Mike Appleton, Guest Blogger
Barbara Pariente graduated with highest honors from Boston University, finished fifth in her law school class at George Washington University and served on Florida’s Fourth District Court of Appeal for almost fifteen years prior to her appointment to the Florida Supreme Court. Peggy Quince earned a zoology degree from Howard University, a law degree from the Catholic University of America and was a judge on the Second District Court of Appeal for five years, the first African-American woman ever appointed to an appellate court in Florida. She has been a Florida Supreme Court Justice since 1998. R. Fred Lewis is an honors graduate of Florida Southern College and was named outstanding senior in his class for his academic, athletic and service accomplishments. He received his law degree, also with honors, from the University of Miami and served as a law review editor. He joined the Florida Supreme Court in 1999.
These three jurists, with over thirty years of combined experience on Florida’s highest court, have received numerous awards for their commitment to the law, to their profession and to their communities. All have received favorability ratings of 90% from members of the Florida Bar. And all have been targeted for removal in next month’s merit retention election.
No one has suggested that the justices are unqualified for their positions. Their lives are untouched by personal or financial scandal. They have not been accused of dishonesty, or selling their votes or other forms of corruption. Why, then, is there a serious movement to oust them? When one looks behind the public statements to the motives of the opposition, what one finds is an ugly combination of ignorance, ideology and cynical opportunism.
Florida is one of a number of states utilizing a merit selection and retention system for appellate judges. Judicial candidates are screened by a committee of lawyers and lay persons and a list of three qualified individuals is submitted to the governor for a final decision. The successful candidate is subject to a periodic retention election in which voters determine whether he or she should remain on the bench. Merit retention is intended to reduce the degree of partisanship inherent in a popularly elected judiciary while preserving the ability of voters to require accountability of judicial officers. While various methods for selecting judges have been debated since the founding of the republic, merit retention has served Florida well for over forty years. Indeed, since 1966 every Florida judge removed for misconduct initially acquired judicial office through popular election.
In 2010 the Florida legislature adopted a joint resolution proposing to add a provision to the Florida constitution “to preserve the freedom of all residents of the state to provide for their own health care.” Among the directives contained in the amendment was a declaration that “a law or rule may not compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” A group of Florida voters filed suit to prevent the proposed amendment from appearing on the ballot, alleging that the ballot summary accompanying the amendment violated a statutory requirement that it accurately explain the purpose of the proposed amendment.
In Florida Department of State v. Mangat, 43 So.3d 642 (Fla. 2010), the Florida Supreme Court, in a 5-2 vote, affirmed a trial court determination that the ballot summary was inaccurate in several particulars. For example, the summary noted that the amendment would “ensure access to health care services without waiting lists,” a matter concerning which the amendment was completely silent. The summary also stated that the amendment would “protect the doctor-patient relationship,” although it would have done nothing of the sort. And in a masterly example of poor draftsmanship, the summary asserted that the amendment would “guard against mandates that don’t work.” Since the ballot summary was materially misleading, the Court removed the amendment from the ballot.
The decision angered Tea Party supporters of the amendment, who had been eager to put the state on record as opposing the Affordable Health Care Act. One of those supporters was a young computer programmer named Jesse Phillips. In response to the decision he organized a late effort to unseat two of the five justices who had rejected the amendment. That effort failed. Now he is determined to remove the other three.
On September 27, 2011, Mr. Phillips incorporated Restore Justice, Inc., a non-profit corporation, to actively campaign against the retention of Justices Pariente, Quince and Lewis. The secretary of the corporation and one of its directors is John Rawlson, a public relations consultant and lobbyist for the health care industry. A majority of the funding received to date by the organization reportedly comes from a south Florida physician.
On its website Restore Justice has published a “report card” which awards each of the three justices “F” marks for their votes on ten listed cases. The website states that the grades are “based on constitutional restraint and level of judicial activism,” phrases which are not defined. The cases are not fully cited, probably because Mr. Phillips does not expect any of his followers to actually read any of them. And Mr. Phillips does not attempt even a cursory examination or critique of the reasoning or legal analysis in any of the objectionable opinions.
I have read the offending cases and it is obvious that the only issue Restore Justice has with any of them is the result. Sandy D’Alemberte, a former ABA president, agrees, describing the work of Restore Justice as “shabby.” Former Justice Raoul Cantero, a Jeb Bush appointee who served with the three justices, has also criticized the opposition and stressed the importance of maintaining a judiciary whose “decisions are made without the encroachment of politicial influence.” In his defense, Mr. Phillips claims that “the voters should have been able to decide if that ballot summary was misleading.” That view, of course, reflects a complete lack of understanding of the role of the judiciary in its review of legislative actions.
Restore Justice is primarily a Tea Party effort. But the executive committee of the Florida Republican Party, sensing an opportunity, unanimously adopted a resolution last month supporting opposition to the three justices, the first time in Florida history that a major political party has taken such a position. By taking an official position the party can allocate funds to support the removal campaign. And if it is successful, Gov. Rick Scott will have the opportunity to appoint three new members to the court.
Perhaps not surprisingly, Americans for Prosperity has decided to lend its assistance as well, running a series of ads critical of the justices. Its Florida executive director, Slade O’Brien, bluntly insists that the justices must “tell the public why they think the decisions they have made were sound and why they deserve to be retained.” Really? Someone might suggest to Mr. O’Brien that the justices have already done that. They’re called written opinions and they are published and accessible to anyone capable of reading.
In A History of American Law, Prof. Lawrence Friedman quotes an editor of the Albany Law Journalwho, commenting on the failed re-election bid of Illinois Chief Justice Clarence B. Lawrence in 1873, noted somewhat caustically that “a herd of dissatisfied farmers have put an ignorant demagogue in the seat of an able and upright judge.” And to emphasize his point, the editor added that “people are the worst possible judges of those qualifications essential to a good judge.” Those views may strike some as elitist and even arrogant, but what is happening in Florida lends them some credence.
Sources: The Miami Herald, June 25, 2012 (“Lawsuit aims to throw three Florida Supreme Court justices off ballot”); Palm Beach Post, July 14, 2012 (“Florida supremes face political battle to keep jobs”); The Florida Bar News, September 15, 2012 (“Jurists facing retention are rated”); Tampa Bay Times, September 22, 2012 (“Republican Party of Florida works to remove state supreme court justices”); The Florida Bar News, October 1, 2012 (“Retention campaign heats up”); Sunshine State News, October 3, 2012 (“Merit retention exposes warts on the face of Florida’s legal system”); Orlando Sentinel, October 9, 2012 (“Justices: court must remain independent”)