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Lawmakers should reject proposals that would clip judiciary's wings

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© St. Petersburg Times, published February 18, 2001

Locke Burt, chairman of the Senate Judiciary Committee, insists there is no Republican agenda to punish Florida judges for rulings against a number of legislative enactments by conservative lawmakers. "What the press has tried to imagine is a Republican attack on the judiciary," Burt says. "It just isn't there."

Interesting comments, considering House Speaker Tom Feeney's recent tear against the Florida Supreme Court.

In an interview with Times staff writer Lucy Morgan, Feeney promised to consider legislative remedies to the court's willingness, in his view, to "create new law." Feeney said during the upcoming legislative session he'd "take a hard look at" any proposal that "would tend to produce a court more respectful of the law and the Constitution."

Of course, what he meant is a court packed with judges who share his ideology, a court more respectful to him and his views against abortion rights and in favor of speeding up executions, regardless of their constitutionality.

Despite Burt's protests, Republican leaders, especially those in the House, have in words and deeds made no bones about being more than a little peeved at Florida's judiciary. This session, expect that pique to translate into another barrage of legislative proposals designed to clip the judiciary's wings and make it more deferential to the other branches of government.

Why is that a bad thing?

Checks and balances.

Last year former House Speaker John Thrasher attacked the judiciary before Tallahassee's Tiger Bay Club. In no uncertain terms Thrasher told the political club that he'd had it with "unelected judges" second-guessing his "reforms." "Every significant piece of legislation we passed produced a lawsuit," Thrasher complained prior to the 2000 legislative session.

Thrasher seemed to have forgotten his sixth-grade civics class on the way our government operates. It is the duty of the courts to review the constitutionality of laws passed by the Legislature. The courts are charged with protecting the rights of the individual from majoritarian tyranny. Maybe the Legislature doesn't care about due process for those accused of a crime, but our courts do, and it is their job to police legislation to make sure those rights aren't harmed. Only an independent judiciary is sufficiently empowered to be this kind of check on legislative and executive power. Yet, it is that very independence the Legislature is intent on reining in.

During the last session, one proposal after the next was introduced to redistribute power away from the judiciary.

Rep. Victor Crist, R-Tampa Palms (now a state senator), was so outraged over the court's rejection of the Death Penalty Reform Act of 2000, he introduced a constitutional amendment to allow the Legislature to supersede judicial rule-making.

In a move that would have given Republican Gov. Jeb Bush an opportunity to pack the Florida Supreme Court, the House entertained an idea to expand the number of justices on the court from seven to nine.

There were discussions and threats, but no formal action, on an effort to strip the chief justice of his budgetmaking authority over the judicial branch and transfer that power to the governor.

And then-Sen. John Grant, R-Tampa, offered one of at least six different bills introduced to change the way in which appellate judges and Supreme Court justices are chosen.

Currently, the system protects judicial independence and promotes experience and talent over patronage by use of non-partisan judicial nominating commissions. The JNCs send the governor three to six recommended judicial nominees and the governor makes an appointment from those choices. Each commission is made up of nine members with three members chosen by the governor, three by the Florida Bar and three selected by the first six. The idea is to get the input of local people in the legal community who are likely to have a depth of knowledge about the applicants' legal credentials and qualifications.

Grant, who had been turned down for judgeships by the Tampa Bay area's JNC, wanted to increase the governor's influence in the initial nominations. His bill would have increased the commissions to 12 members with the governor choosing the extra three choices. This would mean the governor's six members would be able to outvote the Florida Bar members in the choosing the three public members.

By the end of the session, though, none of these pernicious ideas had passed. Instead a benign and balanced Supreme Court Workload Study Commission was established to examine some of the ideas for judicial reform floating around the Legislature and make recommendations. About the closest the Legislature came to slapping the judiciary was in its rejection of the chief justice's request for 43 new trial judges. However, it should be noted that new money was directed toward the judiciary in the form of increased salaries for all judges and justices.

Everyone who cared about the continued integrity of the judicial branch breathed a sigh of relief and hoped next session would be calmer.

Don't count on it.

In the intervening year, the Florida Supreme Court has stepped on one Republican landmine after another.

In addition to ruling not once but twice to salvage hope for Al Gore during Florida's presidential election mess, the court stoked Republican anger by setting aside a constitutional amendment on the death penalty after it had been overwhelmingly approved by voters.

In September the court ruled 4-3 in the case of Armstrong vs. Harris to strike down a constitutional amendment the Legislature had put on the ballot. Among other things, the amendment intended to bind the state Supreme Court to federal court interpretations of "cruel and unusual punishment." Until then, the Florida Constitution barred "cruel or unusual punishment." Justice Leander Shaw, writing for the majority, said the ballot wording wasn't clear enough to provide voters with an understanding that they were giving up an essential right.

For a court whose relationship with the Legislature was already ragged, this was received as a Bronx cheer. Lawmakers were livid. (Here, admittedly, lawmakers were justified in their anger. The court had overstepped its jurisdictional bounds.)

It is with this raw nerve exposed that we arrive at the doorstep of the 2001 legislative session.

As with the prior session, the most fearsome saber-rattling is emanating from the House. Speaker Feeney has opened the door to substantially changing the way the judiciary is chosen. He says the House will likely consider ideas to limit the terms of justices and return Florida to a system where appellate court judges are elected.

While today appellate judges are appointed and voters decide every six years whether to retain them, before 1976 all judges ran for office in open, contested elections. That system was changed for appellate courts in order to generate more qualified and talented jurists.

Asked if he favors returning to the election of appellate judges, Chesterfield Smith, a founder of the law firm Holland and Knight and dubbed the father of Florida's Constitution, answered emphatically: "I am not!

"I have been through it and the judges we got were not near so good. Over the years, some of the judges we got (by election) I wanted to impeach, get rid of and even hang," Smith said firmly.

Smith's lament is shared by former Florida Chief Justice Gerald Kogan, who said the state's experience with elected justices "was really terrible." There were "allegations that certain justices were corrupt and subject to influence," Kogan said. In the 1970s three justices were pressured to leave the court. Hal Dekle and David McCain left amid impeachment investigations, and Vassar Carlton left amid rumors of an investigation into a gambling junket. A fourth justice, Joseph Boyd Jr., survived an impeachment query but had to promise to take a mental-health exam before returning to the bench.

According to Kogan, the prospect of corruption and the appearance of bias are always present when judicial candidates have to raise campaign contributions: "Do you want justices having to go out and collect $5-million in campaign contributions to run a statewide race? Who do you think is going to contribute? People who in one way or another have business before (the court)."

In terms of ability and experience, appointed judges and justices have proven to be highly able. Statistics indicate that elected judges are approximately three times more likely to have faced disciplinary proceedings than those appointed.

While proponents of an elected judiciary claim it makes judges more accountable, in fact the opposite is true. While no Florida Supreme Court justice has ever been removed under merit retention, it's theoretically possible. Every six years the electorate has the opportunity to vote out any jurist who is corrupt or incompetent. Compare that to the contested election system where voters may only turn out a bad judge if he or she draws an opponent.

As to Feeney's second suggestion, term limits for justices, those in the know give it a firm thumbs down. "You go on the appellate court as a career move," says former Florida Chief Justice Stephen Grimes, who was chairman of the Workload Study Commission. "You give up your practice and clients. (Term limits) would discourage good lawyers from applying."

These opinions seem to be shared by Senate Judiciary Committee Chairman Burt. When asked about elections and term limits for appellate court judges, Burt said: "I don't think they're of interest to anyone in the Senate."

However, Burt says he's willing to take a serious look at a proposal by Sen. Anna Cowin, R-Leesburg, who wants to change the state Constitution to provide for a judicial selection process that mirrors the federal system, where appellate judges and justices are nominated by the governor and confirmed by the Senate. But she also wants term limits for justices.

As another option, Cowin, who is peeved with the JNCs, is proposing a constitutional amendment to require the commissions to send the governor at least 10 recommended judicial choices, rather than the current three to six. Her proposal would also open the JNC's deliberative process to the sunshine.

The thrust of all these ideas is to strip power and discretion from the JNCs and transfer it to the governor.

But if the Legislature really cared about excellence in our court system as opposed to merely getting like-minded jurists on the bench, it would pay careful attention to the recommendations of the Workload Commission and leave the way we choose judges alone.

The commission, made up of a politically diverse group of legislators, former Supreme Court justices, former Florida Bar officials and others, voted unanimously to reject an expansion of the Florida Supreme Court from seven to nine members. Another pet idea of some Republican lawmakers, creating a separate Court of Criminal Appeals to handle death penalty appeals, was also rejected.

Instead, the commission focused on reducing the court's workload by supporting its request for additional staff and upgraded technology. These added resources will help it streamline management of death penalty cases and so-called tag cases (where multiple cases raise the same issue and can be handled together).

Also the commission is suggesting the Legislature might reduce the court's workload by requiring that a supermajority of jurors vote for death in capital cases; and it will ask the Legislature to bar judges from imposing a death sentence when a majority of the jury recommends life without parole. Death penalty cases take an inordinate amount of the court's time, and close calls, such as when the jury disapproved of or narrowly approved a death sentence, are more likely to be set aside.

All of these are sound, rational and modest proposals.

And they are not likely to satisfy lawmakers with a chip on their shoulder. In the heat of loud, emotive calls for the judiciary's head, "sound, rational and modest" doesn't stand much of a chance.

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