The Florida Bar
Bar Issue Papers
Merit Selection and Retention
On This Page
II. Bar Positions
IV. Facts and Statistics
V. What others are saying
Merit selection is a way of choosing judges through appointment, using a nonpartisan nine-member commission of lawyers and non-lawyers to locate, recruit, investigate and evaluate applicants for judicial office. These judicial nominating commissions (JNCs) then submit three to six names of the most highly qualified applicants to the governor, who must make a final selection from the list.
Florida's appellate judges, after initial service of at least one year, are then considered for continuation in office "on merit" by citizen vote in uncontested elections. If kept in office by a majority of favorable merit retention votes, the judge is automatically re-evaluated in the same manner at the end of each six-year term thereafter.
Efforts to implement the merit selection/merit retention process within Florida's various courts go back as far as the 1940s. As enthusiasm for the concept continued into the 1950s, a form of merit selection that utilized "judicial screening" programs was tested in the late 1960s. In 1971 an executive order by Gov. Reubin Askew became the basis for Florida's current judicial nominating commission system of merit selection, made applicable to appointments and vacancies at all levels of the state judiciary by 1972 constitutional amendment.
The companion process of merit retention for appellate judges was added to the constitution in 1976, when Florida voters overwhelmingly approved an amendment requiring merit retention voting for all Supreme Court justices and District Court of Appeal judges. Those appellate judges now automatically face a retention vote after an initial term of at least one year and thereafter every six years -- not against any opposing candidates -- but by citizen approval of their performance in office through a simple "Yes" or "No" vote.
Proponents of merit selection/retention say that elective politics and campaigning for the bench invite conflicts of interest between judges and their financial supporters. Proponents also stress that incumbent trial judges often draw no opposition in the elective system, and therefore escape any regular citizen review whatsoever.
Critics of judicial elections claim that a popular vote allows important judicial positions to be won by those who are often less qualified than other aspirants produced through a merit-focused appointive process. Those on the other side argue that allowing appointed groups to select candidates for gubernatorial appointment divests the people of their vote in a democratic government.
In the 2000 general election, voters had the chance to extend the current system of merit selection and retention in place for appeals court judges and Supreme Court justices to trial judges in their local circuit and county courts but the measure was defeated everywhere in the state.
II. Bar Positions
A. The Florida Bar
Since the 1970s-era reforms within Article V of our Florida's Constitution, The Florida Bar has shown fairly consistent support for merit selection and retention at all levels of our state judiciary.
In the 1978 general election, the Bar supported the Constitution revision that might have removed merit selection and retention as the processes for appointment and retention of Florida's appellate judges. In 1984, however, after reviewing various recommendations of Florida's Article V Review Commission, the Bar's governing board opposed the Commission's recommendation for merit selection of trial judges -- but voted to support continuation of merit-based selection in the filling of trial bench vacancies and new judgeships.
Following a comprehensive study by a Bar Commission on Merit Selection and Retention of Trial Judges, in 1990 the Board of Governors formalized support to make both those processes applicable to the state trial judiciary, with an additional endorsement of a localized "opt out" alternative if necessary to effect such reforms. That Bar position was reaffirmed during both the 1990-92 and 1992-94 legislative bienniums. During the 1994-96 biennium, the Bar's governing board again voted its support for merit selection and retention of trial judges on a circuit-wide "opt in" basis, specifically including authorization for future "opt out" votes after implementation of the system in any locality.
Again, in response to 1998 legislative proposals to revamp judicial selection processes, the Bar formalized support for the existing merit selection and retention process for Supreme Court justices and District Court of Appeal judges, and opposed any move toward contested elections for those jurists.
In May of 1998, the Board of Governors supported the Florida Constitution Revision Commission's Revision 7, a five-faceted court-related measure that included a provision for local elections to later determine whether to continue electing circuit and county judges or to adopt a merit-based system for gubernatorial appointment of those judges. That measure passed in November 1998 by a near 57 percent to 43 percent margin among some 3.56 million voters statewide.
During 1999 and early 2000, a special committee of the Board of Governors coordinated a series of articles on merit selection and retention, and conducted various membership forums throughout Florida to help shape the Bar's position regarding the local option votes set for the November 2000 general election. However, the November 2000 ballot, which gave the option to switch from the current method of electing trial judges with mid-term vacancies filled by merit selection to a pure merit selection and retention system, was rejected everywhere in the state.
B. The American Bar Association
A supporter of merit selection/retention for more than 50 years, the American Bar Association favors merit selection and a subsequent retention election whereby judges remain in office unless they are voted out for cause or are required to retire. The ABA's Standards for Court Organization further state that the "election of judges should be abolished."
In 1994, the ABA adopted a resolution urging state and local bar associations in jurisdictions where judges are elected to actively work for the adoption of merit selection and to consider means of limiting abuses in the judicial elective process. .
In July 2000, the ABA adopted the Standards on State Judicial Selection proposed by the Commission on State Judicial Selection Standards, which reaffirm the ABA's position in favor of merit selection, while offering a model for the creation of Judicial Eligibility Commissions in those states that continue to hold elections for judicial office. The model stresses the importance of careful, deliberative review of judicial candidates' qualifications, with the goal of creating "merit elections."
In February 2002, the ABA House adopted a recommendation urging the adoption of public financing systems in states that continue to hold judicial elections.
In 2003, the ABA House adopted the Principles and Conclusions of the Commission on the 21st Century Judiciary to ensure judicial independence, accountability and efficiency and urged all state, local and territorial bar associations to ensure the integrity of state and territorial judiciaries by promoting the implementation of the principles and conclusions. Among them:
—The preferred system of state court judicial selection is a commission-based appointive system, with the following components:
— The governor should appoint judges from a pool of judicial aspirants whose qualifications have been reviewed and approved by a credible, neutral, non- =partisan, diverse deliberative body or commission.
— Judicial appointees should serve until a specified age. Judges so appointed should not be subject to re-selection processes, and should be entitled to retirement benefits upon completion of judicial service.
— Judges should not otherwise be subject to re-selection, nonetheless remain subject to regular judicial performance evaluations and disciplinary processes that include removal for misconduct.
Merit selection is a method of choosing judges on the basis of ability. Whenever a judicial vacancy occurs, a slate of at least three (no more than six) qualified nominees is chosen by a judicial nominating commission (JNC) — a nonpartisan, nine-member body composed of lay citizens and lawyers. This list of nominees is then submitted to the governor, who fills the vacancy by appointing one of those nominees.
Although county and circuit court judges are currently elected to serve six-year terms, vacancies in trial court judgeships occurring at any time other than the expiration of a term are filled through the merit selection process.
Appeals court judges at the district court of appeal and state supreme court level are all appointed via the JNC/merit selection process, and are then subject to merit retention votes every six years.
In the late 1960s, Florida's first attempt at a form of merit selection occurred when Gov. Claude Kirk agreed with the Bar to a "judicial screening program." The first governor to apply the concept of merit selection to all levels of the state judiciary was Reubin Askew, who issued an executive order in 1971 that became the basis for Florida's current judicial nominating commission system.
With merit retention, the electorate decides whether an incumbent judge will serve an additional term by reviewing a simple statement on the ballot that reads "Shall Justice/Judge (name) of the _________ court be retained in office?" The voter marks "Yes" or "No" in response. Only those judges receiving approval from a majority of the voters may continue in office for another six-year term. At the end of that term, the judge's name must again be submitted for voter approval. Judges receiving continued favorable reaction from a majority of the voters may continue to serve until retirement.
If a judge receives a majority negative vote in a merit retention balloting, their judicial office becomes vacant at the end of their term and is filled through the merit selection process and subsequent gubernatorial appointment. All newly appointed judges serve an initial term of at least one year and are then subject to an initial merit retention review of their performance in the next general election. Thereafter, the judge stands for review every six years.
District Court of Appeal judges face a retention vote only among voters in their respective judicial districts. Supreme Court justices appear on the statewide ballot. Should county or circuit judges be subject to merit retention votes, their names will only appear on ballots within the territorial jurisdiction of their court.
Prior to the adoption in 1968 of Article V of the revised Florida Constitution, judges were elected by partisan ballot. With the 1971 passage of HB 468 implementing Article V, Florida moved to a nonpartisan ballot and to a merit selection system for filling interim vacancies.
In 1976, the Florida Legislature passed and placed before voters a proposed constitutional amendment to Article V that would require merit retention elections for all appellate judges in Florida. The amendment was approved by an overwhelming vote of the electorate, and the first merit retention election was held in 1978.
Before the 1978 elections, appellate judges were expected to campaign for re-election every six years. They had to defend themselves against other candidates but then face criticism for campaigning for the office, which by its very nature was expected to be separated from political pressure and consideration.
The former system, while demanding that judges be impartial, imposed on them the need to raise campaign funds, which for the most part came from lawyers who would appear before them. The practice brought into question a judge's ability to be impartial, and continues to be one of several issues central to the public debate regarding judicial selection.
A. Judicial History
Various court cases have influenced public sentiment about judicial politics, and helped to shape the debate over elective versus merit-based judicial selection systems. These opinions have highlighted potential shortcomings in the elective system, as well as certain problems in the current merit selection process.
One series of opinions concerns the relationship between judicial campaigns and the Code of Judicial Conduct. Another group of cases deals with whether minorities could benefit from federal voting legislation, and utilize sub-districts for various state judicial offices. Other court action has involved flaws in the statutory guidance for selection of judicial nominating commissioners, and challenges to The Florida Bar's general involvement with judicial selection matters.
•The Florida Supreme Court adopted a revised Code of Judicial Conduct in September 1994. In re: Code of Judicial Conduct, 643 So.2d 1037 (Fla. 1994) That code, which relied extensively upon an ABA model that was finalized in late 1990, seemingly allows judicial candidates more latitude in campaigning than the former Florida Code.
•Nevertheless, a campaign related provision within the new state code -- which includes both model ABA language and Florida created verbiage -- was held unconstitutional in another federal court attack by the ACLU and other plaintiffs. By virtue of a stipulated final judgment, the Bar and the JQC are permanently enjoined from enforcing Canon 7(C)(1)'s prohibition on judicial candidates earlier than one year before the general election, from expending funds in furtherance of their campaign, or from establishing appropriate committees to solicit campaign contributions and support. Zeller v. The Florida Bar and The Florida Judicial Qualifications Commission, 909 F. Supp. 1518 (N.D. Fla. 1995).
•In Chisom v. Roemer, 501 U.S. 380 (1991) the United States Supreme Court clarified that judicial elections are covered by Section 2 of the Federal Voting Rights Act of 1965, as amended in 1982. That provision prohibits the imposition of various voting qualifications or practices that result "in a denial or abridgement of the right . . . to vote on account of race or color," and further states that the test for determining the legality of such practices is whether, "based on the totality of circumstances," minority voters "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Crucial to the Court's decision was its determination that the word "representative" in the Act should be construed to describe the winners of representative popular elections -- including judges in certain states -- since the Act had been previously held to apply to prosecutors, state attorneys general, and other executive officers. Justice Stevens' majority opinion observed, however, that lower court pronouncements were "entirely correct" in noting that "judges need not be elected at all" and that ideally public opinion should be irrelevant to a judge's role "because the judge is often called upon to disregard, or even to defy, popular sentiment." The opinion noted that "the Framers of the Constitution had a similar understanding of that judicial role, and as a consequence, they established that Article III judges would be appointed, rather than elected." Otherwise, as Justice Stevens observed, "fundamental tension between the ideal character of the judicial office and the real world of electoral politics cannot be resolved by crediting judges with total indifference to the popular will while simultaneously requiring them to run for elected office." With regard to the Louisiana judicial races at issue in Chisom, the Court concluded that "Louisiana could, of course, exclude its judiciary from the coverage of the Voting Rights Act by changing to a system in which judges are appointed." See also, Houston Lawyers' Association v. Attorney General, 501 U.S. 419 (1991).
•In Harvey M. Alper, Joseph W. Little and Henry P. Trawick v. The Florida Bar, 666 So.2d 142 (Fla. 1995), cert. denied 515 U.S. 1145 (1995) three Bar members petitioned the Florida Supreme Court for an order clarifying that The Florida Bar was without authority "to employ any funds, personnel, property, symbols or other evidences of Bar involvement in promoting or advocating any change in the means by which judges are selected in Florida," or "in promoting or publicizing the merit retention elections of incumbent justices and judges." Petitioners asserted that the legislative position of the Bar to eliminate the popular election of trial judges through a comprehensive merit retention system, and the Bar's distribution of printed materials -- allegedly favorable toward incumbent merit retention candidates in the appellate judiciary -- to the public media and local bar associations were divisive political and ideological activities outside the limits of the Bar's authority. Petitioners asserted that these are matters on which lawyers have no claim to a superior position, and that such activities violated their First and Fourteenth Amendment rights. The Bar's response emphasized the special value of its collective opinion regarding judicial selection, and observed that petitioners' argument confused the objective question of whether an issue is germane to the administration of justice with the subjective question of the desirability of the proposed change. Regarding the printed materials in question, the Bar stressed their complete neutrality (as separately determined by the Department of State's Division of Elections) and noted The Florida Bar's uninterrupted history of never endorsing individual judicial candidates. The Supreme Court of Florida summarily denied the petition to enjoin the Bar. Petitioners thereafter sought certiorari review with the United States Supreme Court, but that petition was also denied.
•A 1991 amendment to F.S. §43.29 governing Florida's judicial nominating commissions requires that each of these ninemember bodies throughout our court system include at least three individuals from "a racial or ethnic minority group or a woman." Racial or ethnic minorities are defined as "members of a socially or economically disadvantaged group which includes Blacks, Hispanics and American Indians." JNCs are composed of three lawyer appointees by The Florida Bar, three electors (lawyers or not) appointed by the governor, and three additional nonlawyer electors selected by these six other appointees. The 1991 legislation, intended to address bias in Florida's court system, mandates at least one minority appointee from each of these three separate appointing authorities. In May of 1995, while the Bar was preparing to appoint a minority to the Fourth DCA judicial nominating commission, a white applicant challenged the constitutionality of §43.29(1)(a) — relating to the Bar's JNC appointments — on First Amendment and equal protection grounds. No claim was made regarding subsections (b) & (c), which are identically worded with respect to JNC appointees by the governor and the six other commissioners. A federal district court found no compelling interest to justify the race- and gender-based quota imposed by the provision, nor was it viewed as tailored narrowly enough to advance its asserted goals. In permanently enjoining enforcement of §43.29(1)(a), the court determined that the race and gender-based quota imposed by that provision violated the applicant's Fourteenth Amendment right to equal protection and was unconstitutional. Mallory v. Harkness et al., 895 F.Supp. 1556 (S.D. Fla. 1995). Remarkably, legislative efforts to rewrite §43.29(1) since then have been unsuccessful — and subsections (b) & (c) remain unchallenged. Nevertheless, since 1991 most appointments to JNCs from all three appointing authorities have been well coordinated and reflect sensitivity to racial and minority — as well as geographic — considerations in the judicial selection process.
B. Legislative History
In 1976, the Florida Legislature passed and placed before voters a proposed constitutional amendment to Article V to require merit retention elections for all appellate judges in Florida. The amendment was approved by an overwhelming vote of the electorate, and Florida's first merit retention election was held in 1978.
Despite attempts since 1976 to have lawmakers approve additional reforms that would extend merit selection and merit retention to the trial court level, no final bill has ever passed the state legislature -- only Florida's Constitution Revision Commissions have seen fit to pursue that issue.
The 1978 Constitution Revision Commission proposed an amendment to Article V extending the existing merit selection/retention concept to the circuit and county judiciary. As previously noted, that measure received the official support of The Florida Bar and appeared as Revision 6 on the November 7, 1978 general election ballot. The suggested amendment was among eight separate proposals for constitutional reform endorsed by the Revision Commission as part of a scheduled 10thyear review of the 1968 Florida Constitution. Remarkably all eight proposed amendments were rejected by the electorate: Revision 6 drew the closest vote, with 1,058,574 "Yes" votes and 1,095,736 "No" votes in the statewide balloting.
In 1991 the House Judiciary Committee approved a bill that would have extended merit selection/ retention to the trial level. The bill, however, died by a tie vote in the Senate Judiciary Committee and did not come to the floor of either chamber for a full vote.
In 1992 the Florida Senate approved a merit selection/retention bill for trial judges but the measure died because the House failed to act on it. During a special legislative session that same year, the proposed reforms received majority support but failed by two votes to achieve the required two-thirds margin for the necessary constitutional amendment. In a subsequent 1992 special session, the measure again failed in the Senate despite a favorable majority vote.
Another attempt to extend merit retention to the trial court level in 1993 was killed by the Senate Judiciary Committee. The 61 vote rejected a resolution that would have asked voters to approve a constitutional amendment for an "optin" merit selection/retention plan, and kept the bill from going forward for a vote of the full Senate.
During the 1994 regular session, legislation was proposed for another local optin concept, to extend merit retention to judges at all court levels. Measures introduced in both houses died in their respective judiciary committees.
Also in 1994, the Legislature created a special commission to review and make recommendations for change in the judicial article of the Florida Constitution. One of several duties of this Article V Task Force was to "examine the current process for selecting and retaining trial court and appellate judges and justices and determine whether the current process results in a judiciary which reflects the diversity of the state and results in the most qualified candidates." In its December 1995 final report, the Task Force recommended that trial judges, statewide, be subject to the same merit selection and retention processes applicable to Florida's appellate judiciary. Meanwhile, a House bill introduced during the 1995 regular session that would have extended merit selection and retention to trial judges died in the House Judiciary Committee.
In the 1996 regular session, a bill extending merit selection and retention to trial judges cleared the Senate Judiciary Committee but was unfavorably reported by the Rules Committee. A companion measure died on the House calendar while other reforms recommended by the Article V Task Force passed via a separate bill.
Term limits for appellate judges were proposed in both chambers during the 1997 regular legislative session but a Senate bill died in committee; its House companion expired without any committee referral.
During the 1998 regular session, a measure to address the effects of the Mallorydecision was passed by both legislative chambers. Rather than using quota-type verbiage, the bill substituted advisory language in F.S. §43.29 expressing a preference that JNCs reflect the racial, ethnic and gender diversity of their geographic area. The legislation included a requirement that each circuit JNC include at least one resident from each county in that circuit. Primarily due to practical problems with that final provision, Governor Chiles vetoed the bill.
In 1998 a new Constitution Revision Commission submitted several constitutional proposals to be placed on the November ballot. Among other judicial branch matters such as court funding, the proposed changes in Revision 7 provided Floridians with the opportunity to vote for a local option measure in the November 2000 general election, to decide whether to select circuit and county judges in their communities by merit selection and retention or by election. The Bar supported passage of the revision. The measure passed by nearly a 57 percent margin, with more than 2 million favorable votes to some 1.5 million against it. But in 2000, all Florida counties and circuits voted against opting into the merit selection of county and circuit judges,
Until 2000, the Bar continued to select three members of JNCs, the governor selected three, and then those six selected three more to fill each of the state's 26 JNCs. The legislation in 2001 (HB 367) would have allowed the governor to make all nine appointments to each commission, but require that five of the governors appointments be lawyers. The terms of JNC members also would have expired with the governor who appointed them. HB 367 passed with certain changes by the Senate allowing the governor to appoint five, and the Bar to make nominations to fill the other four appointments to the nine-member JNCs. Now, the Bar submits the names of three lawyer nominees to the governor for each of four positions on every JNC.
Statutory law also permits the governor alone to pick the other five JNC members, at least two of whom must be lawyers. A key feature allows the governor to reject the Bar's nominees as many times as the governor wishes.
In the 2011 session, the House considered a proposed constitutional amendment to require that appellate and Supreme Court justices in merit retention elections get 60 percent of the vote, instead of 50 percent. The measure, however, did not make it into the court-related HJR 7111, which was approved by the Senate 24-11. It did appear on the Nov. 6, 2012, ballot as Amendment 5 and would have required Senate confirmation of justices; asserted legislative authority over the court rule-making; and would have required a panel that investigates judicial misconduct to share information with lawmakers. Floridians defeated Amendment 5 by a vote of 4,654,341 to 2,728,193 or by 63 percent.
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C. The Florida Bar
The Florida Bar's past support of merit selection and retention has been premised on the fundamental notion that these processes are by far the best for putting and keeping the very best judges on the bench.
As early as the 1940s, The Florida Bar's predecessor organization, the Florida State Bar Association, had as its major legislative effort the implementation of a system of judicial merit selection. Though it failed at that time, support by the state bar for such a system continued through the '50s, '60s and '70s.
The Florida Bar supported merit retention legislation in 1973, 1974 and 1975 legislatures without success. In 1976, it supported the constitutional amendment passed by the legislature and approved by voters which applies merit retention to appellate judges.
Since passage of that amendment the Bar has had an active role in educating the electorate on merit selection and retention. The Bar conducts a statewide merit retention poll which reflects lawyers' preferences on appellate judges, and makes the results available to all media and bar associations in the state.
The Bar supported a constitutional amendment extending merit retention to the trial judiciary that appeared on the 1978 general election ballot. The measure — one of eight unsuccessful proposals from the State Constitution Revision Commission —was defeated by only 37,000 votes in statewide balloting by over 2.15 million electors.
At the request of the Supreme Court of Florida in 1981, the Bar established a special Judicial Merit Retention Study Commission composed of lawyers, judges, news media personnel and members of the general public to study the problems of and recommend improvements in Florida's merit retention system. The Commission unanimously recommended that the Supreme Court of Florida establish an advisory commission to study and recommend to the Court a feasible system of judicial performance evaluation for Florida and a means of providing such judicial performance information to the public. The Commission also recommended abolition of the absolute ban by judicial canon on campaign activities in the absence of organized opposition. A twotiered campaign system was thereafter authorized: allowing judges to deliver speeches and talk to news media editorial boards regardless of any opposition; and, if active opposition surfaces, judges can openly campaign in the traditional manner of other elective judicial races.
As noted, in the November 1998 general election voting, which featured 13 various constitutional revisions and amendments on the ballot, The Florida Bar supported Revision 7 — an omnibus package of judicial branch issues that re-allocated the funding for the state courts system, increased county judges' terms to six years, allowed for the November 2000 local option vote for merit selection and retention of trial judges, and other reforms.
In May 1999 a special Bar committee on merit selection and retention was charged to solicit commentary from within the legal profession regarding judicial selection, to determine whether a consensus of Florida Bar members favored merit selection and retention or the popular election of judges, and to develop and recommend an appropriate Florida Bar position for the November 2000 vote. For the next nine months the group held seven forums around the state, sponsored various articles on this issue within the Bar's member publications, and collected hundreds of pages of other information. In February of 2000, the special committee recommended that the Board of Governors approve a position in support of merit selection and retention of trial judges. The board concurred in the recommendation by a vote of 34-9. However, in November 2000, voters statewide rejected the proposals to allow merit selection for trial court judges.
In September 2012, Florida Bar President Gwynne Young made this statement regarding the Republican Party of Florida executive board urging voters not to retain the three Supreme Court justices on the November ballot:
"A fair and impartial judiciary, free from political or special interest influence is the purpose of Florida's non-partisan merit retention elections for appellate judges. The Florida Bar does not believe any political party – Democratic, Republican or other – should participate in any non-partisan election, particularly for judicial positions. Maintaining the integrity and impartiality of Florida's judges is critical to preserving the principles of democracy on which our country was founded. Non-partisan merit retention elections were established by the people of Florida to ensure that the rule of law, not popular thought or political view, is the basis for all judicial decisions. . . . The Florida Bar is committed to providing Floridians with objective information regarding merit selection and retention and the biographies of the justices and judges who are on the November 6 ballot. Through the non-partisan educational program, The Vote's in YOUR COURT: Judicial merit retention. Know the facts, the Bar is informing Florida voters about merit retention and the role of judges. . . . ." The Florida Bar is a non-partisan organization that does not endorse or support the retention of any justice or judge. The Florida Bar encourages all voters to make educated decisions in this – as in any – election."
IV. Facts and Statistics
- In 1940, Missouri became the first state to adopt the Merit Plan for the recruitment and retention of judges.
- At least 33 states and the District of Columbia use some form of merit selection. (Source: 2008 ABA report: "Judicial Selection: The Process of Choosing Judges")
- No state that has chosen the merit system has ever given it up.
- Florida appellate level judicial races became nonpartisan in 1971. All judicial races are now nonpartisan.
- Through 2016, there have been 20 merit retention elections in Florida beginning in 1978 and being conducted every two years since then. Poll and elections results are as follows:
A poll of Florida Bar members regarding the retention of three justices and 28 appellate court judges indicated strong support for all to be retained. The approval ratings for the three Supreme Court justices were: Charles T. Canady, 84 percent; Jorge Labarga, 91 percent; Ricky L. Polston, 84 percent. The 28 appellate judges on the ballot also received very positive marks, with approval ranging from 79 to 92 percent.
A poll of Florida Bar members regarding the retention of 22 appellate court judges (there were no Supreme Court justices facing a retention vote) indicated strong support for all to be retained. The approval ratings for the 22 appellate court judges ranged from 79 to 95 percent. Voters retained the 22 appellate court judges with favorable votes ranging from 63.4 percent to 77.3 percent.
A poll of Florida Bar members regarding the retention of three justices and 15 appellate court judges indicated strong support for all to be retained. The average of the approval ratings for the three Supreme Court justices was 90 percent. The approval ratings for the justices were: R. Fred Lewis, 92 percent; Barbara J. Pariente, 89 percent; Peggy A. Quince, 90 percent. The 15 appellate judges on the ballot also received very positive marks, with approval ranging from 76 to 94 percent. In the election on Nov. 6, voters approved retention of Lewis by 67.51 percent; Pariente by 67.98 percent; and Quince by 67.72 percent. Voters retained the 15 appellate court judges with favorable votes ranging from 61.72 percent to 77.82 percent, with the average of the percentages being 72.67 percent.
Bar poll approval ratings in favor of retaining the four Supreme Court justices on the ballot ranged from 85 percent to 88 percent, with the average of the approval ratings being 86 percent. Rankings for the 27 appellate judges serving in the five District Courts of Appeal had a wider range of approval. Still the majority received very positive marks, with 23 of the judges receiving rankings ranging from 82 to 93 percent. The overall range was from 56 percent to 93 percent. All judges were retained with favorable votes ranging from 53 to 76 percent, with the average of the percentages being 65 percent.
Bar poll approval ratings ranged from 73 to 94 percent for the judges up for retention, with the average of the approval ratings being 82 percent. All judges were retained with favorable votes ranging from 64 to 77 percent, with the average of the percentages being 71 percent.
Bar poll approval ratings ranged from 72 to 91 percent for the judges up for retention, with the average of the approval ratings being 86 percent. All judges were retained with favorable votes ranging from 65 to 74 percent, with the average of the percentages being 69 percent.
Bar poll approval ratings ranged from 72 to 92 percent for the judges up for retention, with the average of the approval ratings being 84 percent. All judges were retained with favorable votes ranging from 64 to 78 percent, with the average of the percentages being 70 percent.
Bar poll approval ratings ranged from 81 to 93 percent for the 26 judges up for retention, with the average of the approval ratings being 86 percent. All judges were retained with favorable votes ranging from 61 to 77 percent, with the average of the percentages being 70 percent.
Bar poll approval ratings ranged from 81 to 89 percent for the 21 judges up for retention, with the average of the approval ratings being 83 percent. All judges were retained with favorable votes ranging from 68 to 77 percent, with the average of the percentages being 72 percent.
Bar poll approval ratings from 77 to 93 percent for the 20 judges up for retention, with the average of the approval ratings being 92 percent. All judges were retained with favorable votes ranging from 63 to 77 percent.
Bar poll approval ratings from 82 to 93 percent for the 26 judges up for retentio, with the average of the approval ratings being 88 percent. All judges were retained with favorable votes ranging from 63 to 74 percent, with the average of the percentages being 70 percent.
Bar poll approval ratings ranged from 71 to 95 percent for the 22 judges up for retention, with the average of the approval ratings being 88 percent. All judges were retained with favorable votes ranging from 60 to 74 percent.
Bar poll approval ratings ranged from 77 to 92 percent for the 23 judges up for retention, with the average of the approval ratings being 86 percent. All judges were retained with favorable votes ranging from 60 to 74 percent.
Bar poll approval ratings ranged from 83 to 93 percent for the 20 judges up for merit retention, with the average of the approval ratings being 90 percent. All judges were retained with favorable votes ranging from 60 to 75 percent, with the average of the percentages being 70 percent.
Bar poll approval ratings ranged from 72 to 95 percent for the 21 judges up for the merit retention, with the average of the approval ratings being 90 percent. All judges were retained with favorable votes ranging from 69 to 78 percent, with the average of the percentages being 75 percent.
Bar poll approval ratings ranged from 76 to 96 percent for the 21 judges up for merit retention, with the average of the approval ratings being 85 percent. All judges were retained with favorable votes ranging from 70 to 81 percent, with the average of the percentages being 76 percent.
Bar poll approval ratings ranged from 86 to 92 percent for the 10 judges up for merit retention, with the average of the approval ratings being 90 percent. All judges were retained with favorable votes ranging from 68 to 78 percent, with the average of the percentages being 73 percent.
Bar poll approval ratings ranged from 73 to 95 percent for the 19 judges up for retention, with the average of the approval ratings being 89 percent. All judges were retained in office with favorable votes ranging from 66 to 76 percent, with the average of the percentages being 72 percent.
Bar poll approval ratings ranged from 56 to 93 percent for the 26 judges up for retention, with the average of the approval ratings being 84 percent. All judges were retained with favorable votes ranging from 62 to 76 percent, with the average of the percentages being 70 percent.
Bar poll approval ratings ranged from 63 to 88 percent for the nine judges up for retention, with the average of the approval ratings being. All judges were retained in office with favorable votes ranging from 55 to 72 percent, with the average of the percentages being 64 percent.
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V. What others are saying
Note: The 2012 election was marked by an unprecedented campaign to defeat the three Supreme Court justices facing a merit retention vote. The following articles and opinion pieces have been saved for archival purposes:
Palm Beach Post, editorial
Nov. 4, 2012
Make sure to keep Florida Supreme court justices on the bench — Three of the most important votes to cast on Tuesday are YES, YES and YES to retain R. Fred Lewis, Barbara J. Pariente and Peggy A. Quince as justices of the Florida Supreme Court. Those YES votes will thwart efforts to taint the state’s court system with the same partisan politics that have spoiled Washington. The Florida Supreme Court races are not partisan. At least, they’re not supposed to be. The governor appoints state Supreme Court justices from a list of finalists who have been interviewed and screened by nominating panels. Regardless of the governor’s party, recent choices have been good. The “merit retention” system allows voters to decide whether the justices should be granted another six-year term. Voters approved the system in 1976, after justices who had been elected got caught trying to fix cases. This year, the Republican Party of Florida broke with bipartisan tradition and began a campaign to oust the justices, which would allow Gov. Rick Scott to select their replacements. But the GOP is wrong that justices Lewis, Pariente and Quince are activists legislating from the bench. In fact, they have angered the legislature by correctly tossing off the ballot amendments with misleading language, and only after outside groups challenged the amendments. The justices did not act on their own. The Republican Party now criticizes the justices because their many, bipartisan supporters have raised money to counter the GOP smear campaign. When politics infects the courts, corruption follows. To keep Florida’s courts fair and independent, keep Justices Lewis, Pariente and Quince on the bench.
Tampa Bay Times editorial
Nov. 2, 2012
Protect judicial independence, vote 'yes' on justices — The election ballot is long, stuffed with choices for president, U.S. Senate and Congress on down to the Legislature and county offices. It will be tempting to vote only in a handful of high-profile races and skip the rest to save time. But that would be a mistake with unintended consequences, particularly on the merit retention of three Florida Supreme Court justices. Voters should make it a point to vote "yes" to retain each of the justices and ensure the independence of the state's highest court. The justices are in the middle of a political fight aimed at pressuring the court to make judgments based on politics and public opinion rather than an impartial reading of the law. Justices R. Fred Lewis, Barbara J. Pariente and Peggy A. Quince are distinguished jurists who have served the state well with their intelligence, work ethic and sound judgment. Based on their job performance they should easily win merit retention. But well financed outside conservative groups along with the state Republican Party want voters to remove them because the groups don't like some of the opinions the justices have issued. Voting "yes" on merit retention will protect the independence of Florida's judiciary.
Tampa Bay Tribune, editorial
Oct. 25, 2012
Naked politics tries to don robes of Supreme Court — No issue on this year's ballot is more important than the retention of three Florida Supreme Court justices. If voters remove Justices R. Fred Lewis, Barbara J. Pariente and Peggy A. Quince based on the partisan advice of the Republican Party and misleading sound bites, you can kiss an independent court goodbye. Don't be misled by the campaign accusing them of making bad decisions. The complaints against these three are weak, based on a very few cases, and are entirely political. The hope is that they will be removed and Republican Gov. Rick Scott will be able to replace them. . . . Voters thinking about booting these justices off the court should think about how the justices got there. They were chosen by one of a number of Judicial Nominating Commissions based on merit. They underwent rigorous screening. They were judged on intellect, experience, ethics, character and demeanor. Names of candidates ranking highest in these tough academic and professional standards are forwarded to the governor, who makes the selections. Lewis and Pariente were selected by former Gov. Lawton Chiles. Quince was chosen jointly by Chiles and Jeb Bush, who then was governor-elect. This selection process is not perfect, but it minimizes political influence. The best candidates rise to the top. In Florida, justices go on the ballot every six years. It is not a recall. Justices, being human, could have done something to lose public confidence before mandatary retirement at age 70. . . . .Before you vote against these judges, ask yourself if you would want a Supreme Court that serves at the pleasure of a governor. Consider whether you agree with current law that forbids a judge from mentioning party membership when on the campaign trail. Consider that cases before the Supreme Court involve complicated facts and disputed constitutional interpretations. Recent cases involve electric bills, the state retirement plan, school funding, state universities, red-light cameras, gambling, foreclosures and the redrawing of legislative districts. Do you want a justice calling the political party currently in power to find out the safe way to rule? Of course you don't. Vote yes to retain Justices Lewis, Pariente and Quince.
Tampa Bay Times/Miami Herald, news story
Oct. 25, 2012
Report from conservative Group: Florida justices have pattern of principled rulings — A Florida professor commissioned by the conservative Federalist Society to review controversial cases of the three Florida Supreme Court justices up for merit retention concluded Wednesday that some of the most loaded charges used by opponents against the justices are unfounded. "There does not appear to be a pattern of unprincipled decision-making by any of the justices of the Florida Supreme Court,'' wrote Elizabeth Price Foley after analyzing nine controversial cases since 2000. "There are disagreements, true. But disagreements do not suggest that those with whom you disagree are unprincipled." Although the Federalist Society does not take a position in the merit retention races, Foley said in a conference call with reporters that her review found that the controversial rulings "are in fact supported by some prior precedent and they do involve acceptable methods of legal reasoning." Opponents who want to accuse them of judicial activism, she said, are "going to have a hard time making that label stick.'' Justices R. Fred Lewis, Barbara Pariente and Peggy Quince are on the ballot in a yes or no vote and, for the first time, the Florida Republican Party has mounted a campaign to encourage voters to reject them.
. . . . Foley, a constitutional law scholar and law professor at Florida International University, said she chose cases that have been most frequently used by opponents seeking to oust the justices from the bench.
USA Today, editorial
Oct. 24, 2012
Judicial elections threaten justice — Judicial elections used to be so quaint. Candidates didn't campaign, lest politics taint their independence. They just ran on their résumés. Not so any more. In today's hyperpoliticized environment, judicial candidates routinely drum up money from campaign contributors who want to buy influence. One barometer of the trend is fundraising by candidates for state supreme courts, which has more than doubled in the past decade as business groups and Republicans battled plaintiffs' lawyers, unions and Democrats to elect like-minded justices. Worse yet, sitting judges who do their jobs, ruling impartially in accordance with state and federal constitutions, now face ouster at the hands of partisans who find such bedrock principles inconvenient. In Florida and Iowa, conservative groups are lavishly funding campaigns to oust judges because of particular rulings. Some money fueling TV ads is untraceable, so the public might never know who a judge's benefactors are. Where donors are known, many are lawyers who appear before the very judges they're helping. How would you like to be on the other side of the courtroom from a lawyer who gave money to elect the presiding judge? The political rot has spread so far that even judges appointed by merit selection are vulnerable. In Florida, where voters approved a merit selection system in 1976 after years of judicial scandals, Republicans are trying to boot out the only three Democratic appointees on the state's highest court. The judges are on the ballot as part of the merit process, which provides for "retention elections," in which they face no opponent but can be removed if they fail to win a majority of the vote. Florida's chapter of Americans for Prosperity, a national group that opposes the 2010 health care law, has placed TV ads to "educate" voters about the judges' records. And if the judges lose, guess who appoints the replacements? Florida Republican Gov. Rick Scott, who could remake the court as an all-Republican body. At least until Democrats get control and use the same tactics. . . . As retired Supreme Court Justice Sandra Day O'Connor noted two years ago, "the last thing you want to worry about (when you got to court) is whether the judge is more accountable to a campaign contributor or an ideological group than to the law." But that's what you get when politics corrupts the neutrality of courts.
Miami Herald, column by Myriam Marquez
Oct. 20, 2012
Florida justices fighting against tyranny of the minority — The Bill of Rights was created to counter what our Founding Fathers called the “tyranny of the majority.” But in Florida, there’s the tyranny of the minority, too, scorching a pants-on-fire path to the Supreme Court, trying to make a cockamamie case that three justices are unfit to be retained by voters. Pumped up by its control of the governor’s office, the cabinet and the state Legislature, the Republican Party of Florida now is going after the three state justices who are up for retention by voters on Nov. 6: R. Fred Lewis, Barbara Pariente and Peggy Quince. The party’s campaign to fire the justices is unprecedented . . . . The courts are a separate and equal branch of our government, not an arm of the ruling party as happens in dictatorships. By all means, let the voters decide, but don’t inject partisan politics into a decision that should be based on competence and following the rule of law, not catering to partisan mandates. Six former justices — including two who were appointed by Republican governors (Cuban-American Raoul Cantero, appointed by Jeb Bush, among them) — have been getting out the word that the GOP’s assault on the judiciary is dangerous to our democracy. The Florida Bar and past presidents from the American Bar Association have all weighed in, warning of this assault. . . . .
Tampa Bay Times, column by John Romano
Oct. 16, 2012
Republican lawmakers, but only a few, speak out against politicizing justice retention vote — What if they've already won? What if those who want to remake the Florida Supreme Court have already had an impact on future court decisions by politicizing the process of merit retention? What if this shot across the bow is enough? "It's a really good question,'' said Sen. Paula Dockery, R-Lakeland. "Just the thought that this can happen could have a chilling effect. "What I'm hoping is that not only does this backfire, but it sends a message that you can spend a lot of money and still lose this battle. Because it's not just Florida. This is becoming a national issue. Florida is like a test case. And we need to send the message that we don't like the idea of blurring the lines between politics and the judiciary.'' . . . Certain Supreme Court justices have been under siege in Florida the past two years. A rather loosely organized effort to vote out Jorge Labarga and James Perry failed in 2010 . . . . And now the Republican Party of Florida, with the conservative activist Koch brothers, are waging an all-out war against the same three justices — Barbara Pariente, Fred Lewis and Peggy Quince — who are up for retention in next month's election. This is why the term-limited Dockery was moved to release a letter last week — along with Dennis Jones, R-Seminole, and Rene Garcia, R-Hialeah — opposing the Republican Party's decision to oppose the retention of the three judges.
Moyers & Company on Public Affairs Television, by Bill Moyers and Michael Winship
Oct. 12, 2012
Justice to the Highest Bidder —When the National Football League ended its lockout of the professional referees and the refs returned to call the games, all across the country players, fans, sponsors and owners breathed a sigh of relief. Fans were grateful for the return of qualified judges to keep things on the up and up. . . . It was a revealing glimpse into a basic truth of American sports: Without the guys who enforce the rules, everything else is pointless. As New York Giants linebacker Michael Boley reminded us, too many missed and blown calls put “the integrity of the game” at stake. In sports we choose sides — our team against your team — but we want the referees to be skilled and impartial. We expect the same from the judges in our courtrooms, too. How much faith could any of us have in a judge who’s taken cash from either litigant in a trial — or who owes his position on the bench to a partisan clique manipulating votes? Yet 38 states elect their high court judges, and large sums of money — much of it from secret donors — are pouring into many of those judicial races. How much faith could any of us have in a judge who’s taken cash from either litigant in a trial — or who owes his position on the bench to a partisan clique manipulating votes? Yet 38 states elect their high court judges, and large sums of money — much of it from secret donors — are pouring into many of those judicial races. . . . Just as ominous, there’s a movement afoot to punish judges for decisions that offend political partisans. In Florida, the current system selects judges based on ability rather than partisan politics, but the state Republican Party there is trying to oust three state Supreme Court justices over a ruling on President Obama’s health care law that conservatives didn’t like. One of the judges, R. Fred Lewis, told The New York Times, “This is a full-frontal attack — that had been in the weeds before — on a fair and impartial judicial system, which is the cornerstone and bedrock of our democracy.”
Florida Times-Union, editorial
Oct. 13, 2012
Vote to retain justices is a vote for independent judiciary — To the informed, the choice will be obvious: Three outstanding justices are on the ballot for Yes or No approval, and voters will be wise to retain Fred Lewis, Peggy Quince and Barbara Pariente. Not so obvious is the intensely partisan and well-funded campaign being waged to oust the justices, which would allow Gov. Rick Scott to appoint three new members of the seven-member court. Of special concern in this election is that the state Republican Party took the unprecedented step of inserting partisan politics into the nonpartisan merit retention process when it urged a vote against the three justices. That not only threatens to embroil the judiciary in partisan politics, it represents a blatant attempt to strip away the court’s independence that has existed since corruption on the court led to a merit retention system in 1976. Also troubling is that an outside group, Americans for Prosperity, funded by Kansas billionaire industrialists Charles and David Koch, is airing ads urging the defeat of the judges. The merit retention system strives to have the highest qualified judges appointed from a list recommended to the governor by a nine-member judicial nominating commission. Those appointed face an up or down retention vote in the first General Election that falls after they have served a year and every six years thereafter. It should not be a vote on the court’s decisions but rather a vote on whether the judges have the qualities to render fair and impartial rulings. Merit retention is intended to allow voters to remove incompetent or corrupt judges, not to allow for the intimidation of judges by political forces or special interests. . . . . The system has worked well, largely because of the high caliber of people selected for the state’s Districts Courts of Appeal and the Supreme Court. No justice has been removed by voters since merit retention was implemented. Justices Quince, Lewis and Pariente have each faced two retention votes and handily won approval each time. Now is not the time to politicize a good process.
Tampa Bay Times, editorial
Oct. 11, 2012
Yes on Florida Supreme Court justices — The merit retention questions on Florida Supreme Court justices are generally routine and attract little attention, because the court is well-respected and has operated without scandal for decades. This year is different. This year, three justices are under an unprecedented political assault by the Republican Party of Florida and outside conservative groups that are upset with some of the court's decisions. Floridians should reject this attempt to intimidate and politicize the state's highest court, and they should retain Justices R. Fred Lewis, Barbara J. Pariente and Peggy A. Quince. This is the most serious attempt to compromise the Supreme Court's independence since the corruption scandals of the early 1970s that resulted in the resignations of two justices and a reprimand of another. Following that political disgrace, voters in 1976 amended the state Constitution to provide that all justices — and judges on the district courts of appeal — be appointed by the governor rather than elected by the voters. Every six years, voters decide whether these justices and judges should be retained in a process called merit retention.
The justices are not running against each other, and they are not on the ballot because they did something wrong. Merit retention is an opportunity for voters to consider whether the justices should remain on the court and are ethical, impartial and qualified. It is not about voicing disagreement with some of the court's opinions, but that is exactly what the state Republican Party is doing in targeting these justices. . . . The Florida Bar has polled its members about the Supreme Court justices since the first merit retention vote in 1978. More than 7,800 lawyers participated this time, and each justice won support for being retained by at least 89 percent. That's not even close. . . . . On the merit retention questions for Florida Supreme Court Justices R. Fred Lewis, Barbara J. Pariente and Peggy A. Quince, the Tampa Bay Times recommends a yes vote.
Lakeland Ledger, editorial
Oct. 11, 2012
GOP Vs. Merit Retention . . . — In Florida in 1976, voters approved a constitutional amendment for Supreme Court justices and appeal court judges to face merit-retention votes every six years. Merit retention is a yes-or-no vote on whether a judge should continue on the bench. The change in the Florida Constitution was an important part of the solution for corruption that had grown out of judicial elections in Florida. Now, the Republican Party of Florida has declared political war on three justices (on the ballot this year) with no care for the need to isolate the judicial branch of government from politics — and do all possible to allow justices and judges to focus on the law, and close the door on attempts to influence them to one side or the other. . . . Former U.S. attorneys Roberto Martinez and Marcos Jimenez — and Allison DeFoor, a former judge and former candidate for lieutenant governor — wrote a letter Oct. 1 calling on the state party's executive board to reverse its decision, reported The Herald. "Judges should not decide legal cases based upon partisan politics. That is fundamental to our nation's system of government," wrote Martinez, Jimenez and DeFoor.
"The RPOF was within its legal right to express its position publicly. But, just because it has that legal right, does not mean it was right for it to do so. The retention of Supreme Court justices should not be turned into partisan political affairs," the three Republicans wrote.
Tallahassee Democrat, editorial
Oct. 11, 2012
Voting advice — It wouldn’t be a Florida election without a little excitement involved in the counting of ballots. . . . Down in Palm Beach County — home of the infamous butterfly ballot that may have cost Al Gore the 2000 presidential election — there are problems again. Elections Supervisor Susan Bucher is blaming a printing company in Arizona for a mistake on 60,000 absentee ballots that could confuse voters on an important question — whether to retain three Supreme Court justices. According to the Palm Beach Post, there is no heading over the question on the justices. Rather, “Port of Palm Beach Group 3” in English and Spanish appears above the question: “Shall Justice R. Fred Lewis of the Supreme Court be retained in office?” Further complicating matters, right over that question the ballot says “Write-In Candidate.” Any confusion on the retention vote could be important, with Justices Barbara Pariente, Peggy Quince and R. Fred Lewis being targeted by the Republican Party of Florida . . . . Meanwhile, all over Florida, people voting by absentee ballot are fretting over how many stamps they need to stick on the return envelope. The problem is that, with a large number of national, state and local races, as well as constitutional ballots and local referendums, this ballot is a monster. The Leon County Supervisor of Elections office says you will need 65 cents worth of stamps to mail your ballot properly. If the ballot is short on postage, it still will be delivered, but the elections office — which really means your fellow taxpayers — will have to cover the difference. So here’s some advice. Study the ballot carefully before you vote. Even the best-designed ballot can be overwhelming when you see it for the first time.
Florida Voices, column
Oct. 11, 2012
By Dan Gelber, state senator and former House Democratic Leader
Please, don’t stop at the top — . . . In many communities, the November ballot may be 12 pages or longer. . . . While you may be most passionate about the race for president, it’s critical that you not stop making your choices there. Down the ballot, you’ll also see some important “yes” or “no” questions, some related to proposed constitutional amendments, others to the retention of three Florida Supreme Court justices. . . Normally their retention would be assured, since by all accounts they have served honestly and conscientiously. All three up for review — Justices Peggy Quince, Fred Lewis and Barbara Pariente — have been retained overwhelmingly in prior elections. And in the last statewide lawyers’ poll, an astonishing 90 percent of attorneys viewed them as fine public servants. But this year, the Kansas-based Koch brothers are funding an expensive smear campaign to convince you to remove them. Their goal is to give Gov. Rick Scott the ability to replace perfectly good justices with three who will support his agenda. No matter what you think of Gov. Scott, this is an unprecedented and dangerous idea. It totally politicizes a branch of government that inherently needs to be free of politics. How is it good for Florida if our high court justices believe their jobs are at risk if they don’t approve the whims of a governor or some out-of-state billionaires? I am proud that so many Democrat and Republican public officials — and leading citizens of all political stripes — have spoken up on behalf of these justices. You need to as well. So when you vote, don’t stop at the top. And on the way down, be sure to vote “Yes” for Justices Quince, Lewis and Pariente . . . .
Miami Herald, editorial
Oct. 7, 2012
GOP’s unwarranted assault: Vote Yes to retain Supreme Court Justices Lewis, Pariente, Quince — Florida’s Supreme Court justices decide cases based on the state’s Constitution, not on what’s politically correct, expedient or popular. The state Constitution calls for a “fair and independent judiciary,” and that’s what we have because Florida justices aren’t elected, but appointed. This wise process allows the justices to be independent of political influences and special-interest blocs. Now there’s a movement afoot to cripple Florida’s independent courts and force Supreme Court justices to bend with the political winds. If this movement succeeds, Floridians can wave good bye to that precious “fair and independent judiciary.” The movement to remove three justices is being led by conservative Republicans, and while it has been strongly rebuked by lawyers and former Supreme Court justices appointed by at least two former GOP governors, the state’s top elected Republicans are staying on the sidelines. At the risk of seeing the state’s independent judiciary be gutted during their watch, Gov. Rick Scott, Attorney General Pam Bondi, House Speaker Will Weatherford and Senate President Don Gaetz must speak out against this unwarranted removal campaign. Florida Supreme Court justices are appointed by the governor after being screened by a panel of legal experts. Every six years they come up for a statewide merit retention vote, and when they make decisions on the bench that are unpopular with one special interest or another, they can become vulnerable to politicized efforts to remove them. So it is with Justices R. Fred Lewis, Barbara Pariente and Peggy Quince, whose names are on the retention ballot in November. The Florida Bar poll of its members registered high rankings for all three justices, approval ratings from 89 to 92 percent. No matter. The three ran afoul of Republican and conservative groups opposed to the federal Affordable Healthcare Act. They are being targeted because the state Supreme Court struck down a constitutional amendment proposed by the Legislature that would have been a referendum on the Affordable Care Act or Obamacare. . . . The anti-justices campaign is modeled on a 2010 effort in Iowa that unseated three state Supreme Court justices. In its TV ads, Americans for Prosperity accuses the three Florida justices of advocating “activist” and liberal views. Nonsense. The three targeted justices’ views have been retained by majority votes twice, and there is no reason why they shouldn’t win a third term. . . . The Herald recommends: Vote Yes to retain the three justices.
Gainesville Sun, column
By H. Lee Moffitt, former speaker of the Florida House of Representatives
Oct. 4, 2012
Courts should be off-limits to partisan politics — In1976, when I was a member of the Florida House of Representatives, I sponsored HJR 2762, a constitutional amendment for the merit selection and retention of our appellate and Supreme Court judges. The voters overwhelming approved the resolution and made this process a part of the Florida Constitution. The resolution was supported by legislators of both parties, Gov. Reubin Askew, House Speaker Don Tucker, the League of Women Voters, The Florida Bar, and all major newspaper editorial boards, among many others. The arguments made then can be repeated now and are just as valid. It was a bipartisan effort to shield judges from the influences of fund-raising and party politics. It should be a bipartisan effort to keep it that way! To all Republicans, Democrats and independents across the state, this is one issue we all should agree on: Our courts should be off limits from the influences of partisan politics. This was declared loud and clear when the voters placed Section 10 in Article V of the Florida Constitution. Additionally, the Legislature created Section 105.701, Florida Statutes, to prohibits judges from registering party affiliation; all judicial races are required to be nonpartisan under this law. We should not be tempted to politicize our courts. Of course, there is nothing wrong about debating the pros and cons of court rulings, but our judges should not be tempted to decide cases based on politics rather than merits. Decisions must be based on honest interpretation of the law. . . . . Outside influences or the fear of partisan retribution should not deter justices from their primary mission of rendering fair and impartial decisions based on the current law. If anyone should become upset about a decision, change the law, do not attack a court or a judge that is merely interpreting the law.
Hernando Today, column
By Martin Dyckman, author and former St. Petersburg Times columnist
Oct. 4, 2012
Florida's judiciary's at stake —This has become one of the most important elections in Florida's history, but many of those who vote for president or U.S. senator may overlook the campaigns that make it so. I'm talking about the far-down-the-ballot questions concerning the retention of Supreme Court Justices R. Fred Lewis, Peggy Quince and Barbara Pariente. They're now squarely in the crosshairs of that vast national right-wing conspiracy Hillary Clinton warned against years ago. Americans for Prosperity, a front organization for the ultra-right billionaire Koch brothers, has joined the Florida Republican Party's attacks on the justices. To preserve the fiction that it's not an electioneering organization, which would require it to disclose where its money comes from, the Koch propaganda machine isn't attacking the justices by name. But the message is the same: Florida has a problem with judges who "advocate from the bench." That is a lie. The Republican assault on the judiciary began two years ago when the court struck three of the Legislature's constitutional amendments from the ballot because they were frauds on the voters. It was the court's duty to do that. In one of those cases — the one that sticks the most in the Republicans' craw — they conceded the Legislature's ballot summary was misleading. So they asked the court to rewrite it — in effect, to legislate from the bench — by substituting the text of the amendment for the summary. Nothing in the Constitution or any law allows the court to do that, and it would have indeed been a case of judicial activism for the court to agree."What they're mad about is that these justices followed the law," says Alex Villalobos, a former state senator and a Republican, who is leading a campaign to defend the justices. . . . . As Alexander Hamilton wrote in the Federalist, an independent judiciary is the public's last defense against a dictatorial executive or runaway legislature. Without it, he said, all constitutional rights would "amount to nothing." That's what's at stake in Florida on Nov. 6.
Tallahassee Democrat, column
Oct. 3, 2012, by C. Howard Hunter, president of the Florida Chapters of the American Board of Trial Advocates
RPOF is setting a bad precedent — On Sept. 21, the Republican Party of Florida (RPOF) announced that it would actively oppose the merit retention of all three Florida Supreme Court justices currently facing a retention vote. The RPOF’s unprecedented and ill-advised decision to inject party politics into a judicial election wrongly ends many decades of nonpartisanship in Florida’s judicial elections. The RPOF’s action short-sightedly invites reciprocation by other parties in the future and effectively threatens sitting judges at every level with political retribution each time they face a difficult or publicized case. The constant and real threat of political retribution for a correct but unpopular decision will materially threaten, and could well destroy, the impartiality and objectivity of the judiciary. Alexander Hamilton noted in the Federalist Papers (No. 78) that “The complete independence of the courts of justice is peculiarly essential in a limited constitution . . . . without this, all the reservations of particular rights or privileges would amount to nothing.” James Madison’s notes from the U.S. constitutional convention, as well as the Federalist Papers, make clear that the framers gave little thought to electing judges; they focused upon the wisdom of a dispassionate, independent judiciary. . . . The Florida Chapters of the American Board of Trial Advocates (FLABOTA) is an organization of experienced and respected civil trial lawyers, one half plaintiff and one half defense, both Republicans and Democrats. FLABOTA is dedicated to the preservation of an independent and impartial judiciary, and condemns the RPOF’s dangerous and unprecedented threat to those core principles.
Republican Party Aims to Remake Florida Supreme Court
By LIZETTE ALVAREZ
New York Times
Published: October 2, 2012
MIAMI — In a bid to remake Florida’s judiciary, Republicans are asking voters to oust three state Supreme Court justices and give the legislature greater power over Supreme Court appointments and judicial rules of procedure.
The campaign against the justices by Republican state party officials, a “super PAC” financed by the conservative Koch brothers and a grass-roots group is similar to the successful push by conservative activists in Iowa during the 2010 election. Voters there defeated three Iowa Supreme Court justices over a ruling that allowed same-sex marriage in the state. A fourth Iowa justice who also ruled in the case is being targeted for ouster this year.
In Florida, the issue is not same-sex marriage but another politically divisive matter: President Obama’s health care law. In a 2010 ruling, the Florida Supreme Court removed from the ballot a nonbinding amendment allowing Floridians to refuse to buy mandatory health insurance. The justices ruled that the required ballot summary contained “misleading and ambiguous language” and asked the legislature to fix it. Lawmakers did, and it is back on the ballot this year.
The initial ruling was one of several, including decisions on redistricting and property taxes and going back to 2000, the ballot recount in Bush v. Gore, that have displeased conservatives in the state and in the Republican-dominated Legislature, which has tried since then to exert greater control over the court.
“I am very, very stressed at the entire circumstance,” said Justice R. Fred Lewis, one of the three judges targeted in the campaign. “What is going on now is much larger than any one individual. This is a full-frontal attack — that had been in the weeds before — on a fair and impartial judicial system, which is the cornerstone and bedrock of our democracy.”
The other two justices being targeted are Peggy A. Quince and Barbara J. Pariente. Mr. Lewis and Ms. Pariente were named by the Gov. Lawton Chiles, a Democrat. Ms. Quince was chosen by both Mr. Chiles and former Gov. Jeb Bush during the 1998 transition. No justice has ever lost a retention battle. All three of these justices were returned to the bench in 2000 and again in 2006.
Florida Supreme Court justices appear on the ballot every six years as part of a system of merit retention. Floridians are asked to vote yes or no on whether the justices should remain on the bench. The system of selecting and retaining justices and appellate judges based on competence, and not politics, was put into place in the 1970s after a series of scandals involving partisan, popularly elected judges. Until recently, the process was widely praised and largely free of politicking. But in 2010 that began to change.
This year, the campaign in Florida is considerably more intense and organized. For the first time, the Florida Republican Party’s executive board announced last week it would oppose the retention of the three justices because of their extensive “judicial activism.” It singled out a 2003 case in which the court reversed the conviction of a man who tied a woman to a tree and set her on fire, and ordered a retrial on technical grounds. The United States Supreme Court reversed the decision, saying the justices had applied the wrong standard, and remanded the case to the Florida court. Ultimately, the conviction was affirmed, and the man remains on death row. By announcing its opposition to the three justices, the Republican Party avoids clashing with a law that prevents political parties from endorsing judicial candidates. In its statement, the party said the justices were “too extreme not just for Florida, but for America, too.”
Typically, decisions to remove a justice are based on misconduct or incompetence, not disagreements over particular decisions. The party’s decision to take sides surprised even some Republicans, who said it set a bad precedent.
“I think it’s a mistake for a party, as a party, to state a position that a certain judge should be thrown out, because then you are introducing partisanship into a system that is supposed to be nonpartisan,” said Bob Martinez, a prominent Republican lawyer who was once the United States attorney for the Southern District of Florida. “And when you have elected officials, on the right or left, criticizing judges publicly it can become very dangerous and it can undermine the public’s faith in the judiciary.”
Democrats say the campaign is really about giving Gov. Rick Scott, a Republican, the chance to appoint three new justices. The Florida Legislature also wants greater control of the judiciary — an effort that began last year with outgoing House Speaker Dean Cannon and is continuing with a proposed amendment on the ballot this year.
“All of this is an attempt to hijack the court,” said Dick Batchelor, a Democrat and former state House member who is working with Defend Justice From Politics, one of several counteroffensives. “This is all about raw politics. It has nothing to do with jurisprudence.”
Americans for Prosperity, the PAC financed by the Koch brothers, recently joined in the battle and began broadcasting television advertisements in several cities highlighting the health care amendment ruling. The group also plans to highlight other cases.
“The Florida Supreme Court removed the amendment from the ballot, denying us a voice and a vote on a historically important issue,” the ad states. “Shouldn’t our courts be above politics and protect our rights to choose? You be the judge.”
Slade O’Brien, the Florida director of Americans for Prosperity, said the television spots, which do not explicitly take sides in the retention battle, focus attention on cases in which the court has acted as “judicial activists.”
Spearheading the battle over the justices is Restore Justice 2012, a grass-roots campaign that began its initial shoestring effort in 2010 and is taking its message to Tea Party activists around the state. The group released a video on the murder ruling this week.
The three justices said in interviews that the decisions in question, including the eight-year-old murder conviction reversal, have been misconstrued to score political points. Critics disagree.
But the justices, while novices on the stump and restricted by judicial rules on campaigning, are amassing their own supporters. Retired Supreme Court Justice Sandra Day O’Connor made a video for the Florida Bar Association’s Web site about the retention battle’s significance in Florida.
“Judicial independence is very hard to create and establish, and easier than most people imagine to damage and destroy,” she said.
Other supporters include the fire and police unions, which spoke out this week, the 23 past presidents of the Florida Bar Association and a number of prominent Democrats in the state.
To counter the campaign, judges are being forced to raise money to counter the campaign, which could lead to the perception they are beholden to donors. Their three separate political committees have raised a total of about $1 million so far. They also could be accused of ruling on politically sensitive cases for the wrong reasons. Judicial rules also restrict what they can say in a campaign.
“It’s like getting into a fight with two hands behind your back tied and one leg,” Justice Pariente said. “We are trying to keep the high road.”The Legislature is also involved in efforts to influence the judiciary. A ballot initiative, Amendment 5, would give the Senate, not the governor, final approval over the choice of state Supreme Court justices — similar to the federal system. It also would allow the Legislature to repeal court rules with a majority vote, not the two-thirds now required. And it would grant the House speaker access to confidential judicial misconduct investigation files before charges actually being filed.
New York Times, news story by Lizette Alvarez
Oct. 2, 2012
Republican Party Aims to Remake Florida Supreme Court — MIAMI — In a bid to remake Florida’s judiciary, Republicans are asking voters to oust three state Supreme Court justices and give the Legislature greater power over Supreme Court appointments and judicial rules of procedure.
The campaign against the justices by Republican state party officials, a “super PAC” financed by the conservative Koch brothers and a grass-roots group is similar to the successful push by conservative activists in Iowa during the 2010 election. Voters there defeated three Iowa Supreme Court justices over a ruling that allowed same-sex marriage in the state. A fourth Iowa justice who also ruled in the case is being targeted for ouster this year. In Florida, the issue is not same-sex marriage but another politically divisive matter: President Obama’s health care law. In a 2010 ruling, the Florida Supreme Court removed from the ballot a nonbinding amendment allowing Floridians to refuse to buy mandatory health insurance. The justices ruled that the required ballot summary contained “misleading and ambiguous language” and asked the Legislature to fix it. Lawmakers did, and it is back on the ballot this year. The initial ruling was one of several, including decisions on redistricting and property taxes and going back to 2000, the ballot recount in Bush v. Gore, that have displeased conservatives in the state and in the Republican-dominated Legislature, which has tried since then to exert greater control over the court. “I am very, very stressed at the entire circumstance,” said Justice R. Fred Lewis, one of the three judges targeted in the campaign. “What is going on now is much larger than any one individual. This is a full-frontal attack — that had been in the weeds before — on a fair and impartial judicial system, which is the cornerstone and bedrock of our democracy.” The other two justices being targeted are Peggy A. Quince and Barbara J. Pariente. Mr. Lewis and Ms. Pariente were named by the Gov. Lawton Chiles, a Democrat. Ms. Quince was chosen by both Mr. Chiles and former Gov. Jeb Bush during the 1998 transition. No justice has ever lost a retention battle. All three of these justices were returned to the bench in 2000 and again in 2006. . . . .Democrats say the campaign is really about giving Gov. Rick Scott, a Republican, the chance to appoint three new justices. . . . the justices, while novices on the stump and restricted by judicial rules on campaigning, are amassing their own supporters. Retired Supreme Court Justice Sandra Day O’Connor made a video for the Florida Bar Association’s Web site about the retention battle’s significance in Florida. “Judicial independence is very hard to create and establish, and easier than most people imagine to damage and destroy,” she said.
Miami Herald, column
By Harry Lee Anstead 1994-2009; Raoul G. Cantero, 2002-2008; Arthur J. England, Jr., 1975-1981; Stephen H. Grimes, 1987-1997; Major B. Harding, 1991-2002; Ben F. Overton, 1974-1999. t
Sept. 30, 2012
Six former Florida justices speak up against GOP attempts to politicize judiciary — . . . . Recently, the Republican Party of Florida . . . . issued an unprecedented statement formally opposing the (three Supreme Court) justices’ retention. . . . Both Republican and Democratic leaders have at times been unhappy with some of the court’s decisions. That is the nature of judicial decisions. The entire point of a fair and impartial judiciary is that its decisions will not be influenced by outside forces such as campaign donations or political pressure. In the past, even party leaders who disagreed with a court’s decision understood the vital importance of a fair and impartial judiciary. The RPOF’s recent unprecedented attempt to politicize the judiciary — and to remove three Supreme Court justices based only on disagreement with one (or even a few) decisions — undermines the purpose of the merit selection and retention process, which is precisely to remove partisan politics from the judiciary. As former justices of the Florida Supreme Court, we hope that such partisan actions will not succeed in depriving Florida citizens of the fair and unbiased judges that our merit system is intended to provide.
Florida Times Union, column
By Wayne Ezell
Sept. 25, 2012
Will Florida's judiciary be up for sale, again? — In a blatantly obvious attempt to politicize and neuter the Florida Supreme Court and the rest of Florida’s judiciary, the Republican Party of Florida has joined heavily funded special interests in calling for the defeat of three outstanding Supreme Court justices. This is a shameful move by the state GOP’s leadership. The most plausible explanation is that party leaders are dancing to the tune of Gov. Rick Scott and powerful corporate interests who have been blocked by the court. The campaign against the justices is being waged in tandem with a proposed constitutional amendment that would weaken the judiciary and erase much of its independence. The proposed amendment, No. 5 relating to state courts, is strongly opposed by many responsible groups including the Florida League of Women Voters, which opposes all of the amendments on November’s ballot. The justices should be retained and the proposed amendment defeated, but voters should watch carefully to see which elected officials and corporate CEOs side with those who would put Florida’s judiciary up for sale and return it to the politicized and corrupt embarrassment it was just a few years ago. Make no mistake, this will not be a referendum on the worthiness of those three justices; it will be a referendum on whether Florida’s third branch of government should remain independent or become compromised by partisans politicians and their financiers.
Prepared by The Florida Bar Department of Public Information and Bar Services with assistance of General Counsel and Governmental Affairs Staff.