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Guest Opinion

The Judicial Fix: A Sequel

You lucked out. Governor Rick Scott had ordered three distinguished Florida Supreme Court justices to be investigated for “illegally utilizing” staff to assist them in their election filing, and the leadership of the Republican Party of Florida advocated their removal from office. But the people of Florida, many of them Republicans, decided to return Fred Lewis, Barbara Pariente and Peggy Quince to their seats on the bench by greater than a 2 to 1 majority. (Note President Obama beat Mitt Romney by less than 1 percent on the same ballot.)

So what did we learn about this experience:

  1. Most citizens had no idea who these three justices are.
  2. Most citizens were unaware of the concept of merit retention, much less its place on the ballot.
  3. Most citizens don’t follow the Florida Supreme Court’s decisions with any regularity whatsoever.
  4. Mixing politics and the judiciary make for bad government — a real threat to a fair and impartial judiciary.

What is worse is that in four years we will have to do this all over again when respected Justice Jorge Labarga comes up for merit retention.

Perhaps most importantly, this “election” exposed the underbelly of both The Florida Bar and the judicial system itself to even become involved in this misadventure despite the Bench and Bar’s superior knowledge of the merits of retaining these justices.

“By law, The Florida Bar — as an official arm of the Supreme Court of Florida — may not endorse or oppose any political or judicial candidate, or otherwise engage in partisan political activities,” the Bar sadly stated in a September 25, 2012 press release. This disclaimer was preceded by the lofty pronouncement by Florida Bar president Gwynne Young: “A fair and impartial judiciary, free from political or special interest influence is the purpose of Florida’s non-partisan merit retention elections for appellate judges. The Florida Bar does not believe any political party — Democratic, Republican or other — should participate in any non-partisan election, particularly for judicial positions.”

Maintaining the integrity and impartiality of Florida’s judges is critical to preserving the principles of democracy on which our country was founded. Non-partisan merit retention elections were established by the people of Florida to ensure that the rule of law, not popular thought or political view, would be the basis for all judicial decisions.

In 1976, Florida’s voters approved a constitutional amendment establishing merit selection and retention elections for its state appellate court judges. This replaced Florida’s prior political system of judicial selection, which led to corruption and scandal in our high courts. Merit selection and retention has served Florida well for more than 40 years and should not be jeopardized by politics.

Yet, doesn’t The Florida Bar’s inability to do anything in the form of campaign activities to assist the public in understanding these three justices seems ironic when it is the lawyers of the state who labor in their court on a daily basis, who test the justice’s reasoning and legal knowledge, and who study their opinions?

Equally limiting, a variety of judicial canons and election laws that did, among other restrictions, the following:

  • Limited their ability to pool campaign money and even make joint appearances.
  • Limited their colleagues on the Supreme Court from endorsing them.
  • Requesting support for his/her retention.

This has to stop. As we move forward in good faith to retain meritorious justices, I would propose that the judicial canons be amended to allow joint appearances by the justices or judges up for merit retention and that their fellow justices or judges be permitted to endorse any appellate judge up for merit retention. Further, that these jurists in a merit retention election be permitted to ask for support without directly asking for funds.

The Florida Bar should distinguish merit retention elections from classic political elections, which are contested, and allow the Bar to endorse the justice for retention. The fact that we have a mandatory integrated Bar that prevents us from endorsing “candidates” should not apply in merit retention because the justices are not running against a traditional opponent.

The Bar should set up a permanent fund and raise funds to be used as needed on merit retention elections. We need an ongoing source of funding and the Bar as a whole should contribute. If needed, the funds could be used for political advertising for any worthy judge or justice up for retention. There should also be an ongoing education component as well and reminding the public of the need for fair and impartial courts.

I hope this blueprint provides you with food for thought.

Stuart Z. Grossman
Founder, Grossman Roth, P.A.
2525 Ponce De Leon Blvd.
Suite 1150
Coral Gables, FL 33134

South Florida Legal Guide 2013 Edition

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