Florida Prospective Judicial Vacancies, Amendment 3 (2014)

Prospective Judicial Vacancies Amendment Type Constitutional amendment Origin Legislative Topic Judiciary Status Defeatedd

2014 measures November 4 Amendment 1 a Amendment 2 d Amendment 3d 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:

• 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.

Election results

Florida Amendment 3
Result		Votes	Percentage
d No		2,802,541	52.10%
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:

“

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.

”

Constitutional changes

Note: Hover over the text and scroll to see the full text.

SECTION 10. Retention; election and terms.

(a) Any justice or judge may qualify for retention by a vote of the electors in the general election next preceding the expiration of the justice's or judge's term in the manner prescribed by law. When If a justice or judge is ineligible for retention or fails to qualify for retention, a prospective vacancy is deemed to occur at the conclusion of the qualifying period for retention for the purpose of appointing a successor justice or judge, and a vacancy shall exist in that office upon the expiration of the term being served by the justice or judge. When a justice or judge so qualifies, the ballot shall read substantially as follows: "Shall Justice (or Judge) (name of justice or judge) of the (name of the court) be retained in office?" If a majority of the qualified electors voting within the territorial jurisdiction of the court vote to retain, the justice or judge shall be retained for a term of six years. The term of the justice or judge retained shall commence on the first Tuesday after the first Monday in January following the general election. If a majority of the qualified electors voting within the territorial jurisdiction of the court vote to not retain, a prospective vacancy is deemed to occur immediately following the general election for the purpose of appointing a successor justice or judge, and a vacancy shall exist in that office upon the expiration of the term being served by the justice or judge.

(b)

(1) The election of circuit judges shall be preserved notwithstanding the provisions of subsection (a) unless a majority of those voting in the jurisdiction of that circuit approves a local option to select circuit judges by merit selection and retention rather than by election. The election of circuit judges shall be by a vote of the qualified electors within the territorial jurisdiction of the court.

(2) The election of county court judges shall be preserved notwithstanding the provisions of subsection (a) unless a majority of those voting in the jurisdiction of that county approves a local option to select county judges by merit selection and retention rather than by election. The election of county court judges shall be by a vote of the qualified electors within the territorial jurisdiction of the court.

(3)

a. A vote to exercise a local option to select circuit court judges and county court judges by merit selection and retention rather than by election shall be held in each circuit and county at the general election in the year 2000. If a vote to exercise this local option fails in a vote of the electors, such option shall not again be put to a vote of the electors of that jurisdiction until the expiration of at least two years.

b. After the year 2000, a circuit may initiate the local option for merit selection and retention or the election of circuit judges, whichever is applicable, by filing with the custodian of state records a petition signed by the number of electors equal to at least ten percent of the votes cast in the circuit in the last preceding election in which presidential electors were chosen.

c. After the year 2000, a county may initiate the local option for merit selection and retention or the election of county court judges, whichever is applicable, by filing with the supervisor of elections a petition signed by the number of electors equal to at least ten percent of the votes cast in the county in the last preceding election in which presidential electors were chosen. The terms of circuit judges and judges of county courts shall be for six years.

SECTION 11. Vacancies.

(a)

(1) Whenever a vacancy occurs in a judicial office to which election for retention applies, the governor shall fill the vacancy by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next general election occurring at least one year after the date of appointment, one of not fewer than three persons nor more than six persons nominated by the appropriate judicial nominating commission.

(2) Whenever a prospective vacancy occurs in a judicial office for which election for retention applies, the governor shall fill the prospective vacancy by appointing a justice or judge from among at least three persons but not more than six persons nominated by the appropriate judicial nominating commission. The term of the appointment commences upon the expiration of the term of the office being vacated and ends on the first Tuesday after the first Monday in January of the year following the next general election.

(b) The governor shall fill each vacancy on a circuit court or on a county court, wherein the judges are elected by a majority vote of the electors, by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next primary and general election occurring at least one year after the date of appointment, one of not fewer than three persons nor more than six persons nominated by the appropriate judicial nominating commission. An election shall be held to fill that judicial office for the term of the office beginning at the end of the appointed term.

(c) The nominations shall be made within thirty days from the occurrence of a vacancy or prospective vacancy unless the period is extended by the governor for a time not to exceed thirty days. The governor shall make the appointment within sixty days after the nominations have been certified to the governor.

(d) There shall be a separate judicial nominating commission as provided by general law for the supreme court, each district court of appeal, and each judicial circuit for all trial courts within the circuit. Uniform rules of procedure shall be established by the judicial nominating commissions at each level of the court system. Such rules, or any part thereof, may be repealed by general law enacted by a majority vote of the membership of each house of the legislature, or by the supreme court, five justices concurring. Except for deliberations of the judicial nominating commissions, the proceedings of the commissions and their records shall be open to the public.

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.

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.

Support

Supporters

Officials

• Sen. Tom Lee (R-24)
• Sen. Jack Latvala (R-20)

Organizations

• Florida Chamber of Commerce
• Florida Farm Bureau

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.	”
—Florida Chamber of Commerce

Opposition

Opponents

Officials

• Sen. Jeremy Ring (D-29)
• Rep. Jared Moskowitz (D-97)

Former officials

• Former Sen. Alex Villalobos (R-38)
• Harry Lee Anstead, former justice of the Florida Supreme Court

Organizations

• League of Women Voters of Florida

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.	”
—Former Justice Harry Lee Anstead

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.”

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."
• 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."
• 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."

Noteworthy events

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 were set to be forced to retire on January 8, 2019, due to mandatory age retirements. All three were 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 under Amendment 3. 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.

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. The bill was approved in the Florida House, along partisan lines, on April 30, 2014.

Senate vote

April 3, 2014 Senate vote

Florida SB 1188 Senate Vote
Result		Votes	Percentage
a Yes		26	65.00%
No		14	35.00%

House vote

April 30, 2014 House vote

Florida SB 1188 House Vote
Result		Votes	Percentage
a Yes		74	66.00%
No		45	38.00%

See also

Suggest a link

• 2014 ballot measures
• Florida 2014 ballot measures
• Florida Legislature

Additional reading

• WUSF News, "The Forgotten Amendment, Amendment Three Targets Judicial Appointments," September 29, 2014
• The Tampa Tribune, "Ballot proposal would let outgoing governor make court appointments," April 3, 2014