There are two constitutional amendments that have made their way to the November ballot. Both were proposed by citizen initiative, and both enjoy widespread voter popularity.
So far, no legislative-proposed constitutional amendments are set to appear on the ballot. That’s probably for the best, as they didn’t fare well during the 2012 election. Only three of the Legislature’s 11 proposed amendments garnered the 60 percent voter threshold necessary for passage.
One of the eight failed amendments distinguished itself as the most dismal failure. Amendment 5 relating to state courts received a paltry 37 percent of the vote. The amendment was an attempt to grant the Florida Legislature more power, authority and oversight over the judicial branch. Voters sent a strong message to the Legislature not to meddle with the judiciary, a separate but equal branch of state government.
Now less than two years later, up pops SJR 1188, a legislative attempt to put another judicial issue before the voters. Technically, the constitutional change would require the governor to prospectively fill a vacancy in a judicial office on the Florida Supreme Court or a district court of appeal.
The proponents claim it is necessary to clear up ambiguity in the current system and avoid costly litigation.
Opponents claim it is a blatant attempt to pack the court by an outgoing lame-duck governor and to deny the incoming governor the ability to make the appointments.
At the heart of the issue is the age ceiling for the justices, combined with the timing of their departures. Under current law, justices are required to retire at age 70 but can remain on the bench until the end of their six-year term.
Also under current law, a sitting justice’s term does not expire until the first Tuesday after the first Monday in January, after the November general election vote. That also happens to be the date a new governor-elect takes office and the outgoing governor departs.
If a governor is re-elected, the issue is moot. This proposal makes a change from the current process when a governor is replaced either by choosing not to run or by losing at the polls. In that case, the constitutional change would grant the outgoing governor a long-lasting and powerful parting gift.
This is not a new issue. In 1998 former Gov. Jeb Bush first argued it was the incoming governor who is responsible for the judicial appointments. He eventually resolved the issue by agreeing to a joint appointment with outgoing Gov. Lawton Chiles. Then, in 2006, Bush requested an advisory opinion from the Florida Supreme Court when, on his way out, he wanted to appoint the successor to a district court of appeals judge who was ineligible for retention.
In its advisory opinion, the Supreme Court held that the definition for when a vacancy occurs with regard to merit retention judges is clear and unambiguous: A vacancy exists upon the expiration of the term of the judge or justice.
So why is this rearing its head once again? Could it be because three of the seven Florida Supreme Court justices have mandatory retirement dates in January 2019? One other retires in 2017.
Under this change, the outgoing governor would have incredible power to shape the court by selecting a majority of the justices. Three of the justices would be appointed after the new governor had been elected and taken office. Something just doesn’t seem right with that.
Unfortunately, the battle is taking place along party lines. It shouldn’t be a partisan issue, particularly since either party could take the governor’s race in what is expected to be a close race this year. It really should come down to what is better policy.
Even if we were to take the sponsor, state Sen. Tom Lee, R-Brandon, at his word that his intention is to provide clarity and avoid legal disputes and costly litigation, a critical question arises: Isn’t he moving in the wrong direction? Why would we move away from the 2006 Florida Supreme Court advisory opinion?
The constitutional amendment is unnecessary and needlessly divisive. It sends the distinct impression that this is a partisan power grab to stack the court.
It is my hope that Lee will withdraw the Senate Joint Resolution from further consideration. If it does make it to the Senate floor, it would take a three-fifths majority, or 24 votes, to pass. Surely, there are 17 senators who will step up and do the right thing — vote it down. If they don’t, I’m sure the voters will give them a remedial lesson in November.
Paula Dockery is a syndicated columnist who served in the Florida Legislature for 16 years as a Republican from Lakeland. She can be reached at PBDockery@gmail.com.