Power of the Florida court system at center of Amendment 5

After years of clashes with the Florida Supreme Court, the Legislature is asking voters for more power over the state’s judicial branch.

Voters will decide Nov. 6 whether to approve the controversial Amendment 5, which would give lawmakers authority to confirm Supreme Court justices selected by the governor, view complaints against justices as soon as they are filed, and more easily override court rules.

Titled “State Courts,” the amendment is among the most contentious on the November ballot, with supporters arguing it would improve court oversight and accountability. Opponents characterize the proposal as an attempt by legislators to politicize the courts and intimidate justices who have struck down new laws as unconstitutional.

House Speaker Dean Cannon, R-Winter Park, who helped put the amendment on the ballot, said the measure is not about retribution but about making moderate changes that are long overdue.

“This is not a power grab, it’s a power adjustment,” Cannon said. “This is a step to bring more transparency to the courts and bring the state more in line with the federal system.”

It’s only right for the Senate to confirm Supreme Court justices, he argued.

Florida’s system of selecting judges is dominated by the governor, and is relatively closed compared to the federal system, where candidates are openly discussed on the Senate floor, he said.

Cannon also argued that the Legislature — as the lawmaking branch — should have more say in the court rules, some of which are as meaningful as law. State lawmakers can now override rules by a two-thirds vote, a standard high enough to prevent the Legislature from intervening in all but extraordinary circumstances.

Rules are typically mundane, and lawmakers rarely weigh in. But once in a while, on hot button issues, they want their say.

For example, the Legislature put pressure on the courts several years ago to make sure prosecutors got the last word in death penalty cases.

Alex Villalobos, a former Republican state senator, believes legislators already have enough sway on rules.

“The Legislature is doing this because they want to interfere with the way the court is run,” said Villalobos, president of Democracy at Stake, a Tallahassee group with a mission to maintain the independence of Florida courts. “The Senate can act according to the Senate rules, the courts should be able to act on their own rules.”

Justice Harry Lee Anstead, who retired from the Florida Supreme Court in 2009, said Florida’s system has worked well for 35 years, and additional oversight is unnecessary.

For example, Florida’s governor doesn’t select justices independently, as the president does, but from a list supplied by a nine-member committee. Also, federal Supreme Court justices are appointed for life while Florida justices must face voters every six years — in a process known as merit retention.

“This is a blatant attempt to politicize appointments and emasculate a merit retention system that has worked well,” Anstead said.

Florida Bar Association President Gwynne Young also spoke out against the provision of the amendment that would require the court to turn over a complaint when it is filed.

“It’s sensitive for someone to make a complaint against a sitting judge. For that reason confidentiality is very important,” she said. “You want people to be able to make a report without risking retribution.”

Opponents of the bill have also raised questions about whether the House speaker would use complaints — even those that are unfounded — to intimidate judges they dislike. Under the current system, a court panel investigates complaints internally and releases the information if they find probable cause.

And some top Republicans have hardly been shy about their animosity.

Frequently, lawmakers have railed against justices for “legislating from the bench,” and the Republican Party of Florida — in an unprecedented move — endorsed a plan to unseat three Supreme Court justices who are up for retention.

Several sitting lawmakers, including more moderate Republicans, criticized the party for injecting partisan politics into the courts rather than encouraging voters to retain or reject judges based on whether they do their jobs with competence and integrity.

Yet, Bob Sanchez, director of public policy at the conservative-leaning James Madison Institute, said it’s more important to make investigations transparent than to protect the privacy of the justices. Under the current process, nobody knows whether complaints are investigated properly, he said.

“People in public office sometimes lose their expectation of privacy,” he said. “This would put the courts in the sunshine.”