By Tori Richards | Special to Florida Watchdog
This year’s election cycle is an important one for the state of Florida, a place where approximately 80 percent of the political offices are up for grabs.
But after voters check their box for Barack Obama, Mitt Romney or someone else and then make their selections for Congress, another hot race looms on the ballot. Three Supreme Court justices and 15 appellate justices could lose their jobs if a majority of the voters check the “no” box next to their names.
“I think it could be the sleeper race of the election season,” said Tarren Bragdon, CEO of Foundation for Government Accountability, a Florida-based think tank. “People are not paying attention now but they will be closer to the election.”
Like 19 other states, Florida has a system where high-level judges stand for a “retention election” every six years and can be voted off the bench if the majority of the electorate gives them more negative rather than affirmative votes.
None of the appellate justices have attracted any negative attention, but for the Supreme Court it’s a different matter. Justices Peggy Quince, Fred Lewis and Barbara Pariente already are on the radar of some government watchdog groups and have found themselves under investigation for election improprieties.
“They are nonpartisan and have no opponents,” said Francine Walker, a spokeswoman for the Florida Bar. “All were appointed to the bench by the (governor in a) merit selection.”
But for many, that’s the problem. The trio was appointed by Florida’s last Democratic governor, Lawton Chiles, and has made controversial rulings that some say are contrary to the will of the people. Voting out the three will give Republican Gov. Rick Scott a chance to make his own appointments and thereby change the makeup of the bench.
Such a huge shakeup on the Supreme Court is rare for any state, even Florida. No judge has ever been removed under Florida’s retention system, which started in 1978. All three justices have been on the bench at least two terms; at one point, Pariente was chief justice.
Two years ago in Iowa, voters removed three justices after they legalized same-sex marriage. And in California – the first state to begin retention elections – a similar scenario was played out involving the death penalty.
In 1986, California’s Chief Justice Rose Bird and fellow justices Cruz Reynoso and Joseph Grodin were voted off the bench by a 64 percent majority of voters who were angered that the trio was anti-death penalty — overturning 64 death penalty cases during their tenure. Voters in California are overwhelmingly in favor of capital punishment.
In Florida, the issues may not be as dramatic, but still have prompted organized campaigns against the three. By law, the justices cannot raise funds and mount a defense unless their opposition has done the same thing.
“It’s an odd dynamic of spy vs. spy,” Bragdon said. “I suspect you will see it start up this fall.”
According to the Sun Sentinel, Pariente made a plea at a recent public appearance to keep her job.
“We should want judges that are fair and impartial,” she said. “This is the heart of democracy. The judicial branch provides the checks and balances necessary to uphold the Constitution. Frankly, I’m worried about big money from outside campaigning to remove justices.”
The justices do have a support group in their corner. The nonprofit group Democracy at Stake has devoted its home page to the issue.
“THE COURT IS NO PLACE FOR A POWER GRAB BY POLITICIANS,” says a headline emblazoned across the top of the page.
“Our courts are under siege for doing their job – standing up for individual rights and enforcing the constitutional limits we have placed on the power of our elected leaders,” the website states.
At the other end of the spectrum is Restore Justice 2012, which makes a point of highlighting the justices’ record.
At the forefront is the court’s 2010 decision to strike down a constitutional amendment that would have allowed the state to forego any of Obama’s health care initiatives. The amendment was placed on the ballot, and in a 5-2 vote the Court declared the language misleading. The matter is now on the ballot for the upcoming election.
Other issues include:
- Holmes v. Bush (2006) – Ending a state scholarship program that allowed children in failing schools to attend private schools. At issue: whether state funds could be used to pay for scholarships at religious schools; that got the attention of the ACLU. Judges ruled that the Florida Constitution guarantees free education in public schools only.
- Whiley v. Scott (2011) – Ruling that the governor cannot exert control over the various state agencies under his administration. This stems from an executive order signed by Gov. Scott allowing him to review policy decisions of state agencies, which would provide greater accountability. They ruled that Scott overstepped his authority.
Another controversial decision is pending in the Supreme Court in which the state is seeking to have public employees pay 3 percent of their salary into the pension system. Florida is the only state that doesn’t require an employee contribution, and when the Legislature attempted to enact a law, unions successfully challenged it in a lower court.
Whether the justices keep their jobs will come down to an educational campaign and voter awareness, Bragdon said.
“I think people will be hearing a lot more about it after the primary, where a lot of other races will be decided,” Bragdon said. “The Florida Constitution gives voters a right to decide whether or not judges should continue in office. Voters should exercise that right, and not only in how they rule but determining how they vote just like they would for politicians.”
Walker of the Florida Bar said voters don’t traditionally read to the end of a ballot. This could be bad news for the justices if a huge bloc is marking their ballots with “no.” To that end, the Bar has initiated a public awareness campaign.
“There is a 30 percent drop off and we’ve found that 90 percent of the people in our support groups do not know what judicial retention is,” she said. “A significant number just don’t participate or they think the judges have done something wrong to be on the ballot, but this is not true.”