Florida State House Speaker’s Court Reforms raise Questions with Attorneys and Judges



As Florida’s judicial branch is learning, hell hath no fury like a House speaker scorned.

After the Supreme Court tossed a trio of his proposed constitutional amendments off the ballot last year, Florida House Speaker Dean Cannon struck back this session, leading the introduction of proposals to rein in the judiciary. 

Read all about it ….


That legislative revenge — carried out by the Republican majority — was quick and far-reaching. It included measures to fracture the Supreme Court in two, take over the court system’s internal rulemaking process and open misconduct investigations of judges to public view.

Some of the measures hit bumps in Senate committees amid concerns about judicial independence. But House leaders reworked the bills, and the proposals look likely to become law this legislative session.

Cannon, a Winter Park Republican and attorney, says he wants to accelerate justice, offer accountability to citizens and “add transparency to what is an obscure system.”

Retired Supreme Court Justice Gerald Kogan, appointed by Republican former Gov. Bob Martinez, has a different take: “This is all about getting even with the judicial system.”

Some of the latest scaled-back proposals would:

  • Allow for Senate confirmation of Supreme Court justices appointed by the governor, but would guarantee automatic appointment if senators don’t vote within 90 days.
  • Leave the ability to make court rules, such as those governing the use of evidence, with the judiciary. But the Legislature could repeal a court rule it dislikes if it explains why. The judiciary could then adopt a revised rule more in line with the Legislature’s intent.
  • Leave the vote total needed for judicial retention elections at 50 percent. A previous proposal would have raised that to 60 percent to stay in office.
  • Guarantee the court system a minimum yearly funding equal to 2.25 percent of general revenue. Current funding is equal to 1.94 percent, records show.

The courts recently struggled with a sudden $72 million shortfall after a drop in mortgage-foreclosure filing fees. Gov. Rick Scott agreed to a loan to make up the shortfall for the rest of this year; the courts start a new budget on July 1.

Others more aggressively change the judicial system. They would:

Expand the jurisdiction of the Supreme Court so it could consider cases beyond just those where lower appeals courts have disagreed on the same point of law.

That change could quickly and greatly expand the court’s caseload — nobody yet knows by how much — and stress the court’s resources. Someone will have to consider all the new filings to determine whether the court should take those additional cases.

Keep a single Supreme Court but increase the number of justices from seven to 10 and create two divisions of five judges each, one for criminal appeals and the other for civil appeals.

Both divisions would sit at the new courthouse for the First District Court of Appeal and would displace that court. Lawmakers and others have criticized the almost $49 million spent to build the district court’s lavish courthouse in Tallahassee, dubbed the “Taj Mahal.” Cannon said it hadn’t been worked out where the appeals court would be relocated.

The two Supreme Court divisions would sit jointly to handle attorney discipline cases and administrative matters. Each division would have its own chief justice, appointed by the governor.

Democrats have privately complained that Republicans want to shift the current Democratic-appointed justices to the criminal side, and then pack the civil division with new GOP-friendly jurists in advance of political redistricting challenges.

Not so, said state Rep. Eric Eisnaugle, R-Orlando, a lawyer who chairs the House Civil Justice subcommittee.

Because the splitting-the-court plan requires a change to the state constitution, it has to go before voters, which is unlikely to happen before new congressional and legislative district lines would need court review and approval.

“This has nothing to do with redistricting, and it will not affect redistricting,” Eisnaugle told the House Judiciary committee, which cleared some of the new bills on a party-line vote.

“That was not my intent,” he added. “So that’s a red herring.”

Still, the measures “dramatically alter the separation of powers” in state government, according to retired Supreme Court Justice Ken Bell, who was appointed by Republican Gov. Jeb Bush in 2002.

“These measures will, no doubt, lessen the independence of the judiciary,” he said.

Most judges avoid speaking out on political issues, so the judiciary often uses retired judges and justices and The Florida Bar as proxies to advocate on its behalf. The Florida Bar licenses and regulates the state’s 90,000 attorneys.

The Bar hired Tallahassee lawyer Barry Richard to negotiate with lawmakers on changes to the bills.

Richard is a legal powerhouse, most famous for his representation of George W. Bush during the 2000 presidential-election challenge in Florida. He declined to comment, citing attorney-client confidentiality.

House Minority Leader Ron Saunders, a Democrat from the Florida Keys, said he still doesn’t understand why the courts need an overhaul.

Cannon has said he wants to speed up consideration of death penalty challenges, although court records show that capital cases are decreasing and those remaining are moving faster through the system.

The median time to resolve a death penalty case from filing has fluctuated over the last decade, records show, but has fallen from 713 days in 2000 to 584 days in 2010.

The number of death penalty cases added to the docket also fluctuates, but fell from 75 in 2005 to 44 in 2010.

And overall, the number of all cases pending on the Supreme Court’s docket has decreased for six years straight, from 1,521 in 2004 to 881 in 2010, according to records.

“What happened to warrant all of these attacks on the judiciary?” Saunders asked. “The only thing that jumps out at me is the Supreme Court ruled against the Republican majority on some of these constitutional amendments.”

By a 5-2 vote, the high court struck three constitutional-amendment questions — all backed by the Republican-controlled Legislature — from the ballot in 2010. The majority of justices found them to have confusing or even misleading ballot summaries.

One would have let voters voice opposition to the U.S. health care overhaul. Another would have strengthened the Legislature’s hand in redrawing congressional and legislative districts, and a third would have given home buyers an extra property tax exemption if they hadn’t owned a house for at least eight years.

“Apparently judges are only bad when they rule against you,” Saunders added.

Eisnaugle suggested that Saunders and other Democrats don’t get it.

“This legislation will create transparency and accountability that our state’s judicial process is currently lacking,” he said.

Retired Supreme Court Justice Raoul Cantero, another Bush appointee, said the American system of government is intentionally set up to create tension and oversight between the branches.

“I don’t mean to say that the Legislature shouldn’t be looking to increase the efficiency of the courts,” Cantero said. “But I question whether these proposals are really aimed at that.”


The Associated Press

Published: April 12, 2011


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