By Gary Blankenship
The Board of Governors has voted to oppose constitutional Amendment 5 on the November 6 general election ballot.
The board approved the recommendation of the Legislation Committee at its October 5 meeting. The vote followed an extensive discussion at the board’s July meeting that resulted in a decision to have the Legislation Committee further study the issue.
Amendment 5 has three parts: 1) to allow the Legislature to repeal rules of court procedure by a simple majority vote rather than the stricter two-thirds “of the membership” threshold now in place, and allow for similar relaxed repeal of Judicial Nominating Commission and Judicial Qualifications Commission rules by simple majority vote of legislators present versus a stricter majority “of the membership”; 2) require Senate confirmation of nominees for Supreme Court justiceships; and 3) expand legislative access to files of the JQC.
Following the July board meeting, the Executive Committee of the Florida Republican Party on September 21, in an action unprecedented since voters approved merit retention in 1976 for appellate judges and Supreme Court justices, announced its opposition to the retention of Justices Fred Lewis, Barbara Pariente, and Peggy Quince. A conservative political action committee also announced it would run television ads opposing the justices.
Those actions apparently had an impact on the Legislation Committee’s recommendations. Committee Chair Laird Lile reported the committee held telephone meetings on August 10 and September 10 —before the stepped-up opposition to the three justices — and from those conference calls developed four provisional recommendations regarding issues contained in Amendment 5. The positions would have had the Bar oppose weakening the Supreme Court’s rulemaking authority, any changes in how the Legislature may rescind JNC or JQC rules, any undue delay in appointing Supreme Court justices, and diluting the confidentiality of JQC records. None, though, directly mentioned Amendment 5.
But that changed, Lile said, when the committee met on October 4, the day before the board meeting.
“Your Legislation Committee . . . received advice from our advisors based on the current lay of the land, which has changed a bit since our telephone conferences,” he said. Consequently, the committee recommended “that this board adopt a position that The Florida Bar opposes Amendment 5 on the November 6, 2012, general election ballot. That’s the single recommendation from the Legislation Committee today.”
Board member Jay Cohen, chair-elect of the Legislation Committee and who at the July meeting advocated giving the committee more time to study the amendment, urged support of the recommendation.
He said the actions opposing the retention of the three justices “brought out how we need to be consistent, consistent in our message and consistent in our effort of what we do for Florida lawyers, especially on one of our core issues, which is protecting the integrity of the court system, which includes the separation of court powers, and which includes a fair and impartial judiciary. . . .
“We now have a consensus that we bring to you that supports everything that we have done to continue to make sure our judiciary is fair, is impartial, is independent, and our judiciary is not in some way just another agency of the state. Our motions support that. This motion . . . says we, as a Board of Governors representing over 90,000 lawyers, do not support any efforts at meddling or interfering in rulemaking, in Senate approval (of Supreme Court appointments), adding another layer of politics to the selection of judges. We should be peeling away layers; we shouldn’t be adding layers.”
Cohen also said some board members may have had a concern that, in the wake of the tumultuous 2011 legislative session, the Bar or its leaders may have agreed not to oppose Amendment 5 in return for lawmakers dropping more drastic proposals, including removing procedural rulemaking entirely from the Supreme Court, except for an advisory role, and enlarging the Supreme Court to 10 justices and then splitting the court into separate civil and criminal branches. Last year, the board passed a carefully crafted legislative position acknowledging changes in the legislative proposals, but Cohen said that position did not constitute an agreement.
That position, passed in 2011, was among all of The Florida Bar’s legislation positions that sunsetted last summer.
“The Legislation Committee’s recommendation to vote ‘no’ [on Amendment 5] on behalf of more than 90,000 lawyers of The Florida Bar [demonstrates] that we’re not going to allow partisan politics with respect to our judiciary,” Cohen said.
The board voted to adopt the Legislation Committee’s recommendation, with one dissent. Bar President Gwynne Young praised the board for its vote. Like Cohen, she linked Amendment 5 to the retention battle for the justices. The Bar has not taken a position on the retention of the justices, but it is conducting a separate education campaign, called The Vote’s in Your Court, to educate voters on the history and purpose of the merit retention system.
The link between that education campaign and Amendment 5, Young said, is keeping partisan politics out of the court system.
“The voters of Florida voted to eliminate a political, fully elected process and put in merit selection and retention [for the appellate bench], so that the core of our education process says that we want to keep politics out, as much as we can, of the merit selection and retention process,” she said.
Young noted the Bar issued a press release after the Republican Party action on the justices’ retention stating that it “does not believe it is appropriate for any political party, Republican, Democrat, or otherwise, to take a position in a nonpartisan race. I think as things became . . . clear to me and others . . . that we needed to oppose this amendment, and so I thank everyone for carefully looking at this, for examining everything, and for making your decision today.”