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September 15, 2012
Judges have their say on judicial governance rules

Chief judge term limits, communications are points of contention

By Jan Pudlow
Senior Editor

The intention was to strengthen governance and enhance communication of the judicial branch.

But judges balked when the Florida Supreme Court — on its own motion and without first consulting them — issued an opinion in February amending the Florida Rules of Judicial Administration in response to recommendations of the Judicial Branch Study Group.

Two changes particularly rankled the judges: eight-year term limits for chief judges (not recommended by the study group), and the directive that the judicial branch speak with one voice, so individual judges meeting with elected officials need to make it clear they are only offering their personal opinions. Briefs arguing vehemently against those rule changes were filed by the chief judges, as well as the conferences of circuit judges, county judges, and district courts of appeal judges, and several voluntary bar associations.

Seven months later, the judges got their chance to be heard, during oral arguments on September 4 in Case No. SC11-1374, In Re: Implementation of Judicial Branch Governance Study Group Recommendations — Amendments to the Florida Rules of Judicial Administration.

First up to the podium was Talbot “Sandy” D’Alemberte, representing Florida’s 20 circuit chief judges.

“We want to concede that the chief justice is the chief spokesman for the judicial system. We concede the authority of the chief justice and the authority of this court. We do not concede that the provisions in the constitution allow term limits to be imposed on chief circuit judges,” D’Alemberte said.

He conceded the authority of the high court to determine the method of selection of chief judges, saying, “This court itself could make the appointment.”

That caused Justice Barbara Pariente to remark: “Are you saying we have the authority to select chief judges? In New Jersey, the chief justice does in fact select the chief judges of every circuit.

“I can see Judge Perry back there saying, ‘Ut-oh! That would be worse than term limits!’”

She referred to Ninth Circuit Chief Judge Belvin Perry, who had filed a motion for rehearing on behalf of the trial court chief judges, complaining that “the court’s order does not state a basis or rationale” for term limits, and “establishing term limits without input from the judges is an unnecessary and unwarranted action which may adversely impact the branch.”

Justice Charles Canady asked D’Alemberte to move beyond whether the high court had the constitutional authority, and address whether it was a good idea.

Canady had dissented from term limits for chief judges, saying the court needed to first hear from the trial and district court judges.

“To have local judges, county and circuit judges, making a decision means we give respect to the people who know their community best,” D’Alemberte said.

“We are helping, I believe, develop a collegiality at the trial court level. By not having term limits, we are now putting the chief judge, who is one of the players in our judicial system, on equal footing with other players in the judicial system.

“Think about state attorneys, public defenders, clerks. . . a chief judge deals with a very complex system. I respectfully submit that the job of a chief circuit judge is probably the most complex administrative job in the state.”

In her 14 years on the Supreme Court, Pariente said, she has “heard on many occasions from circuit judges that they cannot or have not spoken up. In certain circuits, it becomes incestuous. In other words, the chief judge gets the power, in terms of being able to be elected, and nobody can really challenge that chief judge.”

D’Alemberte responded: “Your honor, if your question is whether we ought to be frightened of the power of chief judges, I want you to think about this: Is there any other constitutional officer who is accountable in so many different ways than the office of chief circuit judge? I submit that there is not.”

He listed all of the checks on abuses of power of chief circuit judges: Judicial Qualifications Commission proceedings, investigation and possible impeachment by the Legislature, a secret-ballot vote by fellow judges every two years, and removal by action of the Supreme Court.

On the communication rule, D’Alemberte noted Florida Statute 26.55 would first have to be repealed.

“My question is: Why would the Legislature want to cut off that form of communication?” D’Alemberte asked.

“Maybe another question is: Why would this court not want to promote this kind of communication?”

Pariente was quick to answer when it comes to the specific issue of the budget and compensation.

“There is nothing more harmful than the ability of the branch to get its budget priorities, and then judges go off on their own and lobby for their own issues. And you know there were some recent examples where that had happened, and it hurt the branch tremendously,” Pariente said.

She stressed there is a structure in place with the Trial Court and DCA Budget commissions, and the chief justice is the branch’s lead budget spokesperson with the legislative and executive branches.

“On the issue of individual judges expressing their viewpoint to the Legislature on an issue relating to the administration of justice, we haven’t prohibited that,” Canady said. “There might be some people that think that might be a good idea that we prohibit it, but that’s not what we’ve done.

“I think it would be a terrible idea to do that, because I think judges do have the right to express their viewpoint,” Canady continued.

“We have said, and maybe we haven’t done it in the most artful way, but what we have said, when they do that individually, they must inform the person with whom they are communicating that they are not doing it on behalf of the branch, that they are speaking for themselves. And that seems like a reasonable accommodation for the sake of clarity.

“Because I think that what happens sometimes is when one judge goes over to the Legislature and speaks to a member of the Legislature, they think, ‘That’s a judge! They’re speaking for the judicial branch!’ ­—when that position they are articulating may be contrary to the position that this court has adopted, or the conferences have adopted. . . . So what we’ve done is try to eliminate that potential for confusion.”

D’Alemberte countered that the rule creates confusion and conflicts with Judicial Canon 4(b).

“I understand what is motivating that, but how in the devil would it ever be enforced?” D’Alemberte asked.

“. . .Our point is that a rule that limits speech or compels speech is bound to cause mischief down the line.”

Sarasota County Judge Kimberly Carlton Bonner, president of the Conference of County Court Judges, made the case that in smaller counties, those county judges often have “unique, often familiar relationships with their local and state elected officials. They have grown up with them, gone to school with them, live next door to them, their children go to school together.”

So legislators often talk to county judges, she said. The problem with the rule, Bonner said, “It’s a burden to almost Mirandize the listener in a county where the judge and the elected official might live next door to each other.”

Second DCA Judge Stephan Northcutt, president of the Florida Conference of DCA Judges, said his group endorsed the positions of the other conferences, but he noted the DCA has an “additional arrow in our quiver,” because the Florida Constitution specifically sets out selection and removal of DCA chief judges by a majority of judges.

He said the change by the Supreme Court to require a two-thirds vote, rather than a majority, for removing a DCA chief judge violates the constitution.

“If the rule complied with the constitution about what it took to remove a chief judge, a DCA judge would have to keep a majority of the judges happy and satisfied that the judge is moving the court forward and not bringing the court into disrepute,” Northcutt said.

Canady asked: “Couldn’t there be an instance where the majority of judges on a particular court thought that?”

Northcutt: “Yes.”

Canady continued: “But the chief judge was bringing the whole branch into disrepute?”

Northcutt: “Yes, sir, we all know the example we are talking about.

With a grin, Canady said: “That’s a hypothetical.”

Northcutt responded: “OK. But it’s not hypothetical that in that hypothetical instance it took a two-thirds vote of that judge’s court to remove him.

“And I submit that if the rule reflected what the constitution says. . . that hypothetical situation would have been resolved far sooner by that court.”

In October 2009, after the Supreme Court approved the current long-range strategic plan for the judicial branch, then Chief Justice Peggy Quince established the Judicial Branch Governance Study Group. Chaired by Justice Ricky Polston, the group included appellate, circuit, and county judges, as well as two former Florida Bar presidents. Their charge was an in-depth examination of the current governance system of the judicial branch and to come up with recommendations to “improve the effective and efficient management of the branch.”

[Revised: 12-09-2016]