting due process.

The Constitution empowers the Legislature to overturn any of the court's rules by a two-thirds vote. Among other things, HJR 1007 would let the Legislature repeal or amend the rules by majority vote. It would create an unnecessary, time-consuming judicial conference to initiate certain rules.

It would also prohibit the court from providing for postconviction appeals except on the Legislature's terms. That borders on tyranny, for it infringes on the ancient right of habeas corpus.

Former Chief Justice Major Harding, testifying on behalf of the Florida Bar, pointed out to the committee that the court had invoked its rulemaking power to overturn laws only eight times in 30 years. The death penalty decision, he said, "was not done with any joy or glee on the part of the court." But so far as a majority of that committee seemed to care, he might as well have been speaking in Sanskrit.

[Last modified March 17, 2005, 01:06:18]