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YES on Amendment 5, Which Strengthens Checks on the Judicial Branch

October 1, 2012 - 6:00pm

Amendment 5 involves fundamental constitutional issues concerning the principles of checks and balances between our three branches of government.

An important reason for amending the Constitution is when a proposed amendment concerns the structure of government, particularly constitutional principles relating to the relationship between the branches of government. Amendment 5 concerns three important proposed constitutional changes relating to:

Selection of Supreme Court justices.

Disclosure of investigative files of the Judicial Qualifications Commission.

Review, adoption and repeal of the rules for the practice and procedure of state courts.

Selection of Supreme Court justices -- Senate confirmation.

The most important of these proposed changes is the selection of our Supreme Court justices. At present the executive branch (governor) selects justices from a list provided by the Supreme Court Judicial Nominating Commission (JNC). The JNC is composed of five appointees of the executive branch and four non-elected members of The Florida Bar. This essentially means that one branch of government, the executive branch, hand-picks another branch of government, our justices.

This proposed constitutional amendment would require Senate confirmation of the proposed justices. It is similar in principle to that envisioned by our Founding Fathers and successfully implemented in the United States Constitution for over 225 years. Previous Florida Constitutions also provided for Senate confirmation of justices.

The JNC would still select a list from which the governor chooses, but the nominee would be subject to Senate confirmation, with the important exception that if the Senate fails to act within 90 days of the receipt of the nomination, the justice takes office on the 91st day.

Although the JNC interview of a candidate and records are open, the JNC selection decision and voting is closed to the public. Senate confirmation, which would be open to the public, would also ensure a more open and transparent process, increasing faith in our system.

This proposed constitutional amendment creates a check and balance between the three branches of our state government, so that one branch of government will not determine the composition of another branch of government. This principle is important regardless of which person or party holds office in either the executive or legislative branch.

JQC Investigative Files

Another provision in the proposed constitutional amendment concerns removal or a lesser disciplinary action against a member of the judiciary. The Judicial Qualifications Commission (JQC) has the constitutional authority to investigate any member of the judiciary for misconduct. If the JQC files charges against a member of the judiciary, the Florida Supreme Court may remove that justice or judge or impose other disciplinary action such as a fine or suspension. Proceedings before the JQC are confidential, unless or until formal charges have been filed.

This proposed provision in the constitutional amendment will allow the speaker of the House of Representatives, leader of the sole legislative body with the power to impeach, to review any and all records of the JQC. However, those records would still retain their confidential status, unless the Florida House of Representatives initiates impeachment proceedings.

Thus, the new constitutional amendment strikes the proper balance between the legislative and judicial branches of government. The proposed amendment maintains the confidentiality of the JQC and judicial protection from frivolous complaints, but will allow the legislative branch to fulfill its constitutional obligation in the instance when a member of the judiciary may need to be impeached.

Rulemaking Authority

The third provision of the amendment also strikes a proper balance between the legislative and judicial branches concerning rules of practice and proceedings before the court. Presently, the Florida Supreme Court sets the rules which can only be repealed by a two-thirds vote of the Legislature. The proposed constitutional amendment reduces the percentage by which a rule can be repealed, from two-thirds to a majority vote (similar to the court striking down legislation by a 4-3 vote), but requires the Legislature to give reasons for the repeal.

At present, there are no other legislative requirements in our Constitution which require the Legislature to give reasons for repeal. In addition, under the proposed provision, the Florida Supreme Court could re-adopt the rule if the court conforms the rule to the legislative reasons, but if repealed again by the Legislature, may not be re-adopted except upon legislative approval.

Keeping a republic, whether on the state or federal level, requires diligence and effort to maintain the proper checks and balances between our three branches of government. This proposed amendment moves us forward in that continuing process. I urge all Floridians to vote yes on Amendment 5.

Rep. Charles McBurney, R-Jacksonville, is vice chair of the House Judiciary Committee.

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