For the second consecutive year, the Florida Legislature is attempting to place an amendment to the state Constitution before voters to enact term limits for the state’s highest ranking members of the judiciary. Given President Donald Trump’s stream of attacks on judges and the courts, state lawmakers must be confident that Florida voters can be persuaded to support judicial term limits, which actually will not limit the power of the state’s courts but rather would detract from the quality and independence of their rulings.
Putting a judicial term-limits amendment on the November 2018 ballot is one of Republican House Speaker Richard Corcoran’s top priorities. He has accused the Florida Supreme Court of repeatedly “writing whole cloth law” in violation of the separation of powers. It would impose a 12-year term limit on Florida Supreme Court justices and district court of appeal judges who currently serve until the mandatory retirement age of 70.
The House Civil Justice and Claims Subcommittee voted 8-7 to advance the measure in a strictly partisan vote with only Republican representatives voting in favor. It appears to be a politically motivated act in retaliation for the Florida Supreme Court having struck down the Legislature’s new congressional and state Senate district maps, forcing it into two special sessions to redraw voting district lines.
Term limits have their proper place in government. They create a highly effective check on the great power of the executive branch by limiting a Florida governor to two consecutive terms. The judges and justices of our state’s highest courts do not wield such a level of power, and limiting their terms to only 12 years would open the door to greater legislative and gubernatorial influence over the judiciary.
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Florida’s residents and businesses rely on having the most experienced, knowledgeable, and committed jurists presiding over the state’s highest courts. The holders of these highest offices in our state’s judiciary have turned away from the private sector to answer the call of public service. They preside over cases involving the most complex business, consumer, and criminal matters, and their expertise is nurtured through experience as well as via the considerable time and money that the court system dedicates to judicial education.
If term limits are enacted, fewer of the most qualified potential applicants would be willing to leave a lucrative law practice to serve on the bench for only 12 years, as it could become more difficult to return to private practice later in life when their terms are completed. Those in their mid and late 50s may not be open to taking on a judgeship because they will end up having to return to private practice in their late 60s, and that alone would eliminate approximately half of the appellate court applicants.
Life terms for jurists are designed to help ensure their independence from political and economic pressures. Judges who have to plot a post-judicial legal career would be tempted to take those personal considerations into account while they are presiding over cases that are being presented by or may involve potential future employers. In addition, should the composition of the state’s appellate courts change completely every decade, there will likely be inconsistency in important rulings that may prove detrimental to jurisprudence.
Florida currently enables voters to approve or reject the retention of judges. It is an imperfect system, and practically all sitting judges are retained in judicial elections with typically low voter turnout; however, it is a significantly better option than a system which would bar our best judges and justices from continuing to serve after they complete two consecutive six-year terms.
No other state has imposed judicial term limits such as those that are now being debated in the Florida House, as many Americans rightfully view them as a clear affront to one of the most important and fundamental tenets of the separation of powers under the U.S. Constitution.
Ballot measures have been defeated in the past in Colorado, Nevada and Mississippi because the voters in those states recognized the damage that term limits would do to the judiciary.
If the amendment to the state Constitution is placed on the November 2018 ballot, it would need 60 percent of the vote to become law. Presuming the president’s continued sneering attacks on a judiciary that will persist in playing its constitutionally enshrined role as a check on the executive branch, Florida could well become the first state to bar its most experienced jurists in its highest courts from continuing to serve until retirement.
The state’s lawmakers should rise above of the politics and do what is right for the Florida court system as well as the residents, businesses, and property owners, who may be beguiled by the rhetoric coming from the White House into taking for granted the consistent quality, forethought, and independence of the decisions of our state’s highest jurists.
Ervin A. Gonzalez is a law partner with Colson Hicks Eidson. He formerly served as the statewide chairman of The Florida Bar’s Judicial Nominating Commission and as the president of the Dade County Bar Association.