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Referees of state law can't also call plays

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By HOWARD TROXLER

© St. Petersburg Times, published March 22, 2000


Just a few days ago, the big worry was that the mean old Florida Legislature was trying to take power away from our state courts.

The worm sure turns fast.

Now the worry is that the Florida Supreme Court, or at least some of its members, has been playing footsie with the Legislature.

The question is whether Chief Justice Major Harding and Justice Charles Wells allowed themselves to be, shall we say, "consulted" by the Legislature while it was writing a new and tougher death penalty law.

The learned and distinguished justices deny that this happened.

However, in Harding's case, he did pay a little visit to House Speaker John Thrasher (A House call?). He did drop off the text of a proposed bill. Perhaps he meant to drop off a fruit basket instead but became confused.

At the very least, key members of the Legislature say they believed that they had the court's instruction and input, based on these contacts. This belief changed the laws of Florida.

That's why the Legislature wrote the new laws the way it did. That's why lawmakers split the new death laws in two, one bill creating lethal injection, and one bill creating new rules on death appeals.

"We sent some information to them (the justices) about what we were thinking about, more in the line of concepts than anything else," Thrasher told a Times reporter.

"I wouldn't let them draft the bill, but they were interested in discussing the concepts about court procedures that were included in the bill."

At first blush, all this might seem like a good idea. Thrasher thinks so.

After all, if you are the Legislature, getting ready to rewrite a complicated law, why not consult with the Supreme Court? The court will have the final say on whether that law is constitutional.

As a carpenter might say, measure twice and cut once.

And yet, this is a terrible idea. We are not talking about prequalifying for a mortgage here.

The Legislature is a potential court defendant every time it passes a law. Each new law can be tested in court to see whether it violates the Constitution or the rights of any person.

The citizens, suffering under an unjust law, are entitled to petition for redress of their injury. They are entitled to mount a full court challenge. They are entitled to raise every argument in a fair, in-depth proceeding.

The judicial branch is the impartial referee in these disputes between the citizens and the Legislature. It judges and weighs the work of the Legislature. To work with the Legislature in advance, to offer the slightest counsel or opinion during the legislative process, is a one-sided communication with a potential litigant.

The court is in danger of having helped create the very thing it is now supposed to judge impartially.

The Supreme Court should treat the Legislature like a potential litigant in every communication. This means no friendly little chats in the speaker's office, dropping off proposed pieces of legislation, even if he meant it only as food for thought. The justices in question should now recuse themselves from the court challenge to these new laws.

It would certainly be more efficient for the Legislature to get prior approval from the Supreme Court for all its new laws, before any pesky citizens could hire those smart-alecky lawyers to challenge them.

We could give the justices a row of seats in the upper deck of the House and Senate chambers, sort of a super-Legislature, with its own little set of red and green lights to vote yes or no on each new law.

Come to think of it, it would be most efficient of all if we just got rid of one branch of government or the other, or even both of them, and rolled everything into one all-powerful ruler. Yeah, that would be really efficient. Good for business. The trains would run on time.

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