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October 1, 2012
Retention campaign heats up

Supporters say opposition is distorting the justices’ records

By Gary Blankenship
Senior Editor

An organization opposing the retention of three Florida Supreme Court justices has misrepresented cases it cites in criticizing the three, according to a coalition of groups supporting the justices.

And the supporters warned that although there’s no sign of a huge surge of special interest donations to defeat the justices, there’s still plenty of time for that to happen before voters go to the polls November 6.

The director of the campaign to oust the justices, though, said he does not expect any rush of last-minute contributions.

Raoul Cantero At a September 11 press conference, Defend Justice from Politics brought together former Supreme Court Justice Raoul Cantero, former ABA President Sandy D’Alemberte, and former state Sens. Alex Villalobos and Dick Batchelor to discuss the retention of Justices Fred Lewis, Barbara Pariente, and Peggy Quince.

They denounced the justices’ opponents, led by a group called Reform Justice 2012, for injecting politics into judicial retention races and said the organization spearheading the anti-retention efforts had distorted the justices’ records.

D’Alemberte reviewed the 10 decisions covering six issues cited by Restore Justice 2012 to back its claims that Lewis, Pariente, and Quince have been activist jurists.

“My conclusion, after going through this analysis and reading the cases they cited, is this is a very shoddy job,” he said.

As an example, D’Alemberte noted the first page of Restore Justice’s report card said that Quince was appointed by former Gov. Lawton Chiles, the state’s last Democratic governor. But, in reality, he added, Quince was a joint appointment from Chiles and his successor, former Republican Gov. Jeb Bush — a hero to many conservatives.

“She was a joint appointment. The failure to reflect that shows this is an attempt to play politics with the process, and a close analysis of the cases would demonstrate that further,” D’Alemberte said.

Defend Justice From Politics released a review of the 10 cases cited by Restore Justice 2012. One criticized the justices for striking a constitutional amendment placed on the ballot by the Legislature, which would supposedly allow Floridians to opt out of the new national healthcare act, generically known as Obamacare, although legal experts said the amendment would be preempted by federal law.

In reality, the state, in defending a legal challenge to the amendment, conceded that the introduction to the ballot summary was misleading. (The introduction mentioned doctor waiting lists and doctor-patient confidentiality, neither of which was mentioned in the amendment.) Under F.S. and art. XI, §5 of the Florida Constitution, and because the Legislature did not place the entire text of the amendment of the ballot, the remedy sought by some to have the court rewrite the summary was not available, and the only recourse was to strike the amendment from the ballot.

As Villalobos dryly observed in his comments: “What they wanted the court to do is change it and rewrite it in a way that was legal. The court can’t do that. That is what an activist court is. This court is being accused of being activist, because they refused to be activist.”

Another example cited was that Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005), made it harder for businesses to avoid junk and frivolous lawsuits. But D’Alemberte’s analysis showed the suit dealt with the denial of a workers’ compensation claim for an injured worker that resulted in a worsening of the worker’s condition.

Restore Justice also claimed the court undermined the death penalty in another ruling. In that instance, the analysis showed, the court, as part of a murder case, ruled it had been wrong to also charge the defendant with burglary when he had been a consensual guest in the victim’s home. That ruling, in turn, undermined the state’s claim of felony murder.

D’Alemberte noted that between 1998 and 2011, when the 10 cases were issued, the Supreme Court decided around 36,000 cases.

“We expect people are going to disagree sometimes,” he said, but added that 10 disputed cases over 13 years hardly make a case that the justices are out of control.

Batchelor said Restore Justice wrongly characterizes itself as conservative, even as it tries to make the courts bow to public opinion.

“The people who are mounting this effort are self-proclaimed to be conservative, and I would refer them back to the Federalist Papers [which advocated ] if you really want to be conservative, judges should rule on the law, not public opinion,” he said. “If you’re watching this debate, it’s really about raw politics, not jurisprudence.”

Villalobos agreed, noting the Founding Fathers created the executive and legislative branches to be responsive to public opinion, while the courts were created to be the neutral arbiter of disputes. For example, a constituent can meet one-on-one with a legislator, or hire a lobbyist to do the same. But, in court, everything must be done in the open. There are no one-on-one meetings between the judge and a party, a lawyer, or a lobbyist.

“Pumping in millions of dollars from the outside to try to influence the courts from the outside is a terrible idea and is the beginning of the destruction of the independence of the judiciary,” Villalobos said.

Cantero opened the press conference by noting the American system of government was divided into three branches to promote checks and balances, and the judicial branch was designed to be separate from politics and “to be a fair and impartial branch. That is why the lady of justice is blindfolded. Judges do not look at who has the money and who has the power. They are there to look at the statutes . . . and make sure the law conforms to the U.S. Constitution and the Florida Constitution.”

He also warned that if some justices are removed now because they are considered too liberal, then in the future other justices could be removed because they are seen as too conservative.

Cantero noted he served with Quince, Lewis, and Pariente for six years and had agreements and disagreements on various issues, but noted they generally agreed.

“The opinions where there are dissents are really a minority of the cases that the court decides. The unanimous decisions rarely get written about. The vast majority of our decisions were unanimous,” he said. “In those in which I did dissent, I felt there was a reasonable difference of opinion among reasonable people about what the law is and how it should be interpreted. I do not believe that my former colleagues have committed any kind of misconduct that would deserve their removal from office.”

The speakers noted that so far there’s no evidence of a massive influx of special interest money to defeat the justices, but they said the situation could change quickly as other states had seen last-minute surges in spending to defeat Supreme Court candidates seeking retention or reelection.

Villalobos said if opposition money comes in at the last minute, the doners won’t be reported until after the election, while the justices are filing campaign reports now on who is contributing to their campaigns.

However, Jesse Phillips, who runs Reform Justice 2012, said he doesn’t expect any large influx of money, although he couldn’t close that door completely.

As of mid-September, he said, his organization had raised about $70,000, compared to the justices who have raised approximately $1 million.

“I guess it could happen [a last-minute surge of donations], but with such a crowded ballot and so many higher profile issues . . . the likelihood of something down the ballot generating a lot of interest is not high,” Phillips said. “But I can’t rule it out.”

As for failing to mention the joint appointment of Quince by Chiles and Bush, Phillips said, “My understanding, based on the research we did, is Bush wound up honoring the appointment made by Lawton Chiles.” He added he would be willing to consider further information on that.

On the criticisms of the way Reform Justice 2012 presented the 10 opinions, Phillips responded: “That’s the answer I expected from them.”

For example, he said the organization’s research on the healthcare amendment was that the court could have followed one of its earlier rulings and put the entire amendment on the ballot.

“We feel like the court intervened and prevented a vote from happening on that issue,” Phillips said. “We feel the voters should have been able to decide if that ballot summary was misleading.”

(Editor’s Note: After the October 1 News went to press, the The Republican Party of Florida released a statement saying the party’s executive board voted unanimously to oppose Justices Lewis, Pariente, and Quince in November's retention elections.)

[Revised: 10-27-2014]