Ask Justices and the Florida Bar: What Happened to Competence?

By: Nancy Smith | Posted: October 1, 2012 3:55 AM

I Beg to Differ
In November when I vote not to retain the three justices on the ballot, it will have nothing to do with a handful of Florida rulings that run contrary to my politics. It will have everything in the world to do with competence. 

Justices Barbara J. Pariente, R. Fred Lewis and Peggy A. Quince, up for retention this cycle, didn't invent the existing judicial system. But they are part of it. And they did fail to learn from the past, fail to mind the store, fail to stop disasters that happened on their watch.

Allow me to present my case for the general incompetence of the judiciary and the Bar -- the legal system at the highest level in Florida.

Like any other arm of government, the judicial branch needs that eye in the sky, that secret camera. It needs self-policing and constant correction. That's how the merit retention of judges and justices came to be.

In the mid-1970s, after the the St. Petersburg Times' Martin Dyckman unraveled a tangle of scandal in the elected state Supreme Court, after two justices resigned and another was reprimanded, Florida voters approved a constitutional amendment requiring that the merit retention system be used for all appellate judges and justices. Under merit retention, the governor would make the appointments, but every six years voters would get to decide whether to keep or remove them.

Good work, Dyckman. But did merit retention purify the water for good? It did not.

All you have to do is look in the archives at Florida newspapers' periodic ethics enemas.

Along came the secret dockets scandal.

In 2006, through Dan Christensen's series of withering stories in the Miami Herald, Floridians discovered that judges and prosecutors altering the public docket to cover up the felony convictions of informants was "an established practice" in Florida. It actually was an exclusionary, illegal travesty that had been going on for decades. Neither the judiciary nor the Florida Bar had chosen to expose it.

The Florida "Taj Mahal" -- the 2010-constructed, $48 million 1st District Court of Appeal building makes the Florida Supreme Court look like a hot dog stand. But who ratted it out for possible misuse of state funds? Not one of the justices, judges or the Florida Bar. It was then-St. Petersburg Times reporter Lucy Morgan.

All of this is incompetence. 

Look at the surveys. Ninety percent -- yes, 90 PERCENT-- of voting Floridians have no idea how judges get and keep their offices. Right now the Florida Bar is scrambling, scaring up quick primers on merit retention, how it works and, sadly, why voters shouldn't base their votes on a judge or justice's opinion record. This, they insist, interferes with the preservation of an independent judiciary.

Keeping voters clueless about their obligation to decide on judges and the judiciary until two months before a vote -- does that sound competent to you?

Everybody who doesn't live in a cave knows that this year's merit-retention election in Florida is politically charged. The Republican Party of Florida wants voters not to retain the three Supreme Court justices, arguing that they are some of the most activist in the nation. The Democrats, and as far as I can see, the Florida Bar, want exactly the opposite. Here's why I say that:

A week ago the Florida Bar sponsored a reporters' workshop at the Supreme Court. One of the primary sessions was a panel discussion, "Judicial Elections & Merit Retention: Covering the 2012 Elections." The Florida Bar -- the state's elite, its primo, creme de la creme legal entity -- produced a three-member panel plus moderator, not one of whom represented "the other side."

The Republicans' point of view -- so worthy of disdain in position papers and news stories -- was nowhere to be found on this panel. The omission turned the session into an infomercial for retention.

One of my favorite justices, William O. Douglas -- appointed by Franklin D. Roosevelt and the longest serving justice in the history of the Supreme Court -- wrote this: "Judges are supposed to be men of fortitude, able to thrive in a hardy climate."

Justice Douglas would not have been afraid of a panel that included someone who didn't agree with him. Nor was he afraid to talk with anyone, no matter what the political persuasion. Unlike the incompetent three up for retention in November, he was not a justice who would have hired the public relations firm of Jesus, Mary & Joseph or Sterling Cooper Draper & Price or Brian E. Crowley & Wife to decide who he is allowed to talk to.

He would have competently and graciously gotten on with his job of answering the questions he could answer. 

Reach Nancy Smith at or at (850) 727-0859.


Comments (21)

Jack Thompson
2:40PM OCT 3RD 2012
In January of this year, all three Justices certified in a formal filing with the Secretary of State that multiple "organizations" and "public websites" were actively opposing their retentions.

These certifications are utterly false.

The three Justices lied about this in order to trigger the Florida law that allows them, in the face of opposition, to raise campaign monies to promote their retentions.

All monies raised, now in excess of $1 million, by these three Justices have been illegally raised, in violation of state law.

This is why I have filed formal, sworn complaints with the Judicial Qualifications Commission about this unethical, illegal, lying conduct.

Further, a complaint must and will be filed with the Secretary of State to enjoin the expenditure of these funds by the three Justices and to remove them from the ballot, if required.

These two remedies were endorsed as viable by Leon County Circuit Court Judge Terry Lewis who appropriately dismissed the wrongheaded lawsuit by Southeastern Legal Foundation. The Secretary of State and the JQC have jurisdiction to remedy this illegal conduct by these Justices. The courts do not.

This scofflaw activity by Justices Pariente, Quince, and Lewis is just the latest partisan, dishonest conduct by three jurists who think you work for them, not the other way around.

Jack Thompson, JD, MA, Miami FL 305-666-4366
7:38AM OCT 3RD 2012
very simple here. if you think having rick scott appoint 3 of his friends to the court is a good idea, support it, if you believe it's a nightmare then don't support it.
Franklin Thompson
9:58AM OCT 2ND 2012
Been reading about how folks hate the 'politicizing' of the Supreme Court of Florida. I have startling news for you. When justices can be on a ballot to be retained or not retained, you are voting, and voting is political.

So don't get too haughty when someone, some party, or some group expresses their opinion about retaining or not retaining Florida Supreme Court justices.
11:27AM OCT 2ND 2012
Guess that's why some Republicans, including ex-Justices, are saying this is just plain wrong for the Republican Party to come out against a supposedly non-partisan retention election.

Yes, you must be right, justice should be partisan and political in your world view.
The UnFrank
1:09PM OCT 2ND 2012
Anybody who ever thinks they might have to face a judge or a justice head on says publicly "this is just plain wrong for the Republican party." But I've heard attorneys whispering among themselves that the GOP is right and the whole system is broken.
7:13PM OCT 2ND 2012
So time for government of the rumor, is it?

Is that what you're suggesting should be the basis for our vote this election cycle? Rumor over facts, rumor over issues discussed in the sunshine.

Franklin Thompson
12:26PM OCT 2ND 2012
Nope. The system is what it is and it has to be lived with or changed.
7:23PM OCT 2ND 2012
Exactly, and it was meant to be apolitical . . . . but maybe you're just too young, or too uninformed to know that.

Or maybe you just think that it's legal to advocate FOR the justices by a political party.
Franklin Thompson
7:43PM OCT 2ND 2012
You are wrong again, so you are maintaining your 100% standard. If I have a say in whether Supreme Court justices should be or should not be retained, I would like to know something about them and see if they line up with my principles. If they do, I will vote to retain; if not, I will vote not to retain. Every voter, including yourself, is going to do the same thing, whether anyone likes it or not and that is a fact.
7:54PM OCT 2ND 2012
I don't care what you do with YOUR vote.

What I object to is making a non-partisan retention vote a political partisan issue by a political party.

You just seem unable to grasp the concept.
Franklin Thompson
10:38PM OCT 2ND 2012
I don't think you get it ,still. It is not a matter of party. It is a matter of conservative or liberal and The RPOF happens to be the conservative voice in this case and they have said that they feel the justices are liberal, do not line up with conservative principles, and should not be retained. The liberals (meaning DPOF) will say the same thing but using their liberal principles as their guide and will say the justices should be retained. Justt about sums it up I think.
10:18PM OCT 3RD 2012
"The liberals (meaning DPOF) will say the same thing but using their liberal principles as their guide and will say the justices should be retained."

See, that's where you've got it entirely wrong - it is ILLEGAL for a partisan political party to "endorse, support, or assist any candidate in a campaign for election to judicial office".

Let's just look a little at the statute, as it relates to political partisanship:


105.011 Definitions.—
(1) As used in this chapter, the term “judicial office” includes the office of:
(a) Justice of the Supreme Court.
(b) Judge of a district court of appeal.
(c) Judge of a circuit court.
(d) County court judge.
(2) A judicial office is a nonpartisan office, and a candidate for election or retention thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.

105.071 Candidates for judicial office; limitations on political activity.—A candidate for judicial office shall not:
(1) Participate in any partisan political party activities, except that such candidate may register to vote as a member of any political party and may vote in any party primary for candidates for nomination of the party in which she or he is registered to vote.
(2) Campaign as a member of any political party.
(3) Publicly represent or advertise herself or himself as a member of any political party.
(4) Endorse any candidate.
(5) Make political speeches other than in the candidate’s own behalf.
(6) Make contributions to political party funds.
(7) Accept contributions from any political party.
(8) Solicit contributions for any political party.
(9) Accept or retain a place on any political party committee.
(10) Make any contribution to any person, group, or organization for its endorsement to judicial office.
(11) Agree to pay all or any part of any advertisement sponsored by any person, group, or organization wherein the candidate may be endorsed for judicial office by any such person, group, or organization.
A candidate for judicial office or retention therein who violates the provisions of this section is liable for a civil fine of up to $1,000 to be determined by the Florida Elections Commission.

105.09 Political activity in behalf of a candidate for judicial office limited.—
(1) No political party or partisan political organization shall endorse, support, or assist any candidate in a campaign for election to judicial office.
(2) Any person who knowingly, in an individual capacity or as an officer of an organization, violates the provisions of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Perhaps you would do well to study up on the law before commenting.
Jane in Tallahassee
1:38PM OCT 1ST 2012
One angry and unelightened editor. The Florida Bar's Annual Reporter's Workshop is conducted by members of a committee. It is not organized or run by the campaigns of the three justices. Moreover, the Florida Supreme Court is comprised on seven members, not three. Surely Editor Smith does not perceive that these three justices told the Florida Bar's committee what should be done at the workshop. She is just fuming and cannot differentiate between real connections and presumed circumstances.

Finally, if the voters were clueless until two months ago, shame on them. Mainstream media in Florida has been covering the retention issue for almost nine months. If Editor Smith does not read other publications, it is hard to fathom how informed she could be on the issues. By her remarks here, she seems un-informed.
Hal Blaine
6:59PM OCT 1ST 2012
"Finally, if the voters were clueless until two months ago, shame on them."

Jane must be a lawyer. She blames the voters for ignorance. Here is the truth -- lawyers don't want us to know about these people up for retention. In 40 years not a single judge or justice has been voted out. That's what lawyers want, that's why they like merit retention. They want these judges and justices to have their positions until they turn 70 when they have to get out......Next thing you know they will want the mandatory retirement age changed too.
7:24PM OCT 2ND 2012
Why? Because the REPUBLICAN lead Senate voted this past session to have a constitutional amendment that would be subject to a 60% voter approval to raise the mandatory retirement age to 75?

3:14PM OCT 1ST 2012
betcha "editor smith" is like me & doesn't think the three justices told the florida bar committee anything. betcha like me she thinks the florida bar committee told THEM. these are the justices who almost didn't file their papers for the election in time!
4:49PM OCT 1ST 2012
Hmmm . . . . "almost" . . . . is that the best argument against them you can make.

Pathetic partisanship at its most unknowing.
11:46AM OCT 1ST 2012
William O. Douglas . . . . hmmm . . . . . then you admire his other sayings, correct:

(1) "It is better, so the Fourth Amendment teaches us, that the guilty sometimes go free than the citizens be subject to easy arrest."

(2) "A people who extend civil liberties only to preferred groups start down the path either to dictatorship of the right or the left."

(3) "The function of the prosecutor under the federal Constitution is not to tack as many skins of victims as possible against the wall. His function is to vindicate the rights of the people as expressed in the laws and give those accused of crime a fair trial."

(4) "We need to be bold and adventurous in our thinking in order to survive."

(5) "That seems to us to be the common sense of the matter; and common sense often makes good law."

Yes, William O. Douglas . . . . . perhaps we wasn't always what you thought he was . . . . .
The UnFrank
12:17PM OCT 1ST 2012
Frank is such an idealogue he wouldn't recognize the author's admiration for a true civil libertarian of the court. I had the privilege of meeting Ms. Smith when she spoke at a lobbyist luncheon. She's a little more complicated than Frank makes her out to be. Or that Frank is himself.
6:46PM OCT 2ND 2012
@ un
speaking at a lobbyists luncheon ? they usually aren't very complicated as long as you can count the envelopes and remember you gave them to you.
4:51PM OCT 1ST 2012
Ah, more fan club admiration . . . must be doing something annoyingly correct. Keep seem to be hitting those overly sensitive nerves.

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