By Jan Pudlow
What started as a whisper campaign against three justices up for merit retention has become a loud shout backed by the political muscle of the Republican Party of Florida.
In an unprecedented move September 21, the Republican Party of Florida’s executive committee unanimously voted to oppose the retention of Justices Fred Lewis, Barbara Pariente, and Peggy Quince, after what Chair Lenny Curry described as “a grassroots groundswell” of party members who are “fed up with these justices.”
“The grassroots opposition to these judges stems from a long list of cases in which these justices have injected their political views,” Curry wrote in an op-ed piece printed in many Florida newspapers.
After that vote to oust the justices, Curry said, “Almost immediately, their political allies went into attack mode, accusing Florida Republicans of crashing a party that only the Bar association, trial lawyers, and special-interest groups were invited to attend.”
Florida Bar President Gwynne Young stresses that The Florida Bar is a non-partisan, mandatory-membership organization that does not endorse or support the retention of any justice or judge but wants to educate the public about merit retention and the role of judges and justices.
“A fair and impartial judiciary, free from political or special interest influence, is the purpose of Florida’s nonpartisan merit retention elections for appellate judges. The Florida Bar does not believe any political party — Democratic, Republican, or other — should participate in any nonpartisan election, particularly for judicial positions,” Young said. “Maintaining the integrity and impartiality of Florida’s judges is critical to preserving the principles of democracy on which our country was founded. Nonpartisan merit retention elections were established by the people of Florida to ensure that the rule of law, not popular thought or political views, is the basis for all judicial decisions.”
The GOP’s Curry continued: “The charge of ‘injecting politics’ in what is already an issue before the voters is nonsense of the highest order. Judges in Florida are appointed by politicians. They decide political cases all the time. And they take political contributions — lots of them. In fact, long before the Republican Party of Florida voted to oppose them, these justices had been busy raising money by holding fundraisers, and cashing check after check from politically active donors, lobbyists, unions, and other special-interest groups.”
Bracing for what they consider an attack on an independent judiciary that has already occurred in Iowa, Florida’s three justices standing for merit retention have collectively raised more than $1 million.
The Florida Bar invested $300,000 in a nonpartisan, neutral, voter educational program, “The Vote’s in YOUR COURT: Judicial Merit Retention. Know The Facts.”
Besides the Republican Party opposition, Americans for Prosperity — the political action committee affiliated with billionaire brothers Charles and David Koch — has mounted a campaign against the justices, launching a website and running television ads across the state. The first ad, aired September 25, focused on the Supreme Court’s 5-2 decision in 2010 rejecting a proposed constitutional amendment the Legislature put forth to counter President Barack Obama’s Affordable Health Care Act.
“We’re not advocating for the election or defeat of any of the justices,” said Slade O’Brien, head of the Florida chapter of Americans for Prosperity. “What we’re attempting to do is call more attention to them advocating from the bench.”
Another opposition group called Restore Justice has received most of its contributions from South Florida doctor Allan Jacob, who gave $59,250, according to filings with the Internal Revenue Service.
“This is the most stressful time I’ve ever experienced in my life,” Justice Lewis said recently at a Hillsborough County Bar meeting. “There is an entire branch of government to protect and defend. We cannot sacrifice fairness and impartiality and the court system to political whims.
“The idea was to vote out all three justices so Gov. Scott could replace them,” Lewis said. “If we allow politics to overtake the three branches of government, we no longer will have the democracy we’ve enjoyed for 200 years. I’m trusting that, somewhere in the middle, there are fair-minded individuals who believe the court system is too valuable to kill through partisan politics.”
The hot news of partisan politics entering the nonpartisan judicial merit retention races was frankly discussed at The Florida Bar’s annual Reporters’ Workshop September 24 in Tallahassee, attended by 21 print, radio, television, and web-based media reporters.
Capitol News Service President Mike Vasilinda moderated a panel made up of Young; former Republican state Sen. Alex Villalobos, an attorney who is president of Democracy at Stake; and Martin Dyckman, a retired associate editor of the St. Petersburg Times. Dyckman reported extensively on the Florida Supreme Court corruption and cronyism in the early ’70s, as detailed in his book, A Most Disorderly Court: Scandal and Reform in the Florida Judiciary.
“The short reason we have merit selection and merit retention for the appellate bench is that this court right here was riddled with corruption. And all because of the politics that went into the way they were selected,” Dyckman said, delving into a mini history lesson on the ousted justices and why Floridians voted in 1976 to take politics out of the selection of judges.
“The consequences of this retention election are not just the individual fates of those three justices, but the fate for maybe a generation to come of the Florida Supreme Court,” Dyckman said. “And if you put politics back into it, which is what the Republican Party of Florida essentially did last week, you are going to have — I would bet money on it — a succession of scandals sooner or later.”
Villalobos gave a history lesson, too, about how members of his own Republican party, where he held office in both the House and Senate, have tried to rock the balance of three co-equal branches of government.
Villalobos began his list of examples with the Florida Legislature in 2001 giving Gov. Jeb Bush authority to appoint all nine members of each judicial nominating commission. In the waning days of the 2001 session, a compromise was reached to keep the Bar involved in a redefined role. For four of the seats, the Bar submits the names of three lawyer nominees each to the governor, who may reject the Bar’s nominees as many times as the governor wishes.
“They wanted to wipe the slate of all judicial nominating commissioners, so the governor can make the new appointments,” Villalobos said.
More recently, the Legislature tried to raise the required vote for merit retention from 50 percent plus one vote to 60 percent.
“[Legislators] said it should be 60 percent, because people should be really sure. I asked them, ‘Well, should that apply to you just so they’re really sure?’ And, of course, that was a bad idea. You guys laugh. Think about the irony here,” Villalobos said.
In 2011, House Speaker Dean Cannon wanted to “modernize” the Florida Supreme Court by splitting it in two — separate criminal and civil courts — and adding three justices for a total of 10. Cannon’s unsuccessful makeover would have given Gov. Rick Scott three appointments to the court. Under that plan, the three longest serving justices — Lewis, Pariente, and Quince — would have served on the Supreme Court of Criminal Appeals to handle what has been called the “brain surgery of the law” — death penalty appeals.
“They wanted to put the most brilliant justices on the criminal side so it would be more efficient,” Villalobos said wryly. “Up until last week. Now it’s a bad idea. Now the Republican Party is saying we want to take these guys out because they are incompetent.”
Cannon withdrew his plan when he realized it was dead in the Senate. A compromise puts proposed Amendment 5 on the 2012 ballot that would give the Senate confirmation power over the governor’s Supreme Court nominees, and the House would be able to read investigative reports of the Judicial Qualifications Commission looking into judicial misconduct.
A critic of the court since it struck down three constitutional amendments written by the Legislature in 2010, Cannon, a Winter Park lawyer, also criticized The Florida Bar for spending money on its merit retention educational campaign, calling it “a thinly veiled effort to support the justices when they certainly didn’t do that when [Charles] Canady and [Ricky] Polston were up two years ago.”
“I think the Bar is in fact political. I think it is acting politically, and it is hypocritical when they suggest this is about the politicization of the judiciary,” Cannon told The Miami Herald.
“I’ll tell you what this is really about,” Villalobos said. “The whole thing is really about in 2010, when the Legislature passed the Health Care Reform Constitutional Amendment — Obamacare. The Legislature wanted to pass a constitutional amendment that would allow Florida to opt out, which you obviously can’t do. It was being used to get the ‘right’ people to go and vote,” Villalobos said.
He read aloud the first 40 words of the proposed amendment’s summary language that was challenged as misleading. The trial court agreed, and the First DCA sent it to the Supreme Court to review as a matter of great public importance.
“At the [oral] argument, the state says, ‘You’re right. The summary is misleading.’ So they are not arguing the court did wrong,” Villalobos said, explaining the state asked the high court to simply substitute the whole amendment language for the summary.
“I told you I’m a Republican, OK? But I have self-respect and have to look at myself in the mirror,” Villalobos said. “The state is asking the court to be activist. And when the court refuses to be activist, and applies the constitution, then they are activist judges. . . . To say these justices are liberal because they refused to create law, I mean, that’s outrageous!
“. . .And that is why all this money is being funneled into the state.”
A reporter asked: “So at this point, we don’t know how much money and where it’s coming from?”
“Nor will you,” Villalobos answered. “If it goes through a party, you will not know who gave and in what amount, and not where it goes. It goes to the party. The party pays everything from dogcatcher to president of the United States. So, how can you trace the $5 my grandmother sent to the Republican Party? So if you wanted to sneak in a bunch of money from special interests, the way you do it is you put it through the party — through any party, by the way.”
Another reporter noted that when Villalobos’ group Democracy at Stake did focus groups in Jacksonville, Tampa, and Miami of 130 diverse people, not one person could name a Florida Supreme Court justice. So how can he make the subject of this merit retention race compelling to readers who aren’t really paying attention?
Dyckman answered: “Those of us who are editorial writers and columnists, we’re free to say what’s next. Most of you are reporters who are going to have to walk down the middle. But you can ask the question: What’s next? If these judges are disposed of because they rubbed somebody the wrong way, we already know who is going to appoint their successors.
“They will be appointed from nominations submitted by a commission that the governor will control. We know what his politics are and what his preferences are. In fact, he lost a big case before the court just last year,” referring to the Supreme Court’s ruling that Scott overstepped his authority when he seized control of the state rulemaking process.
So, Dyckman said, the question to ask is: “What kind of justice will be appointed to succeed them if they are voted out? History tells us that the more politics gets into it, the less confidence you can have in the people wearing the black robes.”