Jurists' opinion on what was the right thing to do

By JO BECKER

© St. Petersburg Times, published March 25, 2000

Among former and current members of the judicial branch, there is little question that it would be wrong for justices to have helped shaped the substance of a law that would likely come before them. Rep. Victor Crist, R-Tampa Palms, recently said that two justices did just that during the crafting of a new death penalty appeals law, though he later said he was mistaken. But what is undisputed is that Chief Justice Major Harding met with Speaker John Thrasher, discussed at least the impact the new law would have on the court and gave Thrasher a proposed bill that related to death penalty appeals. Harding did not disclose those communications when lawyers appeared before his court to argue that the new law was unconstitutional. Those actions, it seems, fall into grayer territory. Here's what some former justices and judges have to say:

Former Chief Justice Arthur England: "Would I have engaged in discussions with legislators or their staff about a law as it was being drafted? Absolutely not. . . . There should have been no discussion about death penalty legislation -- that's a matter that always comes before the court. It's verboten. Now, the chief justice could respond to questions -- if we were to give you tighter time frames, would you need more resources?" England said Harding would not have had to disclose such a conversation. But he added: "I probably would have disclosed that."

Former Chief Justice Ben Overton, who served on the court from 1974 to 1999, said once a law has been challenged, justices should have no discussions about it. But he said the court and the Legislature have cooperated in the past on laws that have to do with court procedure. "When you are dealing with a particular area that affects one branch of government or where another branch has an interest and has a constitutional responsibility and they have the authority to overturn court rules, it makes sense to tell them what you are doing."

Former Chief Justice Alan Sundberg, who served on the court from 1975 to 1982, said he communicated with the Legislature on drafting new sentencing guidelines. "I certainly participated in the crafting of the legislation because it had to do with court administration -- it was sort of a joint effort between the Legislature and the court." Sundberg also recalled that he was actively involved in a 1980 constitutional revision put on the ballot by the Legislature that limited the Supreme Court's jurisdiction: "One or more of us got some members of the Legislature to introduce it."

Former Chief Justice Raymond Ehrlich, who served on the court from 1981 to 1991, said that during his tenure "never once was there an inkling that anyone on the court played any significant, meaningful role in what went through the Legislature or came out of the governor's office. That was off bounds. You would have been run off the bench if you had done it." Ehrlich said the only thing he ever spoke to the Legislature or the governor about was the court's annual budget and how many judges were needed around the state. Making a point to say that he was not criticizing Harding, he said he would have disclosed any conversations he might have had. "I think the chief justice could sit down with the speaker or the president of the Senate and say, "Hey, look, the ball is in your court, but if you do this it's going to increase the need for more judges.' But if you've played any role whatsoever, where down the line a case might come before you, you're supposed to let it be known. . . . I'd be nervous about sitting on a case, particularly where a man's life is involved and I played some, albeit, distant, role. It's the perception." Ehrlich declined to say whether he believed Harding and Wells should recuse themselves. But he said, "I sure would take a lot of Alka-Seltzer. I don't know what I'd do. That's a terrible position to be in. You can go to confession and say, I did nothing wrong and take that position. But it does a terrible injustice to the court as an institution -- the court is damaged as an institution if that stuff comes up."

Pasco-Pinellas Chief Circuit Judge Susan Schaeffer, who served on a commission set up by the Supreme Court to make recommendations on how to eliminate unnecessary delays in carrying out the death penalty, pointed out that Harding was under considerable pressure. The Legislature, already angry with the court over death penalty reversals, and Gov. Jeb Bush had decided to hold a special session and pass a law that the court might ultimately have to toss out. She said she believes Harding was subtly trying to send House Speaker John Thrasher a message when the chief justice handed the speaker a draft of a bill that effectively split the difference between what the court's commission was recommending and what the Legislature was contemplating doing. "The chief was trying to show the governor and the Legislature -- everyone -- that, "Look, work is being done on this. You people don't need to be going off calling special sessions and passing laws.'. . . The chief justice and every member of the court was concerned that the Legislature isn't the right one to draw court rules of procedure." She said she does not believe Harding did anything wrong.

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