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February 15, 2012
Bills to give the governor at-will JNC appointments move in both chambers

By Gary Blankenship
Senior Editor

A Senate committee has added its imprimatur to increasing the governor’s control over judicial nominating commissions.

The Senate Judiciary Committee on January 25 approved SB 1570, which allows the governor to replace his five direct appointments to each of the state’s 26 JNCs at any time for any reason. The four gubernatorial appointments that are made from nominations submitted by The Florida Bar would remain unchanged.

The bill also makes a technical change in the state’s retirement laws so newly retired judges don’t have to wait six months to begin work as senior judges.

Sen. David Simmons Sen. David Simmons, R-Altamonte Springs, said the bill was a compromise with Gov. Rick Scott’s office, because Scott originally wanted the ability to replace all JNC members at will.

“I realize that this is a compromise. I know the governor would like to have all the members serve at the pleasure of the governor,” Simmons said. “We’ve got to be careful about moving too far on this issue. We’ve got to make sure our judiciary is not subject to political whims or changes of political party in the governor’s office. I think that this is a reasonable compromise to the various competing issues that we have.”

In response to a question from Sen. Oscar Braynon, D-Miami Gardens, Simmons said JNC members would continue to have set terms, but under the bill they could be replaced for any reason at any time during those terms. Members appointed from slates nominated by the Bar would continue to be removable only for cause, he said.

The bill got support from a wide range of business-oriented groups.

But Orlando attorney Todd Copeland, a member of the Fifth District Court of Appeal JNC, said he was concerned a JNC could be well along in nominating a slate when the governor may decide to replace several members, disrupting the process.

“I find the members of this [Fifth DCA] commission take this process very, very seriously. We want to send good people to the governor. It’s a very extensive process,” he said. “My concern is that if the majority of the commission serves at the pleasure of the governor, at any time during that process it could be interrupted. . . . I think it’s important we preserve the process.”

Braynon agreed: “I’m very concerned about saying in the middle of the process, we could pull them [JNC members] out.”

Bar Board of Governors member Bill Davis, speaking on his own behalf and not the Bar’s and who served on a JNC in the 1980s, said the bill would undermine the collegiality of the JNCs.

“Not only would it disrupt the community of the body, the collegiality of the body, it almost makes the nominating process more sensitive to political winds,” he said.

Simmons said he doubts any governor will have the time to meddle with any JNC. He noted he served on former U.S. Sen. Connie Mack’s federal JNC, and Mack always accepted the commission’s recommendations without question.

“I believe you’re not going to find a governor who has the time or the inclination to be trying to have his finger in the pie during the deliberative process that’s going on all over the state with each one of these [JNCs]. He just simply doesn’t have the time or the inclination to do that,” Simmons said. “I do believe our system is unique. It’s a wonderful system; it has a group of people who care only about nominating an individual who has the kind of demeanor and intelligence to be a good judge here in the state of Florida.”

The bill passed the committee by a 5-1 vote, with Braynon voting no. It is next scheduled to go to the Senate Budget Committee before going to the chamber floor.

The House Civil Justice Subcommittee passed an identical bill, HB 971, on January 11. (See story in the February 1 Bar News.) On January 31, it passed its second committee, the Governmental Operations Subcommittee, by a 10-3 vote.

The bill next goes to the House Judiciary Committee, then to the House floor.

The Florida Bar has not taken a formal position on the bills. Its legislative position on the issue calls for preserving “The Florida Bar’s continued and meaningful institutional role in the judicial selection process.”

On the retirement portion of the bill, Simmons noted that retired judges who used the state’s DROP program would be prohibited from taking any state position — including as a senior judge — for six months after they retire or risk losing their pension benefits. That, he said, wastes judicial resources at a time when the state needs retired judges, especially to address the backlog of foreclosure cases.

[Revised: 08-29-2014]