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Judicial term limits heads to House floor

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Judicial term limits heads to House floor

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Senior Editor

A proposed constitutional amendment to limit service of Florida’s Supreme Court justices and appellate court judges to two terms passed out of its third House committee February 4, in a 11-6 vote along party lines.

Rep. John Wood, R-Winter Haven, the sponsor of HJR 197, bristled at insinuations at the House Judiciary Committee that he was carrying out the agenda of Rep. Richard Corcoran, R-Lutz, an attorney who called for judicial term limits during his acceptance speech as House speaker-designate.

“The genesis of this bill was Thomas Jefferson. He warned us that the biggest mistake that we made in the Constitution was creating these gods with unlimited service for the rest of their lives,” said Wood, a lawyer himself.

“That’s where this bill comes from. This bill comes about from transformation. It doesn’t come from the Speaker-D. It comes from an idea that the Speaker-D has endorsed. It wasn’t given to me,” Wood said.

The inspiration for his bill, Wood said, is the notion that lawyers should aspire to the appellate bench as public service, not as lifetime career choices, and it would help avoid the abuse of power when governors appoint younger people to the appellate bench to “create a legacy.”

“When a governor appoints somebody in their 40s to the Supreme Court — and Lawton Chiles comes to mind — and they are going to serve there for another 28 or 30 years, is that right? Is the power of that governor so absolute that we all have to just live with his decision forever?” Wood asked. “I don’t think so. I think we are talking about returning the power to the people.”

The separation of powers and the equality of the branches government should be the focus, said Rep. Dave Kerner, D-Palm Springs, an attorney and former police officer voicing his opposition.

“It’s not so much the content of this bill. It’s the concept of this bill. It’s knowing that we as legislators, as a co-equal branch to our colleagues in the judiciary, we have limitations on our power.. . . To me, this has the flavor of retribution.. . This House resolution goes way too far in overstepping our authority. Term limits as a proposition is something we should not be attempting to impose on those in the judiciary.”

The Florida Bar opposes term limits for the judiciary, either on the trial or appellate bench. The proposed constitutional amendment would only impact appellate judges and would not be retroactive. Only if the proposal garners three-fifths of the vote in both the House and Senate, could it wind up on the ballot in 2016 for Florida voters to decide, and would then apply to appellate judges appointed by the governor after that date.

The amendment would have the effect of limiting appellate judges to no more than two appearances on the merit retention ballot, which, depending on when they were appointed, would give a maximum term of between 12 and 15 years.

“When The Florida Bar comes out and unanimously opposed this, it’s like I could not have bought that publicity any better,” Wood said. “The people know the Bar doesn’t represent their interests. The people know that power resides with them.”

Christopher Carlyle, chair of the Bar’s Appellate Practice Section, said his executive council voted to unanimously oppose this proposal, as did the Bar’s Business Law Section.

“It doesn’t make sense to take experienced people who are doing their jobs, who have gained some expertise and knowledge and wisdom for a period of time, and arbitrarily get rid of them for no good reason,” Carlyle said.

“With experience comes consistency, and that’s what business lawyers will tell you is important to their clients.”

When the measure was heard January 21 in the House Appropriations Committee, Wood called his proposal an enhancement of the “proper role of the judiciary” in our “republican form of government.”

Retired Supreme Court Justice Major Harding testified: “You talk about the proper role of the judiciary. I could not help but think that one of the proper roles of the judiciary is to have qualified judges.. . .

“I really have a significant fear that, in my conversations with people that have served on judicial nominating commissions, to find that there are numbers of unqualified people who are seeking judicial appointments because they are unable, in the practice of law, to make what a judge would make.”

Most qualified judicial candidates, Harding said, take pay cuts from their law practices to become appellate judges, and they expect to stay on the bench until the Florida Constitution requires them to retire at 70.

Harding gave the example of his good friend, retired Justice Stephen Grimes, who told him he was making $70,000 in 1973 as an attorney at Holland & Knight “when he felt a call to the judiciary” and applied for a position on the Second District Court of Appeal, where the pay at that time was $30,000 a year.
Grimes, who would go on to serve on the Florida Supreme Court, told Harding that he never would have taken such a pay cut without the “expectation of devoting the rest of his legal life to the judiciary.”

The 13-6 vote went along party lines.

Rep. Cynthia Stafford, D-Opa Locka, an attorney who cast one of the “no” votes, said: “I believe there is value in experience. I believe that value will be diminished with term limits. We already have forced retirements. We have the merit retention process. Now we are adding term limits to that mix. And it chips away, I believe, at the importance of the independence of the judiciary. And that is very concerning.”

Rep. Mark Pafford, D-West Palm Beach, said: “I wonder if, in fact, term limits will help prevent inappropriate behavior or if, in fact, part of the intent and the goal here is to sidestep decisions that we as a Legislature or any other decision-making body.. . don’t agree with.”

Corcoran, chair of the House Appropriations Committee, called Wood’s proposal “a great bill.”

“When you go back and look at the founding documents, when they were putting together the Federalist Papers, Jefferson, who was the founder of the Democrat party, Thomas Jefferson was in ardent opposition to lifetime appointments for judicial candidates,” said Corcoran.

The “days are long gone,” he said, of appellate judges only serving 11 years, as Harding did on the Supreme Court, after more than two decades as a trial judge.

“Now, if you look at the United States Supreme Court, you look at the appellate judges, the ages in which we appoint them are getting earlier and earlier.. . . It’s a legacy thing for a president or a sitting governor,” said Corcoran, weaving back and forth between federal lifetime judicial appointments and Florida’s system of requiring retirement at age 70 for judges.

“There are only two checks: the selection process, which is very minimal at its best, and the impeachment process, which has never been used [In the 1970’s two Florida Supreme Court justices resigned before impeachment processes were completed].. . . And then you have somebody with a lifetime commitment who can serve 20 and 30 years on the bench, you are losing on accountability.. . .

“Left to our own devices, we will seek our own self-interests. I think the court, left to its own devices, unaccountable for this many years, has allowed itself to create that self-interest, which has it doing things that are encroaching on the separation of powers,” Corcoran said.

In closing on his bill, Wood thanked Corcoran and said, “We all understand why you are the speaker-designate with those kinds of thoughts. They reflect, I think, my motivation behind this bill.. . . This bill and this proposal is something that is being talked about around the country. It is something that I think is the future, and that is a government totally responsive to our society.”

Wood pointed out there are term limits for the president of the United States, governors, legislators, and some county commissioners.

“To make the argument that somehow the judiciary is different just doesn’t seem to reflect how our government is set up,” Wood said.

The Senate companion (SJR 322) has not yet been scheduled for a committee hearing.

But that may not mean the bill is dead, Jim Daughton, chief legislative counsel, told The Florida Bar Board of Governors when they met in Tallahassee on January 29.

“Tallahassee is a great place for political chatter. If anyone thinks, through the political chatter, that the Senate is not going to act on the term limits, that the issue is dead for this year, I need to disabuse you of that notion,” Daughton said.

“We’re in a very dynamic process. Last year, we all know the dysfunction the Legislature had. What they are going to try to do is remedy last year. They are not going to ignore one another’s proposals. When the speaker-designate tells you that term limits is a critical issue to him, that ‘this is something I’m really going to work to get done,’ the Senate is not going to ignore that.”

Senior Editor Gary Blankenship contributed to this report.

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