Let's Get Politics Out Of Florida's Courts

By Damien Filer - July 7, 2017

Earlier today, we sent a letter to the Constitution Revision Commission which included a proposed constitutional amendment to depoliticize the judicial nominating process in Florida. The letter and proposal are below.

July 7, 2017

Dear Chairman Beruff and members of the Commission,

We are writing to share with you a series of recommended revisions to Article V, Section 11 of the Florida Constitution put forward by the Florida Access to Justice Project (FAJP). These suggested revisions deal with the Judicial Nominating Commission (JNC) process and are designed to help ensure a diverse state judiciary that is free from political influence.

We believe the Constitution Revision Commission owes it to Floridians to consider these important reforms as you proceed with suggested changes to our state’s guiding document as they will help to further ensure our Constitution’s guarantee of “equal civil and political rights to all” Floridians.

Background

Florida’s judicial system was once a model for the nation. Unfortunately, that’s no longer the case.

A recent report by the Florida Access to Justice Project found that political influences have become a greater threat to the independence of the courts and its ability to act as a check and balance.

For example, when the Judicial Nominating Commissions were established in the 1970s they were supposed to act independently as a check on executive power but that has changed in recent years. Gov. Rick Scott has rejected approximately 90 Florida Bar recommendations for JNCs, pushing them closer to being a political arm of the Governor’s Office.

What’s more, Florida’s population is 22 percent Hispanic and 16 percent African-American. Yet among the state's judiciary, fewer than nine percent of judges are Hispanic, and fewer than seven percent are African-American. Last June the American Constitution Society for Law and Policy issued a report, “The Gavel Gap”, which assigned Florida an overall grade of ‘F’ when comparing the race and gender composition of the courts and the communities they serve.  

Recommendations

The FAJP proposes making the JNCs truly nonpartisan and removing the governor’s outsized influence over the nominating committees.

Examples of suggested revisions:

  • No member shall vote on any matter in which he or she has a substantial personal or pecuniary interest. Any member who believes that his or her personal or business relationship to any applicant for a judicial vacancy might prevent the member from fairly and objectively considering the qualifications of such applicant, or might otherwise involve a conflict of interest or create the appearance thereof, shall disclose the circumstances of the actual or apparent conflict to the commission and shall recuse himself or herself from discussing or voting on the nomination of that applicant.
  • In making an appointment, the Governor, Board of Governors of the Florida Bar, and members shall seek to ensure that the membership of the commission reflects the diversity, as well as the geographic distribution, of the population within the territorial jurisdiction of the court for which nominations will be considered.

On behalf of the FAJP we hope you will consider incorporating these and other important reforms into Article V, Section 11 of the Florida Constitution using the attached language.

If these reforms were enacted, Floridians could be assured of a more diverse and fair system of justice that would limit partisan influence, create greater public accountability and bolster the state’s guarantee of “equal civil and political rights to all”.

Thank you in advance for your consideration, 

Patricia Hernandez, Esq.

Dale Noll

Trelvis D. Randolph, Esq.


Florida Constitution Article V, Section 11.

Strikethrough is deletion
Underline is addition 

SECTION 11. Vacancies.—

(a) 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.

(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 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, not inconsistent with the provisions of this section. 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. 

(1)  Each judicial nominating commission shall be composed of the following members:

  • Three members of The Florida Bar, appointed by the Board of Governors of The Florida Bar, who are engaged in the practice of law, each of whom is a resident of the territorial jurisdiction served by the commission to which the member is appointed.
  • Three members appointed by the Governor, each of whom is a resident of the territorial jurisdiction served by the commission to which the member is appointed, of which only two may be members of The Florida Bar engaged in the practice of law.
  • Three members who reside in the territorial jurisdiction of the court or in the circuit and who are not members of The Florida Bar and not engaged in the practice of law, selected and appointed by a majority vote of the other six members of the commission.
  • No more than five members of each commission shall be of the same political party.

(2) No member of the commission shall be permitted to do any of the following:  

  • serve at the same time as a member of more than one judicial nominating commission;
  • serve at the same time as a member of any judicial nominating commission of this state and any judicial discipline commission of this state;
  • hold any elective or appointive state, federal, or political office while serving on the judicial nominating commission; or
  • be appointed to any judicial office of this state for 2 years after the day on which his or her term on the judicial nominating commission expires.

All acts of a judicial nominating commission must be made with a concurrence of a majority of its members.

(3) Notwithstanding any other provision of this section, each current member of a judicial nominating commission shall serve the remainder of his or her term, unless removed for cause. 

Every subsequent appointment, except an appointment to fill a vacant, unexpired term, shall be for 4 years. Each expired term or vacancy shall be filled by appointment in the same manner as the member whose position is being filled.  No member of any judicial nominating commission shall serve more than two full terms, plus, if the initial appointment was to fill a vacancy, any balance remaining on an unexpired term.

(4) In making an appointment, the Governor, Board of Governors of the Florida Bar, and members shall seek to ensure that the membership of the commission reflects the diversity, in the categories outlined in 4(i) – 4(iii) of this section, as well as the geographic distribution, of the population within the territorial jurisdiction of the court for which nominations will be considered. The Governor, Board of Governors of the Florida Bar, and members shall also consider the adequacy of representation of each county within the judicial circuit.

(i) The Governor shall collect and release, on an aggregate statewide and commission level basis, the demographic data provided by all judicial nominating commissioners and all applicants to a judicial nominating commission received by the Governor relative to ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation.

(ii) The Board of Governors of the Florida Bar shall collect and release, on an aggregate statewide and commission level basis, the demographic data provided by all judicial nominating commissioners and all applicants to a judicial nominating commission received by the Board of Governors relative to ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation.

(iii) The judicial nominating commissions shall collect and release, on a commission level basis, the demographic data provided by all judicial nominating commissioners and all applicants to a judicial nominating commission received by the members of the respective commission relative to ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation.

(iv) Individual demographic data of judicial nominating commissioners and applicants shall be kept confidential and only released in the statistical aggregate.

(5) No member shall vote on any matter in which he or she has a substantial personal or pecuniary interest. Any member who believes that his or her personal or business relationship to any applicant for a judicial vacancy might prevent the member from fairly and objectively considering the qualifications of such applicant, or might otherwise involve a conflict of interest or create the appearance thereof, shall disclose the circumstances of the actual or apparent conflict to the commission and shall recuse himself or herself from discussing or voting on the nomination of that applicant.

(6) A member of a judicial nominating commission may be suspended for cause by the Governor pursuant to uniform rules of procedure established by the Executive Office of the Governor consistent with s. 7 of Art. IV of the State Constitution.

(7) A quorum of the judicial nominating commission is necessary to take any action or transact any business. For purposes of this section, a quorum consists of a majority of commission members currently appointed.

(8) Within the first six months of appointment, each JNC appointee must complete an educational course designed to familiarize members with JNC rules and procedures. This must include training on implicit bias targeted at educating members about the science surrounding bias and developing a nominations process that is as free from bias as possible.

(9) The Executive Office of the Governor shall provide all administrative support for each judicial nominating commission.