By Mark D. Killian
Managing Editor

Appellate jurists standing for merit retention would have to garner 60 percent of the vote to retain their seats under legislation now moving through the House.

Rep. Bill Hager, R-Boca Raton, told the House Civil Justice Subcommittee March 9 that HJR 11-04 would step up the accountability of the judiciary to the people of Florida.

“Their only opponent is their record, and I would indicate that these judges ought to — based on their record — be able to persuade at least three out of five voters to simply check ‘yes,’” Hager said.

Opponents of the measure fear it would further politicize the state’s courts and allow a minority of voters to hold sway over the majority. They also noted jurists’ abilities to campaign are restricted by judicial canons.

The joint resolution —which cleared the panel on a 10-4 vote — changes the retention requirement for Supreme Court justices and judges of the district courts of appeal in retention elections from 50 percent to 60 percent. The measure would ultimately have to be approved by 60 percent of the voters, as it would require a constitutional amendment, which also means the joint resolution would have to be cleared by a three-fifths vote of each legislative chamber to be placed on next November’s ballot.

Hager said since the merit retention system was implemented in 1972, no appellate judge or justice has ever been defeated at the polls. He said if the 60 percent threshold was applied to those past elections, only two justices — retired Justice Leander Shaw in 1990, who was opposed by anti-abortion groups, and Justice Jorge Labarga last year, who was criticized for voting to remove a legislatively passed constitutional amendment opposing federal healthcare reforms — would have been defeated. Justice Shaw polled 59.6 percent in the ’90 retention vote and Justice Labarga garnered 59 percent in 2010.

Under his 60 percent proposal, Hager said, nine DCA judges would have been removed since 1972, including all seven First DCA judges who stood for retention in 2010.

Hager also noted Illinois requires a 60 percent approval rating for its appellate jurists and New Mexico has set a 57 percent standard. Hager said he has not consulted with the governor’s office on the proposal.

Rep. Richard Steinberg, D-Miami Beach, called the measure “troublesome” and said it’s his understanding that in a democracy, generally, the majority rules.

“But here we have a situation where this proposal will allow the minority to rule; where 40 percent will dictate whether or not a Supreme Court justice [or DCA judge] could be taken out,” Steinberg said.

“What we are really doing here is further politicizing the appellate court system, which I think, frankly, is extremely dangerous.”

Steinberg also is concerned that groups who oppose sitting judges can say whatever they want about the judge, who in turn is restricted by judicial canons in how they can respond.

“So they already have one arm tied behind their back,” said Steinberg, noting he also dislikes the prospects of jurists having to raise large sums of money to run comprehensive campaigns. He noted, too, jurists standing for retention are prohibited from campaigning until they draw active opposition.

“So you basically set up a situation where you could have a group raising money quietly, and the judge is unaware of it, and all of a sudden, a couple of weeks before the election. . . they start sending out mailers, phone calls, etc., and now you’ve got a judge who is limited to what they can say and has to have . . . a third party, on their own, presumably, going out and raising money at $500 a clip to combat that message that is going out there at the last minute,” Steinberg said. “The reality is that is not possible.”

Steinberg also reminded his colleagues that Supreme Court justices would need to mount statewide campaigns, and DCA judges would have to run in districts much larger than any Senate or House seat.

Rep. Matt Gaetz, R-Ft. Walton Beach, said the argument that a “secret group” could quietly raise funds to oppose a judge is not feasible, since contributions to political organizations have to be reported and are public record.

“It is comical to believe that the court is not already political,” Gaetz said. “If you look at how decisions come down so regularly on a 5-2 basis, we have a political court. This just requires some accountability to go along with the political nature of the court.”

Gaetz said he also doesn’t understand the concerns over judges having to raise money to campaign.

“If raising money and campaigning is a bad thing for government, why do we have it in the other two branches of government?” Gaetz said. “If in the other two branches of government it is OK and not corrosive and leads to good government, then probably it is OK for the judiciary, as well.”

Hager also said most appellate jurists have come up through the county and circuit courts and are already familiar with running in contested races.

Chair Eric Eisnaugle, R-Orlando, also noted the rules in place restricting how judicial candidates can campaign are imposed by the courts themselves and not the Legislature.

Rep. Darren Soto, D-Orlando, expressed concerns that raising the threshold to 60 percent may also hurt minority candidates, noting Justice Shaw is African American and Justice Labarga is Hispanic.