By Gary Blankenship
More than a dozen proposed constitutional amendments affecting Article V of the Florida Constitution — four dealing with the judicial retirement age and one apparently opening up judicial deliberations to public scrutiny — have been proposed by Constitution Revision Commission members. Several more have been filed that are of interest to the legal profession.
The size of the CRC’s task became clear with the October 31 deadline for members to file their amendments. All told, 103 amendments have been filed, which include six citizen-proposed amendments that have been advanced by the commission (see story in the November 15 Bar News.) The rest are sponsored by CRC members, although many are based on public testimony from several CRC hearings.
The proposed amendments touch on a wide range of topics: turning the Department of Environmental Protection into a Cabinet agency with an elected secretary; specifying that the lieutenant governor will serve as the secretary of state; prohibiting betting on greyhound racing; and creating an independent redistricting commission to do legislative and congressional reapportionment maps (more about that last one later in the story). One amendment would apparently open conference deliberations of Supreme Court justices, district court of appeal judges, and other judicial sessions.
One notable absence from the submitted amendments: There was no proposal to impose term limits on Supreme Court justices and district court of appeal judges, something the Florida House has been pushing and the Senate resisting.
Here’s a quick look at proposals of interest to the legal profession:
• Proposal 1, by Roberto Martinez, amends Art. V, §8, by substituting 75 for 70 as the age judges and Supreme Court justices must retire. Those more than halfway through their terms when reaching that age would be allowed to finish their terms.
• Proposal 5, by Chris Nocco, vastly expands the rights of crime victims to be informed about and participate in criminal cases as spelled out in the Art. I (Declaration of Rights), §16.
• Proposal 6, by Martinez, creates §21 in Art. V and addresses the “Chevron Doctrine.” It would require courts and administrative law judges to interpret statutes or rules de novo rather than defer to an administrative agency’s interpretation. This amendment has already received a favorable vote from the CRC’s Judicial Committee.
• Proposal 8, by Don Gaetz, increases the judicial retirement age to 75, but does not allow jurists hitting that age to finish out an unexpired term. It also requires Senate confirmation of all gubernatorial appointments to the Supreme Court and district courts of appeal.
• Proposal 10, by Gaetz, creates a new section in Art. IX requiring that civic literacy be taught in Florida schools. That’s been a goal of numerous Bar programs like the Benchmarks adult education program, the Trial Lawyer Section’s Law School for Teachers, and Justice Fred Lewis’ Justice Teaching initiative.
• Proposal 20, by Darryl Rouson, amends Art. X, §9, and allows criminal prosecutions to continue if the underlying statute on which the case is based is repealed during the proceedings.
• Proposal 27, by former Bar President Hank Coxe, amends Art. V, §2, to allow the Supreme Court to adopt rules so in multi-county circuits that county judges appointed temporarily to serve as circuit judges can serve as circuit judges outside their home county but still within the circuit.
• Proposal 28, by Coxe, amends Art. V. §§14 and 16, to require the state rather than counties to fund communications services for the courts and defines communications as including all “technology.” The amendment specifies that clerks of courts are custodians of court records and that “court records must be stored, maintained, transmitted, and made available to the courts by the clerk in accordance with standards and requirements established by the Supreme Court.”
• Proposal 29, by Martinez, amends Art. I, §2, to specify that a person may not be deprived of any right because of disability.
• Proposal 35, by John Stemberger, raises the judicial retirement age to 75, allows those hitting that age to finish out a term that is more than half over, and specifies the amendment, if adopted, becomes effective July 1, 2019.
• Proposal 36, by Martinez, amends Art. I, §17, to ban the death penalty in Florida, but only prospectively.
• Proposal 38, by Stemberger, amends Art. V, §§10 and 11, to specify that judicial terms end the first Monday in January rather than the first Tuesday after the first Monday. That would mean terms would end before those of an outgoing governor and that governor could fill those vacancies rather than his or her replacement. The issue of an outgoing governor filling such vacancies is the subject of a quo warranto petition pending at the Supreme Court (see story in the November 15 Bar News).
• Proposal 39, by Gaetz, amends several articles, including Art. V, §13. The overall proposal addresses lobbying by former government officials. Specifically for judges, it prohibits them, after leaving office, from lobbying any governmental agency for six years, except they may represent clients in judicial tribunals.
• Proposal 40, by Belinda Keiser, adds a section to Art. I creating a right to counsel for children in dependency hearings.
• Proposal 41, by former Bar President Bill Schifino, sets the judicial retirement age at 75 without an allowance for completing an unfinished term and sets an effective date of July 1, 2019.
• Proposal 42, by Schifino, amends §11 for Art. V and enshrines in the constitution the pre-2001 method of selecting members of judicial nominating commissions. It would have the Bar appoint three members, the governor appoint three (who could be lawyers or nonlawyers) and those six would select an additional three members who must be nonlawyers. It also sets a goal of having diverse members on the JNCs.
• Proposal 47, by Schifino, amends Art. V, §8, and requires that anyone seeking any judgeship have been a Bar member for 10 years. The stricture would apply only for judicial vacancies after January 8, 2019, and would not apply to any pending JNC slates sent to the governor that were still pending on that date. Currently, DCA and Supreme Court justices are required to have been Bar members for 10 years before they can seek those posts, but county and circuit court judges must have been Bar members only for five years.
• Proposal 55, by Frank Kruppenbacker, amends Art. V, §14, and requires the Legislature to pay to clerks’ filing fees and other costs for criminal and other cases where parties do not pay filings fees. Clerks of court must submit annual estimates for their court-related costs, and, if there is a deficit not addressed by the Legislature, clerks could petition the governor and Cabinet for a review and an allocation from “unobligated” state funds.
• Proposal 58, by Kruppenbacker, amends Art. V to do away with the election of county and circuit judges and provides for their appointment and continued service through merit selection and retention.
• Proposal 63, by Coxe, amends Art. I, §15, to require a circuit court review before a child can be prosecuted as an adult in a criminal case.
• Proposal 75, by Martinez, also amends Art I, §15, to ban solitary confinement for incarcerated juveniles for more than 24 hours unless there are exceptional circumstances. (The Florida State University College of Law Public Interest Law Center’s Children in Prison Project assisted in developing Proposals 63 and 75, see story here.)
• Proposal 81, by Brecht Heuchan, amends Art. I, §24, and Art. III, §4, to require that all meetings of “the Legislature; the judicial branch, including meetings between judges and justices” and other public agencies be open to the public and noticed ahead of the meetings. That apparently would allow the public to sit in on conferences and deliberations of Supreme Court justices, DCA judges, and other judicial bodies which are now confidential. Affected meetings are defined as any where public business will be transacted or discussed and “at which official acts are to be taken. . . .”
• Proposal 96, by Timothy Cerio, like Proposal 5, vastly expands the rights of victims of crime in Art. I, §16.
• Proposal 99, by Cerio, amends Art. X, §25, which gives patients the rights to adverse medical incident reports at health-care facilities. New language would protect records shielded by federal law “or regulations relating to patient safety quality improvement.” It also protects records that are under attorney-client privilege or “work product privileges for patients, health-care providers, or health-care facilities.” The Florida Supreme Court ruled in October that this section must be given an expansive reading in determining patients’ rights to such records. (See story in the November 15 Bar News.)
• Proposal 101, by Chris Smith, amends Art. V, §§10 and 11, to provide for the initial election of county and circuit court judges, but specifies if those judges seek additional terms, they will run under the merit retention system.
• Proposal 102, by Heuchan, that each district court of appeal must have at least one judge from each circuit within that DCA’s jurisdiction. Each DCA judicial nominating commission must also have at least one member from each circuit in that DCA.
A potential wild card in the CRC’s deliberations are several “shell” amendments filed that have vague language and can be filled in with details later. For example, Coxe, who chairs the Ethics and Elections Committee, filed an amendment that says, “The Constitution Revision Commission intends to revise provisions in Articles II and VI, which relate to ethics and elections.” Schifino, who chairs the Judicial Committee, filed a similar amendment for Art. V. Other shell amendments cover different articles of the constitution.
Aside from his third-branch related proposals, Schifino filed two amendments that could become high-profile debates on the CRC.
Proposal 62 amends Art. VI, §5, so that voters without party affiliation may vote in partisan primaries.
Proposal 80 authorizes an independent redistricting commission to set congressional and legislative political boundaries, a job now done by the Legislature. The amendment has the Supreme Court Judicial Nominating Commission prepare a list of 40 potential members, including 15 from each of the two largest parties and 10 independents. From that list, and in order, the House speaker, the minority leader of the House, Senate president, the Senate minority leader, and the governor would each appoint two members to the commission. Those 10 would select the 11th member, an independent, who would also chair the commission. If the 10 cannot agree, the Supreme Court JNC would make the final appointment.
Schifino said serving as Bar president and representing such a diverse community broadened his perspective and inspired the thinking behind the proposals.
“You always have the best interest of the group in mind; you always do what is best for the profession,” he said.
With that thought, he recalled the repeated testimony in CRC public hearings about voters without party affiliation being unable to vote in partisan primaries, even though they make up the fastest growing elector group in Florida. (According to Secretary of State statistics, the state has 12.8 million voters: 4.5 million Republicans, 4.8 million Democrats, 56,926 minor party members, and 3.4 million, or 26.5 percent, have no party affiliation.)
“As we traveled the state and did our public hearings, we heard from citizens who are NPAs and realized, as it exists today, they can’t participate in the partisan primaries,” Schifino said, adding the restriction discourages their participation in elections.
“What I wanted to make sure of is the commission sits down and we talk about this issue. We talk about: Is it right? Is it correct?” Schifino said. “We need to, as a state, find a way to engage as many of our registered voters as possible. If a commissioner doesn’t propose this it doesn’t get talked about at the commission.
“I want us to take a look at how other states are doing it. Has it worked? Are you engaging more citizens of the state in exercising the right to vote?”
In a similar vein, Schifino said it’s important for the CRC to look at reapportionment, especially since Florida residents put the Fair Districting amendments on the ballot and approved them, which led to successful legal challenges to the Legislature’s Senate and congressional maps in the last round of redistricting.
Aside from those two proposals, Schifino acknowledged his amendment to revamp appointments to the judicial nominating commissions — returning them to the process prior to 2001 — could also be controversial.
“I think our governor has done an excellent job with his appointments. The genesis of my proposing this has nothing to do with our sitting governor,” he said. “But when you look at our process now, the exclusive stakeholder is the executive branch with five direct appointments and then picking the other four [based on Bar nominations].”
The old process involved both the executive and judicial branches and also guaranteed that the three public members were nonlawyers.