By Gary Blankenship
Florida voters mostly didn’t like the constitutional amendments the Legislature placed on the November general election ballot. But they joined The Florida Bar in really not liking Amendment 5, which would have required Senate confirmation of the governor’s Supreme Court appointments, made it easier for the Legislature to revoke court procedural — as well as judicial nominating commission and Judicial Qualifications Commission — rules, and given the speaker of the House broader access to investigation files of the JQC.
Overall, the electorate rejected eight of the 11 amendments on the ballot, approving only amendments to give additional property tax exemptions to the elderly, wounded veterans, and the surviving spouses of veterans and first responders.
The biggest loser, though, was Amendment 5, which received a 63 percent “no” vote (more than 4.5 million “no” votes to more than 2.6 million “yes”). It was the only amendment on the ballot where the “no” vote surpassed 60 percent. (In Florida, an amendment must get 60 percent of the vote to be adopted. This year, none of the rejected amendments reached the 50 percent mark.)
The Bar Board of Governors at its October meeting put the Bar on record as opposing Amendment 5, although other than making its position known, the Bar did no campaigning on the issue.
“Our Board of Governors voted in October to oppose Amendment 5,” Bar President Gwynne Young said after the votes were counted. “The Bar has had a long-standing policy against any change to the Supreme Court’s rulemaking authority. To the extent it was argued that this was a check and balance on the system, the Bar did not believe it was a necessary check and balance. It was good to see that the voters agreed with that position. Over 60 percent of those voting on this amendment voted ‘no.’ This was the largest ‘no’ vote on any of the proposed amendments.”
The amendment attracted overwhelming opposition from newspaper editorial boards. Only a couple of the amendments had any organized effort campaigning for their passage or defeat.
Debate on the Amendment 5 focused on the potential of the amendment to inject politics into the court system and of increasing the authority of the legislative branch over the court system and thereby threatening the fairness and impartiality of judges.
The amendment had three parts:
* It would allow the Legislature to repeal rules of court procedure by a simple majority vote of legislators present rather than the current two-thirds of each chamber’s total membership, and allow for similar relaxed repeal of JNC and JQC rules by simple majority vote of legislators present versus the current majority of each chamber’s total membership;
* It would require Senate confirmation of nominees for Supreme Court justiceships; and
* It would expand legislative access to files of the Judicial Qualifications Commission. Currently, the speaker can request those records only as part of an impeachment proceeding.
The amendment reached the ballot as a compromise between the House and Senate in the 2011 legislative session. The House initially passed a number of far-reaching bills and amendments affecting the courts, including giving the Legislature direct control of court procedural rules and expanding the Supreme Court to 10 justices, splitting it into civil and criminal divisions. The Senate balked at the extensive changes, and the resulting compromise was placing Amendment 5 on the ballot.
Although some legislative leaders wrote op-ed pieces urging support for Amendment 5, newspaper editorial boards slammed the proposal.
“The amendment is an attack on the independence of the state judiciary by the Republican-controlled Florida Legislature,” The Tampa Bay Times said in an October 10 editorial. “Amendment 5 would put further limits on the court’s rulemaking power and give the state Senate a say in the appointment of high court justices. If the needed 60 percent of voters approve Amendment 5, the Legislature would gain dangerous new authority over the state’s judicial branch. Voters should reject it and maintain the judiciary branch’s independence.”
The Palm Beach Post, in an editorial celebrating the defeat of the amendment, called it “a reckless move against the separation of powers. The topic wasn’t sexy, but the result is substantial.”
There was an irony in the returns for one of the other amendments on the ballot, Amendment 1. That amendment would make it illegal to compel any person to buy health insurance or compel any business to buy health insurance for its employees, an attempt by the Legislature to provide a referendum on the new national healthcare law, also known as Obamacare.
The Legislature attempted to place a similar amendment on the 2010 general election ballot, but the Supreme Court struck it — and two other legislatively proposed amendments — off the ballot for misleading summary language. (The attorney defending that amendment acknowledged the language was misleading but argued the court could substitute the full wording of the amendment, something a majority of the justices said they did not have the power to do.)
That action was cited by lawmakers who were pushing for changes to the court in 2011 and as a reason for Amendment 5, and also was mentioned by opponents to the retention of the three Supreme Court justices on the ballot this year, Fred Lewis, Barbara Pariente, and Peggy Quince. (See story, here.)
Legislators returned the healthcare issue to the 2012 ballot as Amendment 1. And while the justices were easily winning retention and Amendment 5 was overwhelmingly rejected, Amendment 1 also was defeated, 48.5 percent “yes” to 51.5 percent “no.”