House plan would split the Supreme Court
House plan would split the Supreme Court
Two Florida Supreme Courts are better than one.
That’s what House Speaker Dean Cannon believes is needed to “modernize” Florida’s high court to make it more efficient and accountable.
If the idea is passed by the Legislature and at least 60 percent of voters approve the constitutional amendment, that extreme makeover of Florida’s high court would give Gov. Rick Scott three appointments to the Florida Supreme Court in order to create two panels of five justices.
“By creating a Supreme Court of Criminal Appeals and a Supreme Court of Civil Appeals, we can expand the capacity of the existing court and provide specialization that will result in greater scrutiny and better justice in criminal cases, especially in death penalty cases,” Cannon, R-Winter Park, said in a speech to the House on the legislative session’s opening day.
“I believe very strongly in the independence of the judiciary, and I won’t support any proposals that undermine our courts. However, judicial independence should never be offered as an excuse to escape accountability, or the limits of our constitution.”
Later that day, Cannon, an attorney, evoked the name of the Florida Innocence Commission when he told reporters: “The idea of bringing careful and focused expertise to appellate review of criminal cases is a big deal, whether you are on the left or the right.”
Cannon said he “gave a broad charge” to Rep. Eric Eisnaugle, R-Orlando, an attorney chairing the House Civil Justice Subcommittee.
“Now, my job is to let him go out and workshop that, roll up his sleeves, and look at the details.”
That workshop played out for more than an hour on March 9, bringing mostly concerns from Democrats and accolades from Republicans. Eight days later, the subcommittee passed PCB CVJS 11-06 and 11-07 favorably, 10 to 5, along party lines.
At the workshop, Eisnaugle outlined the reasons for splitting the court into what he called “two supreme courts that are the courts of last resort within their respective jurisdictions and are equal in stature.”
Under the proposal, the three most experienced justices (currently Justices Barbara Pariente, Fred Lewis, and Peggy Quince) would serve on the Supreme Court of Criminal Appeals to handle what has been called the “brain surgery of the law” — death penalty appeals. Another two justices would be appointed to the criminal appeals court by the governor.
That would leave the remaining four justices (currently Chief Justice Charles Canady and Justices Ricky Polston, Jorge Labarga, and James E.C. Perry) to serve on the Supreme Court of Civil Appeals, with an additional justice appointed by the governor.
The governor would select the chief justice for each supreme court, with the advice and consent of the Senate (except for the initial appointments), instead of the current system of sitting justices choosing their own chief justice on a rotating basis, historically based on seniority.
“If both courts assert jurisdiction over a particular case, the chief justice of the court of civil appeals shall decide where jurisdiction is appropriate,” reads the proposed bill.
“My understanding is the chief justice is simply a rotating sort of position. And some would argue ceremonial in a way, though I do believe there is some work involved.. . . The appointment by the executive would be a significant change, I would argue, perhaps, with a lot of merit,” Eisnaugle said.
While justifying creating two supreme courts, Eisnaugle spent the most time talking about the need to speed up death penalty appeals.
“A former justice has been quoted as saying that death penalty cases in Florida make up about 12 percent of the cases, but about 50 percent of the court’s work load. Those numbers would illustrate right there the incredible complexity of death penalty cases and the work load that has to go into those,” Eisnaugle said.
“Death penalty delays have increased in Florida since, at least, basically 1980. The Legislature held a special session to address this problem in 2000. But the reforms adopted by the Legislature at that time — the Death Penalty Reform Act — were invalidated by the Supreme Court,” Eisnaugle said.
“Since 2000, unfortunately, death penalty delays have continued to escalate. Right now, a few facts: Only 31 percent of death penalty appeals are disposed of within two years of the case reaching the Supreme Court.. . . Since 2000, we had 27 death row inmates die of natural causes and only 25 executions. Again, I think illustrating the significant delays we are experiencing. Currently, 145 inmates on death row have been on death row for over 20 years, and 34 inmates have been on death row for over 30 years.. . .
“On the flip side, the Supreme Court of Civil Appeals would have probably more than half its work load lifted so it can now focus solely on the civil side of the law, clearing the dockets on that side, as well, and exercising the expertise on civil law,” Eisnaugle continued.
Ninth Circuit Chief Judge Belvin Perry testified at the March 17 meeting that he’s imposed the death penalty eight times in his 22-year judicial career, and all eight cases were affirmed.
“The biggest delay in death penalty cases is not because of the Florida Supreme Court; it’s not because of the trial courts.. . . It is because of the federal system,” Perry said.
Adding to the delays, he said, is when the Legislature cut court funding. Now there are not enough resources for records preparation and real-time court reporting.
The executive branch bears responsibility, too, Perry said.
Sixty people currently on death row, he said, are “able to be executed if someone would sign a death warrant.”
“If you want the death penalty to work, you need someone to sign death warrants, and you need to fund the system,” Perry said.
At the workshop, the most persistent questioning came from Rep. Richard Steinberg, an attorney from Miami Beach and the Democratic ranking member on the subcommittee. Mostly, Steinberg focused on these five words in the proposed legislation: “ as provided in general law. ” Descriptions of jurisdictions for both civil and criminal supreme courts in the bill end with that phrase.
“The Florida Constitution lays out specifically the Supreme Court’s jurisdiction, and now we are going to leave it up to the Legislature? Why is that?” Steinberg asked.
Eisnaugle answered that the bill “clearly says criminal and civil. It lays out a distinction between the two.”
Steinberg pressed on: “But couldn’t this presumably allow a Legislature in the future to say the Supreme Court doesn’t have jurisdiction over certain areas of the law?”
Calling Steinberg’s concerns “a strained reading at best,” Eisnaugle said: “I don’t think it leaves everything up to general law. I think it very clearly [in the bill] spells the areas of jurisdiction,” adding the language was included as a “stop-gap measure.”
Later in the discussion, Steinberg said: “I know there has been some controversy between the branches in the past few years on review of ballot initiatives that come out of the Legislature. Would this language allow the Legislature, by general law, to state that the court has no jurisdiction over that?”
Eisnaugle responded: “I think you are doing back-flips with the language. I just don’t see that reading at all.”
Regarding the administration of the courts, Steinberg asked: “Why should we be involved in determining the administration of the court system and the Supreme Court and how they actually function? It seems to me bizarre.”
Eisnaugle answered: “Well, it certainly would be our purview to decide whether there is one clerk or two or whether there is one state court administrator or two.. . . And whether there would be one or two marshals. Other than that, the court would manage those relationships.”
In the debate before the vote March 17, Steinberg said there is no urgency and the justices have not asked for this solution.
“The reality is they can handle the caseload they have,” Steinberg said. “And for some reason, this body sees the need to tell them how to do their business, as opposed to respecting the third branch of government and allowing them to do their work.”
Rep. Darren Soto, D-Orlando, an attorney, raised fear of potential court-packing.
“I’m concerned that we go down a precarious road with this bill. We are talking about the Supreme Court of Florida here. With the backdrop of increasing tension with the Legislature and the judiciary over constitutional amendments and other decisions, we find ourselves facing a proposal to split the Supreme Court in two,” Soto said.
“This will provide an opportunity to make three new appointments that could drastically change the makeup of the court, particularly the civil court. These appointments could very well change recent opinions that were somewhat unpopular. And to me that shatters the very foundation of separation of power. While I do not believe that is the intent of the sponsor at all, it is a very big concern of mine.
“In addition, I don’t think we’ve seen a sufficient justification of delay to make such a major change to the third branch of government.”
When Soto raised the potential court-packing concern at the workshop, Eisnaugle paused for 15 seconds before answering: “No. 1, if you look at the numbers on both supreme courts, the majority of both will be made up of the current justices.. . . Whether you like the court’s prior decisions or you don’t like the court’s prior decisions, I think it’s impossible — at least with this model — to know which way that will go.”
Precedent set by prior decisions, Eisnaugle said, “will be given the appropriate respect that precedent has always been given. I think that is a red herring and just simply without merit for anyone who is truly looking at it from an objective standpoint.”
The idea of splitting the Florida Supreme Court in two, said Rep. Mike Weinstein, R-Jacksonville, a prosecutor, “sort of caught me blindsided. It was bold and out of the blue for me.” But after listening to the debate, Weinstein said, “I’m getting more and more comfortable with the split if it will, in fact, help both sides of the process. “
Rep. Larry Metz, R-Eustis, an attorney, said: “When I first read it, I was somewhat taken aback about the idea of splitting the court in half and making two courts out of it. On the very surface of it, it seems like we are expanding government.. . . I am really very encouraged by the hearing today. The ideas I’ve heard. . . reinforce my belief that we do something to restructure the court and be able to serve the needs of the people of Florida quicker, including the victims of these criminals who have evaded justice. So I am in favor of restructuring of the courts to make it more efficient.”