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

By: Eric Giunta | Posted: October 2, 2012 3:55 AM
Eric Eisnaugle, Florida Supreme Court Building and Oscar Braynon

Rep. Eric Eisnaugle, Florida Supreme Court Building and Sen. Oscar Braynon | Credit: myfloridahouse.gov

The Florida Supreme Court is looming high over the state’s 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 governor’s appointees to the Supreme Court be confirmed by state Senate, just as at the federal level all of the president’s 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 don’t 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 Senate’s 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 we’re lambasting the federal system,” he says. “[Republicans] talk about the 10th Amendment all the time; now all of a sudden they want to copy the federal government?”

Braynon told the News that he’s open to the idea of Senate confirmation of Supreme Court appointees, but won’t support it until it’s 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 don’t we make lifetime appointees to the Supreme Court,” he suggests. “Well that’s not going to happen because that’s not what they’re trying to do. Actually, I think lifetime appointments would be a really good idea, because then we wouldn’t have our Supreme Court involved in political battles and that’s 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; that’s the way the legislative process works.”

Eisnaugle, an attorney who is chair of the Florida House’s Civil Justice subcommittee, insists that the proposed measures do not compromise the independence of the federal judiciary, and so wouldn’t compromise Florida’s either.

“There’s no doubt the judiciary needs to be independent in order to function properly. That’s 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 one’s going to argue that the federal judiciary isn’t independent, so clearly we’re 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. “There’s 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 not the most important position – and I don’t 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. It’s 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 that’s 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, Florida’s only center-right news organization.

Reach Eric Giunta at egiunta@sunshinestatenews.com or at 954-235-9116.

Comments (5)

Joe Norman
2:25PM NOV 28TH 2012
There also needs to be reform as to how the Bar conducts its funcions. I sat on ther Leon County Grand Jury ( HQ Fl Bar)and tried to speak to the jury, as allowed by FS 905.20 and 30 Florida Grand Jury Handbook , about changes to consider for recomendations for Bar conduct. The changes were simple but helpful --in my opinion--1. lawyer misconduct review by entity arms length from the bar 2. 20 year statute of limitation on fraud or perjury in an official proceeding and 3. Fraud or perjury investigation by FDLE or arms length entity.

I waws never allowed to speak the the Grand Jury to present my suggestions---so much for Grand Jury independence
6:28PM NOV 3RD 2012
I'll go for "Legislative Intrusion on Judiciary"

Many articles and many replies about this issue focus too heavily on how justices should be chosen. They often overlook the change to how court rulings can be overturned by the legislature.

Currently, they can be overturned by a 2/3rds majority vote of both houses of the legislature. Passing Amendment 5 would reduce that to a simple majority.

That absolutely gives the legislature a frightening amount of power and could (probably would) completely erode our American system of checks and balances on the powers of the three branches of government.

A 51% majority - of any party - could, with a compliant governor, enact legislation that a court finds unconstitutional simply by overturning the ruling.

So, for example, if the legislature passed a bill and a governor signed into law a law to require random drug testing (let's say twice yearly) of all state governmental employees, and you argue that it is unconstitutional, and a FL court agrees and strikes it down, the legislature can override that with a simple majority vote!

Floridians only recourse would be to fight lengthy and expensive suits in Federal courts.

This is crazy. Do not allow this madness to happen.

Vote NO on Amendment 5.
Eric Giunta
6:57PM NOV 3RD 2012

I don't know what you're reading, but Amendment 5 has nothing whatsoever to do with overturning court rulings.
1:18PM NOV 10TH 2012
Sorry I didn't get back here earlier, but:

"The State Constitution authorizes the Supreme Court to adopt rules for the practice and procedure in all courts. The constitution further provides that a rule of court may be repealed by a general law enacted by a two-thirds vote of the membership of each house of the Legislature. This proposed constitutional revision eliminates the requirement that a general law repealing a court rule pass by a two-thirds vote of each house, thereby providing that the Legislature may repeal a rule of court by a general law approved by a majority vote of each house of the Legislature that expresses the policy behind the repeal. "

That's right there in the summary language.
Eric Giunta
9:08PM NOV 10TH 2012

That summary refers -- just as we reported -- to the courts' internal rules of criminal and civil procedure, not to court rulings.

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