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If Bush fought the law, who would win?

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By HOWARD TROXLER

© St. Petersburg Times, published June 5, 2000


Our governor is frustrated with the Florida Supreme Court.

So is our Legislature.

Are those two branches of our government, the executive and the legislative, frustrated enough to get together and wreak some serious damage on the third branch, the judiciary?

It is possible, you know. Even though our state Constitution creates the Supreme Court and gives it power, well, it is only a piece of paper.

The governor and Legislature could ask the voters to change the Constitution, to take away some of the Supreme Court's power -- even give some of its power to a newly created court.

How would we like them apples?

The immediate reason Gov. Jeb Bush and the Legislature are frustrated is that the Supreme Court blocked a law designed to speed up executions.

This law was passed in January. It was called the Death Penalty Reform Act of 2000. It was pretty harsh (in places, downright arbitrary and unfair), cutting back on appeals and speeding up the pace of death cases.

Three months later, the Supreme Court blocked the new death law. The main reason was that the judiciary, not the Legislature, has the sole power under the Constitution to write the rules of procedure for handling cases.

This is the idea of "separation of powers." Each branch of the government has unique power. Only the Legislature can pass a law. Only the governor can enforce a law. Only the courts can try cases and decide whether a law complies with the Constitution.

In other words, the court told the Legislature: Deciding how to try cases is our job. Mind your own business. At the same time, the court proposed its own new rules for handling death cases.

This led to a letter last week from the governor to the Supreme Court, containing the governor's official "comments" on the proposed rules. The letter was extraordinarily strong, even bitter.

Bush's lawyers accused the court of ignoring the deadlines set in state law in many cases, and its own timetable of rules in other cases. No wonder the average delay in death cases that end in execution is 14 years, they wrote. The typical case is stretched out by 10 post-conviction appeals.

"The families of murder victims and defendants who may justly be entitled to relief -- and the citizens of Florida -- deserve nothing less," the governor's lawyers said. The court should reject its weak proposed rules and draw up stronger deadlines, the letter concluded.

There was a ghost, just a ghost, of a threat in the letter, a subtle reminder that ultimate power over the court lies with the voters:

"The judiciary's power and independence, however, like the powers and independence of the executive and legislative branches, are granted by Florida's citizens ..."

This is the second such warning shot fired across the Supreme Court's bow this year. The first came from John Thrasher, the departing speaker of the state House, who gave a speech complaining that the court has thrown out or delayed many "reforms" passed by the Legislature.

Already this year, the Legislature has considered a constitutional amendment giving lawmakers the clear power to set deadlines in death-penalty cases. Such a change would have required voter approval. The bill died without being heard, but the push easily could be renewed next year if the court completely thumbs its nose at Bush.

Critics of the governor and Legislature say they are threatening the "independence" of the judiciary, but no such complete independence exists. It is true that the courts should decide cases based only on what the law and the Constitution say. But it also is true that there always is wiggle room in the writing of rules of procedure. Is the court willing to force a showdown by insisting that only the precise wording of its proposed Rules 3.851, 3.852 and 3.993 will satisfy the Constitution?

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