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    The chief justice who rode out the storm

    By LUCY MORGAN

    © St. Petersburg Times, published May 28, 2001


    TALLAHASSEE -- Chief Justice Charles T. Wells knew the Florida Supreme Court was about to get busy when he woke up the morning after the presidential election and saw there was going to be a recount.

    "It was sort of like Apollo 13 -- 'Houston, we've got a problem,' " Wells recalled in an interview with the St. Petersburg Times.

    photo
    Wells
    In the 36 days that followed, Wells increased court security and double-checked the court's state-of-the-art Web site to be ready for the media onslaught. He wrote a pointed opinion about the recount and, amid it all, missed the annual football game between his beloved University of Florida and Florida State.

    "I thought it would make me uncomfortable to go to the game, and I thought I needed to take the news at home," he joked. The Gators lost.

    There were moments when Wells felt like he was in the eye of a hurricane or in the witness protection program.

    The court already had a page on the Internet and some experience distributing documents in high-profile cases, but no one could prepare for a situation that saw more than 3.5-million hits a day on the court's Web site, up from 2,000 a day, in only a week.

    By the time Wells went to Miami to visit his daughter at Thanksgiving, he had grown more concerned about security. As he walked through the Miami airport, he was escorted by three plainclothes police officers and three officers in uniform.

    "The people who saw me probably thought I was in the witness protection program," he said.

    Outside the court, television broadcasters from around the world were camping at his doorstep, along with ordinary people and sign-carrying protesters.

    "Interested people were just showing up," Wells recalled.

    In December, when the court overturned Judge N. Sanders Sauls in a ruling that favored Vice President Al Gore, Wells wrote the court's dissenting opinion.

    The chief justice's opinion accused his fellow justices of propelling the state into "an unprecedented constitutional crisis." By attempting to rewrite the state's election laws, Wells suggested, the court's narrow majority was risking confusion and disorder.

    He predicted that the 4-3 decision would cause "substantial damage to our country, our state and to this court as an institution."

    In the end, the U.S. Supreme Court agreed with Wells and overturned the Florida court with a ruling that gave the presidency to George W. Bush.

    Wells, 62, was appointed to the court in 1994 by Gov. Lawton Chiles after a distinguished career as a lawyer in Orlando.

    These days Wells won't discuss the opinion or how it has affected relationships within the court. But his choice of reading for pleasure offers an interesting insight in light of the angry rhetoric from legislators who wanted to reduce the court's power in the wake of the elections decision.

    His favorite tome of the moment is a book written in 1941 by U.S. Supreme Court Justice Robert H. Jackson. The Struggle for Judicial Supremacy discusses President Franklin D. Roosevelt's effort to pack the U.S. Supreme Court.

    Roosevelt was not happy with a series of court decisions that overturned some of his economic programs to cope with the Depression.

    The comparisons are striking. Florida's courts are steadily working their way through Republican initiatives, rejecting many of them.

    Jackson saw Roosevelt's attempt to pack the court with four new justices not as an attack on the institution itself but an attack on what the president regarded as an abuse of power.

    Jackson also had some thoughts on how the court ought to use its power to overturn legislation.

    Jackson wrote that "it is an awesome thing to strike down an act of the Legislature approved by the Chief Executive, and that power so uncontrolled is not to be used save where the occasion is clear beyond fair debate." So far, Republican efforts to dramatically limit damages in civil lawsuits, speed up the application of the death penalty, establish vouchers in public schools and require parental consent for abortions have run into trouble in the courtroom.

    Legislators have been filled with angry rhetoric, complaining that the court has tried to create new law rather than interpret the measures passed by the Legislature.

    This year, lawmakers threatened to abolish the merit retention system established almost 30 years ago to get the state's appellate courts out of the political arena.

    House committees considered bills to impose term limits on the justices, require a return to elections and eliminate the influence of the Florida Bar in selecting judges.

    Most of the bills failed after the Senate declined to take them up. Only one of them passed: a measure that gives the governor more power in selecting judges. The Bar will get to suggest nominees, but the governor has the final say in determining who serves on the commissions.

    For his part, Wells refused to criticize the Legislature. He recalled the rhetoric against the U.S. Supreme Court from liberals in the 1930s. Wells noted that he came of age in the 1950s and 1960s, when the courts were seen as far too liberal.

    "We go through periods where one branch of government is very emotional about what is going on in the other branch," Wells said.

    Wells said he doesn't believe all of the ugly rhetoric has undermined public faith in the courts.

    "It's part of the give and take between the branches of government," Wells said. "There are times when the give and take means people are responding in strong terms."

    He was pleased that the 27 new judges approved by lawmakers will do a lot to help the courts cope with an ever-increasing caseload. The court had requested 44 new judges.

    He says he never discussed all the angry rhetoric with legislative leaders or the governor.

    "I talked to many legislators during the session about a lot of things," Wells said. "One thing I feel very good about is that there are a lot of first-term legislators who have strong law practices and came to the Legislature experienced as lawyers with an understanding of the courts."

    Wells said he isn't sure what, if any, impact will flow from the bill that gives the governor more power in the appointment of new judges.

    "I think the probability is some procedures can be worked out with the Bar and we'll proceed as we have for the last 30 years," he said.

    Wells does worry about getting the state money the courts need to comply with a constitutional amendment approved in 1998 to shift financial responsibility from individual counties to the state by 2004.

    He plans to spend more time talking with legislative leaders to try and get them to focus on the problem.

    "But I'm a realist, and I recognize it will be hard to move the ball very much until 2003," Wells added.

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    From the Times state desk