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Broken: The merit retention system

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  • | 7:15 a.m. January 25, 2013
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This past fall's kerfuffle over merit retention for justices of the Florida Supreme Court was quite confusing to most observers. Those against retaining the justices noted several past legal decisions by the three justices as reasons to not retain them. Those in favor of retaining the justices listed positives about the candidates but mostly were appalled at the alleged attack on the judicial system. They were quick to point out that two of the justices were women, one of whom was black. I am not sure there was a more irrelevant reason for voting for or against a justice but this group played the gender and race cards almost from the start.

What I found particularly offensive was the oft penned statement “they may have a right to do this (state that they do not believe or want a justice to be retained), but they have no right to say that it is in good faith (arguing that any vote against retention is inherently in bad faith).” Could they have been more pompous or offensive?

To no one's surprise, all three justices were retained. They benefited from the more than $300,000 expenditure by the Florida Bar to run an “educational program” known as “The Vote's in Your Court.” The Bar also handed out 360,000 copies of its information (campaign) brochure, placed speakers at community events and lobbied the media about its position on merit retention. If you happened to hear any of the Bar-sponsored speakers, or saw any of the social media efforts, you were certainly clear about what vote they wanted you to make.

The Florida Bar's President and “educator (campaigner) in chief” Gwynne Young spent the first four months of her tenure visiting all the state's major newspaper editorial boards during the campaign. She clearly considers the Bar's information program “as a success based on the outcome of the election.” I guess that means that the educational campaign would have been a failure if the citizens of Florida had exercised their constitutional right to vote not to retain one or more of the justices.

Florida's merit retention system for appellate judges was born as a rejection of a system that had allowed a number of corrupt justices to occupy the Supreme Court bench. The merit retention system was adopted in a 1976 amendment to the Florida Constitution. Prior to the amendment, appellate judges ran for election. Since then, Florida voters have a choice whether to retain or fire a particular justice every six years of that justice's term in office.The argument was that merit retention would help provide an impartial judiciary free from political pressure. The amendment puts non-partisan appellate judges on a ballot in the middle of a host of political candidates and issues.

What the constitutional amendment really did was to make an appointment to the Florida Supreme Court or one of the five appellate district courts a lifetime appointment unless the justice or judge has been engaged in some corrupt or criminal enterprise or activity that results in not being retained. Even then, though, there is no assurance that merit retention would reject a bad judge or justice. The voters of Florida have never removed anyone since the system began in the 1970s. So, what Floridians actually have now is an unintended lifetime (to age 70) appointed appellate judiciary. Citizens had the chance to vote to make history by voting to fire three justices last November. Of course, the status quo was maintained.

If by some fluke a judge or justice were not to be retained, the appointment process would then kick in. It would be the same process as happens if a justice retires or dies in office. Applications are filed and the people vetted by the relevant judicial qualifications commission and from three to six nominees are sent to the governor, who selects a new justice. This is the essence of the problem with those loudly opposing any vote not to retain justices. They believe, correctly no doubt, the sitting governor will pick a justice with a similar political persuasion and not one who will best serve all the people of Florida. The current governor was a Republican and that was really the rub. One can reasonably assume a Republican governor would select justices of a generally conservative bent. That is his prerogative according to the state constitution.

Those who were offended by the challenges to the three justices and chanted the “maintaining the integrity and impartiality of Florida judges,” mantra, were chanting nonsense. All justices in Florida are appointed by a governor who is certainly a politician. The justices are frequently called on to decide cases with political overtones. Even the justices are not politically naïve. The three justices who faced a retention vote last fall collectively raised more than $1.5 million in political contributions for their successful retention campaigns.

The bottom line is that the recent electoral battle was between a thinly veiled attempt to maintain the basically liberal leaning majority of the Florida Supreme Court or those who wanted to give a conservative governor a chance to find high-quality potential new justices who just might not be as liberal as those currently in Tallahassee. Remember, Florida had a Democratic House, Senate and governor in 1976 when they persuaded the voters to pass the amendment. Now, if you dare a vote against “their” justices, you are prima facie a sexist, racist advocate for a corrupt judiciary.

Going back to electing appellate judges is probably not the way to go, but a lifetime-appointed appellate judiciary has its short earnings as well. Perhaps it is time for the Legislature to revisit this issue. Any change will require a constitutional amendment, which are never easy.

David W Wilcox, attorney


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