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Co-Equal Opportunity: Legislators Are Out to Take Over Their State Judiciary Systems

By John Gibeaut

January 1, 2012, 11:00 am CST

Court-packing and other devices legislators employ to control their justice systems are almost as old as the Constitution itself. I In 1801 the lame-duck Federalist Congress and outgoing President John Adams raised opponents’ ire with bills that allowed Adams to appoint dozens of their party faithful to judgeships, including Chief Justice John Marshall.

Marshall, of course, also famously introduced the principle of judicial review, declaring in his seminal 1803 opinion Marbury v. Madison that the courts’ job is “to say what the law is.” The case involved a handful of judicial nominees whose positions new Democratic-Republican President Thomas Jefferson had eliminated.

More than a century later, when an aging and conservative Supreme Court exercised Marshall’s judicial review to strike down New Deal legislation, a frustrated Franklin D. Roosevelt struck back. He threatened to appoint one additional justice for each justice older than 70, and the decisions suddenly started going Roosevelt’s way. Today, in the wake of another decision that didn’t go their way, Republican legislators in Florida attempted to ram through a broad package of restrictions on the state’s judiciary last spring. The legislators tried unsuccessfully to emulate Texas and Oklahoma by splitting the Florida Supreme Court into civil and criminal divisions. They also tried to cut the state bar out of the judicial nominating process.

MORE ATTACKS, MORE ISSUES

Florida is just one of dozens of states where legislators have attempted to seize control of the justice system to varying degrees.

Though attempts to tame the courts are nothing new, they historically arise in narrow contexts, such as single decisions in controversial cases, and usually stand slim chance of passage. But by 2011, the number and scope of legislative attacks had grown in dozens of states and covered nearly all phases of court administration, decision-making and judicial selection.

Observers note that many such bills ignore the doctrine of separation of powers that establishes the judiciary as a co-equal branch of government.

“We have never seen such a broad assault by legislators across the country on their courts of law,” says Charles W. Hall, director of communications for Justice at Stake, a Washington, D.C.-based advocacy group that espouses judicial fairness and impartiality.

Those who would curtail courts’ authority call it “judicial accountability.” Their detractors view it as a meaty thumb on the scales of justice that threatens the judiciary’s independence, not to mention impartiality.

“It’s treated as a recalcitrant agency that must be brought to heel,” says William Raftery, an analyst for the National Center for State Courts who follows legislative developments in the center’s online review and associated blog. “You see that threat through a lot of these legislative efforts.”

But although some of the more contentious propositions collapsed, Florida legislators managed to place three questions on the 2012 ballot as constitutional amendments. Those questions ask whether to inject Senate confirmation into supreme court nominations, allow the House speaker to obtain confidential investigative files on judges and give legislators a nearly bulletproof veto over court procedural rules.

And though some of the more dreaded changes died with the supreme court bifurcation, few critics believe legislators have finished their work.

“We do expect more, and we’re getting ready for it,” says former supreme court Justice Raoul G. Cantero.

Republican House Speaker Dean Cannon hit them in the chops with the proposals in March, on the very first day of the legislative session. Few saw it coming.

“I was totally blindsided,” says Talbot “Sandy” D’Alemberte, who was ABA president in 1991-92. A former judiciary committee chairman for the state House, D’Alemberte is widely regarded as the architect of Florida’s current court system—a system overhauled in 1972 as part of a major judicial reform. Legislators now want to undo much of that work.

“I didn’t see any of that coming,” says D’Alemberte, who splits his time between his Tallahassee law office and teaching state constitutional law at Florida State University.

Last spring D’Alemberte, former ABA President Martha Barnett, former Sen. Bob Graham and other prominent Florida lawyers and judges coalesced as Floridians for Fair and Impartial Courts to voice their concerns to voters. Though the Florida Bar has opposed the proposals, outsiders have viewed its efforts as lukewarm.

“Hopefully, the new bar leadership will be more active,” D’Alemberte says. “My feeling is that the bar first and foremost is supposed to defend the courts.”

It’s just not that simple, says Florida Bar President Scott Hawkins, who took office in June. Created by court rule, the 91,000-member organization is one of the largest mandatory bars in the nation.

With so many members, bar policy steers it away from fractious political issues and toward traditional areas such as lawyer discipline and sponsoring programs for continuing legal education.

The bar views itself more as a regulatory agency than a lobbyist. Still, as an arm of the court, the bar hasn’t escaped lawmakers’ attention.

One proposal would have ended the bar’s role in submitting names of members to serve on judicial nominating commissions, which screen candidates for the supreme and midlevel appeals courts, as well as some trial courts. The governor would have the sole authority to appoint all commissioners.

If the bar really irritates them, lawmakers could move lawyer policing to the Department of Business and Professional Regulation, which also regulates barbers, kickboxers, harbor pilots and talent agencies.

In an area it considers outside politics, the bar does regularly assess the system’s ongoing financial woes with Chief Justice Charles T. Canady. Still, bar leaders opted for a quieter approach than other opponents of a Florida court overhaul.

“We were communicating in a way to try to keep the conversation from moving forward,” explains Hawkins, a litigator from West Palm Beach. “We are constrained from taking positions that are partisan and issues that are potentially divisive among our members. It’s very important that we respect that role. A bar’s credibility is based on its being an honest broker. We can’t be partisan.”

As Florida lawmakers entertained nine separate bills that would radically change the face of the state judiciary, legislators elsewhere were busy, too. Some of the proposed court reforms appear to be solutions searching for problems, such as bans on judicial use of Shariah and other religious or international laws. Though such bans have been considered in more than 20 states, only Arizona has passed one.

Other proposals appear deadly serious. And although most of the ambitious controls mulled by Florida have thus far stalled, some say the Sunshine State’s experience should be considered a cautionary tale.

“We’re no longer talking about things just thrown in for giggles,” says Raftery. “Some of these things are actually passing.”

MERIT SELECTION TARGETED

Especially worrisome for the judiciary are proposals to end or dramatically alter merit selection and retention. Under merit selection, governors without legislative participation typically appoint judges from lists submitted by nominating commissions. Under retention, judges with expiring terms need voter approval to remain on the bench but don’t face opponents.

Merit selection of all or some judges has been regard ed as a key to keeping politics out of the court system. But in 2011 legislators tried to reintroduce politics in eight of the 24 states that use some form of merit selection. Changes in at least two, including Florida, already are headed for the 2012 ballot, with more expected to follow.

Besides Senate confirmation, some would dump merit selection and retention altogether and replace them with contested elections. One proposal in Tennessee would require a judge up for retention to garner 75 percent of the vote to stay on the job, up from the 50 percent currently needed.

Though legislators often try to mask their intentions, others aren’t bashful at all, like the tort-reform advocates who unsuccessfully attempted to shrink the Montana Supreme Court from seven to five members.

“So how do we get tort reform?” the bill’s author, Republican Rep. Derek Skees, asked the House Judiciary Committee. “I would suggest to you if we took the supreme court down from seven to five, they have a higher workload. Guess who becomes our ally in tort reform? The supreme court.”

The state’s Republican Party spokesman, Rick Breckenridge, later peeled the varnish from Skees’ testimony, saying the state needed a “tightened down” court so Republicans could get their way in upcoming redistricting: “Take control of the reins of the supreme court, show them who is in charge, and remember [with regard to] redistricting how we have been treated by the supreme court in the past.”

A redistricting fight also lit a fire under Cannon, the Florida House speaker. Members of the Republican-dominated legislature had grown increasingly worried in the spring of 2010 about two proposed constitutional amendments placed on the fall ballot by citizens groups. Those proposals would, for the first time, impose detailed rules on how lawmakers draw lines for legislative and congressional districts.

So legislators placed a third amendment on the ballot that would have, in essence, nullified the first two. But the Florida Supreme Court struck the legislative version from the ballot—and two other unrelated lawmaker-inspired proposals—because all misled the public about their true purpose and effect.

It was Cannon, a lawyer from Winter Park, who argued the redistricting measure for the legislature, a job usually handled by the attorney general’s office.

Though opponents say Cannon caught them off guard with his judicial proposals, he dropped a big hint early in the game. Passage of the citizen amendments in the Nov. 2 elections really riled Cannon, possibly more than the treatment he received by the supreme court. Just two weeks after the elections, Cannon declared at the House’s organizational session that the state constitution contained “no expressed authority” for the supreme court to act as it did, an assertion many court experts find dubious.

“I’m a huge fan of the doctrine of separation of powers,” says Cannon, whose chamber has joined yet another lawsuit in federal court seeking to kill the citizens groups’ redistricting measures. “However, I likewise believe very strongly that the judicial branch should not invade the provinces of the legislative and executive branches.”

Still, Cannon denies he’s trying to mount a counterattack against the court for erasing the amendments.

“It was more a symptom of the greater problem,” he says. “It was by no means the driving force.” Limits on judicial authority appeared to remain very much on the speaker’s mind, though, when he opened the House session March 7 and began pushing his agenda to the applause of fellow legislators and the stunned chagrin of most judges and lawyers.

“I believe very strongly in the independence of the judiciary, and I will not support any proposals that undermine our courts,” Cannon told his colleagues. “However, judicial independence should never be offered as an excuse to escape accountability or to justify exceeding the limits of our constitution.”

But as the House began considering the proposals, the narrative changed to the familiar refrain of relieving overworked judges in general, with a particular emphasis on speeding death penalty appeals.

“It was always a debate about the burden on the courts,” insists the primary sponsor, Republican Rep. Eric Eisnaugle, an Orlando lawyer who serves as civil justice chairman for the House Judiciary Committee.

Legal community leaders say they never really received a satisfactory explanation for the court-splitting plan or any of the other proposals.

“I had more than one legislator tell me, ‘I don’t like this at all, but my speaker told me to vote for it, or my [Senate] president told me to vote for it,’ ” Barnett says.

Says bar president Hawkins: “There just wasn’t a solid justification or rationale behind it.”

Some proposals moved under cover of darkness, such as a successful attempt to abolish the Florida Capital Cases Commission, an agency empowered to study the administration of the death penalty and recommend improvements. A 2006 ABA report on Florida’s death penalty documented evidence of racial, geographic and socioeconomic bias, little of which the state has attempted to remedy.

“It was heard by the House Appropriations Committee at the end of the session after 8:30 at night, where it was framed as a cost-saving measure,” recalls lawyer Mark Schlakman, senior program director of Florida State’s Center for the Advancement of Human Rights and a member of the ABA team that faulted Florida’s procedures. Schlakman and former Justice Cantero are working to resurrect the commission.

Making the opposition’s job all the more difficult, the legislation became a moving target.

“You’d go to a hearing to discuss this bill only to find out it had changed at midnight the night before,” says American Judicature Society President Peter D. Webster, a former Florida trial and appeals judge. “This happened three or four times.”

In the end, the House voted strictly along party lines and easily mustered the 60 percent majority needed to place Cannon’s entire bundle of restraints on the 2012 ballot. But the Senate, partly due to resistance by some of its Republican lawyer members, couldn’t rally the 24 votes it needed to put the court split before the voters and diluted Cannon’s bundle to the three measures destined for the polls. Those measures still require approval by 60 percent of the voters.

Successful or otherwise, all the proposals share the common bond of politics, critics say. They say giving legislators and sometimes the governor power they currently lack will do nothing more than add an extra layer of decision-makers to slow an already sluggish system to a crawl.

“If anyone did that to the legislature, they’d be yelling and screaming like banshees,” Webster says.

The dead court-splitting plan would have increased the number of justices from seven to 10, with two panels of five each, one to hear civil cases and the other to consider criminal appeals. That would leave the governor three appointments, plus the chief justice, a position the justices now rotate among themselves. To ensure each panel minds its own business, the court could rarely convene en banc. The civil panel also would be forbidden to consider cases that had anything to do with the death penalty, directly or indirectly.

WEIGHING THE COSTS

Critics say the 2012 ballot measures, if passed, could tie things up anyway. For example, the question requiring Senate confirmation of supreme court justices gives the body 90 days to decide on the governor’s nominee. The clock would run regardless of whether the Senate is in session—it usually only meets for two months each year—requiring a special session to act within the prescribed time.

“That’s going to cost millions of dollars each time a new justice is appointed,” complains former Justice Cantero. Moreover, he says, the added rigors of confirmation could chill qualified candidates from applying. “People who apply for appellate courts are not political people. They’re judges and lawyers.”

Many wonder about the ballot question that gives the House speaker records from the Judicial Qualifications Commission, the agency that investigates misconduct complaints against judges. Investigative files are secret until the commission completes its probe and lodges formal charges with the supreme court, at which point they become public. But if the commission never pursues charges, the files remain secret, according to the legislative staff analysis.

The ballot proposal does an end run around secrecy by allowing the speaker to request and make the files public if the legislature uses its independent constitutional power to impeach, which it hasn’t attempted since 1978.

“It doesn’t matter if the JQC declines,” says Rep. Eisnaugle. “The JQC not proceeding is no reason for the House not to move forward.”

But the ballot question would lower the threshold needed to repeal a rule of procedure to a 50 percent vote from the two-thirds majority now required. Though lawmakers have repealed court rules in just a handful of instances since the 1970s, the idea excites Eisnaugle.

“I personally believe the rule-making is critical,” Eisnaugle says. “Every branch of government needs to be checked.”

Because the amendment covers only procedural rules, what’s procedural and what’s substantive likely would govern future debates if the proposal passes. Indeed, the court itself has described the distinction between procedure and substance as a “twilight zone” that depends on the nature of the problem before the justices. For instance, one twilight-zone case that really frosts legislators is the court’s 2000 decision in Allen v. Butterworth, where the legislature repealed court rules so it could impose time limits on habeas proceedings in capital cases.

In Allen, the court declared those time limits unconstitutional and again wrote its own rules, holding that the state constitution “grants this court the exclusive authority to set deadlines for post-conviction motions.”

The justices and court administrators declined comment, citing the potential for litigation, which in all likelihood would include challenges to the three ballot questions. The court, though, has weathered two other unsuccessful attempts to rearrange its affairs since 2001.

While all the proposals aim directly at the supreme court, at least one version contained a sweetener that many jurists would find hard to resist: a constitutional guarantee to pay for the statewide justice system.

Without question, Florida courts are hurting financially, like others around the nation. Nearly 250 court employees—most directly involved in casework—have lost their jobs since 2007 due to budget cuts. Legislators repeatedly declined the high court’s request for more judges until 2011, when they authorized only 32 new trial-level judgeships of the 80 requested.

Worse, while Florida’s $460 million court budget has remained relatively stable in recent years and represents less than 1 percent of the total state outlay, it’s almost 80 percent funded with fees from mortgage foreclosure filings. That source has been anything but stable, and dramatic declines in foreclosure filings forced the courts to borrow $33 million to finish the 2010-11 budget year. They’re looking for another $54 million to make it through the current year without closing courthouse doors.

While the state’s trial judges long have complained about nearly unmanageable workloads, lack of staff and lack of money, those woes apparently haven’t affected the supreme court’s ability to deal with its load.

The high court cut its pending caseload by nearly half, from 1,544 in 2001 to 881 in 2010, according to the court administrator’s office. Death penalty filings —which the court must take—dropped from 105 to 66 during that period, and since 2006 the court has disposed of more capital cases than were filed.

Even if splitting the supreme court succeeded, critics say current hard times don’t justify the estimated $21 million price tag to pay the new justices and remodel buildings to accommodate added staff. And though he said it was a worthwhile idea, Gov. Rick Scott vetoed $400,000 lawmakers appropriated to further study court splitting, saying the state couldn’t afford it.

Still, legislators have another shot at the ballot. This year they convene two months earlier than usual to accommodate redistricting before June, when most prospective candidates must file qualifying papers to run. But redistricting comes with its own heavy political luggage and litigation, and it very well could divert lawmakers’ attention from the courts.

Cannon and Hawkins talk regularly about the bar’s concerns, but if 2011 is any indication, Cannon likely won’t divulge any future plans until the last minute.

“He hasn’t dropped any hints,” Hawkins says. Going directly to Cannon in late August was similarly unavailing. He says all he wants is a fair and efficient court system.

“It’s way too early to tell about the next session,” Cannon says. “Nothing’s been ruled in or out.”

WHO CARES?

Regardless of what legislators do, both sides also face the difficult task of explaining to voters what many probably see as technicalities that don’t affect their lives.

“We’re spending significant time on that very question,” Hawkins says. “It’s hard to explain the importance of those questions.”

But the public may have better things to worry about than reforming the courts, suggest two recent polls by Justice at Stake. In 2007, when changes in Missouri’s model merit selection system were proposed, 71 percent of voters surveyed supported the process as it was, and only one in 50 saw changes in judicial selection as a top government priority.

The mood for legislative action isn’t so strong in Iowa, either, where three supreme court justices lost retention votes at the polls in 2010 because of a decision allowing same-sex marriage. Only 36 percent of voters, however, favored subsequent legislative attempts to impeach the remaining four justices. After hearing Iowa’s standard for impeachment—“misdemeanor or malfeasance”—only 17 percent said a court decision should be impeachable, while 63 percent said a decision doesn’t rise to an impeachable level, even if they disagree with it.

“It really is a case where this is a pet issue rumbling through the legislative halls that doesn’t resonate with the public,” says Justice at Stake spokesman Hall. “There’s almost a total disconnect.”