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Business Observer Friday, Jun. 4, 2004 17 years ago

Competency Issue

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The appointments will soon expire for all of Florida's senior judges over the age of 70. For the first time, each one must submit to an annual evaluation. Locally, the review committee is headed by 2nd DCA Chief Judge Chris W. Altenbernd.

Competency Issue

The appointments will soon expire for all of Florida's senior judges over the age of 70. For the first time, each one must submit to an annual evaluation. Locally, the review committee is headed by 2nd DCA Chief Judge Chris W. Altenbernd.

By David R. Corder

Associate Editor

Senior Judge Robert E. Beach accepted a tough case last year. Sixth Circuit Chief Judge David Demers assigned him as a replacement to preside over the wrongful death lawsuit in the estate of Lisa McPherson against the Church of Scientology. The possibility of a lengthy, contentious and costly trial loomed.

Beach, like his predecessor Judge Susan Schaeffer, urged the adversaries to seek a compromise. It was a lofty goal, especially considering the tension between the two sides. Then suddenly the gap closed. Late last month, the estate agreed to a confidential settlement.

Neither side publicly praised nor denigrated Beach's performance as a senior judge. It has been about 11 years since Beach retired as a Pinellas-Pasco circuit judge. At 74, he says he's mentally and physically fit. An avid swimmer, Beach is an Amateur Athletic Union senior masters champion. In 1980, he came two miles short of swimming the English Channel.

But age is about to become an issue for Beach and 28 other senior judges over the age of 70 who serve under the jurisdiction of the 2nd District Court of Appeal, an area that includes 14 counties from Pasco to Collier. The appointments of all Florida senior judges over the age of 70 expire on Sept. 30. For the first time, Florida's senior judges must pass an annual review board evaluation under revised Florida Supreme Court guidelines (847 S. 2nd 415).

Since this is a new process, those charged with the evaluations in each of Florida's five appellate districts are proceeding carefully. Second DCA Chief Judge Chris W. Altenbernd chairs the review board in his district. Board members include the chief judges from each circuit court, as well as attorney-designates appointed by each of the review board's judicial members.

"Obviously, this is the first time we're doing this, so it's not something we have a lot of experience with yet," Altenbernd says. "The process is moderately complicated. The first time through it will be like putting together a model airplane. We'll have to do it step by step."

Accountability

At issue is a fundamental concern. It's the competence of senior judges recommended by the circuit and district courts' chief judges and confirmed by the chief justice of the state Supreme Court by the authority of the Florida Constitution. There also is an accountability issue since these judges are appointed and do not face any form of a public retention vote.

Under public pressure, the Supreme Court ordered a review several years ago of its policies on the appointments of senior judges. Much of that pressure came from trial lawyers concerned about the use of senior judges in lengthy complex matters.

"My impression from monitoring the 2nd District over the past 15 years it hasn't been a problem in our district," Altenbernd says. "I get the sense, if you check around the state, maybe it's a bigger problem.

"This process led to some people, who were probably from a health and age standpoint, getting in over their heads," he adds. "More at the trial level than at the district level there was the temptation to give them some pretty awesome trials to handle."

That's apparently true in Broward County, the source of consternation for some trial attorneys. For instance, Coral Gables attorney Hector Lambana publicly criticized the use of senior judges in complex litigation during testimony before the Supreme Court.

"The present problems that we have with utilization of senior judges in some counties are so significant that they are seriously, and I mean seriously, eroding the confidence of lawyers and litigants and our judiciary's ability to handle the most complex of cases," Lambana testified. "The crux of the problem seems to be, from my discussion with lawyers and my own personal experience, is that the most difficult cases, the ones requiring the highest amount of intellectual (awareness) and the greatest physical stamina are now being consistently referred to judges, who as a result of combinations of different factors, including age, temperament, condition, physical condition and motivation, are least capable of handling them."

"Cases in some counties that should take weeks to try are taking months to try," Lambana added.

At the prodding of the justices, Lambana cited specific concerns about Broward's senior judge assignments.

"I would say that the problem is most acute in Broward County; much less in Dade County," he testified. "But there are some judges who serve on the retirement list in Dade County who are, because of advancing age, incapable of trying a case."

Because of such prevailing opinion, the Supreme Court ordered the Judicial Management Council, an advisory group, to study the issue. The council assigned the task to its Committee on Trial Court Performance and Accountability, which produced a workgroup report on the subject. A final report was submitted in February 2002 to the Supreme Court by its Committee on the Appointment and Assignment of Senior Judges.

About 14 months later the Supreme Court adopted 15 recommendations from the report submitted by the Committee on the Appointment and Assignment of Senior Judges. (See sidebar).

"In accepting the committee's recommendations, we would be remiss if we did not emphasize that senior judges play a vital role in Florida's judicial system," the Supreme Court's final report concludes. "As the committee pointed out in its report, the availability of senior judges improves the services that Florida courts are able to provide citizens. Parties have better and speedier access to courts, trial calendars are shortened, backlogs are reduced and interruptions caused by absences due to illness or vacancies in office are avoided because of the continued public service of senior judges."

Dissent

Not all the justices completely concurred with the report, however. Justices R. Fred Lewis and Barbara J. Pariente concurred and dissented in part.

Writing for the minority, Lewis says the recommendations ignored the biggest reason for the committee's work: the assignment of senior judges to complex litigation.

"While this court spends countless hours and reams of paper attempting to profess its dedication to concepts of modernization, technology and advancement in the judicial branch, in my view, the majority today takes a backward step in apparently rejecting one of the most important recommendations concerning complex litigation," Lewis states. "The court today fails to properly address a problem area that is of extreme concern to every person or entity filing a comment with the court concerning the senior judge assignment recommendation with the exception of judges themselves."

In particular, Lewis expressed confusion over the majority's discussion about recommendation No. 11, which now guides the use of senior judges in complex cases.

"First, the majority proceeds to discuss a 'per se prohibition on the assignment of senior judges to complex cases' and reasons that such is not warranted," Lewis states. "While there are those who believe that such 'per se prohibition' is appropriate, the committee did not recommend or propose such prohibition. Our committee specifically recognized that 'there should not be a per se prohibition against the use of senior judges in complex cases.' Thus, in my view, the majority's discussion of such prohibition is not responsive to the recommendation before us today.

"Secondly, and in a similar manner, the majority proceeds to discuss and conclude that there should be 'no requirement that chief judges be required to show good cause for such assignments,' " he adds. "The recommendation before this court from the committee appointed to study the issue did not propose a 'good cause' requirement for the assignment of senior judges to complex litigation. While there may be those holding such view, such recommendation is not before this court

"Thirdly, and also in a similar manner, the majority discusses whether there should be a requirement that parties give consent before an assignment of a senior judge to complex litigation may occur," Lewis states. "Again, just as with the preceding points, the committee appointed by this court did not recommend that the consent of parties constitute a condition precedent for such assignment of senior judges."

Blue ribbon panel

The judicial members of the 2nd DCA's senior judge review board have appointed some respectable attorneys to serve on the board.

For instance, Altenbernd picked Carlton Fields PA attorney John Blue, a former 2nd DCA justice and circuit judge.

Demers, in Pinellas, selected Louis Kwall, a principal member at Clearwater's Kwall Showers & Coleman PA. Kwall just finished a term on the Florida Bar Board of Governors.

Twelfth Circuit Chief Judge Robert Bennett chose Sarasota civil trial attorney Daniel A. Carlton.

In Hillsborough, Chief Judge Manuel Menendez picked retired Holland & Knight partner John Germany.

A retired circuit judge, Germany, 81, says the review board has an important mission and he intends to devote considerable time to it. He also doubts whether he has anything more than a passing acquaintance with any of the senior judges he'll be evaluating.

In explaining his decision to pick Germany, Menendez says: "He's just very well respected. It's a good way to start it off. As a former judge and chief judge, he would have a good perspective."

That judicial perspective also accounts for why Altenbernd picked Blue. "I'm quite confident he can help us sort out whether someone has reached a point where they're no longer in the spot where we should be appointing them to do senior judge work," he says.

And Altenbernd is confident the process will further enhance the fairness of the legal system.

"This mechanism is going to give the local bar, for that matter the citizens as a whole, a lot more opportunity to participate in this process," he says. "Lawyers in a community might be hesitant to complain to their own chief judge. This is a delicate process, telling someone who has served the state well for many years that it's time to hang up the saddle."

To ensure public confidence, Altenbernd expects any decision on a senior judge to become part of the public record. "But I hope there will be some level of confidentiality," he says. "The system will work better if people are able to make confidential complaints."

2nd DCA senior judges

(70 or older)

total days

Senior judgebirth dateagedomicile* served**

Owen S. Allbritton07/25/192678Clearwater0

Horace A. Andrews10/02/193272St. Petersburg12

Robert E. Beach07/26/193074St. Petersburg83

Edward R. Bentley04/16/193273Lakeland18

Robert J. Boylston09/15/193173Palmetto0

Fred L. Bryson Jr.10/31/193470St. Petersburg31

Paul W. Danahy Jr.04/19/192877Tampa0

Daniel E. Gallagher10/07/192975Tampa58

Thomas M. Gallen12/28/193272Bradenton63

John M. Gilbert10/23/192777Tampa17

Roland Gonzalez01/21/192976Temple Terrace2

Oliver L. Green Jr.11/19/193272Lakeland108

Helen S. Hansel01/04/192283St. Petersburg3

Robert E. Hensley01/03/192382Bradenton0

William C. Johnson Jr.03/25/193074Daytona Beach35

William Clayton Johnson09/25/192479Palmetto10

Robert F. Michael Jr.12/16/193074St. Petersburg1

Gerard J. O'Brien Jr.05/08/192481St. Petersburg7

R. Wallace Pack12/25/192876Fort Myers44

Howard P. Rives09/20/192381Clearwater6

John M. Scheb04/25/192679Sarasota0

Jack R. Schoonover07/23/193471Fort Myers108

William H. Seaver03/04/192382Hudson0

Robert T. Shafer09/11/192975Fort Myers4

Lynn N. Silvertooth10/26/192381Sarasota0

Gilbert A. Smith05/10/192382Due West, S.C.0

Ralph Steinberg10/21/193074Tampa62

Kirby Sullivan10/02/192777Moore Haven14

Edward F. Threadgill Jr.12/19/193173Lakeland36

* Domicile according to Florida Bar

** Days served fiscal year 2003-04

The fine print

In May last year, the Florida Supreme Court adopted 15 recommendations proposed by its committee on the Appointment and Assignment of Senior Judges. This is an edited version of the Supreme Court's endorsements.

The committee recommends a significant increase in senior judge compensation in order to encourage and recruit the services of qualified retired judges. We endorse this recommendation. As the committee noted in its report, senior judges perform the work of approximately 35 full-time judges at a small fraction of the cost of that number of full-time judges. Further, while many more remunerative work opportunities are available to retired judges, many of them elect to continue serving the citizens of Florida as senior judges out of an abiding commitment to public service.

The committee determined that there was no need for a formal certification process for senior judges. We endorse the committee's recommendation of an eligibility screening process to ensure that the retired judge is current with educational requirements, that the judicial leadership within the retired judge's resident court do not have concerns about the judge's present ability to serve and that the judge has no pending investigations before the JQC. This screening process will also consider attorney input regarding the judge's work.

While qualified and competent judges may occasionally fail to win re-election or retention, we agree with the committee that concerns of public trust and confidence and deference to the constitutional electoral process dictate that the expressed will of the voters prevail. Thus, judges or justices who fail to win reelection or retention in their last judicial position are not eligible for senior judge service.

We agree with the committee's recommendation relating to the attorney feedback process for recently retired judges. Accordingly, judges who have honorably retired and are otherwise eligible to serve as senior judges need not be subjected to the attorney feedback process when they initially apply for assignment, provided that the judges apply within a year of their retirement.

We agree with the committee that the quality of judicial work performed by senior judges in Florida is consistently very high. We also endorse the committee's recommendation that the work of all senior judges be subject to periodic review. Further, in recognition of the mandatory retirement provision in the Florida Constitution and the diminished ability to perform complex tasks that sometimes accompanies advancing years, we endorse the committee's recommendation of a two-tiered review system based upon the age of the senior judge. Those senior judges who have not reached the constitutionally required age of retirement will be evaluated every three years. When a senior judge reaches the constitutionally required age of retirement, he or she will be evaluated annually. Educational requirements for all senior judges will be reviewed every three years, which coincides with the current court education cycle.

The committee's recommendation of periodic review rests on the concept of accountability. While sitting judges are elected or appointed through a merit selection process, senior judges are assigned under the constitutional authority of the chief justice. Further, while sitting judges are subject to removal through an election or a retention vote, voters do not have a similar opportunity to retain or remove a senior judge. Accountability for the continued judicial authority of the senior judges rests with the chief justice and should be subject to a structured review process. We endorse the committee's recommendation of this structured review process. In making a determination of continued eligibility, the chief justice should consider the three elements of the initial review (education, employment, and JQC screening) and the recommendation of the review board that receives input from attorneys who have appeared before the court.

q q q

We endorse the committee's recommendation that a review board be created in each of the five appellate districts. The committee opted for district-wide review boards rather than circuit-wide boards or a single statewide board in order to include representatives who have first-hand knowledge of the judges being reviewed and representatives who have experience in other jurisdictions. District-wide review boards will also be the most efficient in terms of the accompanying administrative activity. The committee estimates that each district-wide review board will conduct 30 to 40 reviews annually, which should not prove onerous to the review board members. If a single statewide review board were appointed, the task of conducting 150 to 200 annual reviews could be overwhelming to the board members. The committee recommends that the district review boards organize their work on an annual cycle and conduct all reviews during one or two meetings. Each district review board shall include the chief judge of each circuit court in the district or a designee, the chief judge of the district court of appeal or a designee, and an equal number of attorneys. The circuit court chief judges and the district court chief judge shall each appoint one attorney member. Where a senior judge serves in multiple jurisdictions, the review will be conducted by the board in the district in which the judge has performed the most service in the present eligibility period.

We agree with the committee that the information collected by review boards about senior judges who are eligible for assignment would be of great assistance to the chief judges who make assignment decisions. Thus, this information will be forwarded to each circuit and district chief judge by the permanent workgroup, discussed in recommendation No. 15. Additionally, the workgroup should forward the same information to the chief justice. When the review boards are formulating their recommendations regarding a retired judge's eligibility for senior judge service, they should be guided by the following factors: scholarship, communication, case management and productivity, temperament, work ethic, good health, and integrity. Scholarship encompasses the judge's knowledge and understanding of substantive, procedural and evidentiary law, the judge's attentiveness to factual and legal issues before the court and the judge's proper application of judicial precedent and other appropriate sources of authority. Communication includes the clarity of the judge's bench rulings and other oral communications, the quality of the judge's written opinions with specific focus on their clarity and logic, the judge's ability to explain the facts of a case and the legal precedent at issue, and the judge's sensitivity to the impact of demeanor and other nonverbal communications. Case management and productivity focuses on whether the judge effectively manages the court docket and promptly disposes of cases, including whether the judge devotes the appropriate time to all pending matters and discharges administrative responsibilities diligently. Temperament appraises the judge's ability to deal patiently with and be courteous to all parties and participants, as well as the judge's willingness to permit every person legally interested in a proceeding to be heard, unless precluded by law or the rules of court. Work ethic assesses the judge's punctuality, preparation, and attentiveness, including whether the judge meets commitments on time and according to the rules of court. Because we are confident that attorneys and colleagues will express concerns about a judge's physical or mental ability to perform judicial duties and responsibilities during the peer review process, physical and mental examinations need not be a routine part of the review process. Review boards are directed to provide a structured opportunity for input from attorneys who practice within the jurisdiction in which the senior judge has served. The attorney input should address the criteria listed above as they relate to the judge being reviewed. This opportunity for input could include published invitations to provide comment by letter, the use of a survey instrument, or other mechanisms. The method shall be left to the sound discretion of each review board in order to allow variation in response to the local legal culture and to promote innovation and experimentation.

q q q

The Florida Constitution specifically authorizes the chief justice "to delegate to a chief judge of a judicial circuit the power to assign judges to duty in that circuit." In order to provide guidance to the chief judges in exercising this authority, the committee recommends that the chief justice provide annual guidelines regarding appropriate assignments for senior judges and that these annual guidelines be consistent with the committee recommendations that are endorsed in this opinion. While we agree with this guidelines recommendation, we also recognize that the chief judges, in consultation with administrative judges, are the most familiar with the skills of the judges and the workload needs of the courts. Thus, chief judges should have flexibility in making senior judge assignments.

The same provision of the Florida Constitution that allows for the assignment of retired judges also allows for the assignment of active judges to temporary duty "in any court for which the judge is qualified." Under this authority, many active county court judges are assigned to preside over circuit court dockets, many active circuit court judges are assigned to sit on district court panels, and occasionally a district court judge is assigned to sit as an associate justice on this court. Such experience can qualify a judge to serve in a court superior to the one to which the judge was appointed or elected. Thus, we endorse the committee's recommendation that a senior judge not be prohibited from serving in a superior court.

This recommendation relating to the assignment of senior judges to preside over complex cases received the most attention in the comments filed with this court and generated the most lively discussion during oral argument. In general, the circuit chief judges strongly oppose any recommendation that would restrict the use of senior judges in complex litigation. Similarly intense sentiments were voiced by a number of practitioners in favor of a per se prohibition of senior judges presiding over complex litigation without the consent of the litigants. We acknowledge the reality of problems in isolated cases with senior judges presiding over complex and lengthy trials. We urge and expect chief judges to respond directly to concerns expressed when such problems are presented to them.

However, we do not conclude that either a per se prohibition on the assignment of senior judges to complex cases or a requirement that chief judges be required to show a good cause for such assignments, as some of the commentators have urged, is warranted or in the best interests of the administration of these cases. Further, we do not endorse the committee's recommendation that the parties must give their consent for these assignments. Chief judges must be afforded deference and latitude in the management of judicial assignments and dockets, without being overruled by the litigants. We trust that the chief judges will select senior judges with the proper skills and experience to preside over complex cases when such assignments are necessary. As several of the chief judges noted in their comments, senior judges are often more experienced and qualified than active judges to handle complex cases in certain areas. Thus, litigants may benefit from the assignment of a highly qualified senior judge who has significant experience in a particular area of the law. Furthermore, as noted under recommendation six, accountability for the continued judicial authority of the senior judges rests with the chief justice, who has delegated that power to the chief judges. Thus, chief judges are charged with periodically reviewing the progress of all cases assigned to senior judges to ensure expeditious and proper handling. Additionally, the structured periodic review process and information sharing in recommendations six through eight will alert the chief judge to any problems or complaints with a particular senior judge and appropriate actions can be taken. After receipt of these reports by the chief justice, we reserve the prerogative to revisit this issue in the future. Thus, we agree with the committee's recommendation that, in general, complex cases should be handled by full-time judges. However, when the chief judge deems it necessary, senior judges may be assigned to preside over complex cases.

The committee concluded that the amount of time that a senior judge serves within a year should not be limited. While the constitutional language regarding senior judge service refers to "temporary duty," we agree with the committee that an order of the chief justice assigning a retired judge to service for a period of one year or three years falls within the chief justice's constitutional authority. Repeated reassignments for 60-day periods are an unnecessary administrative burden for the chief justice's office. As noted above, senior judges are compensated far less than what they can earn in private practice, yet continue to serve out of an abiding commitment to public service. Where there is a demonstrated need for qualified judges and a senior judge is available, artificial limitations on the extent of service should not prevent the workload from being addressed by a senior judge. The state and citizens of Florida benefit from the service of senior judges.

q q q

The committee concluded that there is no public policy benefit to limiting the assignment of senior judges to a certain jurisdiction, such as the jurisdiction of the judge's prior service or the jurisdiction of the judge's current residence. We endorse this recommendation that a senior judge who is eligible for assignment will be available for service statewide. As noted above, the accountability for senior judges rests with the chief justice rather than the voters of a particular circuit or district. Because the chief justice's authority and responsibility extend throughout the state, the chief justice can assign a senior judge to duty without limitation to the jurisdiction of the senior judge's prior service.

The Senior Judge Workgroup of the committee on Trial Court Performance and Accountability of the Judicial Management Council previously recommended that a single senior judge management information system be created to replace the existing separate databases associated with senior judge authorization, compensation, and utilization. The committee proposes that a centralized system be created and maintained on an Intranet website. We endorse this recommendation, as such a system would promote the efficiency and effectiveness of using senior judges. The Information Systems Division of Office of State Courts Administrator has the capability to provide the technical infrastructure for a website that will be accessible to the circuit and district courts, this Court, OSCA and all senior judges. This senior judge management information system should provide a registry of eligible senior judges that chief judges, administrative judges, and court administrators can consult. The registry should also provide information on the availability of senior judges, their areas of substantive expertise and preference, their current education information, and their locations. Circuit and district courts should be able to directly update the registry with information about senior judge service. The system should also provide automated links to finance and accounting functions to facilitate requests for reimbursement and links to the judicial education system to facilitate continuing education. We hereby direct the permanent workgroup, which is discussed under recommendation 15, to undertake the creation of a centralized information system to be accessible through an Intranet website.

We agree there is no need for a continuing committee to address policy matters. We endorse the recommendation that a permanent workgroup be created to address the ongoing operational matters.

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