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By MARTIN DYCKMAN
© St. Petersburg Times, published April 8, 2001
TALLAHASSEE -- It was poetic justice, though not good law, when Circuit Judge L. Ralph "Bubba" Smith Jr., of Tallahassee slapped a restraining order on the entire Florida Legislature last week.
And it was rib-cracking funny to hear Tom Feeney & Co. gnashing their teeth over it.
Smith is, you see, their kind of judge. Not that they'd care to admit it right now.
He was elected, not appointed. Elected, not anointed by any governor, or pointy-headed nominating commission or, heaven forfend, the Florida Bar.
But what's a judge who ran as Bubba supposed to do when the largest constituency in his circuit (in his case, state employees) asks him for an emergency restraining order in what they regard as a fight for their lives?
He signs it, of course. Wouldn't you?
And never mind the awful consequences.
First, the order was worded much too broadly in forbidding legislators to act or even meet "on any matter implicated" in the bargaining impasse between the Bush administration and Council 79 of the American Federation of State, County and Municipal Employees. Taken literally, that would stop them from working on the budget until the session was nearly over.
Secondly, Smith should have figured that the leadership would ignore him and go ahead with the impasse hearing that had already been scheduled at the administration's request. How would he punish them? The union prudently did not ask for a contempt order. But a precedent was set for the Legislature to flout a court.
Finally, the order would accomplish nothing except to make Jeb Bush even more determined and the Legislature even meaner. That part isn't Smith's fault, because judges aren't supposed to worry about things like that, but the union should have known better.
The call was made not here but in Washington. AFSCME and the AFL-CIO have given up on getting a fair deal here and are taking the fight nationwide. That's what Monday's rally in Tallahassee is about.
But at least it got the House to talking about the separation of powers doctrine.
It was more than a little hypocritical, however, coming from a Legislature that has acted for two years as a wholly owned subsidiary of the Bush administration. With unwitting irony, Feeney extolled the British Parliament's celebrated struggles with Charles I. That legislature, he did not point out, beheaded its sovereign. This one doesn't even say boo.
There's not an single line that Bush has drawn that the House has even thought about crossing. There has been only one -- this year's tax cuts -- on which the Senate has put up resistance, and that outcome remains in doubt.
The career service issue is, throughout, a classic failure of the separation of powers. State employees may have a constitutional right -- the right to bargain collectively -- but Bush and the Legislature are making it unenforceable and empty.
History is instructive. Public employees had to sue, twice, to get the present collective bargaining machinery. The Florida Supreme Court ruled in 1969 that the new Constitution meant what it said plainly: All employees have the right to bargain collectively though public employees may not strike. The court urged the Legislature to "enact appropriate legislation setting standards and guidelines."
The 1970 Legislature did, but Claude R. Kirk Jr., vetoed the efforts. In 1972, with a Democrat in the mansion, the Legislature tried again, but only for the sake of firefighters. (Sound familiar?) That fall, the Supreme Court delivered a final (and effective) warning: If you don't do it, we will.
"We think it is appropriate to observe here," wrote Justice B. K. Roberts for a unanimous court, "that one of the exceptions to the separation-of-powers doctrine is in the area of constitutionally guaranteed or protected rights. . . . A constitution would be a meaningless instrument without some responsible agency of government having authority to enforce it."
The Legislature passed the bill in 1973. The Senate president was Mallory Horne, who years later became chairman of the Public Employees Relations Commission, a noble agency that is about to be effectively wiped out.
The law provided that state worker bargaining impasses would be settled by the Legislature, which has the last word on money. It was a reasonable approach for then and would still be if money were the only big issue. But the issue now is about breaking the unions and making a nullity of collective bargaining.
The Legislature wasn't any governor's rubber stamp back then, and, says Horne, no one thought it ever would be. No one foresaw a governor who would demand the power to fire employees without good cause, or seek to be rid of impartial special masters who might embarrass him, as Bush was last week.
They might as well repeal collective bargaining for all that would be left. Once again, some court will have to remind them that constitutional rights trump even the separation of powers.