Several states have active bills to define as a separate criminal act threats or intimidation of judges and court staff. Gavel to Gavel 5:2 looked as some of those efforts and in early March both the Washington House and Senate passed bills to increase existing penalties for such crimes (HB 1794 & SB 5046). The Florida Senate Judiciary Committee, however, has rejected a similar effort today (audio here).
SB 262 (and its House version HB 129) would create the crime of intimidation of a judge. Much of the opposition voiced against the bill surrounded the definition of “intimidation or threats”:
“Intimidation or threats” include, but are not limited to, actions or words that:
1. Directly or indirectly threaten physical force, economic loss, damage to property, damage to career, or damage to the reputation of a judge or a member of the judge’s immediate family;
2. Are intended to create a situation requiring recusal or disqualification of a judge; or
3. Consist of contacts or attempts to contact or that create a pattern of contact with a judge or a member of the judge’s immediate family under false pretenses which would reasonably cause a judge or a member of the judge’s immediate family to fear for his or her safety.
Opponents suggested that the “economic loss”, “damage to career”, and “damage to reputation” provisions would make any conversation about opposing the judge for election or suggesting that someone should run against the judge a criminal act.
Senator Anitere Flores, chair of the committee, urged the sponsor to work with opponents to narrow the language and noted the bill was prompted, in part, by an actual case of judicial intimidation in the sponsor’s district.
The bill failed on a 3-4 vote. It is unclear what the rejection will mean for the House version.
News reports coming out of Florida indicate there is an attempt underway to expand the state’s supreme court. House Speaker Dean Cannon announced earlier today he wants to increase the size of the Florida Supreme Court from seven to 10 members and divide the 10 member court into two, 5 -member panels (one civil, one criminal). Cannon denies this is a court packing effort, claiming instead he wants to “reform” the court.
The only two states that even approximate this proposal are Oklahoma and Texas, however these two states have entirely separate courts to handle civil (Supreme Court) and criminal (Court of Criminal Appeals) cases.
The Tallahassee Democrat noted that Speaker Cannon was irate last year when the state’s Supreme Court struck from the ballot several legislatively introduced initiatives. In his first speech as Speaker-designate in November 2010, Cannon went out of his way to attack the court’s decisions.
This wouldn’t be the first time a Florida Supreme Court decision prompted a legislative effort to increase the size of the court. In 2007, Florida state senator Bill Posey introduced SB 408 in 2007 to expand the state’s Supreme Court from 7 to 15 members. The bill’s text explicitly stated the reason for the increase was to overturn the Court’s decision in 2006 that found unconstitutional the state’s use of public money for vouchers for use in Catholic schools. (Bush v. Holmes, 919 So.2d 392 (Fla. 2006)) When SB 408 became public, the senator quickly withdrew it, telling the Tallahassee Democrat “Basically, a law student came up with the idea and asked me to have it drafted so he could see how it would look, but it was never supposed to be introduced.” The senator declined to identify the law student.
For a 2010 review of efforts to tinker with the size of the state supreme courts, read Issue 4:14 of Gavel to Gavel here. For the recent effort to increase the Arizona Supreme Court (without asking or talking with the state’s Chief Justice first), read this blog post.
Update: 3/7/11 @ 3:23 According to a Twitter feed coming out of the press conference where Cannon made these announcements, Senate President Mike Haridopolos says House Speaker Cannon idea on FL Supreme Court will be given fair consideration. (h/t Gary Fineout)
It is one thing to have a state appellate court strike down a statute as unconstitutional. It is quite another to send a copy of the order striking down the law straight to the legislature. However, this is precisely what some members of the legislature are asking for.
HB 87 (and its Senate counterpart, SB 996) would require the state supreme court or district courts of appeal to send a copy of any decision that
- declares a Florida statute, regulation, or government practice unconstitutional
- recommends any statutory or regulatory changes to the current law, or
- identifies drafting issues
to the Governor, the President of the Senate, and the Speaker of the House of Representatives within 30 days of the decision. The three officers would have 30 days to acknowledge receipt and “may state in the acknowledgment any and all action to be taken in response to the opinion.”
The House bill is set for a hearing before the Judiciary Committee’s Civil Justice subcommittee on March 8.
The Florida Supreme Court’s power to set rules of practice and procedure are among the broadest in the nation, as well as among the hardest to be overridden by the legislature. The Judiciary Article of the state constitution holds:
The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought…Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.
Two newly elected members of Florida’s House, however, attempted to transfer the rule making power as to death penalty cases directly to the legislature. HJR 73 of 2011 (as filed on December 16, 2010) would have added a section to the Legislative Article that read:
Notwithstanding any other provision of this constitution, the Legislature by general law shall adopt rules governing time limits, procedures, and processes relating to all death penalty cases and related proceedings in all courts.
The state bar’s Board of Governors on December 10 adopted a legislative position against any effort to alter the Supreme Court’s rule making power:
Opposes amendment of Article V, Section 2(a) of the Florida Constitution that would alter the Supreme Court’s authority to adopt rules for practice and procedure in all courts, or that would change the manner by which such rules may be repealed by the Legislature.
On December 30, precisely two weeks after the Constitutional Amendment was proposed, it was withdrawn by its sponsors.
There have been numerous efforts to try and avoid the excesses of judicial elections, but one Florida House member has proposed a unique solution. In 2010, Broward County faced an “unwieldy primary election for judges [with] 42 candidates including 15 incumbents in 20 races”. (h/t Florida Bar News) This prompted state Sen. Jeremy Ring to introduce SB 140, a constitutional amendment that increases the number of years a person must be a member of the Florida bar before being eligible for a trial court judgeship. Circuit and county court judges would need to have 10 years as an attorney (currently 5 years for circuit, and bar admission only for county), the same qualifications needed as with the state’s appellate courts. An identical bill (HB 47) was also introduced in the House.
Earlier in 2010, Gavel to Gavel looked at efforts by state legislatures to mandate more electronic filing of court documents. Much of the focus was on civil cases, however Florida’s Senate is considering a plan to press for criminal case e-filing. SB 170 of 2011 would require prosecutors and public defenders to e-file documents with the clerk of court and report back on March 1, 2012 on the implementation of the program to the legislature.
Cross-posted at Court Technology Bulletin blog