Conservatives target 3 Florida justices in retention races
Published: Sunday, October 7, 2012 at 4:52 p.m.
Last Modified: Sunday, October 7, 2012 at 4:52 p.m.
TALLAHASSEE — A conservative bid to boot three Florida Supreme Court justices from the bench is being cast as battle over the future independence of the state's judicial system.
In an unprecedented move, three justices on Florida's Supreme Court are being targeted for removal this fall. Opponents, including the state Republican Party, are trying to use the normally non-contentious retention-vote process to boot Justices R. Fred Lewis, Barbara Pariente and Peggy Quince.
Under Florida's merit retention system, all appellate judges, who are appointed by the governor, face a yes-or-no retention vote every six years. This year, the three Supreme Court justices as well as 15 lower appellate court judges around the state face a merit retention vote on Nov. 6.
But the three justices have drawn the ire of conservative critics for some of their court rulings. And several organizations, including Americans for Prosperity, a conservative advocacy group associated with the Koch brothers, have signaled that they are willing to finance an opposition campaign against the justices.
Court supporters, state legal leaders and the justices themselves say the upcoming retention vote threatens to undermine a merit selection and retention system that was put into place in the 1970s after a series of scandals and corruption tarnished the existing system where appellate judges ran like other political candidates.
“This is about whether or not we are going to continue to have a fair and impartial judiciary,” Quince, who has spent 18 years as an appellate judge, including 13 on the Florida Supreme Court, said at a forum Friday at the Florida State University Law School.
“I will submit to you, we do not want to repeat the mistakes of the past.”
Quince also said judges should not be “beholden” to any interest groups when they make their decisions.
“We are not going to always agree,” she said. “But judges have to be free to make some of the hard decisions. Judges should not be thinking about who is going to oppose them in the next election or merit-retention race because of one or two or any of a half-dozen decisions.”
Lewis participated in a campaign for the state Supreme Court as a newly graduated law school student in the early 1970s and recalls being appalled by the level of “chaos” and “corruption” involved in the partisan system.
He said Florida's merit retention system — widely praised for reforming the judicial system — risks falling under the influence of big-money special interests in the same way that the legislative and executive branch elections are waged. He said Florida may be following the pattern of other states where special interest groups have successfully targeted judges in expensive campaigns.
“Any time you have the threat of the judge making a decision because he or she is looking over his or her shoulder as to who has the checkbook behind them the next time around, you are justifying a corrupt system,” Lewis said at the FSU forum. “Yes, it's way out of proportion.”
But the justices' opponents say they have the right to question the court's decisions in the retention vote.
The state Republican Party said there is “extensive” evidence of judicial “activism” by the court, including a 2003 case that overturned a death sentence for a man who tied a woman to a tree and set her on fire. The death sentence was later re-imposed after a ruling by the U.S. Supreme Court.
AFP, the Koch brothers' group, has cited the court's rejection of a constitutional amendment from the Florida Legislature that was aimed at letting voters decide on the merits of the new federal health care law. The justices rejected the amendment on the grounds its ballot title was misleading and lawmakers later passed a revised version that is now on this year's ballot.
In a statement, state Republican Party Chairman Lenny Curry said the party's decision to oppose the justices came from a “grassroots” movement in the GOP. He also said the justices' supporters' charge of “injecting politics” in the merit retention system “is nonsense of the highest order.”
“Judges in Florida are appointed by politicians,” Curry said. “They decide political cases all the time.”
He also noted the justices have been raising money for their retention campaigns with some $1 million collected by the three court members.
If the justices are not retained, Gov. Rick Scott would get a chance to appoint their replacements. However, Curry denied that Scott played any role in the party's decision to oppose the justices — a claim that the justices' supporters discount.
“It is ludicrous to suggest that they would take such an unprecedented and controversial step without the knowledge of their elected leaders,” said Lisa Hall, spokeswoman for Defend Justice from Politics, an electioneering and communications organization set up by the justices' supporters.
Hall also said this year's retention battle is part of larger campaign by conservative groups to exert greater control over the judiciary.
She said it included efforts that began in 2001 to give the governor more control over the members of the judicial nominating commissions, which recommend judicial appointments to the governor.
It also included a move by House Speaker Dean Cannon, R-Winter Park, to reshape the state Supreme Court by splitting the court into two branches — one dealing with civil cases and the other criminal. The split court did not win approval, but Amendment 5, which is on the November ballot, would give the Legislature more power over the judiciary by allowing the state Senate to confirm the appointment of justices and allow lawmakers to repeal judicial rules by a majority vote.
“It is definitely a very well-orchestrated and a very long-term, calculated effort to get what they want,” Hall said.
Florida Democratic Party Chairman Rod Smith said his party was not going to take a position on the retention vote for the justices. But Smith, a former state prosecutor and veteran lawyer, said he would speak out individually on their behalf.
Smith, who sent serial killer Danny Rolling to Death Row, dismissed any claims that the justices had not followed the law in deciding the 2003 death case cited by their critics. “Was it an honest decision? Yes,” he said.
“I have left the courtroom plenty of times in my life both happy and unhappy with the decision,” he said. “Our system depends on someone to call ball and strikes.
“It's always a close call when it gets to the Supreme Court level. The easy decisions don't get there. To politicize this, I think, is a dreadful decision.”