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Monday, Sep 17, 2018
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A threat to our courts

Amendment 5 is one of the 11 legislatively proposed amendments to Florida's constitution on the November ballot. It presents three different and distinct proposed changes to how Florida's court system is constitutionally structured. First, judicial appointments will no longer be unilaterally within the province of the governor. Instead, the governor's nominee must be confirmed by the state Senate. Second, Florida's constitution currently provides that rules of court adopted by the Supreme Court may be repealed by a two-thirds vote of each house of the legislature. Amendment 5 proposes repeal by a simple majority and prohibits enactment of successive rules that fail to conform to "the public policy expressed by the legislature." Third, Florida's judiciary is policed by the Judicial Qualification Commission. Amendment 5 proposes to remove the governor's access to otherwise confidential JQC investigative materials, leaving access only to the House of Representatives.
The sanctity of three co-equal branches of government is a bedrock principle of the Founding Fathers. Alexander Hamilton noted in the Federalist Papers (no. 78) that the "independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of … the influence of particular conjunctures …which … have a tendency … to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community." Accordingly, any proposed change to the constitution which shifts the balance of power from one branch of government to another branch must be carefully scrutinized. To do otherwise is to place in jeopardy the safeguards established to assure that fair and impartial courts speak for the rights fundamental to our free society. Amendment 5 cannot withstand voter scrutiny. Indeed, Amendment 5 perpetuates a disturbing trend of executive and legislative efforts to erode the impartiality and equal standing of Florida's courts. In 2001, a once-independent Judicial Nominating Commission was placed under the control of the governor's office. In 2011, Republican members of the Legislature unsuccessfully attempted to split the Supreme Court into two divisions, thereby creating an opportunity for the Republican governor to "pack the court" with the newly created positions. Currently, the decision by the Republican Party of Florida to oppose retention of the justices on this ballot is an unprecedented attack on the equality of the judicial branch. This election is the first time that any political party has taken a position on the merit retention of a jurist, thereby politicizing a justice's merit. Senate confirmation of a governor's selected Supreme Court justice would merely add another layer of politics to the appointment process. Unlike the federal judiciary, Florida's appellate jurists are subject to merit retention and are not appointed for life. Consequently, Florida judges do not enjoy the certainty of their positions once attained and the associated inherent independence from continuing political influences. A functional judiciary must have the ability to set is own rules, subject to the existing check and balance of legislative repeal by a supermajority under the current state constitution. The JQC is a constitutionally created independent agency. There has been no sound basis presented for denying the governor access to the JQC's work on equal footing with the Legislature, as provided by the current constitution. Amendment 5 is yet another threat to the vitality of the judicial branch of government. It is up to individuals to speak out against efforts of the Legislature, the governor and any political party seeking to turn the judiciary into a creature of politics. Floridians must fight to preserve the integrity of the courts as the fair and impartial protector of the rights, freedoms and liberties that we as citizens are privileged to enjoy. We owe this effort to the many who came before us and who made the necessary sacrifices. Vote "no" on Amendment 5.

Lee D. Gunn IV is a board-certified trial attorney and founder of Gunn Law Group, P.A., in Tampa
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