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Florida Supreme Court Amendment: Reform Overdue, or Legislative Intrusion on Judiciary?

September 30, 2012 - 6:00pm

The Florida Supreme Court is looming high over the states upcoming November election. Not only are three of the high court's justices up for merit retention, but voters are being asked to weigh in on a measure that would radically change how their successors are appointed.

If passed by 60 percent of those headed to the polls, the Florida Supreme Court Amendment or Amendment 5 would alter Article V of the Florida Constitution in at least three key respects.

First, it would require the governors appointees to the Supreme Court be confirmed by state Senate, just as at the federal level all of the presidents judicial appointees are confirmed by the U.S. Senate. Currently in Florida, the Constitution provides that the governor appoints all judges to the state Supreme Court and district courts of appeal, from lists of nominees submitted to him by the Judicial Nominating Commission. Under Amendment 5, Supreme Court appointees would face the additional crucible of Senate confirmation: the Senate may vote to confirm or reject the appointment; the appointment will also be deemed confirmed if the Senate neglects to vote on it within 90 days.

Second, Amendment 5 provides for greater legislative input in formulating rules of civil and criminal procedure --i.e., the procedural regulations courts follow when they adjudicate disputes. Under current Florida law, the Supreme Court establishes these rules, and they may only be overturned by the Legislature by a two-thirds vote of the membership of the House and the Senate; the Supreme Court is free to re-adopt the rule if it wishes. Amendment 5 would allow the Legislature to repeal a rule by a simple majority vote of both houses of the Legislature; if the Legislature finds that a rule has been re-adopted, it may (again, by a majority vote in both houses) repeal the re-adopted rule and prevent the Supreme Court from re-adopting it a second time.

Finally, and least controversially, Amendment 5 provides that the state House of Representatives shall have access to all documents of the Judicial Qualifications Commission (JQC), at the request of the speaker of the House. (The JQC investigates judges accused of misconduct and can recommend they be disciplined.)

Supporters of Amendment 5 say these changes would bring greater transparency and checks-and-balances to Florida government and bring the state court system more in line with tried-and-tested federal models, while opponents insist the measure is just a power grab by the Republican-dominated Florida Legislature.

I really dont think our judiciary is in need of reform, says Sen. Oscar Braynon, D-Miami Gardens, to Sunshine State News. This amendment is a solution looking for a problem.

Braynon, who sits on the Florida Senates Judiciary Committee, says he believes Amendment 5 has nothing to do with aligning the state judiciary to that of the federal.

Most of the time we talk about things in Tallahassee were lambasting the federal system, he says. [Republicans] talk about the 10thAmendment all the time; now all of a sudden they want to copy the federal government?

Braynon told the News that hes open to the idea of Senate confirmation of Supreme Court appointees, but wont support it until its joined with other measures that bring Florida in line with the federal system of appointing justices.

I think if we really want to copy the federal government, then why dont we make lifetime appointees to the Supreme Court, he suggests. Wellthatsnot going to happen because thats not what theyre trying to do. Actually, I think lifetime appointments would be a really good idea, because then we wouldnt have our Supreme Court involved in political battles and thats what we have right now.

Those issues are completely unrelated, Rep. Eric Eisnaugle, R-Orlando, tells Sunshine State News. Whether or not a judge is appointed for life has no impact whatsoever on the rule-making process or Senate confirmations I see them as completely different issues. We did discuss these issues in the Legislature even whether there should be term limits but at the end of the day these were the only three issues that made their way into the final bill; thats the way the legislative process works.

Eisnaugle, an attorney who is chair of the Florida Houses Civil Justice subcommittee, insists that the proposed measures do not compromise the independence of the federal judiciary, and so wouldnt compromise Floridas either.

Theres no doubt the judiciary needs to be independent in order to function properly. Thats not the same thing as being unchecked, having unchecked power, he says. On the federal level, Congress has the ability not only to change rules, but to write rules themselves from scratch. No ones going to argue that the federal judiciary isnt independent, so clearly were not going to have a problem with judicial independence on Amendment 5.

Florida has a checkered history when it comes to appointing its judiciary. The state has changed the way Supreme Court justices are appointed a half-dozen or so times since achieving statehood in 1845: the state has experimented with popular elections, legislative appointment, and gubernatorial appointment with Senate oversight. The current system dates back to constitutional reforms implemented in the 1970s.

I think Amendment 5 is a good compromise position, Eisnaugle says. Theres nothing wrong with more accountability, more transparency to the voters, more vetting when the Senate has to confirm Supreme Court justices. It is one of the more important positions in Florida if notthemost important position and I dont see anything wrong at all in making sure those folks are more thoroughly vetted.

Braynon remains unconvinced.

I think we should vote No on Amendment 5. Its a fundamental basic of how our government was built: the judiciary is apart from the Legislature, he says. What this amendment does is try to give the Legislature more control over the judiciary, and I think thats heading us down a slippery slope.

Sunshine State News has reached out for several weeks to Justices Barbara Pariente, R. Fred Lewis, and Peggy Quince, who are up for voter merit-retention in November, to get their comment on these and other issues. The justices, who are accused in some quarters of being left-wing activists, through their joint campaign representative specifically refused to be interviewed by the News, Floridas only center-right news organization.

Reach Eric Giunta at or at 954-235-9116.

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