January 1, 2001
Source: Representative Tom Feeney,  Speaker of the Florida House of Representatives

The Florida Constitution begins with the declaration that "all political power is inherent in the people." Sadly, the Florida Supreme Court has routinely disregarded this first principle, choosing instead to impose its own will concerning public policy, and in the process has run roughshod over the electorate. The Florida Legislature, the elected branch closest to the people, has a duty to review judicial actions that venture beyond interpretation of law and encroach upon its lawmaking functions.

In fact, our state constitution clearly provides that "no person belonging to one branch shall exercise any powers appertaining to either of the other branches" unless the constitution expressly provides otherwise.

We all want judges to be independent, in the sense that they are not reliant upon any individual or special interest group, including the Florida Bar, which might exert undue influence over their decisions. We want judges to apply the law fairly and without partiality. Equally important, we want judges to be accountable to the public they serve and to exercise their judgment within the bounds of the constitution and the rule of law. Some degree of accountability is necessary to ensure that courts do not exercise their power arbitrarily and to safeguard against judicial usurpations of executive or legislative responsibilities that are cleverly masked as assertions of "independence".

The president of the Florida Bar, Herman Russomanno, believes that the independence of the Florida judiciary is under assault and that all lawyers should instinctively and blindly come to the defense of the current system. Mr. Russomanno, in a lengthy Florida Bar News article, implores lawyers to rigorously counter these "virulent partisan attacks" on the courts by individuals who "are impatient with the rule of law or reject it outright", and who are "trashing constitutional principles". It is disappointing that the Florida legal establishment is opposed to the possibility of legislative debate on judicial reform, and it is disconcerting that serious questions, motivated by a genuine concern for constitutional principles, would be dismissed as "partisan attacks." Certainly, the Legislature’s openness to reform poses no threat to any judge, lawyer, litigant, or citizen who supports constitutional principles and values the rule of law.

As a lawyer and as a citizen, I share the Founder’s goal of judicial independence. In Federalist No. 78, Alexander Hamilton argued that the interpretation of the law is the responsibility of the courts, and that judges should regard the constitution as "fundamental law." This means the words of the constitution constrain every public officer and citizen – they control judges every bit as much as they control governors and legislators. Hamilton also warned "[t]he courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body."

The only way a constitution can constrain judges is if those judges exercise self-control and refrain from creating new, arbitrary standards whenever they dislike the requirements currently imposed by law. Unfortunately, the Florida Supreme Court crossed this constitutional boundary in its September 2000 opinion, Armstrong v. Harris, when it nullified a constitutional amendment supporting the death penalty, drafted by the people’s elected representatives and overwhelmingly ratified by the people themselves. The amendment was placed on the ballot by a two-thirds vote of both the Florida Senate and the Florida House of Representatives. The amendment was approved by an incredible 72.8 percent of the majority of voters in the November 1998 election. Nevertheless, the Florida Supreme Court, 22 months after the amendment was incorporated into the constitution, declared the amendment to be unconstitutional. Careful scrutiny is demanded when a court holds the constitution, as approved by the people, to be unconstitutional.

The amendment preserved the constitutional status of the death penalty in Florida by requiring the cruel or unusual punishment clause of the Florida Constitution to be interpreted in conformity with the United States Supreme Court decisions construing a similar provision within the United States Constitution. The amendment also provided that changes in the method of execution would not invalidate any death sentence. These reasonable provisions would be part of the Florida Constitution today but for the Florida Supreme Court’s decision that the ballot statement did not meet an "accuracy" requirement – a requirement that did not exist in either the state constitution or state law, but rather was invented by the Florida Supreme Court in the Armstrong decision itself.

In fact, Chief Justice Charles Wells, the lone dissenter in Armstrong, spotlighted the Court’s brash disregard for constitutional principles, noting that what the court had actually done was to first create an "accuracy" requirement and then to use that requirement to invalidate the constitutional amendment proposed by the Legislature. Judicial independence from political influence does not authorize a court to make up a standard that has no origin in either the constitution or laws of this state, and then to use that new standard to declare a part of the state constitution to be unconstitutional because the Legislature failed to meet an invisible, ex-post facto standard that did not exist until the court created it out of thin air.

Further, the Chief Justice noted that the Armstrong decision not only invalidated an act of the Legislature, but also invalidated a vote of the people of Florida. In his dissent, the Chief Justice quoted a 1956 Florida Supreme Court decision, Gray v. Golden, in which the court showed a respect for the people and a reverence for the constitution that seems to have escaped the current justices:

…we are dealing with constitutional democracy in which sovereignty resides in the people. It is their constitution that we are construing. They have a right to change, abrogate, or modify it in any manner they see fit so long as they keep within the confines of the Federal Constitution. (emphasis added)

And there is more. The Gray court continued:

The legislature which approved and submitted the proposed amendment took the same oath to protect and defend the Constitution that we did and our first duty is to uphold their action if there is any reasonable theory under which it can be done. This is the first rule we are required to observe when considering acts of the legislature and it is even more impelling when considering a proposed constitutional amendment which goes to the people for their approval or disapproval.

The Court’s sentiment in Gray, written almost fifty years ago, embodies a deep respect for the separation of powers that is central to our democratic government. It is the essence of judicial independence and the antithesis of judicial arrogance.

Unfortunately, this Florida Supreme Court foray into lawmaking, by inventing standards that have no basis in law, was not an isolated event. A few months later, in the Presidential election cases that captured the attention of the nation and the world, the Court abrogated a clear statutory deadline and created a new one, simply because the Court believed it had a better idea of what would be a more suitable deadline. Americans had a front row seat for the spectacle of a Court substituting its own election code preference for the one statutorily expressed by the Legislature. The Court was openly hostile toward any "hypertechnical reliance on statutory provisions." Simply put, this Court ignored the Florida Statutes and made up the law as they went along.

In the highest profile case of our generation, a majority of the Florida Supreme Court suffered the embarrassment of being overruled by the highest court in the land, not just once, but twice, and within a two-week period. The United States Supreme Court ruled that the Florida Supreme Court had no justifiable reason for its failure to follow the Federal Constitution, the United States Code, or the Florida Statutes. In contrast, the circuit judges’ rulings were firmly rooted in law and were routinely praised by commentators as being just and fair-minded.

Unfortunately, the leadership of the Florida Bar is not disturbed by the Court’s recent usurpation of legislative and executive authority. This is troubling because the Florida Bar is a special interest group that arguably exercises more influence over the judiciary than any other entity. Judicial Nominating Commissions, responsible for screening and recommending judicial candidates for gubernatorial appointment to the bench, are heavily stacked with lawyers who are members of the Florida Bar. This is a tremendous amount of power given to one special interest group.

Senate President John McKay and I have appointed a Joint Legislative Committee on Article V to review the various aspects of our judicial system. This committee, led by Representative Johnnie Byrd and Senator Victor Crist, will, among other things, explore the structural questions raised in the Armstrong and Presidential election cases. Judges understand that the litigants, as well as court observers, scholars, journalists, students, and politicians will dissect their decisions. When elected representatives focus attention on court opinions, it is quite an overstatement to characterize that interest as a "virulent partisan attack" on judicial independence. Rather, a spirited, open debate on judicial decision-making by the coordinate constitutional officers serving in the Florida Legislature should be anticipated in a healthy democracy.

I am proud to be a member of the Florida Bar and I look forward to the Bar’s participation in the judicial reform process. The Florida Bar has done a remarkably good job of disciplining its errant members. It is my hope that the Bar can exercise the same commitment to the fundamental constitutional principles and help us create a safe harbor for a politically-neutral, independent judiciary, committed to the constitution and the rule of law.