Proposal gives the governor seven direct JNC appointments

By Gary Blankenship
Senior Editor

A bill that would remove the last vestiges of Bar input into judicial nominating commissions while increasing the governor’s control has passed a House subcommittee.

The Civil Justice Subcommittee on March 17 passed another bill to create a constitutional amendment giving the Senate confirmation on gubernatorial appointments to the Supreme Court and district courts of appeal and ends JNCs at that level.

Ironically, the sponsor of the confirmation bill, Rep. Charles McBurney, R-Jacksonville, said that amendment, if approved by voters, would end the formal involvement of JNCs in appellate bench appointments, although JNCs might remain in an advisory role.

Both bills passed by 10-5 party line votes, with Democrats opposed. The JNC bill would shrink each of the 26 JNCs from nine to seven members, with direct appointment to all of them by the governor.

Currently, the Bar makes nominations to the governor for four of the nine seats, although the governor can reject the Bar’s slate of nominees.

The bill also changes JNC terms from staggered to running concurrent with the governor who appoints the members. Additionally, it requires that four of the seven members on each JNC be Bar members in good standing. On the effective date of the bill, all existing JNC members would be dismissed and replaced with the new gubernatorial appointments.

Rep. Matt Gaetz, R-Destin, presenting the proposed committee bill, said it would enhance the accountability of the governor for his judicial appointments

“No one can vote against The Florida Bar; no one can vote against a JNC member; they can surely vote against the governor,” Gaetz said.

Rep. Martin Kiar, D-Parkland, said the bill gives the governor too much power and tilts the balance of power between the branches. He said there was nothing in the bill preventing the governor from demanding that JNC members send him certain names in return for being appointed.

“It [the current process] keeps the judicial nominating commission independent of the governor a little bit; it keeps the separation of powers a little more in line,” Kiar argued. “When the governor can directly appoint every JNC member . . . that’s when the governor really begins to encroach on the judiciary.”

If passed by the Legislature, it would be the second modification to the JNC system in the past 10 years. In 2001, the Legislature changed the system to enhance the governor’s power. Before 2001, the governor appointed three members to each JNC; the Bar appointed three; and those six selected three nonlawyer public members.

McBurney said his Senate confirmation measure, HJR 1097, was intended to provide accountability and transparency to the appointment process of Florida’s appellate bench.

Currently, he contended, even with the JNC process, the entire responsibility for appointment falls to the executive branch in the person of the governor. The proposed amendment would bring the legislative branch into the procedure. It provides that the Senate would have 180 days after the governor’s nomination to confirm the appointment. If the Senate failed to act, the appointment would be rejected.

“The whole process is about accountability. What this constitutional amendment does is expand that accountability to the Senate,” McBurney said. “. . . One branch, the executive, decides who should be in the judicial branch. This is a check and balance.”

The committee heard from Bar President Mayanne Downs (see sidebar), and Fifth DCA Chief Judge David Monaco spoke on the importance of the JNCs.

The JNCs review all applicants and then forward three to six qualified nominees to the governor. That ensures, Monaco said, whomever the governor appoints is qualified. It also encourages only qualified lawyers and judges to apply since they know they will be rigorously screened.

Other representatives questioned whether the six-month confirmation period would increase judicial work loads because of long vacancies, whether it would work for a part-time Legislature, whether any change was needed, and about the effect of taking JNCs out of the appellate judge appointment process.

“This is a solution in search of a problem,” said Rep. Richard Steinberg, D-Miami Beach. “Certainly, we don’t have a problem here. We have a high quality of judges on the appellate bench. I don’t hear instances of someone saying, ‘My God, how did that justice get on the Supreme Court or that judge on the DCA?’”