Voters get say on justices, appellate judges

By LLOYD DUNKELBERGER
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, October 6, 2016.......... Three Florida Supreme Court justices and 28 state appellate judges face merit-retention votes in the Nov. 8 general election.

Under the non-partisan merit retention system, which was first used in the 1978 elections in Florida, Supreme Court justices and appellate judges are appointed by the governor and then face an initial retention vote, after one year in office, in the next general election.

After the initial retention vote, which requires support from a majority of voters, justices and judges face retention votes every six years.

In the nearly 40-year history of the merit retention system, no Florida justice or appellate judge has failed to win a majority retention vote, although some have faced opposition. If a justice or judge failed to receive a majority retention vote, it would create a vacancy in the office, starting the process of nominating another jurist who would be appointed by the governor.

This year, Supreme Court Chief Justice Jorge Labarga and justices Charles Canady and Ricky Polston, who were all appointed to the state's highest court by former Gov. Charlie Crist, will face their second merit-retention votes.

In 2010, the three justices easily cleared their initial retention tests, ranging from Canady's support from 67.5 percent of the voters to Labarga's 59 percent. Polston received 66 percent support.

The 28 appellate judges facing votes this year are spread across the state's five appellate districts, each of which include multiple counties. For example, residents in the 14 counties that are part of the 2nd District Court of Appeal will vote on whether to retain 10 appellate judges. The Lakeland-based 2nd District Court of Appeal stretches from Pasco County to Collier County.

As another example, the 3rd District Court of Appeal, which includes Miami-Dade and Monroe counties, will have two judges up for merit-retention votes.

The merit-retention elections have drawn little attention and no controversy this year.

A poll last month by The Florida Bar of nearly 6,000 lawyers who had knowledge of the Supreme Court justices or appellate judges found more than eight out of every 10 lawyers believe the justices and judges should be retained.

Florida Bar President William Schifino said the positive reviews by lawyers who practice in the appellate courts is a sign that the merit-retention system is working.

"The judicial nominating commissions that recommend candidates to the governor do an excellent job of finding fair and qualified justices and judges," he said.

Florida has had some controversial merit-retention elections, with the last occurring in 2012 when three Supreme Court justices were targeted by the Florida Republican Party and Americans for Prosperity, a group backed by conservative billionaire brothers Charles and David Koch. The justices' opponents, at least in part, cited a decision to block a proposed 2010 constitutional amendment that was aimed at curbing the federal Affordable Care Act.

Aided by a collective total of about $1.5 million in campaign contributions, justices R. Fred Lewis, Peggy Quince and Barbara Pariente easily defended their seats. Each won about 68 percent of the vote.

"The process, while set up to be apolitical, is not immune from the political process," said Dan Stengle, a Tallahassee lawyer who advised the justices in the 2012 retention campaigns.

Stengle said the merit-retention system was created to "protect the integrity" of the judiciary so that the courts don't "sway from political cycle to political cycle."

But if justices or judges are challenged, the retention campaigns are difficult because the jurists are far more limited than other elected officials in what they can say during the campaign, Stengle said.

"It is difficult for judges to defend themselves because they are not really supposed to," Stengle said. "It's hard to run a merit retention campaign when there is a limit in what they can talk about, including the cases they have decided."

Outside of Florida, some merit-retention votes have resulted in judges losing their seats. In 2010, conservative groups successfully targeted three members of the Iowa Supreme Court who had joined a unanimous court decision that permitted same-sex marriages.

"It's fortunate it's not happened here," Stengle said. "Even though it's not perfect … the process ultimately works and we have gotten qualified judges who have been retained."