Sun Sen⁠t⁠⁠i⁠nel — Amendmen⁠t⁠ 3 could reshape Flor⁠i⁠da’s h⁠i⁠gh cour⁠t⁠

By: The James Madison Institute / 2014



Sun Sentinel
Amendment 3 may reshape Florida’s high court
October 5, 2014
By Aaron Deslatte

TALLAHASSEE — It may be the most important Florida constitutional change nobody’s talking about.Besides whether to legalize medical marijuana and devote more tax dollars to conservation, voters will also be asked Nov. 4 whether the next governor should have the power to fill three of the Florida Supreme Court’s seven seats after the justices’ required retirements in January 2019.If Amendment 3 passes, either incumbent Republican Gov. Rick Scott or Democrat Charlie Crist would have extraordinary leverage to reshape the court for decades.The crux of the debate is the ambiguity in the state constitution. Justices are forced to retire at age 70, although they can finish their six-year terms if less than half the time remains. But the constitution doesn’t specify who should make that decision if their terms end the same time as a change in governorships.Florida’s highest court has the final say on issues that touch people every day, from abortion rights, health care and insurance, to redistricting and education overhauls. And it has frequently drawn the ire of Republican legislative leaders and governors in recent years.The court has repeatedly struck down GOP-backed policies attempting to block Obamacare and expand some school vouchers. It irked Republicans by rejecting an early version of the new state Senate redistricting map and by scrapping property-tax cuts. It ruled in favor of Democrat Al Gore over Republican George Bush in the 2000 presidential recount — a decision later overturned by the U.S. Supreme Court.In 2011, then-House Speaker Dean Cannon, R-Winter Park, and Rep. Eric Eisnaugle, an Orlando lawyer angling to be speaker, pushed an amendment to split up the high court, but the measure failed. A year later, the Republican Party of Florida tried to oust three justices who faced merit retention, a then-unprecedented move.Critics of Amendment 3, placed on the ballot by Republicans in the Legislature, describe it as a partisan power grab on par with recent history.”We’re concerned about the independence of the judiciary. We have a Florida Legislature that is really attempting to get rid of judges they don’t like,” said Michele Levy, co-president of the Orange County League of Women Voters.The measure also has taken a partisan tinge in the governor’s race. Crist opposes the amendment, while Scott supports it.Whoever wins the Governor’s Office in November will have four retirements to deal with. Justice James Perry retires in January 2017. Justices R. Fred Lewis, Barbara Pariente and Peggy Quince — the last three Democrat-appointed judges — will all reach retirement age during the next four years and be forced to retire by Jan. 8, 2019.In 1998, the most recent time a justice had to be replaced while the Governor’s Office was changing hands, outgoing Democratic Gov. Lawton Chiles and incoming Republican Gov. Jeb Bush reached a “handshake” deal to jointly appoint Quince.Republican Sen. Tom Lee, R-Brandon, who pushed Amendment 3 through the Legislature last spring, has argued that if the gubernatorial changeover is from one political party to another, it would spark a legal fight over which side picked the judges. And dealing with the problem before the outcome of the governor’s race is known would make it less partisan than if lawmakers waited.”Trying to do it now — my hope was — would take the partisanship out of it,” said Lee. However, “you can’t help certain organizations and individuals from viewing this through the prism of who they think will be the governor.”Bob Sanchez, a senior fellow with The James Madison Institute, a conservative think tank in Tallahassee, said allegations of partisan bias are wrong because neither party had any inkling last spring who would win this fall’s gubernatorial contest.”Government is often accused of not being proactive and waiting until problems arise,” Sanchez said. “This is an example of government trying to be proactive. But no good deed goes unpunished.”But to incoming House Minority Leader Mark Pafford, D-West Palm Beach, divining the partisan intent is a no-brainer.”It’s an attempt to legally insert into the constitution partisan overreach,” Pafford said. “It was done largely because Republicans understand they have a dangerous governor … and they want to make sure their bad policies have life in the form of a Supreme Court which will approve a lot of the unconstitutional things the Legislature has put forth.”