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March 1, 2017

Term limits clear first House hurdle

By Gary Blankenship - Senior Editor

 A proposed constitutional amendment to impose term limits on Florida’s appellate judiciary scraped through its first test in the Florida House, despite a stream of objecting organizations, including The Florida Bar.

The House Civil Justice Subcommittee on February 9 approved HJR 1 by Rep. Jennifer May Sullivan, R-Eustis, which would set a two-term limit for district court of appeal judges and Supreme Court justices.

Sullivan argued that since no DCA judge or Supreme Court justice has ever lost a merit retention race since that system was instituted more than 40 years ago, there is no accountability for appellate judges.

“This bill is about good government and accountability,” Sullivan said. “Since implementing this system more than 40 years ago, there’s never been a justice or a judge that has not been retained. An accountability system that doesn’t hold people accountable is not truly an accountability system.”

That assertion prompted Rep. Sean Shaw, D-Tampa, whose father, Leander J. Shaw, Jr., served on both the First District Court of Appeal and the Supreme Court, to ask Sullivan, “Because no one has lost a merit retention election, is that enough to suggest there is no accountability?”

“Yes,” Sullivan replied.

Bar Outside Legislative Counsel Warren Husband noted that not only did the Bar Board of Governors vote to oppose the amendment, but so did 17 sections and the Young Lawyers Division and the Out of State Division.

That widespread opposition is for practical, not political reasons, he added.

“It all focuses on the increased turnover of judges on the bench and what that would entail,” Husband said. “Less effective, lengthier, and most costly resolution of cases; less consistency in the development of Florida law; a significant decline in the quality of judicial applicants; and an erosion of public confidence in the judicial system.”

Because it would force good lawyers to give up lucrative practices and then try to restart a practice after leaving the bench, Husband argued that attorneys who are already not judges would be unlikely to apply for any appellate vacancies if they are younger than 54. He noted that in Gov. Rick Scott’s first term, one-third of the DCA judges left the bench so there is already a healthy turnover. About half of those who applied were lawyers under the age of 54 and 60 percent of his appointees were under that age, he added.

Husband also noted no other state had judicial term limits, except New Mexico, where an arcane provision applies to probate judges.

Former Lt. Governor Jeff Kottkamp, representing the Florida Board of Trial Advocacy Fund, said the amendment undermines the principle of judicial independence built into the U.S. Constitution by the founding fathers. He said higher turnover would hurt business because there would be less consistency in the law.

“It’s enormously important to have stability in the court system and to have settled law. If we are turning over our appellate courts every decade, we’re going to have conflicting opinions. Frequently we’re going to have reversal of legal precedent and we’re going to create an environment that’s very unstable, Many businesses may very well decide not to come to Florida simply because the business community will not know for certain what the law is going to be decade to decade,” Kottkamp said.

William Large, president of the Florida Justice Reform Institute, ran off a list of lawyers who had been appointed directly from private practice to the DCAs in the past three to four years and who would have been unlikely to apply under the proposed amendment. He listed several others who were 39 or 40 when appointed and likely would have been unwilling to give up a successful practice that they would have to try to rebuild after two terms on the bench.

“The bottom line is term limits are not going to ensure the best judges are on the bench,” Large said.

Representatives of the Trial Lawyers Section and the Institute for Legal Reform also voiced opposition to the amendment, but did not testify.

Committee members split over the amendment. Shaw noted his father appeared on several retention ballots, including in 1990 when he had organized opposition but still won with a 60-percent yes vote.

“I’m still not certain there is a problem we are addressing,” he said. “If you don’t agree with an opinion of the Florida Supreme Court or of the district court of appeal, that’s fine. That means separation of powers is working.”

He said experienced Supreme Court justices are particularly needed to rule in complex death penalty litigation.

Rep. George Moraitis, R-Ft. Lauderdale, said the judiciary needs to remain independent and the Legislature has sufficient countervailing authority through its ability to pass laws and proposed constitutional amendments.

“Changing the way this nation was set up fundamentally . . . is not the way to go,” he said.

Rep. Shawn Harrison, R-Tampa, said jurists forced off the bench would find ample and lucrative employment opportunities, adding there is a large demand for former judges to serve as mediators and arbitrators.

Sullivan dismissed objections to the amendment saying, “I have not had one lawyer come into my office . . . and say if this is implemented, I will not apply for the DCA.”

A move by Speaker Richard Corcoran, R-Land O’ Lakes, who has strongly supported the termlimits amendment, helped ensure the passage of the amendment.

As the meeting started, Chair Rep. Heather Fitzenhagen, R-Ft. Myers, announced that Corcoran had named Rep. Dane Eagle, R-Cape Coral, to serve as an ex-officio member of the committee for that meeting, which is allowed under House rules.

Legislative records show the bill passing 8-7. However a webpage on the bill vote shows Eagle as voting yes, but that vote not being including in the 8-7 tally. Every Democrat on the committee voted against the amendment, joined by Moraitis and Rep. Jay Fant, R-Jacksonville, the subcommittee’s vice chair.

The bill next goes to the full Judiciary Committee, scheduled for February 21 (after this News went to press). If it passes, it goes to the House floor. Last year, the House passed a nearly identical amendment, but it was never heard in a Senate committee. This year’s Senate version of the amendment, SJR 482, sets a three-term limit for DCA judges and a two-term limit for Supreme Court justices. The Senate version also requires Supreme Court justices to have served a year as a judge before their appointment. It has been referred to the Senate Judiciary, Ethics and Elections, and Rules committees, but, as this News went to press, had not been set for a hearing.