Revision 7: updating the judicial branch.
Ballot Summary: Provides for future local elections to decide whether to continue electing circuit and county judges or to adopt system of appointment of those judges by governor, with subsequent elections to retain or not retain those judges; provides election procedure for subsequent changes to selection of judges; increases county judges' terms from four to six years; corrects judicial qualifications commission term of office; allocates state courts system funding among state, counties, and users of courts.
This November, voters will have the opportunity to significantly change how trial judges in Florida are chosen and how the state courts system is funded. These are two of the four proposed constitutional amendments contained within Revision 7, entitled "Local Option for Selection of Judges and Funding of State Courts."(1) On election day, Floridians will vote on this revision, summarized in the above ballot language.(2)
The first amendment within Revision 7 is a local option for circuits and counties to vote on whether they want to continue electing their trial court judges (both circuit and county) or whether they want to change to a system of merit selection and retention. The second amendment would increase county court judges terms from four to six years. The next amendment corrects the term of office for a member of the Judicial Qualifications Committee. The last, though not the least, of the proposed amendments would shift the majority of the costs of the state courts system from the counties to the state. The remainder of this article will address the specifics of each amendment and identify the arguments made by proponents and opponents of each amendment.
Article V Costs
Perhaps the most significant proposed change within Revision 7 is the "funding amendment," which would shift the burden of the majority of the costs of the state courts system from the counties to the state. In 1972, when Florida voters amended Article V of the Florida Constitution to create a state courts system, the amendment was largely promoted and adopted with the promise that local governments would be relieved of the costs of operating courts. The state, however, has never fully assumed these costs. As a result, in fiscal year 1995-96, counties spent nearly $614 million on the state court system, compared to the state's expenditure of $513 million.(3) To that end, Revision 7 assigns to the state the primary responsibility of funding the state courts system.
Specifically, Revision 7 provides that the state shall fund the state courts system, state attorneys' offices, public defenders' offices, and court-appointed counsel. Counties spent approximately $216,523,443 on these costs in fiscal year 1995-96.(4) Funding for the offices of the clerks of the circuit and county courts performing court-related functions is to be provided chiefly by users of the courts through filing fees, service charges, and costs. In the event that insufficient user fees are collected to fund the clerks' offices, the state would provide supplemental funding.
Counties, however, will not be totally relieved from funding the state court system's costs. Under Revision 7, counties would continue to fund the costs of construction, leases, maintenance, utilities, and security of facilities for the trial courts, public defenders' offices, state attorneys' offices, and the offices of the clerks of the circuit and county courts. Additionally, counties would continue to fund the costs of communications services, existing radio systems, and multi-agency criminal justice information systems. Counties would also be required to fund the reasonable and necessary expenses of the state court system, state attorneys, public defenders, and clerks' offices to meet local requirements as determined by general law. Thus, if the funding amendment were in effect today, counties would still be responsible for approximately $150 million of the state courts system's costs.(5) Under Revision 7, beginning in the year 2000 the legislature must appropriate funds to pay for the salaries, costs, and expenses pursuant to a phase-in schedule established by general law. The amendment is to be fully implemented by the year 2004.
During the course of debate on this issue, the concern was raised that adoption of this plan might result in lower total funding of the state courts system. If adopted, the Legislature will decide how much to allocate for the state courts system. To address such concerns, the sponsors, Commissioners Alan Sundberg and Jon Mills, placed a statement of intent in the record. It explains in pertinent part:
[I]t is the intent of the proposers that the Legislature adopt a procedure to provide adequate supplemental funding for the State Courts System, state attorneys, and public defenders in the event that appropriations in a given year, notwithstanding diligent efforts to achieve efficiencies, are insufficient.(6)
Another objection was that the proposal offers a complicated resolution to the state courts funding issues when the current system is adequate. Proponents respond that this argument ignores the counties' ever-increasing share of funding the state court system. This amendment would relieve counties of more than $200 million annually and in turn, free those revenues for local uses or tax relief. Smaller counties are particularly hurt by the current manner of funding the state courts system. For example, as a result of several multiple defendant capital cases, in fiscal year 1997-98, rural Wakulla County (population 18,660)(7) expects to incur $384,682 in conflict attorneys' fees and costs.(8) These expenditures will far exceed the $56,000 budgeted for conflict attorneys' fees in that year and Wakulla County's entire 1997 court budget of $326,223.(9) As a result, Wakulla County is currently facing a financial emergency.
Those supporting the revision point out that this amendment would promote a more uniform court system throughout the state, arguing that services offered by the court system should not be dependent on a county's size and wealth, and that the resources available to prosecute and defend cases should not substantially differ from jurisdiction to jurisdiction.
Local Option for Merit Selection
Revision 7 seeks to offer circuits and counties a choice in the manner in which their circuit and county court judges are chosen. Currently, justices of the Florida Supreme Court and judges of the district courts of appeal are chosen through a system of merit selection,(10) When a vacancy occurs on one of these courts, candidates submit their applications to the appropriate judicial nominating commission. After reviewing the applications and interviewing the candidates, the nominating commission submits the names of three to six of the most qualified candidates to the Governor for appointment. The Governor must fill the vacancy from the names submitted. At the next general election that is at least one year after the judge's appointment, and at the end of each six-year term, the judge is subject to a retention vote where voters decide based on the judge's record whether to retain or not to retain the judge.(11) If retained, the judge will serve a new six-year term. If not, a vacancy is created on the court and another candidate is chosen through the merit selection process.
Circuit and county court judges, however, run in a nonpartisan election within their jurisdiction at the end of each term,(12) except if a vacancy occurs prior to the completion of a trial court judge's term (for any reason such as resignation or death) and there is not a general election upcoming in the reasonable future. In that case, the vacancy is filled through the merit selection process.(13) An appointed trial judge must run for election at the next general election at least one year after her or his appointment. At that time and at the end of each subsequent term, trial court judges run for election.
Revision 7 proposes to offer circuits and counties a choice as to how they select their circuit and county court judges. Circuits and counties would have the option of either continuing to elect their circuit and county court judges or having these judges selected through the merit selection process and later retained or not retained by a vote of the electorate. The amendment provides for a two-step approval process. First, this constitutional amendment would have to be approved by the majority of the voters in November. If adopted, the second step involves a vote in the general election in the year 2000 at both the circuit and county level to determine whether to change the current election of trial judges to merit selection and retention for that local jurisdiction. The amendment further provides that a circuit or county can subsequently opt to change back to judicial elections of its trial court judges.
Proponents of the local option for merit selection/retention of trial judges argue that appointments through the merit selection process result in the strongest candidates for the office because the candidate's legal experience and merit is considered. Opponents argue that the merit selection/retention proposal does not guarantee that state trial judges will be more competent than if elected. However, judges placed on the bench by the merit selection process consistently rank higher on judicial bar polls and have been the subject of substantially fewer disciplinary actions than elected judges.(14)
Another criticism of this proposal, is that it removes the opportunity for citizens to vote for officials who are more responsive to the public than appointed officials. Yet judges subject to merit retention will always necessarily appear on the ballot each term. In the event that a community is not satisfied with the performance of one of its trial judges, it can vote not to retain that judge. The reality is that incumbent judges subject to election, commonly run without opposition and therefore, do not even appear on the ballot. Thus, under the merit selection and retention, voters always have the opportunity to vote on judges at the end of their terms, whereas in elections that opportunity arises only if there is an opponent.
Opponents also argue that the local option aspect of the proposal will decrease uniformity in the state courts system by resulting in different judicial selection processes from county-to-county and circuit-to-circuit. The local option aspect, however, was added to this amendment because it was felt that merit selection would be more effective in large urban areas where the electorate is less likely be familiar with the judicial candidates. By adding the local option aspect, the commission intended to offer merit selection of trial judges to all circuit and counties in the hope that circuits and counties could determine which method of selecting trial judges best suited their needs. Interestingly enough, it was the local option aspect of this proposal which convinced CRC commissioners opposed to merit selection to vote for this proposal because they believed that each county and circuit could decide what was best for itself.(15)
Proponents of merit selection also point out candidates in judicial elections must raise campaign funds. Because these campaign funds come primarily from attorneys who will be practicing before the successful judicial candidate, proponents argue that the merit selection protects the independence and impartiality of the candidates and consequently, the judicial system. By not having to raise campaign funds, proponents argue that judges can devote more of their time to the business of the courts and not be distracted by campaigning for reelection. Finally the proposal also provides the opportunity for any county or circuit to revert to electing its trial judges if the voters find that merit selection did not produce good results.
Twenty years ago, a similar amendment to merit select and retain circuit and county court judges was proposed by the CRC and was rejected by a very narrow margin. The only difference between the CRC's 1978 proposed amendment and Revision 7 is the local option aspect. It will be interesting to see if the last 20 years have changed Florida voters' minds as to how their trial court judges should be chosen.
County Court Judges' Terms
Currently, the term of a county court judge is four years(16) while all other state court judges' terms are six years.(17) One of the amendments within Revision 7 seeks to make county court judges terms of office consistent with circuit, district, and Supreme Court judges in the state by increasing their term of office from four to six years.(18)
Proponents of this amendment argue that less turnover would result in a more stable county court. Furthermore, by increasing county court judges' terms of office, county court judges could devote more of their time to court business as opposed to campaigning for reelection every four years. On the other hand, some voters are concerned that if this proposal is adopted they will have to wait two more years before they can vote a county court judge with an unsatisfactory record out of office.
Correction of Term for JQC Members
The last amendment within Revision 7 corrects the term of office of a member of the Judicial Qualifications Commission (JQC) which was inadvertently omitted when the staggering of terms was adopted in 1996.(19) The JQC is composed of 15 members, who are appointed to staggered six-year terms. This amendment corrects the schedule of staggered terms to conform with the text of Article V. Specifically, the schedule provides for the length of term for three Florida Bar members, while the main text creates positions for four Florida Bar members. This amendment was considered to be technical and noncontroversial.
This sweeping review of Florida's Constitution last occurred 20 years ago in 1977-1978. Since 1978, Florida's population has grown 63 percent. Equally significant is the projection that Florida's population will exceed 17 million by the year 2010--an increase of over 3 million persons. Florida's astronomical population growth will affect most issues, including education, natural resources, and the judicial system among others. The state's treatment of such issues rests primarily in the constitution. Therefore, whether you believe that trial judges should be chosen through the merit selection and retention process or continue to run in elections or whether the state should fund the state courts system, it is imperative that you participate in this process. Your next opportunity will not be until the year 2017.
For further information on the CRC or Revisions 5 through 13, call the CRC at 850/413-7740; write to us at Constitution Revision Commission, Historic Capitol, B-11, Tallahassee, Florida 32399-1300; or access our home page on the Internet at http:// www3.law.fsu.edu/crc/.
(1) Revision 7 includes the following CRC proposals: 1) CS/Proposal 66--Merit Selection/Retention (increases county judges terms to 6 years); 2) Proposal 153--Judicial Qualifications Commission; and 3) CS/Proposal 31 & 55--Article V Costs.
(2) Pursuant to FLA. STAT. 101.161(1), ballot summary language is limited to 75 words and must contain an explanatory statement of the chief purpose of the measure.
(3) The Facts about the CRC's Proposed Amendments to Article V of the Florida Constitution, Office of the State Courts Administrator (July 1998).
(4) Information compiled by the Legislative Committee on Intergovernmental Relations (LCIR) from survey of selected counties' Annual Financial Reports.
(5) See note 4. In fiscal year 1996-97, these costs amounted to $150,302,129 of the counties' $614 million share of the state courts system's costs.
(6) Statement of Intent regarding Article V, [sections] 14, Alan C. Sundberg, and Jon L. Mills, chair of the Select Committee on Article V Costs, Journal of the 1997-1998 Constitution Revision Commission, May 5, 1998, at p. 261.
(7) Bureau of Economic and Business Research, University of Florida, 1997 Florida Estimates of Population (Feb 1998), at p. 20.
(8) Fla. Stat. [sections] 27.53 authorizes the public defender of each county to appoint and pay private attorneys to represent indigent defendants when it is determined that a conflict of interest exists. A conflict of interest may arise in a case involving multiple defendants, when it is determined that the defendants' interests are so adverse and hostile that the public defender's office cannot counsel them all.
(9) Memorandum from Warren Crum, chair, Wakulla Board of County Commissioners, to Lawton Chiles, Governor of Florida, and the Florida Cabinet (June 15, 1998) (on file with the Executive Office of the Governor, Office of Planning and Budgeting, Public Safety Unit).
(10) Fla. Const. art. V, [sections] 11(a). In 1976, Florida voters adopted an amendment applying merit selection and retention to the justices of the Supreme Court and the judges of the district courts of appeal. Prior to that amendment these judges ran in popular elections.
(11) Fla. Const. art. V, [sections] 10(a).
(12) Fla. Const. art. V, [sections] 10(b).
(13) Fla. Const. art. V, [sections] 11(b). If the vacancy is created within a certain time period (approximately six months) prior to a general election, the vacancy would be filled by election. See In re: Advisory Opinion to the Governor (Judicial Vacancies), 600 So. 2d 460 (Fla. 1992) (constitution mandates an election when sufficient time affords electorate the opportunity to fill a judicial vacancy). However, the constitution does not prohibit the Governor from making an interim appointment effective to the time an elected judge assumes office. See Judicial Nominating Commission, Ninth Circuit v. Graham, et al., 424 So. 2d 10 (Fla. 1982) (Governor's duty to appoint interim judge for period between July 31, 1992, vacancy and commencement of elected judge's term on January 5, 1993).
(14) DeVault, John A. III, Do We Want Politicians or Judges? 70 Fla. B.J. 8 (1996) (70 percent of judges reprimanded by the JQC first came to the bench by election rather than appointment; 83 per cent of those removed, or who resigned with charges pending, were elected to their position). See also Florida Article V Task Force, Final Report (December 1995) at p. 13.
(15) 1997-1998 Constitution Revision Commission Transcript, February 24, 1998, at pp. 226-27 (statement of Commissioner H.T. Smith).
(16) Fla. Const. art. V, [sections] 10(b).
(17) Fla. Const. art. V, [sections] 10.
(18) See also Florida Article V Task Force, Final Report (December 1995), at p. 85. The Article V Task Force also recommended increasing county court judges' terms to six years. The Task Force found that county court judges terms were originally set at four years because they performed many of the administrative functions of the county and were considered county officers. The Task Force concluded that the purpose of the four-year term is not served because county court judges are state officers, who often perform the duties of circuit court judges, and no longer perform county duties.
(19) Fla. Const. art. V, [sections] 12(f)(2)(g)(2).
Robert A. Butterworth has served as Florida's Attorney General since 1987. Attorney General Butterworth was a member of the 1997-98 Constitution Revision Commission and served on the CRC's Judicial and Local Government Committees.
Ana Cristina Martinez is an assistant general counsel to the Constitution Revision Commission. Prior to joining the CRC, she handled civil trials and appeals as an assistant attorney general. After receiving her RA. and J.D. from the University of Florida, Ms. Martinez served as a law clerk to Justice Ben F. Overton of the Florida Supreme Court.
The authors thank Solicitor General Thomas H. Barkdull, Jr., who generously gave his time to review this article. Judge Barkdull, formerly of the Third District Court of Appeal, served as the Rules and Administration Committee chair of the 1997-98 Constitution Revision Commission, as well as a member of the 1968 and 1978 Constitution Revision Commissions.
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|Title Annotation:||Florida Constitution Revision Commission|
|Author:||Butterworth, Robert A.; Martinez, Ana Cristina|
|Publication:||Florida Bar Journal|
|Date:||Oct 1, 1998|
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