Tuesday, October 14, 2014

My vote on Amendment 3, Prospective Appointment of Certain Judicial Vacancies

As I learned in “Voting for Judges: Where to Begin?,” Florida’s governor appoints justices of the Supreme Court and judges of the District Courts of Appeal.

A judicial appointment may be necessary when a justice or judge reaches the mandatory retirement age of 70, fails to qualify for a retention election, or fails to secure a majority of votes during his or her retention election.

According to the Florida Constitution, a vacancy exists at the expiration of the term being served. A vacancy cannot be filled prospectively.

That’s the situation Amendment 3 wants to change.

Amendment 3 would require a governor to prospectively fill appellate court vacancies, not wait until the end of the outgoing judge’s term of office.

More than 60 percent of the Florida Legislature (including Collier’s Senator Garrett Richter and Representatives Matt Hudson, Kathleen Passidomo and Carlos Trujillo) approved the proposed Amendment on a party-line vote (Republicans for, Democrats against) in the 2014 Legislative Session. They said it’s needed to avoid the “enormous burden [that would be placed] on the remaining members of the court” “if a judicial nominating commission is forced to delay the beginning of its proceedings until a judge leaves office.”

From the League of Women Voters of Florida Education Fund 2014 Nonpartisan Voter Guide:
In 2006, the Florida Supreme Court ruled that Judicial Nominating Commissions could begin their interviewing and nominating process prior to a judicial vacancy occurring, but an appointment could not be made until after the justice’s or judge’s term actually expired.

Because it is possible for a justice’s or judge’s term to end on the same day that a new Governor takes office, the Florida Supreme Court’s 2006 opinion can be read as authorizing the newly sworn-in Governor to fill those vacancies….

In a situation in which a judicial vacancy is created on the first day of a new Governor’s term, Amendment 3 would authorize the outgoing Governor – rather than the newly elected Governor – to appoint the successor judge or justice.
The matter is not a hypothetical one. Three Florida Supreme Court justices will have reached the mandatory retirement age and are scheduled to step down in January 2019, when the term of the governor elected next month - Rick Scott or Charlie Crist - ends.

According to the Orlando Sentinel’s “Reject Amendment 3” editorial,
Ironically, the three justices are the same ones — Fred Lewis, Barbara Pariente and Peggy Quince — whom Republican leaders in the Florida House tried to marginalize in 2011. Those leaders hatched a plan to relegate the justices to a new criminal appeals court and create three new high court vacancies for Scott to fill, but the scheme stalled amid bipartisan opposition in the state Senate.

These are also the same three justices who drew unprecedented opposition from the Republican Party of Florida in their retention elections in 2012. Scott would have filled those vacancies if the justices had lost their seats, but voters kept them on the bench.
The Naples Daily News, which has yet to take an editorial position on the Amendment, printed a guest commentary by Former Supreme Court Justice Harry Lee Anstead, who served on Florida’s highest court from 1994 to 2009. Justice Anstead wrote:
Don’t be fooled. This is not a simple clarification. It is a wholesale change from what our constitution currently allows. There can be no confusion when the constitution is already clear on its face on the question of when judicial vacancies occur….

This process has provided for timely and orderly replacement of retiring justices and other Florida judges for more than four decades. If there are delays in an appointment, as there have frequently been, the chief justice has long used several options for ensuring the work of the court moves forward without interruption. The chief justice has the authority to either extend the service of a retiring justice until the appointment is made, or the chief can appoint a temporary replacement from other sitting judges. Both alternatives have been utilized repeatedly over the years to provide for smooth transitions. This history proves any alleged crisis of delay in processing the court’s cases is a false threat.
The Tampa Bay Tribune says:
We agree clarity is needed but think this proposed amendment offers the wrong solution. A governor who just lost an election or is leaving because of term limits should not be allowed to pack the court with like-minded jurists on the way out the door. That authority would be better vested with a newly elected governor who has just won a popular vote. Or perhaps a compromise of shared authority between the outgoing and incoming governors might be a fairer solution.
Regarding that suggestion, the Tampa Bay Times pointed out that in 1998:
The Supreme Court Judicial Nominating Commission began vetting candidates under outgoing Democratic Gov. Lawton Chiles, but Chiles and incoming Republican Gov. Jeb Bush jointly chose Quince from the JNC’s list of nominees. Lawmakers could easily require such a schedule in statute. Or the 2017 Constitution Revision Commission could offer other fairer solutions.
The Tampa Bay Tribune also supports having the Constitution Revision Commision consider the matter:
…[W]e think that process would be better left to the state’s Constitution Revision Commission, which meets again in 2017 and will have a chance to tackle the question before the three jurists retire in 2019. The commission meets every 20 years to consider possible amendments for voters to decide.
The League of Women Voters of Florida, too, says “vote no on 3.”
The League of Women Voters of Florida has been concerned with justice in Florida since the League began here seventy-five years ago… At all times, the League has advocated for an independent judiciary, free of political influence….[T]he League cannot support an amendment that could be used to undermine the independence of the judiciary; that is why we do not support Amendment 3.
So who, other than the Republican members of the Florida Legislature, supports the Amendment? I could find just two endorsers: the Florida Chamber of Commerce and the Florida Farm Bureau.

The Florida Chamber says it supports Amendment 3 because it:
  • Clarifies existing constitutional language to specify that the outgoing governor appoints incoming Florida Supreme Court Justices and district court of appeal judges if a vacancy occurs at the same time as the outgoing governor’s term ends.
  • Cannot be solved through legislation and must be passed as a constitutional amendment.
  • Prevents the possibility of legal challenges and confusion when governors change and judicial vacancies occur.

The Florida Farm Bureau, whose mission is “to increase the net income of farmers and ranchers, and to improve the quality of rural life,” endorsed the Amendment but gave no rationale for its support.

How I’ll vote
The editorials I read are compelling. I’m especially persuaded by Justice Anstead’s guest commentary. This Amendment is a solution in search of a problem. The system works just fine for now. If there’s a need to address the possibility of legal challenges and confusion when governors change and judicial vacancies occur, the 2017 Constitution Revision Commission is the right place to deal with it.

As Justice Anstead wrote:
The scheme proposed in Amendment 3 gives a departing governor the power to tip the scales of justice for partisan reasons on the way out the door, with impunity. And, therein lies the easily identified real intent of this amendment.
I will vote no on Amendment 3.

4 comments:

  1. Another great piece. As I mentioned to you, I love the clarity of thought and expression in your writing. You have made this issue starkly understandable.

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  2. Like a fine bottle of wine you keep getting better and better

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  3. Thanks for boiling the issue down to the basics. I certainly agree with your conclusion.

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  4. Your articles and references on Amendment 3 and Amendment 1 are excellent references. Thank you again...

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