By Gary Blankenship
A bill that would make the governor’s five direct appointments to each judicial nominating commission in Florida at-will positions cleared a House subcommittee.
The bill also does away with the Statewide Nominating Commission for Judges of Compensation Claims and assigns its duties to the First District Court of Appeal JNC.
The bill passed the Civil Justice Subcommittee February 20 on an 8-4 party line vote, despite Florida Bar opposition.
Rep. Charlie Stone, R-Ocala, presented the proposed committee bill, PCB CJS 13-03. He said it was identical to a bill that passed the House last year, but died in the Senate.
Currently each JNC — there are 20 for circuit courts, five for district courts of appeal, and one for the Supreme Court — has nine members serving staggered four-year terms. Five are appointed directly by the governor and four are appointed by the governor from nominee lists submitted by The Florida Bar Board of Governors. The governor can reject a Bar nomination list any number of times.
Under the bill, Stone said, the five direct gubernatorial appointees would become at-will and could be replaced at any time for any reason. The four appointed through the Bar’s participation would continue to serve staggered, four-year terms and could be removed only “for cause.”
Rep. José Rodríguez, D-Miami, asked if the bill means a newly elected governor could instantly replace the five direct appointments on his predecessor on each JNC.
“Yes, sir, it would,” Stone replied.
Bar Chief Legislative Counsel Steve Metz testified to the committee that the JNC process was part of the merit selection and retention reforms that grew out of judicial scandals that shook the state Supreme Court and district courts of appeal in the late 1960s and early ’70s. The JNCs initially had three members appointed by the Bar, three by the governor, and those six choose another three members. In 2001, that was changed to give the governor appointment authority for all nine members, with four coming from nominations by the Bar.
“We think giving terms to people in judicial nominating commissions makes the judicial nominating commission an independent body as much as you can make that an independent body,” Metz said. “Any group that is appointed by a governor, by a university president, or whomever, and that can be removed without cause, it makes that body somewhat less independent. And that is why the Bar opposes this bill.”
Orlando attorney Todd Copeland, a member of the Fifth District Court of Appeal JNC, said, under the bill, a commission could be halfway through interviewing applicants for a judicial vacancy only to have the governor replace most of its members.
“This has the potential to really disrupt the process,” he said. “This is not a political thing. History has shown both parties will occupy the executive branch and the governor’s mansion, but I don’t think either should be able to disrupt the process.”
Paul Anderson, legislation chair of the Bar’s Workers’ Compensation Section, said the section opposes turning over nominations for judges of compensation claims to the First DCA JNC. The Statewide Nominating Commission for Judges of Compensation Claims has five members appointed by the Bar, five by the governor, and those 10 choose another five members, he said. Three members must come from the geographical boundaries of each of the five DCAs and minority membership is also mandated.
The bill would mean members from the First DCA JNC, who come exclusively from North Florida, would be making recommendations for appointments all over the state, Anderson said, adding, “The section urges you not to adopt [the bill] as is.”
Robert Cole, representing the Florida chapters of the American Board of Trial Advocates, said the bill undermines the “quality, and fairness and impartiality of the judiciary.”
“We believe that this is a bad bill,” he said. “We believe this is one more effort on the part of the executive branch to further politicize the process by which we select our judges and justices. The current process and the current system work well . . . and I would renew the old adage ‘if it ain’t broke, don’t fix it.’ We’re opposed to the concept that would allow the governor to reconstitute the composition of a judicial nominating commission at his or her will.”
Like Metz, he said that voters showed their support for a strong, fair, and impartial judiciary when they overwhelming rejected an amendment last November that would have given the Legislature more control over court procedural rules, set up Senate confirmation of Supreme Court nominees, and made it easier for the Speaker of the House to get confidential Judicial Qualification Commission records.
“The people of the state of Florida don’t have a taste for this type of politicization of the process,” Cole said.
Among subcommittee members, Democrats argued the bill would increase politicization in judicial appointments and weaken the third branch of government. Republicans argued it would keep the balance among the three branches and not affect the functioning of the JNCs.
Rep. Kathleen Passidomo, R-Naples, said she served on a federal JNC, which is at-will, and found it operated without politics and with great care and deliberation.
“We have such dedicated people in this state on these commissions,” she said. “I am confident they will select names that are the brightest minds in our state [as judicial nominees].”
Rep. Bill Hager, R-Boca Raton, said, “The founding fathers both of this state and the federal level put in mechanisms in government to create tensions between the three branches of government with the intention of keeping all three in balance. That is what this does.”
But Rep. Mike Clelland, D-Longwood, argued, “I think the last thing the public wants is a perceived overreaching by one branch of government into another, and that’s what this is.”
“This gives the executive branch more power over the judiciary. The governor not only gets to pick who the judges are, he gets to pick who gives him the list [of nominees],” said Rep. Cynthia Stafford, D-Opa Locka.
“I think that upsets the balance of separation of powers.”
Two days before the committee considered the bill, the Board of Governors Executive Committee met and adopted the legislative position that the Bar “supports a merit-based process for selecting Florida judges through independent judicial nominating commissions and opposes any changes to the current JNC process that would impair the independence of the commissions.”
(See the official notice, here.)