Should Florida Supreme Court Justices Pariente, Quince, and Lewis Get the Boot?

Judicial Retention Sample Ballot

By Spartacus Thrace

An issue facing Florida’s voters in the November 2012 election is:  Should Barbara J. Pariente, Peggy A. Quince, and R. Fred Lewis each be allowed to keep their jobs as justices on the Florida Supreme Court?

Each is up for a merit retention vote this year, and each has generated considerable controversy with decisions that opponents describe as anti-democratic judicial activism in denigration of constitutional rule of law in Florida.  In particular, each has been accused of overstepping their authority in making law, as opposed to interpreting existing law, with far-reaching consequences for the people of the state.

Separation of Powers

As with all other states, Florida has organized its government upon the democratic premise that when a single person or group has too much power, that person or group can become dangerous to the citizens.  To prevent such concentration of power, Florida has embraced the trias politica principle espoused by John Locke and Baron de Montesquieu, which separates the government into distinct executive, legislative, and judicial divisions.  The Florida constitution also gives each branch certain defined powers not shared with the other branches, a concept knows as “separation of powers.”

Florida’s scheme of separation of powers is set forth in Article II of the state constitution which provides:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.¹

The constitution goes on to to define the powers of the separate branches of government, as follows:

Legislative:

The legislative power of the state shall be vested in a legislature of the State of Florida, consisting of a senate composed of one senator elected from each senatorial district and a house of representatives composed of one member elected from each representative district.²

The legislature is the law-making branch of the government.  The duties and responsibilities of the legislature are further defined in Title III, Chapters 10 & 11, Florida Statutes.

Executive:

The supreme executive power shall be vested in a governor, who shall be commander-in-chief of all military forces of the state not in active service of the United States. The governor shall take care that the laws be faithfully executed, commission all officers of the state and counties, and transact all necessary business with the officers of government.³

The executive is the law-administering and law-enforcing branch of the government.  The duties and responsibilities of the executive are further defined in Title IV, Chapter 14, Florida Statutes.

Judicial:

The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality. The legislature shall, by general law, divide the state into appellate court districts and judicial circuits following county lines. Commissions established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices. The legislature may establish by general law a civil traffic hearing officer system for the purpose of hearing civil traffic infractions. The legislature may, by general law, authorize a military court-martial to be conducted by military judges of the Florida National Guard, with direct appeal of a decision to the District Court of Appeal, First District.⁴

The judiciary is the law-interpreting branch of the government.  The duties and responsibilities of the supreme court are further defined in Title V, Chapter 25, Florida Statutes.

Judicial Activism

So, what is judicial activism, and why is it such a bad thing?

Colleen Pero

Judicial activism is result-driven, often in furtherance of a political agenda that is at variance with legislative intent. An activist court is one that tends to write new law rather than interpret existing law, to infer public policy where the statutory law does not lend clear support for that policy, and to expand traditional legal principles to new situations without first deferring to the legislature for guidance as to such emerging issues. Activist judges tend to engage in overreach, encroaching on the powers of the other branches of government and eroding the constitution’s separation of powers in the process.  In the process, activist judges often take on challenges they lack the resources to effectively meet, create new problems for the other branches of government and the citizenry, and compound existing problems.

Colleen Pero, an expert on judicial activism and author of a 2006 study of judicial activism on the Florida Supreme Court,  has identified five basic  indicators of an activist court:⁵

1.  Prompt reaction by the legislature repudiating a court decision and restating the law as written.

2.  Unpredictable and inconsistent outcomes when dealing with similar legal principles.

3.  Repudiating its own precedent and shopping in other state or international courts to (1) find jurisdictions that support its preferred outcome, or (2) determine the majority view and minority view, and then adopt the minority view.

4.  Insert non-existent words or ignore the written words in a statute or contract to secure the court’s preferred outcome.

5.  Use vague or general constitutional language to defeat the clear will of the voters or acts of the legislature.

Anti-retention activists have asserted that examples of one or more of these indicators can be found in the following opinions of the Florida Supreme Court in which Pariente, Quince and Lewis played a role:

1. Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000).  The Court  in a 4-3 decision added an “accuracy requirement” to Article XI, Section 5 of the Florida constitution and, on that basis, invalidated a constitutional amendment passed by 72.8% of the voters that would have allowed the state to use lethal injections in death penalty cases in the event that a court rules that the use of Florida’s electric chair was unconstitutional.  Justice Leander J. Shaw wrote the opinion, in which Pariente concurred.  Pariente also wrote a concurring opinion, and dissenting opinions were written by Quince and Lewis.  In her dissent, Quince did not question the majority’s approach but just disagreed with their conclusion.  Lewis, for his part, felt that the judiciary was being used inappropriately by the plaintiffs to thwart the will of the voters.

2. Delgado v. State, 776 So. 2d 233 (Fla. 2000).  Delgado was convicted of two counts of felony murder, with burglary being the underlying felony.  In a 4-3 decision in which Pariente concurred, the Court added the word “surrepititiously” to the state burglary statute and set aside the two murder convictions.  Quince and Lewis concurred in the dissent by Chief Justice Charles T. Wells, which castigated the majority for looking to the State of New York and a dissenting opinion in Alabama to support their rewriting of the burglary statute, rather than relying on Florida precedent.  Wells also urged the Florida Legislature to review the majority’s opinion, which the Legislature did, resulting in the nullification of the Delgado opinion as being contrary to legislative intent.

3. Bush v. Gore, representing a series of spectacular opinions issued in November and December 2000 in which Pariente, Quince, Lewis and other Florida Supreme Court justices made repeated attempts to rewrite Florida election law until stopped — twice — by the United States Supreme Court.  For some anti-retention activists, these opinions offer some of the clearest examples of judicial activist behavior engaged in by the justices facing retention in 2012.

4. Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001).  In a 7-0 decision with Quince concurring, and Lewis concurring in a separate concurring opinion by Justice Major B. Harding, the Court completely rewrote Florida’s premises liability law to favor plaintiffs’ recovery, without regard to existing statutory law or precedent.  Subsequently, the legislature repudiated the Court’s opinion by enacting legislation specifically stating that in claims of negligence involving transitory foreign objects or substances, the burden is on the injured person to prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.⁶

5. Scott v. State, 808 So. 2d 166 (Fla. 2002).  The Court, in a 5-2 decision authored by Quince and concurred in by Pariente and Lewis, added “guilty knowledge” as an element of the offense of possession of contraband in a correctional facility, even though such language was nowhere to be found in the criminal statute defining the offense.  Subsequently, the Legislature nullified the opinion as being contrary to legislative intent.

6. Nixon v. State, 857 So. 2d 172 (Fla. 2003).  In a 5-2 decision in which Pariente, Quince and Lewis concurred, the Court created new law by holding that defense counsel cannot employ a strategy of admitting guilt to the crime charged or to a lesser included offense without a client’s affirmative and explicit consent to that strategy (Nixon did not react when defense counsel discussed the strategy with him), and reversed the conviction of a confessed murderer.  The Florida Supreme Court’s opinion was reversed by the United States Supreme Court which ruled in an opinion written by Justice Ruth Bader Ginzburg, which held that defense counsel’s failure to obtain defendant’s express consent to a strategy of conceding guilt at the guilt phase of a capital trial did not automatically render counsel’s performance deficient.

7. Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005).  In a 4-3 decision in which Pariente, Quince and Lewis concurred, the Court ignored the exclusivity of the Workman’s compensation Act and created a new tort action for improper claims handling by a workers’ compensation carrier.

8. Bush v. Holmes, 919 So. 2d 392 (Fla. 2006).  In a 5-2 decision written by Pariente and concurred in by Quince and Lewis, the Court invalidated Florida’s Opportunity Scholarship Program (OSP), which would have allowed students living in chronically failing public school districts to either transfer to a better performing public school or receive a voucher which would allow them to attend a private school.  The Court created a new constitutional mandate, holding that the OSP was invalid because the public school system is the exclusive means set out in the constitution for the legislature to make adequate provision for the education of children.

9. Florida Department of State, etc., et al. v. Mona Mangat, et. al., 43 So. 3rd 642 (Fla. 2010).    This case involved a joint resolution of the Florida Legislature that proposed an amendment to the Florida Constitution creating a new section relating to health care services in article I of the Florida Constitution. [See Fla. H.J. Res. 37 (2010) (joint resolution proposing article I, section 28 of the Florida Constitution relating to health care services)]. The proposed amendment, which was designated as Amendment 9 by the Division of Elections, was passed by the constitutionally required three-fifths vote of the membership of each house during the 2010 Florida legislative session. The Joint Resolution contained the text of the proposed amendment and a ballot title and summary that the Legislature specified should be placed on the ballot.  The resolution was a response to the passage in Washington of the Affordable Care Act, more commonly known as “Obamacare.”  In a 5-2 decision in which Quince concurred, Lewis concurred in the result, and Pariente concurred with an opinion, the court struck down the proposed constitutional amendment on the basis of a nonexistent “accuracy requirement” they found in Article XI, Section 5 of the Florida constitution.

10. St. Johns River Water Management District v. Koontz, 77 So. 3d 1270 (Fla. 2011).  This was a case in which a property owner, Koontz, wanted to develop 3.7 acres of his land zoned for commercial use.  The land was classified as wetlands, subject to water management district jurisdiction.  The water management district refused to issue a permit to Koontz unless Koontz agreed to costly conditions that arguably were not related to the proposed construction, including land mitigation more than 7 miles from the Koontz property.  Koontz refused and the water district refused to issue the permit.  Koontz sued the water district for “taking” his property.  In a 5-2 decision in which Lewis wrote the majority opinion, Pariente concurred in that opinion, and Quince concurred in the result only, the Florida Supreme Court sided with the water management district, holding that district’s denial of permits did not effect an exaction taking of property and, arguably, expanding the government’s power to seize a landowner’s property without fair compensation.  The United States Supreme Court has taken jurisdiction of this case.

This list of cases is not exhaustive, and more examples cited by anti-retention activists can be found in Colleen Pero’s 2006 study of the Florida Supreme Court.

Merit Retention

So, what is “merit retention”?

The Florida Supreme Court’s website describes merit retention as follows:

Merit retention is a system of selecting Justices established by the voters when they amended the Florida Constitution in the 1970s.  Under merit retention, the Governor appoints new Justices from a list of three to six names submitted by a Judicial Nominating Commission.  The Governor must select from the list.  Once appointed, Justices eventually must face the voters in a “yes” or “no” vote as to whether they should remain on the bench.

New Justices face their first merit retention vote in the next general election that occurs more than one year after their appointment.  If not retained in office, the Justice will be replaced in the same manner appointed. Justices’ merit retention races are conducted on a statewide basis.

If retained, the Justice serves a six-year term beginning in early January following the merit retention election.  The Justices then will again face an up or down vote in the general election occurring just before the six-year term expires.  If not retained in office, the Justice will be replaced through the Judicial Nominating Commission system.

All terms of Justices end in early January of the year following their merit retention elections.

This means that every six years a Justice has to face the voters and ask for their permission to continue on as a member of the judiciary.  No justice or appellate court judge up for retention has ever lost the vote, but this year there are some who would like to make history.

The Protagonists

Here’s a quick rundown on the main protagonists.

Restore Justice 2012 is chaired by Jesse Phillips, an Orlando-based conservative activist and constitutionalist who headed the group Citizen2Citizen in its opposition to the retention of Florida Supreme Court justices Perry and Labarga in 2010.  That anti-retention effort came about in the wake of the Florida Supreme Court’s removal of the Florida Health Care Freedom Act from the ballot.  In addition to a conventional homepage, Restore Justice 2012 has a   page on Facebook.  According to campaign finance reports filed with the Secretary of State, as of September 28, 2012, Restore Justice 2012 had received $2,865.00 in campaign contributions and had spent $10,293.32 on its anti-retention campaign.  Restore Justice 2012 has produced a voter guide in the form of a report card on the three justices up for retention in 2012:

The group also has produced and published the following three videos as part of this year’s campaign:

“Florida Supreme Court: Justices Pariente, Quince and Lewis”

“Imagine a World Without Judicial Activism”

“What if?”

Another anti-retention group seeking the removal of Pariente, Quince and Lewis is You Be The Judge, which is affiliated with Americans for Prosperity Florida.  This group has produced and published the following video as part of its campaign:

“Healthcare Freedom”

As the retention vote nears, things have become more partisan.  Months ago, local Republican Executive Committees began polling their members about retention, and in Hillsborough County a straw poll saw the justices losing by about 3-to-1.  On Friday, September 21, 2012, the Republican Party of Florida announced its opposition to retention of Pariente, Quince and Lewis with the following press release:

RPOF Board Votes to Oppose Retention of Liberal Supreme Court Justices
Today RPOF Press Secretary Kristen McDonald released the following statement:

“This week, the RPOF executive board voted unanimously to oppose the retention of Supreme Court Justices R. Fred Lewis, Barbara Pariente, and Peggy Quince. While the collective evidence of judicial activism amassed by these three individuals is extensive, there is one egregious example that all Florida voters should bear in mind when they go to the polls on election day. These three justices voted to set aside the death penalty for a man convicted of tying a woman to a tree with jumper cables and setting her on fire. The fact that the United States Supreme Court voted, unanimously, to throw out their legal opinion, raises serious questions as to their competence to understand the law and serve on the bench, and demonstrates that all three justices are too extreme not just for Florida, but for America, too.”

Adding to the strength of the anti-retention forces, grassroots entities such as the Tea Party Movement, Patriot groups, and 912 chapters all over the state have joined in the campaign to oust Pariente, Quince and Lewis.

The overall strategy of the anti-retentionists is simple:  Expose the judicial activists for what they have been doing, educate the voters about why judicial activism is wrong, and get out the vote.

The Pro-Retention Forces

In terms of the match-up of political power and resources, the pro-retention forces appear to have the anti-retention forces at an extreme disadvantage.  The strategy of the three justices and their supporters is simple:  Play the victim of a political power grab, ignore the issue of judicial activism, give civics lessons to the voters, and smother the anti-retentionist campaign with pro-retentionist messaging.

In addition to their own well-financed retention campaigns, Pariente, Quince and Lewis have the solid backing of The Florida Bar (with a membership of over 92,000 lawyers), the mainstream media, the big unions, various “committees of responsible persons,” and a myriad of other liberal interest and front groups such as Floridians for Fair and Impartial Courts.

Among the entities supporting the justices are 501(c)(3) tax-exempt groups soliciting tax-deductible contributions in support of the cause, such as Democracy at Stake.  The pro-retentionists have also made extensive use of the new media, with a considerable presence on Facebook, Twitter, YouTube, and other social networking sites.  One of the pro-retention groups is Defend Justice From Politics, which has, for example, produced and distributed the following video:

While much of the pro-retention effort is centrally coordinated, some of it appears to be more individualized.  Another of the groups supporting retention, for example, is the personal injury law firm of Searcy Denny Scarola Barnhart & Shipley, which has produced and distributed the following video:

The Targets

There is no doubt that all three justices up for retention are taking the threat to their jobs seriously.  All have been making the rounds at various non-partisan events, giving speeches, building alliances, and drumming up support for their retention.  Each is engaged in extensive advertisement in print, on the internet, and through other media.  None has ever had such a public profile in the State of Florida.

Justice Barbara J. Pariente

Justice Barbara J. Pariente was appointed to the Florida Supreme Court on December 10, 1997 by Governor Lawton Chiles.  Her official biography can be found here.

Justice Pariente has set up a campaign website.  According to campaign finance records on file with the Secretary of State, as of September 28, 2012 Pariente had received $404,717.24 in campaign contributions and had spent $250,674.59 on her retention campaign.  Based upon her record of judicial activism and her image as a liberal ideologue on some issues, Pariente is potentially the most vulnerable justice up for retention.  She has, however, demonstrated a political shrewdness that would be the envy of any professional politician and had accordingly improved the likelihood of her retention.

Her campaign has produced and distributed the following videos:

“Importance of fairness and impartiality”

“Diversity and congeniality on the court”

“Retain Justice Pariente” (15-second commercial)

Justice Peggy A. Quince

Justice Peggy A. Quince was nominated to the Florida Supreme Court by Governor Lawton Chiles on December 8, 1998.  Chiles died just three weeks before he was scheduled to leave office and before he had completed the appointment, and incoming Governor Jeb Bush agreed to honor the Quince appointment.  Her official biography can be found here.

Quince has been hard at work improving the likelihood of her retention, traveling all over the state and quietly pleading her case to various audiences.  She has set up a campaign website and, according to campaign finance records on file with the Secretary of State.  As of September 28, 2012 had received $373,375.82 in campaign contributions and had spent $244,017.36 on her retention campaign.  Her campaign has also produced and distributed the following videos:

“The importance of fairness and impartiality.”

“The challenge of being a judge”

Justice R. Fred Lewis

R. Fred Lewis was nominated to the Florida Supreme Court on December 7, 1998 by Governor Lawton Chiles.  His official biography can be found here.

Lewis is potentially the least at risk among the justices up for retention, based on his record of judicial activism.  He does not appear to be a strict ideologue.  He has set up a campaign website.  According to campaign Finance records on file with the Secretary of State, as of September 28, 2012 Lewis had received $373,136.82 in campaign donations and had spent $239,956.97 on his retention campaign.

His campaign has also produced and distributed the following video:

“On fairness and impartiality”

CONCLUSION

Statistically, none of the justices should have anything to fear in the upcoming retention election:  No justice has ever lost a retention vote, and the norm is retention by a landslide.  Yet, they are are plainly running scared.  Their collective actions could leave the impression among some observers that they know what they have been doing and they know they could get fired for it.

The collective campaign efforts of Pariente, Quince and Lewis and their supporters will likely produce a happy result for them on Election Day, but it won’t be the end of the road for any of them.  The constitutionalists are not going away, and their scrutiny of judges’s records will continue.  Pariente, Quince, Lewis and their fellow justices can now expect that every retention election will be contested by those opposed to the tradition of judicial activism on the state’s highest court — activism that has politicized the court more than anything else.  Perhaps these justices will learn from the experience and temper their actions in the future:  Most likely they will not, and Floridians will grow accustomed to retention battles at the supreme court and district court levels occuring every two years over the next generation or two.

NOTES

¹ Fla. Const., Article II, Section 3.
² Fla. Const. Art. III, Sect. 1.
³ Fla. Const., Art. IV, Sect. 1.
⁴ Fla. Const., Art. V, Sect.1.
⁵ “The ‘Activist’ Journey of the Florida Supreme Court” (American Justice Partnership, July 18, 2006).
⁶ See, Sec. 768.0755, F.S.