Florida Prospective Judicial Vacancies, Amendment 3 (2014)

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Prospective Judicial Vacancies Amendment
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Type:Constitutional amendment
Constitution:Florida Constitution
Referred by:Legislative
Topic:Judiciary
Status:DefeatedDefeatedd
2014 measures
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November 4
Amendment 1 Approveda
Amendment 2 Defeatedd
Amendment 3Defeatedd
Endorsements
Polls
Expenditures
Local measures
The Florida Prospective Judicial Vacancies, Amendment 3 was on the November 4, 2014 ballot in Florida as a legislatively-referred constitutional amendment, where it was defeated. The measure would have empowered the governor to fill judicial vacancies by appointing a justice or judge from among at least three, but not more than six, candidates selected by the judicial nominating commission. The measure would have allowed the governor to "prospectively" fill a vacancy, meaning that the governor would have not needed to wait until a judge completes his or her term to pick a successor in situations where a judge:[1]
  • Reaches the mandatory judicial retirement age of 70.
  • Fails to qualify for a retention election.
  • Fails to be retained through election.

The amendment was introduced into the Florida Legislature by State Senator Tom Lee (R-24) as Senate Joint Resolution 1188.[1]

Election results

Florida Amendment 3
ResultVotesPercentage
Defeatedd No2,802,54152.10%
Yes 2,576,737 47.90%

Election results via: Florida Division of Elections

Text of measure

Ballot summary

The official ballot summary read as follows:[1]

CONSTITUTIONAL AMENDMENT
ARTICLE V, SECTIONS 10, 11
PROSPECTIVE APPOINTMENT OF CERTAIN JUDICIAL VACANCIES.—

Proposing an amendment to the State Constitution authorizing the Governor to prospectively fill a vacancy in a judicial office to which election for retention applies that results from a justice’s or judge’s reaching the mandatory retirement age, failure to qualify for a retention election, or failure to be retained through election. Under current law, the Governor may not act to fill such vacancies until after the current justice or judge completes his or her term. [2]

Constitutional changes

See also: Article V, Florida Constitution

Amendment 3 would have amended Sections 10 and 11 of Article V of the Florida Constitution.[1]

The amendment’s full text can be read here.

Background

In 2006, the Florida Supreme Court ruled that judicial nominating commissions could begin interviewing prior to a judicial vacancy occurring, but an appointment by the governor could not be made until after the justice’s term expired. The court stated, "[T]here is a specific constitutional provision that expressly provides that a vacancy in a merit retention judicial office does not occur until the end of the judge or justice's term." The justices said the constitution was "clear and unambiguous" on the matter.[3]

Since judicial vacancies may occur on the same day that a new governor takes office, the court's ruling essentially authorized the newly sworn-in governor to fill those vacancies, rather than the outgoing governor.[4]

Support

Supporters

Officials

Organizations

  • Florida Chamber of Commerce[6]
  • Florida Farm Bureau[7]

Arguments

The Florida Chamber of Commerce issued a flyer detailing the group's support for Amendment 3. The document read:

The Florida Chamber has a long standing position against constitutional amendments that can be handled by the Legislature or in the state’s budget.

However, this clarification on judicial appointments can only be accomplished by constitutional amendment. Currently, a justice’s term of office runs concurrent to the governors. Amendment 3 solves the question of who appoints these vacancies if there is a change of governors at the conclusion of the justice’s term.

The Florida Chamber Supports Amendment 3 Because It:

  • Clarifies existing constitutional language to specify that the outgoing governor appoints incoming Florida Supreme Court Justices and district court of appeal judges if a vacancy occurs at the same time as the outgoing governor’s term ends.
  • Cannot be solved through legislation and must be passed as a constitutional amendment.
  • Prevents the possibility of legal challenges and confusion when governors change and judicial vacancies occur.

[2]

—Florida Chamber of Commerce[6]

Opposition

Opponents

Officials

Former officials

Organizations

  • League of Women Voters of Florida[10]

Arguments

Harry Lee Anstead, former justice of the Florida Supreme Court from 1994 to 2009, condemned the amendment as a "partisan political power grab." Anstead argued:

In the past, Florida was hailed nationally as a model system for appointment of fair and impartial judges based solely on merit. It was perhaps the greatest legacy of the late Gov. Reubin Askew, who voluntarily gave up his sole authority to appoint judges in favor of a nonpartisan merit selection system based on his belief that "the judiciary is too important to be left to partisan patronage."...

Now, instead of working to restore Askew's nonpartisan merit system, the current legislative majority is seeking to accelerate a partisan political power grab of Florida's judiciary at the highest level. They want to vest a lame-duck outgoing governor with the authority to fill three seats on the Supreme Court that become vacant after the governor's term expires.

The sponsors of Amendment 3 say they are trying to eliminate confusion and an imaginary future constitutional crisis in the delay of a new governor making the appointments. Those claims are thin cover for continued improper political interference in our courts...

What Floridians are really being asked to eliminate is a critical protection Askew built into the system of merit selection and retention. When the system was adopted, it was built on two pillars of public input and accountability. In addition to requiring appointed judges to go before the public for merit retention at regular intervals, a governor seeking re-election could be held accountable at the ballot box for his appointments. That accountability vanishes if an outgoing governor makes the appointments.

The scheme proposed in Amendment 3 gives a departing governor the power to tip the scales of justice for partisan reasons on the way out the door — with impunity. And, therein lies the easily identified real intent of this amendment. Partisan advocates, frustrated by the public's rejection of their attempt to remove these same three Florida justices in their retention elections in 2012, have audaciously found another scheme to achieve their goals of stacking the court politically.

It is a one-time gamble and a shortsighted strategy on multiple levels. First, it presumes Gov. Rick Scott is re-elected so that he can make the appointments at the end of his second term. More importantly, it cynically ignores the possibility that an informed Florida public will reject this blatant attempt to politicize the judiciary. [2]

—Former Justice Harry Lee Anstead[9]

Other arguments against the amendment included:

  • Rep. Jared Moskowitz (D-97) argued that an outgoing governor should not be able to appoint agency heads that serve under the incoming governor, arguing that the incoming governor should be able to appoint judges that he or she can work well with. He said, “It's not good policy to be having an outgoing person deciding the balance of the court. The state Supreme Court justices are of a higher importance than who the secretary of the Department of Transportation is, so their logic just doesn't add up.”[11]

Media editorial positions

See also: Endorsements of Florida ballot measures, 2014

Opposition

  • The News Herald said, "The guy leaving office would decide the balance of the court for the person coming in. That doesn’t seem fair. The process already in place works fine."[12]
  • Tallahassee Democrat said, "Sorry, but you don't automatically get to make the state Supreme Court your legacy at the end of your term in office. This amendment is a messy solution to a problem that could be solved in a way that seems anathema today — by talk and compromise. Vote no."[13]
  • The Tampa Tribune said, "If the amendment passes, and Gov. Rick Scott is re-elected to a second and final term, he’ll have the authority to fill the three seats with justices to his liking as he leaves office. We might like his conservative choices, but politics should have nothing to do with this. It’s not right for the departing governor, regardless of party, to be given authority that should belong to the individual who has just been chosen by voters."[14]

Controversies

January 8, 2019

Since the governor would have been able to "prospectively" appoint, he or she could have made court appointments where seats are vacated on inauguration day. If voters had approved the amendment, such a situation might have occurred on January 8, 2019. Justices R. Fred Lewis, Barbara Pariente and Peggy Quince will be forced to retire on January 8, 2019 due to mandatory age retirements. All three are considered the "liberal" wing of the Florida Supreme Court. The outgoing governor on January 8, 2019 would have been able to appoint their successors before the incoming governor's inauguration. Some argued that the amendment was an attempt by Republicans to "stack the court" with conservative justices. That assumed, however, that Gov. Rick Scott (R) would win re-election in November 2014, which he did.[15]

Path to the ballot

See also: Amending the Florida Constitution

The amendment was introduced into the legislature on February 21, 2014. The Florida Legislature needed a 60 percent majority vote in both legislative chambers to put the measure on the ballot. SB 1188 was approved by the Florida Senate on April 3, 2014.[16] The bill was approved in the Florida House, along partisan lines, on April 30, 2014.[17]

Senate vote

April 3, 2014 Senate vote

Florida SB 1188 Senate Vote
ResultVotesPercentage
Approveda Yes 26 65.00%
No1435.00%

House vote

April 30, 2014 House vote

Florida SB 1188 House Vote
ResultVotesPercentage
Approveda Yes 74 66.00%
No4538.00%

See also

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Additional reading

References

  1. 1.0 1.1 1.2 1.3 Florida Senate, "SJR 1188 Text," accessed February 26, 2014
  2. 2.0 2.1 2.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  3. Supreme Court of Florida, "Advisory Opinion to the Governor," accessed September 12, 2014
  4. League of Women Voters of Florida Education Fund, "2014 Nonpartisan Voter Guide," accessed September 12, 2014
  5. 5.0 5.1 Herald Tribune, "Proposed amendment on naming justices gets mixed reactions," April 6, 2014
  6. 6.0 6.1 Florida Chamber of Commerce, "Vote “Yes” on Amendment 3," accessed October 1, 2014
  7. Florida Farm Bureau, "Positions of 2014 Amendments," accessed October 1, 2014
  8. Miami Herald, "Proposed constitutional amendment would give Florida’s next elected governor power to pack state Supreme Court," March 7, 2014
  9. 9.0 9.1 Orlando Sentinel, "No: Amendment creates political meddling: Front Burner," September 19, 2014
  10. Orlando Weekly, "League of Women Voters of Florida announces positions on 2014 ballot amendments," September 24, 2014
  11. Bradenton Herald, "House passes ballot measure on court appointments," April 30, 2014
  12. The News Herald, "Our View: Amendment reviews," September 29, 2014
  13. Tallahassee Democrat, "Our Opinion: Constitutional amendments," October 19, 2014
  14. The Tampa Bay Tribune, "Tribune endorsement: Vote “no” on Amendment 3," September 15, 2014
  15. Florida Center for Investigative Reporting, "Ballot Measure Allowing Next Governor To Pack the Florida Supreme Court Heads to Voters," May 2, 2014
  16. Florida Senate, "CS/SJR 1188: Prospective Appointment of Judicial Vacancies," accessed April 3, 2014
  17. Tampa Bay Times, "Legislators put amendment on Florida ballot to change court appointments," April 30, 2014