• Encroachment on Florida's Third Branch of Government
  • July 4, 2017
  • Law Firm: Rumberger, Kirk & Caldwell Professional Association - Orlando Office
  • One of the foundations of our democratic republic is having an independent judiciary that exists as a coequal third branch of government. But during this year’s legislative session, the Florida Legislature introduced bills in tension with the democratic tenet of judicial independence.

    One such bill, House Joint Resolution 1, sought to amend Florida’s Constitution to create a 12-year term limit for Florida’s appellate court judges and Supreme Court justices. The Florida House voted for judicial term limits during the 2016 session, but the bill did not advance in the Florida Senate. During this year’s legislative session, the resolution passed narrowly in the House but again failed to progress in the Senate. House Speaker Richard Corcoran, a proponent of judicial term limits, opined that the state needs “judges who respect the Constitution and separation of powers; who will reject the temptation to turn themselves into some unelected, super-legislature.” Other proponents argued it would create more judicial accountability and would rein in “activist judges.”

    Despite proponents’ concerns, judicial term limits are unnecessary and would impede the effective and efficient operation of the judiciary. A year ago, after the House voted for judicial term limits, The Florida Bar Board of Governors voted unanimously to oppose judicial term limits at all levels of Florida’s state court system. The Board of Governors reasoned that more turnover on the bench would result in (1) less effective, lengthier, and more costly resolution of cases; (2) less consistency in the development of Florida law; (3) an erosion of public confidence in the judicial system; and (4) a significant decline in qualified judicial candidates, due to lawyers being discouraged to pause their careers to pursue a limited term on the bench.

    Representative Cynthia Stafford (D-Opa Locka) noted that opposition to the amendment during the 2017 session came from a wide range of groups that usually agree on little. She stated, “A lot of good, qualified people will be unwilling to seek appointment. I also believe there is value in experience, and I think that value will be diminished with term limits.” Representative Sean Shaw (D-Tampa), son of former Florida Supreme Court Justice Leander Shaw, reasoned that the judicial branch depends on stability and experience more so than the other two branches and stated, “I’d much rather have a 15-year judge than a three-year judge on a death penalty case. It speaks for itself why that is important.” Senator Joe Negron (R-Stuart) told The Florida Bar News, “Some senators have raised concerns that [HJR 1] may inadvertently create a situation where you would have appellate court judges having in the backs of their minds that eventually they will need to get back into private practice, and I think we obviously want all of our judges at all levels of the courts focused entirely on the work before [them].”

    No state in our country has ever imposed judicial term limits on constitutional judges, and ballot measures for judicial term limits have been defeated in the past by voters in Colorado, Nevada, and Mississippi. There is no evidence that term limits would create more accountability for the judicial branch. Instead, imposing judicial term limits may enable the advancement of political agendas with weaker judicial review. Experienced jurists are more likely to have the knowledge and confidence to stand up to the other branches of government when they violate the Constitution. Furthermore, the checks-and-balances of Florida’s merit retention system and the Judicial Qualifications Commission are sufficient to ensure the judiciary is abiding by its oath to uphold the rule of law. The system is not perfect, but it is more effective than a system that would require our state’s most experienced jurists to step down from the bench after two consecutive terms.

    Another bill proposed this year aimed at the state judiciary was House Joint Resolution 121, sponsored by Representative Julio Gonzalez (R-Sarasota). The resolution proposed that a constitutional amendment referendum be added to the next general-election ballot that, if approved by voters, would give legislators the power to override judicial decisions by a two-thirds vote of each chamber for up to five years after a decision at any state level—county, circuit, appellate, or Supreme Court. Gonzalez also filed House Memorial 125, which urged the United States Congress to propose a similar amendment to the United States Constitution, granting Congress the power to nullify federal court decisions.

    Gonzalez stated that the resolution was aimed at what he considered to be judicial overreach, citing to United States Supreme Court rulings regarding religious symbols in public places, prohibitions on prayers at public events, and negations of laws prohibiting the desecration of the American flag. He stated:

    It is my concerted view that such provisions, if enacted by the people, would curtail the tendency of activist judges to manipulate the law to suit their political views and agendas. Equally as importantly, this would force the people to engage the legislature in enacting ratifications to current laws they see as objectionable or flawed, restoring the natural relationship between the people and their legislative bodies. This would also force the electorate to more carefully look at their candidates and their actions during times of reelection.

    Senator Larry Metz (R-Groveland) stated that the primary reason he supported the resolution was because “[a]ppellate judges in Florida, not all of them but many of them, make policy from the bench. They legislate from the bench and that is a great concern to me.”

    What some classify as “judicial activism” others might consider to be proper “checks and balances” envisioned by our nation’s founding fathers and the authors of Florida’s Constitution. For instance, some legislators have been displeased with the Florida Supreme Court’s decisions to enforce the “Fair Districts” initiatives that voters overwhelmingly approved in 2010. Legislators have an interest in controlling legislative districts and continuing the practice of gerrymandering. Although some legislators have stated that their concern is with “activist judges,” their true concern may be with judges who uphold the law in a way the legislators dislike.

    These attempts to limit the power of Florida’s judiciary were occurring at the same time the federal judiciary was also coming under attack. President Trump has made statements in line with what some Florida legislators have said, stating, “Courts seem to be so political, and it would be so great for our justice system if they could read a statement and do what’s right.” He referred to United States District Judge James Robart, who issued a temporary stay on the President’s travel ban, as a “so-called judge.” He has threatened to break up the Ninth Circuit after multiple rulings striking down his executive orders. The more the courts rule against him, the more he insists they are partisan and “political,” similar to what Floridians have been seeing at the state level. President Trump’s own Supreme Court nominee, Justice Neil Gorsuch, called the President’s continued attacks on the judiciary “demoralizing” and “disheartening.”

    Attempts to delegitimize the court system are certainly demoralizing and disheartening. They are also frightening in a land that upholds the rule of law and the separation of powers as central tenets of its government. As James Madison said, quoting French political philosopher Montesquieu, “There can be no liberty . . . if the powers of judging be not separated from the legislative and executive powers.”

    These issues are certain to keep arising. As defenders of the Constitution, the criminal defense bar should speak out against the legislature’s encroachment upon the judiciary. As Thomas Jefferson stated:

    The dignity and stability of government in all its branches, the morals of the people and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive and independent upon both, that so it may be a check upon both, as both should be checks upon that.

    May our state and nation always be ruled by laws that are upheld by an independent and coequal judicial branch.