Board Issue Paper: Merit Selection and Retention
On This Page
I. Issue
II. Bar Positions
III. Background
IV. Facts and Statistics
V. The 2012 Merit retention Vote
I. Issue
Merit selection is a method of choosing judges through appointment. In Florida, the system uses a nonpartisan nine-member commission of lawyers and nonlawyers 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.
Proponents of merit selection and 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. They also say that a popular vote can allow important judicial positions to be filled by those who are less qualified than aspirants produced through a merit-focused appointive process.
Critics of merit selection say that allowing appointed groups to select candidates for gubernatorial appointment deprives the people of their vote in a democratic government.
II. Bar Positions
A. The Florida Bar
The Florida Bar supports a merit-based process for selecting Florida judges through independent judicial nominating commissions and opposes any changes to the current JNC process that would impair the independence of the commissions.
The Florida Bar also supports amendment of Article V, Section 8 of the Florida Constitution, to increase the mandatory retirement age for justices and judges, from 70 years to 75 years of age, and it opposes term limits for judges at any level of Florida’s state court system. (Florida Bar legislative positions, Dec. 9, 2016)
B. The American Bar Association
A supporter of merit selection and 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.
A recommendation of the 2003 Commission on the 21st Century Judiciary, adopted by the ABA, states that the “preferred system of state court judicial selection is a commission-based appointive system.”
The ABA has stated its support for constitutional provisions setting out procedures for the merit selection and either appointment or retention election of judges. It also encourages the establishment of judicial nominating commissions and appointment only of judges recommended by nominating commissions. It also has urged development of educational initiatives to inform the public about judicial responsibilities, the importance an independent judiciary, the qualifications of candidates for judicial office and the proper operation of the nation’s courts.
III. Background
Efforts to implement merit selection/merit retention for Florida’s various courts go back to the 1940s.
Before the adoption in 1968 of Article V of the revised Florida Constitution, judges were elected by partisan ballot. In the late 1960s, Gov. Claude Kirk agreed to a “judicial screening program,” Florida’s first attempt at a form of merit selection. In 1971, with the passage of HB 468 implementing Article V, Florida moved to a nonpartisan ballot and to a merit selection system for filling interim vacancies.
On July 23, 1971, an executive order by Gov. Reubin Askew established judicial nominating councils and became the basis for Florida’s current judicial nominating commission system of merit selection, made applicable to new appointments and mid-term vacancies at all levels of the state judiciary by a 1972 constitutional amendment.
Appellate judges still were expected to campaign for re-election every six years. They had to defend themselves against other candidates but then faced criticism for campaigning for the office, which by its very nature was expected to be separated from political pressure. Campaign funds for the most part came from lawyers who would appear before them.
In 1976, the companion process of merit retention for appellate judges was added to the Florida Constitution. 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.
In the 2000 general election, voters had the chance to extend the system of merit selection and retention to trial judges in their local circuit and county courts, but the measure was defeated in all Florida counties and circuits.
Still, vacancies in trial court judgeships occurring at any time other than the expiration of a term are filled through the merit selection process.
With merit retention, the electorate decides whether an incumbent appeals court 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?” Only those judges receiving approval from a majority of the voters may continue in office for another six-year term.
If a judge receives a majority negative vote in a merit retention balloting, that judicial office becomes vacant at the end of the judge’s 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.
Judges receiving continued favorable reaction from a majority of the voters may continue to serve until retirement.
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.
A. Judicial History
Various court cases have influenced judicial politics and helped to shape the debate over elective versus merit-based judicial selection systems.
In Chisom v. Roemer (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. Justice Stevens’ majority opinion observed 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.”
The Florida Supreme Court adopted a revised Code of Judicial Conduct in September 1994. In re: Code of Judicial Conduct (1994). That code, which relied extensively on an ABA model that was finalized in late 1990, allowed judicial candidates more latitude in campaigning than the former Florida Code. A campaign-related provision within the new state code — which included both model ABA language and Florida-created verbiage — was held unconstitutional in another federal court. Zeller v. The Florida Bar and The Florida Judicial Qualifications Commission (1995).
In Harvey M. Alper, Joseph W. Little and Henry P. Trawick v. The Florida Bar (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.” 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 required that each of these nine-member bodies include at least three individuals from “a racial or ethnic minority group or a woman.” 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 Fourteenth Amendment right to equal protection and was unconstitutional. Mallory v. Harkness et al. (1995).
– In Williams-Yulee v. Florida Bar (2015), the U.S. Supreme Court held that the First Amendment did not prohibit states from barring judges and judicial candidates from personally soliciting funds for their election campaigns, provided the restriction on speech was narrowly tailored to serve a compelling interest.
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 voters, and Florida’s first merit retention election was held in 1978.
Despite attempts since 1976 to have lawmakers extend merit selection and merit retention to the trial court level, no final bill has ever passed the Legislature.
The 1978 Constitution Revision Commission proposed an amendment to Article V extending the existing merit selection/retention concept to the circuit and county judiciary. That measure received the official support of The Florida Bar and appeared as Revision 6 on the Nov. 7, 1978, general election ballot, but it was rejected by voters.
In 1991, the House Judiciary Committee approved a bill that would have extended merit selection/retention to the trial level. The bill 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 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 a constitutional amendment. In a subsequent 1992 special session, the measure again failed in the Senate despite a favorable majority vote.
In 1993, an attempt to extend an “opt-in” merit retention plan to the trial court level (letting each county or circuit decide whether to adopt that method) was killed by the Senate Judiciary Committee.
In 1994, legislation again proposed the local opt-in concept for merit selection/retention of judges at all court levels. Measures 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 1995, a House bill that would have extended merit selection and retention to trial judges died in the House Judiciary Committee. In its December 1995 final report, the Article V Task Force recommended that trial judges, statewide, be subject to the same merit selection and retention processes applicable to Florida’s appellate judiciary.
In 1996, 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.
In 1997, term limits for appellate judges were proposed in both chambers. The Senate bill died in committee; its House companion expired without any committee referral.
In 1998, a measure to address the effects of the Mallory decision (barring race- and gender-based quotas on Judicial Nominating Commissions) was passed by both chambers. 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 because of practical problems with that final provision, Gov. Lawton Chiles vetoed the bill.
In 1998, the Constitution Revision Commission submitted several constitutional proposals to be placed on the November ballot. Among other judicial branch matters such as court funding, 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. Voters approved the measure. But in 2000, all Florida counties and circuits voted against opting into the merit selection of county and circuit judges.
Until 2000, The Florida 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. Legislation in 2001 (HB 367) would have allowed the governor to make all nine appointments to each commission, but require that five of the governor’s 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. The governor alone selects 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 2011, the House considered a 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 did not make it into the court-related HJR 7111. 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 required a panel that investigates judicial misconduct to share information with lawmakers. Voters defeated Amendment 5.
In 2017, state Rep. Jennifer Sullivan, R-Mount Dora, sponsored HJR 1, a proposed constitutional amendment that would place term limits on Florida Supreme Court justices and state appeals court judges, preventing them from seeking additional terms in merit-retention elections if they already had served 12 consecutive years in their positions. The House passed a similar proposal in 2016, but the Senate did not approve it.
C. The Florida Bar
The Florida Bar’s continued support of merit selection and retention is based on the fundamental notion that these processes are the most effective means of putting and keeping good judges on the bench.
In 1949, even before the existence of The Florida Bar, its predecessor organization, The Florida State Bar Association, had as its major effort in that year a legislative initiative to implement a system of judicial merit selection. It failed. The enthusiasm for this system continued through the 1950s with the creation of Florida’s Judicial Council.
In December 1964, The Florida Bar and the American Judicature Society spearheaded a major assembly of nonlawyers in Jacksonville to study Florida’s courts. The Citizen Conference on Florida’s Judicial System endorsed the merit selection and retention of judges.
The Florida Bar supported merit retention legislation covering all members of Florida’s judiciary in 1973, 1974 and 1975, without success.
In 1976, the Bar supported a constitutional amendment providing for merit retention at the appellate level only. It was passed overwhelmingly by the electorate in November 1976.
In 1978, the Bar supported an amendment proposed by the Florida Constitution Revision Commission that would have extended merit retention to the circuit and county courts. The amendment failed.
In 1981, at the request of the Supreme Court of Florida, the Bar established a special Judicial Merit Retention Study Commission composed of lawyers, judges and members of the news media and the general public to study Florida’s merit retention system and recommend improvements. The commission unanimously recommended that the Supreme Court establish an advisory commission to study and recommend a feasible system of judicial performance evaluation 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. As a result, a two-tiered campaign system was authorized: judges could deliver speeches and talk to news media editorial boards regardless of any opposition; and, if active opposition surfaced, judges could openly campaign in the traditional manner of other elective judicial races.
In 1984, after reviewing various recommendations of Florida’s Article V Review Commission, the Bar’s Board of Governors opposed the commission’s recommendation for merit selection of all trial judges — but voted to support continuation of merit-based selection in the filling of trial bench vacancies and new judgeships.
In 1990, following a comprehensive study by a Bar Commission on Merit Selection and Retention of Trial Judges, the Board of Governors formalized support to make both 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 Board of Governors again voted its support for merit selection and retention of trial judges on a circuitwide “opt in” basis, specifically including authorization for future “opt out” votes after implementation of the system in any locality.
In response to 1998 legislative proposals to revamp judicial selection, 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 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 was approved by voters in November 1998.
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 there was a consensus among Florida Bar members favoring merit selection and retention or the popular election of judges, and to develop and recommend an appropriate Florida Bar position for the local-option measure that was to appear on the November 2000 ballot.
Over the next nine months, the committee held seven forums around the state, sponsored articles on this issue within the Bar’s member publications, and collected hundreds of pages of related information. In February 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 by a vote of 34-9. However, on Election Day in November 2000, the option to switch from the current method of electing trial judges to a pure merit selection and retention system was rejected in every judicial circuit and county in the state.
In September 2012, regarding the Republican Party of Florida executive board’s urging voters not to retain three Supreme Court justices on the November ballot, Florida Bar President Gwynne Young made this statement:
“A fair and impartial judiciary, free from political or special interest influence, is the purpose of Florida’s nonpartisan merit retention elections for appellate judges. The Florida Bar does not believe any political party — Democratic, Republican or other — should participate in any nonpartisan 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. Nonpartisan 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 nonpartisan 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.”
Research conducted on behalf of the Bar found that 90 percent of participating voters did not understand what the term “judicial merit retention” meant. The considerable effort expended to educate voters about the merit retention system derives from The Florida Bar’s core mission to “improve the administration of justice.”
In addition to “The Vote’s in Your Court” program, the Bar in every merit retention since 1978 has conducted a poll of members, asking them whether the judges and justices who will appear on the ballot should be retained. Results are made available to the media and voluntary bar associations. (See results of the polls below.)
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 36 states and the District of Columbia use some form of merit selection. (Source: American Judicature Society survey “Inside Merit Retention,” 2012)
· 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:
1978: Bar poll approval ratings ranged from 63 to 88 percent for the nine judges up for retention. All judges were retained in office with favorable votes ranging from 55 to 72 percent.
1980: Bar poll approval ratings ranged from 56 to 93 percent for the 26 judges up for retention. All judges were retained with favorable votes ranging from 62 to 76 percent.
1982: Bar poll approval ratings ranged from 73 to 95 percent for the 19 judges up for retention. All judges were retained in office with favorable votes ranging from 66 to 76 percent.
1984: Bar poll approval ratings ranged from 86 to 92 percent for the 10 judges up for merit retention. All judges were retained with favorable votes ranging from 68 to 78 percent.
1986: Bar poll approval ratings ranged from 76 to 96 percent for the 21 judges up for merit retention. All judges were retained with favorable votes ranging from 70 to 81 percent.
1988: Bar poll approval ratings ranged from 72 to 95 percent for the 21 judges up for the merit retention. All judges were retained with favorable votes ranging from 69 to 78 percent.
1990: Bar poll approval ratings ranged from 83 to 93 percent for the 20 judges up for merit retention. All judges were retained with favorable votes ranging from 60 to 75 percent.
1992: Bar poll approval ratings ranged from 77 to 92 percent for the 23 judges up for retention. All judges were retained with favorable votes ranging from 60 to 74 percent.
1994: Bar poll approval ratings ranged from 71 to 95 percent for the 22 judges up for retention. All judges were retained with favorable votes ranging from 60 to 74 percent.
1996: Bar poll approval ratings from 82 to 93 percent for the 26 judges up for retention. All judges were retained with favorable votes ranging from 63 to 74 percent.
1998: Bar poll approval ratings from 77 to 93 percent for the 20 judges up for retention. All judges were retained with favorable votes ranging from 63 to 77 percent.
2000: Bar poll approval ratings ranged from 81 to 89 percent for the 21 judges up for retention. All judges were retained with favorable votes ranging from 68 to 77 percent.
2002: Bar poll approval ratings ranged from 81 to 93 percent for the 26 judges up for retention. All judges were retained with favorable votes ranging from 61 to 77 percent.
2004: Bar poll approval ratings ranged from 72 to 92 percent for the 24 judges up for retention. All judges were retained with favorable votes ranging from 64 to 78 percent.
2006: Bar poll approval ratings ranged from 72 to 91 percent for the 20 judges up for retention. All judges were retained with favorable votes ranging from 65 to 74 percent.
2008: Bar poll approval ratings ranged from 73 to 94 percent for the 24 judges up for retention. All judges were retained with favorable votes ranging from 64 to 77 percent.
2010: Bar poll approval ratings ranged from 85 percent to 88 percent for the four Supreme Court justices up for retention. Ratings for the 27 appellate judges serving in the five District Courts of Appeal had a wider range of approval, from 56 percent to 93 percent; 23 of the judges receiving rankings ranging from 82 to 93 percent. All judges and justices were retained with favorable votes ranging from 53 to 76 percent.
2012: Bar poll approval ratings ranged from 89 to 92 percent for the three Supreme Court justices up for retention. Ratings for the 15 appellate court judges ranged from 76 to 94 percent. All judges and justices were retained with favorable votes ranging from 61.72 percent to 77.82 percent.
2014: No Supreme Court justices were on the ballot. Bar poll approval ratings in favor of retaining the 22 appellate judges serving in the five District Courts of Appeal ranged from 79 to 95 percent. All judges were retained with favorable votes ranging from 63.4 to 77.3 percent.
2016: Bar poll approval ratings ranged from 84 to 91 percent for the three Supreme Court justices up for retention. Ratings for the 28 appellate court judges ranged from 79 to 92 percent. All judges and justices were retained with favorable votes ranging from 61.5 percent to 76.1 percent.
2018: Bar poll approval rating was 87 percent for the one Supreme Court justice up for retention. Ratings for the 17 appellate court judges ranged from 66 to 92 percent. All judges and justices were retained with favorable votes ranging from 63.3 percent to 78.6 percent.
V. The 2012 Merit Retention Vote
In 2012, three Supreme Court justices — R. Fred Lewis, Peggy Quince and Barbara Pariente — were targeted by the Republican Party of Florida and Americans for Prosperity, after the Supreme Court blocked a proposed 2010 constitutional amendment that was intended to curb the federal Affordable Care Act. All three were retained by voters.
Below are selected editorial comments from that election:
Palm Beach Post
Nov. 4, 2012
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. … 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. – When politics infects the courts, corruption follows.
Tampa Bay Times
Nov. 2, 2012
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.
USA Today, editorial
Oct. 24, 2012
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.
Florida Times-Union, editorial
Oct. 13, 2012
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.
Prepared by The Florida Bar Department of Public Information and Bar Services with assistance of General Counsel and Governmental Affairs Staff.
[Revised: 2/21/2017]