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Both sides weigh in on ballot language challenge.

The merit selection and retention referendum ballot language approved by the legislature this year is fairer and more accurate than the wording it approved last year, and a challenge to that language -- which goes to voters in November -- should be dismissed, the state of Florida has argued to the Supreme Court.

Solicitor General Tom Warner filed the state's response August 28 in a case brought by a group of South Florida attorneys earlier in the month. The lawyers argued the ballot language adopted this year by lawmakers was misleading. (See story in the September 1 Bar News.)

Five amicus briefs were also filed, including one by 20 former Florida Bar presidents. Led by 1995-96 President John A. DeVault III that brief supported the challenge to the language.

The four other amicus briefs, including one from the House of Representatives, backed the state's position that the ballet language should not be changed. The court was scheduled to hold oral arguments in the case September 12, after this News went to press.

Florida Bar President Herman Russomanno said the Bar is working very hard to educate voters about the merit process and how Florida's trial judges should be. selected.. He added it is essentional that all citizens become well informed on the issue by the November 7 eletion. Although the Bar's Board of Governors supports merit selection and retention for trial judges, the Bar's Executive. Committee recently reaffirmed the Bar's, earlier position during the legislative session not to become involved in the ballot language dispute.

At issue is the wording approved by the legislature earlier this year -- to replace language it originally adopted in 1999 to appear on the November 7 general election ballot in a constitutionally mandated referendum Florida voters approved a constitutional amendment in 1998 that required the 2000 referendum in each circuit and county. Residents can choose between switching to a pure merit selection and retention system for the trial judges or keeping the method used now where end of term vacancies are filled by election and midterm vacancies by merit appointment with all judges standing for election at the end of their terms.

The 1999 language asked voters to vote "yes" or "no" on this question: "Shall circuit judges in the (insert circuit number) judicial circuit be selected through merit selection and retention?"

The 2000 language reads: "Shall the method of selecting circuit court judges in the (insert circuit number) judicial circuit be changed from election by a vote of the people to selection by the judicial nominating commission and appointment by the Governor with subsequent terms determined by a retention vote of the people?"

Similar questions would be asked in each county for county court judges.

On August 15, a group of South Florida lawyers filed for a writ of mandamus contesting the newer language, saying the legislature adopted a misleading ballot summary in an attempt to defeat the referendum. They requested an expedited hearing, which was granted, so a decision could be made before general election ballots are printed after the October 3 runoff primary. The petitioners asked the court to return to the 1999 language or draft its own, fairer ballot language.

Solicitor General Warner argued in the state's responding brief the 2000 language is accurate and fair. The brief also maintained the court should not use a mandamus writ to declare, a state law unconstitutional, and the only reason for an expedited hearing was the petitioners waited almost two months from the time the law was signed to file their case.

Warner said the petitioners' claim of unfairness boiled down to two points: that it was unfair to say that judicial nominating commissions "select" instead of "nominate" candidates and the 1999 statutory language was fairer than the 2000 version. He disputed both points.

The uniform Rules of Procedure for Circuit Judicial Nominating Commissions used "select" instead "nominate," and the new ballot language is clear that it is the Governor, not a JNC, that does the appointing, the brief said.

Nor is the new language flawed because it fails to mention "merit selection and retention," the brief argued, adding under that logic the 1999 ballot summary was flawed because it failed to mention that judges are currently elected. Those problems prevent the court 'from substituting the 1999 language for the 2000 language, and the court is powerless to draft its own alternate version, the brief said.

Warner also contended that the 2000 language was more accurate and fairer than the 1999 proposal.

"For example, the .2000 version of the ballot question informs the voters that the method for selecting judges is currently election; the 1999 version does not mention election," he wrote. "The 2000 version asks whether the voters are in favor, of changing that method to something else; the 1999 version does not mention a change in method. The 2000 version informs the voters that the alternative to election is appointment by the Governor, the 1999 version does not' indicate the Governor's involvement. The 2000 version informs the voters that the JNC will be involved in the selection of judges; the 1999 version does not indicate the JNC's involvement."

The former Bar presidents disagreed.

"Given the history of the Bar's advocacy for merit selection [for trial judges] we thought that it's important that the court know that the former leaders of the Bar support the petitioners' position and think this issue should be presented to voters in a straightforward and objective manner ratherthanin the slanted manner the 2000 legislature seeks to put it," DeVault said. "Our hope is if it's presented in a straightforward and objective manner, with the help of the Bar, Florida's newspapers, and the League of Women Voters, voters will support the merit selection and retention of trial judges."

The petition from the former presidents argues "the provision is in danger of being eviscerated by the ballot language passed by the legislature in the 2000 amendments to 101.161 because the amendments are neither accurate nor informative, and because they mislead the electorate. The amicus supports the position of the petitioners in this matter and urges the court to grant the relief sought in the petition for writ of mandamus, for the reason therein argued."

Other former presidents joining the brief are William F. Blews, Edward .R. Blumberg, Howard C. Coker, Marshall Criser, Alan T. Dimond, Patrick G. Emmanuel, Robert M. Ervin, John W. Frost II, Leonard H. Gilbert, William O.E. Henry, Benjamin H. Hill HI, Mark Hulsey, Rutledge R. Liles, Edith G. Osman, James C. Rinaman, Jr., L. David Shear, Chesterfield H. Smith, Win. Reece Smith, Jr., and Burton Young.

The original writ was filed by attorneys Bruce Rogow and Beverly Pohl, representing attorneys Dennis G. Kainen, Gerald F. Richman, John L. Hampton, Don L. Horn, Rebekah J. Poston and Norman Davis. Rogow said the 2000 language is misleading because it misrepresents 'the role of the judicial nominating 'commissions by saying they "select" instead of "nominate" candidates foreach vacancy, with the Governor making the final appointment.

He also said the language fails to mention "merit selection and retention," or even the word "merit."

The brief from the House of Representatives, filed by Maggie Moody, director of' the House Civil Justice Council, and General Counsel Thomas R. Tedcastle, adopted Warner's arguments and added some additional ones.

They 'said the petitioners wrongly argued there is a constitutional requirement that the language be clear and unambiguous. In reality, that requirement is statutory, 'in [section]101.161(1),(2). That statute was superseded by the law passed by the legislature establishing the ballot language, and consequently the "test is simply 'that the ballot be fair and advise the voter sufficiently to enable him intelligently to cast his ballot (Askew v. Firestone, 421 So. 2d 151 (Fla. 1982) and Hill v. Millander, 72 So. 2d 796 (Fla. 1954)),'" Moody and Tedcastle contended, adding the language easily meets that standard.

They also said the petitioners implicitly asked the court to draft the ballot language, and under separation of powers the court cannot do that, unless the legislature has refused to act and the amendment is self executing. Indeed, the legislature acted again in 2000 because it deemed that the 1999 language had been too hastily adopted and did not fully inform voters.

"Should this court determine that the 2000 ballot question, like the 1999 ballot question, does not sufficiently inform the voters to permit them to intelligently cast their votes, the legislature is certainly prepared to further modify the question," the House said. "This should be left to the legislature to do, however, and the court should decline the invitation of the petitioners that it enter the legislative sphere."

Miami attorney John K. Shubin filed a amicus brief on behalf of the CubanAmencan BarAssociation, the Hispanic National Bar Association, the Black Lawyers Association, Inc., and the Miami-Dade County Chapter of the Florida Association for Women Lawyers. Like other supporters of the 2000 language, Shubin argued itismore accurate than the 1999 version and that.. the petitioners failed to meet the strict standards under, which the court could override the legislature.

"[I]t is not this court's task to weigh the' competing amendments and choose its favorite," Shubin wrote. "This court's sole obligation is to recognize that the existing language provides Florida voters with fair notice of the proposed changes and, accordingly, deny the petition."

Miami attorney Victor Diaz filed .an amicus brief on behalf of several lawyers and residents around Florida, urging the court to reject the mandamus petition.

He noted that the Constitution Revision Commission, which drew up ballot language for the 1998 referendum on the merit selection and retention issue, decided to omit those words because members were concerned that voters didn't understand what merit 'selection and retention was.

Diaz also argued that the 1999 language sought by the petitioners is misleading because it doesn't tell voters that by approving the merit plan they are giving up their right 'to directly elect judges.

Another problem .he cited is merit selection and retention does not translate well onto the Spanish language ballot.

"In short, the ballot questions are neither ambiguous nor misleading," Diaz argued. "As required, the ballot language gives voters fair notice that they are choosing between the right to elect local circuit and county court judges and giving up that right to judicial nominating commissions. and the Governor. Accordingly, 'the court should deny the petition for writ of mandamus filed by the Kainen petitioners."

University of Florida law Professor Joseph Little, and attorneys Harvey Alper and Henry Trawick, argued in their amicus brief that the language was not misleading, and the petitioners were asking the court to overstep its bounds.

"Petitioners cannot properly ask this court to question the motives of the legislature, and certainly cannot ascribe a motive to deceive," they wrote. "Plainly the legislature did not believe its chosen ballot title was deceptive, and its choice must be accepted absent the most compelling showing that the ballot title is 'clearly and conclusively' deceitful and defective, which' petitioners have not made."
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Author:Blankenship, Gary
Publication:Florida Bar News
Date:Sep 15, 2000
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