The Tea Party and the Florida Supreme Court

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”)


16 thoughts on “The Tea Party and the Florida Supreme Court”

  1. Do judicial elections erode the legitimacy of courts?

    This relatively straightforward question is of enormous importance. There is an assumption in the literature (that has been adopted by reform groups and state legislatures) that elections are bad for the legitimacy of the court system. Thus, elections should be abolished, otherwise the very foundations of the judicial system are at stake.

    But the answer to this question, based on a singular study conducted by James L. Gibson, is no—the core activity of an election, with candidates openly communicating their views on contested issues, does not diminish judicial legitimacy. In fact, the author’s study found that elections, ipso facto, raise the legitimacy of courts!

    Electing judges is a strongly legitimizing force that eclipses any harmful effects of campaigning and the net effects of elections are positive in terms of legitimacy. The core activity of an election, with candidates openly communicating their views on contested issues, does not diminish judicial legitimacy; significant political activity can occur without fatally undermining the bench in the eyes of most Americans.

    However, in extremely rare cases there may be some conditions under which campaign activities undermine judicial legitimacy. Greater attention to these extreme cases would be illuminating in suggesting the boundaries to the argument presented in Electing Judges.

    See James L. Gibson, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy; Chicago: University of Chicago Press, 2012.


  2. Could we have a merit retention vote for Justices Thomas, Roberts and Scalia, please?

  3. Articles like this are extremely important so that we all can be made aware of the actions these putsch-makers are attempting on a state by state basis.

  4. The local Pee Party is having a get together at the boat ramp this weekend. One of the events is the distance competition. I plan to compete. Last year I won the Write Your Name in The Snow Competition. The Pee Party is important and those of you in Florida need to pay attention to the important things like our events up here in SC. Forget about those Judges!

  5. I think that there should be some means of the people expressing concern over outlandish rulings from biased or outright corrupt judges without having to go through a long and difficult process of impeachment. I think FL has it about right, even though the current cause is so outlandishly absurd. I think that hopefully FL voters will be informed enough to keep these good judges., though with the GOP against them, I fear the worst. This system assumes an honest political party with honest disagreements. The way the GOP has functioned, this is the main problem, not the system. Any system will fail when a party such as the GOP is now gets power.

  6. Mike A,

    Firstly as a fellow resident of this State of madness I thank you for focusing attention on the games people play down here to fool the electorate. The current judicial system of merit and retention is essentially a good one and preferable to the judicial appointment systems in many States. I currently have a copy of my official ballot for my County and truth be told unless one was a highly informed voter one would not understand the significance of this section on these judges one way or the other. People could therefore be easily swayed by hearsay of the negative kind.

    As you are also aware there are 12 constitutional amendments on the Florida Ballot. Amending State Constitutions through public ballot is one of those ideas that on the surface seems a good one, but in reality is yet another way to bamboozle the public by the powers that be. This has been an inherent flaw throughout the country in States where this is permissible, California being a prime example of dysfunction. since I am about to vote I looked my sample over last night and my intention was draw to one seemingly positive and innocuous item, Amendment #8 as summarized on the ballot:

    “Religious Freedom
    Proposing an Amendment to the State Constitution providing that no individual or entity may be denied, on the basis of religious identity or belief, governmental benefits, funding or other support, Except as required by the First Amendment to the United States Constitution, and deleting the prohibition against using revenues from the public treasury directly or indirectly in the aid of any church, sect, or religious denomination or in aid of any sectarian institution”.

    The first sentence of this caught my eye as I was perusing the ballot. People from the local Democratic Club had advised me to read the Amendments closely, because they were not what they seem and that I should vote no on them. This innocuous bit of trickery is written to seem to be in support of religious freedom, but is really a means of allowing public funding for religious organizations, schools perhaps.

    I’m in the process of writing a guest blog for this coming weekend where I will examine this process of public initiatives and the true effect that many of
    them have in serving the Plutocracy and really defeating democracy.

    What you have exposed here Mike is that even positive systems, such as a judiciary free of politics, can be warped by the use of money. Thank you.

  7. Look at this as what it is: A model for all the states to use when they want to start unraveling the balance of power put in place by the Constitution underlying the reason for us to have three branches of government: Legislative, Executive and Judicial. Furthermore, if you look at it, it neatly turns the democratic process on its head. It says, essentially, that an elected official must then, on a whim, face a de-election process in which he or she must rebut a presumption that he or she gets de-elected. Although each was elected with, “Show us why you should have this position,” they are then selectively required to go through a process that can be described as, “Tell us why you should not be deprived of this position.”

    I am familiar with this strange little twist of laws, to my chagrin and dismay. I earned sole legal, physical and residential custody from a Circuit Court judge in Virginia in 1981. There was no appeal of that decision and it became permanent 30 days later by operation of law. But then a judge who was later put on the list of the “500 best lawyers in America” had a “motion” before him in which my ex-husband complained that the judge who gave me custody had not been “fair” because he had “discriminated.” The judge ordered a new custody battle on the spot without notice, quoting Neville Chamberlain and saying he wanted to try to appease the father. Since the father was getting nowhere, the judge chimed in and asked his own question of me while I was on the stand as my ex-husband’s adverse witness: WHAT OBJECTION WOULD YOU HAVE TO HIM HAVING CUSTODY OR MORE VISITATION?

    So the question, not so subtly, changed from, “What [to the father] objection do you have to her keeping the benefit she already won in court by operation of law?” to “What [to the mother] objection do you have to being stripped of your benefits without any operation of law?”

    If you put ANYONE into that position and ask them to defend their own retention of whatever it was they earned, you make a complete mockery of the entire process. We should not HAVE law. We should not HAVE courts. We should not HAVE a democratic process, or voting, or any of these expensive and useless things we go through. After all, they are worthless, are they not? If someone wants to take something from me, bring it on. I can always just bonk them in the head with a tire iron or, if I’m already in Florida, shoot them in self defense.

  8. Great article….. They are doing what they are entitled to do…. Do I like it… No, but they in exercising that right are open to condemnation as well….. Sounds like Florida has at least three highly qualified justices…. Too bad there are not more…..

  9. “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.”

    Well . . . duh. Anyone with a high school knowledge of civics should know this fact. Then again, Americans for Prosperity are a bunch of economically driven ideologues who could care less what the law says as long as they get what they want which is basically more money either in the form of tax reduction or through bribery, er, political favoratism. Who needs civics when you’re simply venal? I won’t even mention their glaring disrespect for an independent judiciary being critical for the function of democracy. Oops! I just did.

    Great article, Mike A.

  10. “They’re called written opinions and they are published and accessible to anyone capable of reading.”

    But readin is haaaaaaaarrdd! An they use big words and stuff!

    Its not that they don’t read though, its that the judges didn’t rule the way the nutbags wanted them to. When the constitution and/or the law do not conform to the nutbags immediate beliefs they must be ignored and those beliefs substituted for sound judgment. Any other opinion causes an automatic label of ‘liberal judge’ to be applied and is grounds of removal.

Comments are closed.