Justice James E. C. Perry: Why we have merit retention
Published: Monday, October 8, 2012 at 4:43 p.m.
Last Modified: Monday, October 8, 2012 at 4:43 p.m.
This November, Floridians will vote on whether to retain three Florida Supreme Court Justices and fifteen District Court of Appeal judges. They're not on the ballot because they did something wrong; rather, it's just business as usual under Florida's merit retention system, which requires that all Florida Supreme Court Justices and appellate court judges appear on the ballot in six-year cycles based upon when they were appointed by the Governor.
As a current member of the Court I can neither support nor oppose fellow Justices or any of the appellate court judges on the ballot. However, I can speak out about the purpose of merit retention and ask that when you go to the voting booth you consider the importance of a separate judicial branch in our system of government, which is built on a foundation of "checks and balances" and "separation of powers." It is much like a stool delicately balanced on three legs.
One leg is the legislative branch, which makes the laws. Our Legislature passes laws covering a broad range of topics affecting just about every aspect of our lives and taking up almost 11,000 pages of small type. That's a lot of power.
Another leg of the stool helps balance that power. Specifically, the executive branch, which implements the laws, is headed by the Governor, who has the authority to veto laws and keep them from going into effect. To enforce and implement the laws that do go into effect, the Governor presides over more than two dozen agencies. Again, that's a lot of power.
The third leg of the stool helps balance the legislative and executive branch power combined. Specifically, the judicial branch is charged with interpreting laws and constitutional provisions. That means that the judicial branch can in the end strike down a law that was passed and implemented by the legislative and executive branches, even if the law is very popular.
That can make the judicial branch very unpopular. After all, the people liked the law and it was enacted and enforced by officials that they elected, so what's the problem?
The problem is that even popular laws can offend the very foundation of our society; the Constitution. A great example is Brown v. Board of Education, a 1954 case in which black children had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race.
The United States Supreme Court concluded that separate "educational facilities are inherently unequal. Therefore, we hold that (the children)...are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment" of the Constitution. Brown was so unpopular it led to riots. But mob rule does not govern our country, the rule of law does. A core constitutional principle is the protection of the powerless from "the tyranny of the masses."
The Justices in Brown could address that tyranny without fear of being kicked off the Court, as United States Supreme Court Justices are appointed for life. Their independence was assured because they were insulated against political or popular pressure or retaliation. They could do their jobs properly precisely because they were without fear of losing them.
But Florida Supreme Court Justices and appellate court judges face a merit retention vote every six years. Some suggest that they should be voted out of office for making certain difficult decisions. While politicians in the other two branches are elected to follow the "will of the people," the judicial branch must follow the Constitution.
So when you vote, I hope you'll consider that sometimes Florida Supreme Court Justices and appellate court judges have the absolute responsibility at times to make difficult decisions in order to uphold core constitutional principles that in the end serve and protect us all. Their ability to be fair and impartial and at times make unpopular decisions ensures that all three legs of the stool; the legislative, executive, and judicial branches, remain in balance. Cut one leg of the stool short, and it all crashes to the ground.
So make no mistake. It's not just about the Florida Supreme Court Justices and appellate court judges on the ballot. It's much bigger than that. The integrity of the entire judicial branch, and therefore, the overall balance of our State's government, is in play.
Look at it this way: Will Florida Supreme Court Justices and appellate court judges in the future hesitate to make difficult decisions that they believe are required of them if their colleagues have been voted out of office for doing just that? You be the judge.
Resources for voters
Merit retention: www.floridabar.org/thevotesinyourcourt
Florida statutes: www.leg.state.fl.us
Governor and executive branch agencies:
Florida courts: www.flcourts.org
Justice James E. C. Perry was appointed to the Florida Supreme Court by Governor Charlie Crist and took office there on March 11, 2009. Before his appointment, he served as a circuit judge of Florida's Eighteenth Judicial Circuit upon his appointment by Governor Jeb Bush in March 2000.