SB 428: Fired Judges Employment and Popular Vote Nullification Act of 2011 Filed in Florida Senate
By Le Corbeaunoir
UPDATE: SB 428 and its House counterpart, HB 1033, died in their respective Judiciary Committees on May 7, 2011.
The 2010 elections were a wakeup call for members of the Florida political elite who both enjoy being in the ruling class and hate the uncertainties of democracy. Some are beginning to devise ways to push back against the popular will when it comes to deciding who is or is not suited to remain on the bench.
Let’s put this in perspective: Imagine that the you and the majority of the voters in a democratic election choose to fire and replace a sitting state trial court judge, appellate court judge, or a supreme court justice as being unfit to serve on the bench any longer. Then imagine that a short time later you and everyone else who voted the same way you did learn that the person you and the majority rejected as not fit to serve on the bench is in fact back on the bench judging cases. Incredibly, this is exactly what could happen if Senate Bill (SB) 428 becomes law.
In Florida, state trial (i.e., county and circuit) court judges stand for popular election every six years. State appellate court judges and supreme court justices similarly stand for retention every six years. This means that the voters get to decide every six years whether of not a state jurist gets to keep his or her job for another six years. The only exception is where a trial court judge standing for election is unopposed, in which case that judge gets another six years without having to face the voters. The purpose of this scheme is to constantly remind state court judges that they are public servants, not rulers.
If voters keep a judge or justice on the job into retirement age, one of the rewards for that judge or justice upon retirement is that he or she is eligible to take temporary bench assignments as a “retired judge” or “retired justice.” Such retirees can thus return to the bench on an as-needed basis, with the same range of powers they had while they were in regular service. This, in turn, is a fair exchange for a judge’s dutiful public service.
The law on this is expressed in section 25.073, Florida Statutes, which reads as follows:
25.073 Retired justices or judges assigned to temporary duty; additional compensation; appropriation.—
(1) For purposes of this section, the term “retired justice” or “retired judge” means any former justice or judge who:
(a) Has not been defeated in seeking reelection to, or has not failed to be retained in seeking retention in, his or her last judicial office or was not defeated when last seeking election to judicial office; and
(b) Is not engaged in the practice of law.
(2) Any retired justice of the Supreme Court or retired judge of a district court of appeal or circuit or county court assigned to temporary duty in any of such courts, pursuant to Art. V of the State Constitution, shall be compensated as follows:
(a) Any such justice or judge shall be paid not less than $200 for each day or portion of a day that such justice or judge is assigned to temporary duty; however, no such justice or judge may serve for more than 60 days in any year without the approval of the Chief Justice.
(b) Necessary travel expense incident to the performance of duties required by assignment of such justice or judge to temporary duty shall be paid by the state in accordance with the provisions of s. 112.061.
(3) Payments required under this section shall be made from moneys to be appropriated for this purpose.
SB 428, filed by Senator Charles S. “Charlie” Dean (R-Inverness) on January 12, would renumber present sections (2) and (3) as subsections (3) and (4), respectively, and would add a new subsection (2), to read:
(2) Notwithstanding subsection (1), a former justice or judge who has failed to win reelection or be retained after more than 12 years of service as a justice or judge may be qualified to serve as a retired justice or judge unless:
(a) The former justice or judge has been reprimanded, fined, suspended, or disciplined by the Florida Supreme Court for violations of the Florida Code of Judicial Conduct or the rules regulating The Florida Bar;
(b) The Judicial Qualifications Commission has brought charges against the former justice or judge which were not dismissed, or the former justice or judge was not exonerated of all such charges; or
(c) Any party objects to the assignment of the former justice or judge when the former justice or judge is to preside over a civil case, including any appeal of a civil case.
Thus, with three qualifications meant to make this patently antidemocratic measure appear to be “reasonable” to the public at large, a judge fired by the voters would be able to return to the bench, as required, as though he or she had been honorably retired. So much for respecting the will of the people. For all of those judges who secretly despise the voters, and are turned out of office by voters who despise them in turn, this would be a dream come true. Hence, SB 428 should properly be known as the “Fired Judges Employment and Popular Vote Nullification Act of 2011.”
While there is nothing unconstitutional in and of itself about the proposed bill, it smells of political elitism. Senator Dean in the past has been accused of using his position of power and influence to bypass laws (and attendant costs) meant for ordinary people, as when he called his guest house a “barn” and described it as being used for nonresidential agricultural purposes, allegedly to evade building code laws.
The bill has been referred to the Senate Judiciary, Rules, and Budget committees, but no hearings on it have been set as of press time. If passed by the legislature and signed into law by the governor in its present form, this act would take effect July 1, 2011, well in time to save judges kicked off the bench by voters in the 2012 elections.