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Nancy Smith

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

September 30, 2012 - 6:00pm

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, 90PERCENT-- 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.

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