The Florida Bar
The Florida Bar Journal
June, 2012 Volume 86, No. 6

Page 6

Merit Retention
I address President Scott Hawkins’ right-headed article endorsing respect for the independence of our judges from crass political pressures. My late mentor, Judge Vincent Giblin of Miami, early urged the adoption in Florida of what was called “The Missouri Plan.” And, in the early 1970s, I was proud to assist in the legislative creation of nominating commissions for judges of compensation claims in the benign effort to rescue a dolefully politicized system.

However — and the “however” is always the lawyer’s brake on excessive enthusiasm — I respectfully suggest that President Hawkins’ appropriate zeal for an independent judiciary exceeds prudent analysis when he suggests that judges are, and ought to be considered, hermetically insulated from our cherished political process.

Nominating commissions, however desirable, are not nonpolitical:It is merely that the constituency is smaller than the voting public, and is (we hope) more professionally knowledgeable. And elected governors, political actors, appoint judges at trial and appellate levels. We have “retention” elections precisely so that the public may vote on judges, notwithstanding understandable voter ignorance of case fact-patterns, applicable rules of law, and insight into judges’ reasoning — fascinated more by political results than by the integrity of judges’ fulfillment of their duty to follow the law wherever it leads.

We must not throw to the dogs everything not fit for the altar of the gods, and should defend judicial independence (and informed public opinion) even as we refuse to blind ourselves to the political context.
Stephen Marc Slepin, Tallahassee

Requests for Documents
I concur with the recommendation of the recent Touhy article (“Who Is This Guy Touhy, and What Am I Supposed To Be Requesting?” May 2012) that one should carefully follow agency procedures in requesting documents or employee testimony from federal agencies. The better practice is to, in all instances, accompany the request with a subpoena and, if documents are sought, a request that the documents be reviewed in camera. U.S. v. Peitz et al., 2002 U.S. Dist. LEXIS 4812 (March 22, 2002). Peitz collects the authorities of jurisdictions that require subpoena, and those that do not. Our own circuit does not. NLRB v. Capitol Fish Co., 294 F.2d 868, 873-874 (5th Cir. 1961).
Nicholas Karatinos, Lutz

Hooray for May
I just read two superb articles in the May issue. “Mandatory Injunctions: The Forgotten Art of Putting the Horse Back in the Proverbial Barn,” by Blackwell and Martinez, provided a pleasant and informative reading journey. The authors held faithfully to their task and fleshed out the factual material in such a manner as to vividly show the practical uses of such a remedy. Joseph M. Percopo’s “The Impact of Co-ownership on Florida Homestead” is a must read for every lawyer who comes across clients who like to live what used to be considered complicated lives when it comes to home ownership. He outlined the very tricky rules in precise fashion, making every word count. Excellent selections, editors.
Donald A. Wiesner, Coral Gables

[Revised: 05-25-2012]