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Lawmakers Blurring Separation Of Powers

The last time voters revamped the judicial system was 40 years ago, when the Florida Supreme Court was elected and a cesspool of bribery, case fixing and political cronyism.

These days, justices are appointed and the court is under a much different cloud. Republican critics are blasting rulings on redistricting, the death penalty, and workers compensation – decisions they call activist and turf meddling.

A ballot measure imposing 12-year term limits for appellate judges and Supreme Court justices barely passed a House subcommittee on Thursday. Republican Jennifer Sullivan argued that the only check voters have -- merit retention votes every six years -- isn’t working because no judge has ever lost.

“This bill seeks to correct that and give the people of Florida another opportunity to implement the accountability they originally intended to place upon our judicial branch of government.”

Sullivan carefully avoided criticizing the courts. It was a marked contrast from the bitter attacks Republicans made previously when the House passed a similar proposal, only to see it die in the Senate.

Chief Justice Jorge Labarga also avoided criticism earlier this week at a press conference announcing his appointments to the Constitution Revision Commission. When asked about political attacks on the courts, Labarga says he’s not worried.

“I’m old enough to remember the billboards that said, ‘impeach Warren.’ You know the relationship between the judiciary and the other two branches has not always been smooth. So, this is nothing new.  And I suspect that throughout our history we will continue to have disagreements.”

That Labarga would comment at all speaks volumes. Justices are hyper sensitive about their objectivity on any matter that could come before the court. But like the Legislature, the CRC has the power to put measures directly on the ballot – and judicial term limits could be on the agenda.

Labarga denies giving his appointments a political litmus test. But he said he chose them based on their respect for separation of powers. 

“My biggest, if I had to ask for an ask, is for the preservation of an independent judiciary to render independent decisions.”

Legal advocates and business groups are pressing hard against judicial term limits.

Democratic Representative Sean Shaw of Tampa takes the debate personally. He is the son of the late Justice Leander Shaw, Florida’s first African-American Chief Justice.

“If you do not agree with certain decisions of the Supreme Court or an appellate court, well, good, then that means the separation of powers is working.”

However, Shaw says,  “If the response to that is to attempt to change how we appoint judges, who remains on the bench, then I think we’re encroaching and getting into deep water with respect to respecting the judiciary’s independence.”

Conservative Republicans aren’t the only ones questioning separation of powers. Freshman Democratic Representative Kimberly Daniels of Jacksonville is railing against the fallout from a 1962 U.S. Supreme Court decision banning prayer in schools.

Daniels’ is a pastor and despite the case known as Engle, she’s filing a bill she hopes will encourage religious expression in schools.

“I don’t believe in the separation of church and state because the state came out of the church. We came to America, or our forefathers came to America, for religious liberty.”

Warren Husband is an attorney for the Florida Bar, which is firmly opposed to term limits. Husband says democracy, like a precision watch, depends on a certain amount of tension between the branches to function properly.

“When one branch tries to relieve one of those tensions it takes the clockwork of our democracy and changes how it functions, and maybe it doesn’t function.”

Ballot measures featuring judicial or executive term limits have been attempted in Mississippi, Nevada, and most recently, in 2006 in Colorado, Husband says.

And voters have rejected them every time.

A Miami native, former WFSU reporter Jim Ash is an award-winning journalist with more than 20 years of experience, most of it in print. He has been a member of the Florida Capital Press Corps since 1992.