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Fla. Judges Likely To Face Term Limit Push Again Next Year

Share us on:   By Carolina Bolado

Law360, Miami (March 8, 2016, 6:25 PM ET) — A controversial proposal to put a two-term cap on Florida’s state appellate and Supreme Court judges is petering out in the state Legislature, but experts say they expect to see it again in next year’s session as legislators look for ways to rein in what they see as problem judges. Legislation that would bar retention of state Supreme Court justices or district judges who have served two consecutive six-year terms passed the Florida House of Representativeslast month but has not yet received a hearing in the Florida Senate and is not expected to make it to the floor of that legislative chamber. The measure, which would still need to be approved by 60 percent of voters in the state in the upcoming election, is one of the stated priorities of incoming House Speaker Rep. Richard Corcoran, R-Lutz. Corcoran advocated for 12-year term limits on judges in a speech in September after he was elected speaker designate of the House. “I think it will come up next session,” said Paul Hawkes, a former district court judge hired by a group of appellate judges to lobby against the proposal in Tallahassee. “The way these things work, if you’re not aggressively involved, they start to get a life of their own.” Hawkes has been tasked with explaining to legislators appellate judges’ concerns about the proposal, namely that term limits could hinder recruitment and lower the quality of judges on Florida’s appeals court benches. The courts, which offer salaries of about $150,000 to appeals court judges, already face challenges in recruiting, according to Hawkes. For a government attorney, that salary is likely a lateral move or even a step up, but for an attorney in private practice who is making three times as much, it’s a huge pay cut, he said. “Almost all of them tend to be from the public sector, so I would argue that we already have a recruiting problem,” Hawkes said. “They tend to be government lawyers because government lawyers are not asking their families to make quite the sacrifice.” These concerns have been echoed by The Florida Bar and several of its sections that have spoken out publicly against the proposal. Chris Carlyle, who heads the bar’s appellate section, said it is rare for the section to come together and take a position on something, but on this issue, the vote was unanimous. “Everyone believes this is going to harm the quality of the judiciary,” Carlyle said. Bill sponsor Rep. John Wood, R-Winter Haven, has said the measure would be a more effective check on the appellate judges than the current merit retention system, in which the governor appoints judges and citizens vote yes or no on the judge every six years. Proponents of the measure point to the fact that no judge has ever been ousted in a merit retention vote as proof of the system’s inefficacy. In a House Judiciary Committee meeting Feb. 4, Wood welcomed the bar’s opposition, saying it will play well with a public that supports term limits. “Our people are overwhelmingly supportive of term limits,” Wood said. “And when The Florida Bar comes out and unanimously opposes this, it’s like, I couldn’t have bought that publicity better. Because the people know the bar doesn’t represent their interests. The people know that power resides with them.” The proposal would “return the power to the people” and take away the ability of a governor to appoint a young judge and create a legacy, Wood said. “I’m insulted by the members of the bar who said that judges who have taken a sacred oath to uphold the Constitution would be influenced by who could hire them when they leave,” Wood said at the committee meeting. “That is just insulting.” Other legislators didn’t respond to requests for comment. But opponents say the practical reality is that term-limited judges would need to be mindful of where they can go after their time on the bench. “We’re not suggesting there would be any wrongdoing, but it seems to be an uncomfortable position to put people in,” Carlyle said. The appellate section also expressed concerns about having judges gain the skills to do their job well and then pushing them out shortly afterward. “Why do we want to arbitrarily quit that job after 12 years?” Carlyle said. “It doesn’t make sense that just as you’re hitting your stride, you have to go out.” If the bill were to pass and the state’s citizens were to approve it, Florida would be the first state in the nation to impose term limits on its appeals court judges. In fact, the only judges in the country currently subject to term limits are those who serve in New Mexico’s probate courts, according to William Raftery of the National Center for State Courts. When House Speaker Corcoran introduced the idea in September, he said it had been floating around for a while and denied the notion that the proposal was a retaliatory measure against a Florida Supreme Court that had deemed the Legislature’s congressional maps unconstitutional after extensive litigation. But Raftery said that in the last decade or so, judicial term-limit bills around the country often follow rulings that overturn a legislature’s efforts. A recent push in Oklahoma to impose term limits on Supreme Court judges began after the court there deemed several pieces of legislation unconstitutional, he said. Both Florida and Oklahoma use similar systems of merit retention elections for sitting judges, and in debates on the respective term-limit proposals, proponents made the same arguments that retention elections are ineffective because they don’t usually involve removing a judge from office, according to Raftery. “They want to get rid of them, but they can’t impeach them and they can’t vote them out of office, so the response is to term-limit them out of existence,” Raftery said. He pointed out that the original bill filed in the Florida House in September applied to all sitting appellate judges, which would have cleared the entire Supreme Court bench. What ended up passing out of the House was a prospective bill that would apply only to those judges nominated after the ratification of the constitutional amendment. Nevada and Mississippi tried to term-limit appeals court judges in the mid-1990s, and Colorado put the question on the ballot in 2006, but each time the voters rejected the proposals. In all three instances, the measures were viewed as attempts by the legislatures to undermine the independence of the judiciary, according to Raftery. There is one other way to get judges off the bench: mandatory retirement ages. In Florida, appeals court judges must retire at 70. They can finish their final term if they have served more than half of it by the time they turn 70. The idea dates to a time when there were no judicial disciplinary commissions and no way to remove judges who had become infirm and could no longer do their jobs well, according to Raftery. But with the advent of these watchdogs, like the Florida Judicial Qualifications Commission, several states are now looking to either remove the mandatory retirement provision or increase the age, he said. Hawkes, the former judge, said he doesn’t think the proposal was motivated by malice toward the Supreme Court, and noted that the justices there are going to self-replace soon because of mandatory retirement. One justice is leaving in January, and three others will be gone a year after that, he said. “I really do believe that those who talk about it think it’s a good idea,” he said. “They do believe it’s good public policy no matter who’s making the appointments, no matter who’s on the court.”