Two bills targeting Florida’s appellate courts have cleared the House Judiciary Committee and are now heading for a vote of the full House.
HJR 1, which was approved 11-8 and discussed here, limits appellate judges (Supreme Court and District Courts of Appeal) to 12 consecutive years in office and prohibits them from being reappointed for 1 year after leaving office. Proponents complained the state’s retention election system was “broken” because no appellate judge had ever lost a race and that therefore term limits were required.
As previously noted, no state puts term limits on its appellate judges and only New Mexico does so in one limited-instance at the trial level (part-time Probate Court judges).
HB 301 approved 12-6 and discussed here requires the Florida Supreme Court to provide a “detailed explanation” to the governor and legislature when a case goes longer than 180 days from oral argument to decision. A similar law was enacted in Kansas in 2014 as a section 4 of HB 2446. That law set time limits of 120 days (trial courts) or 180 days (appellate court) for decisions. Section 4 of HB 2446 was struck down as an unconstitutional infringement on the separation of powers a year later (State v. Buser).
Angry at recent state court decisions against the legislature, members of the House have moved a series of bills targeting the judiciary in general and the state’s supreme court in particular. The House Civil Justice and Claims Subcommittee yesterday cleared 3 bills in this area:
HJR 1, which was approved 8-7 and discussed here, limits appellate judges (Supreme Court and District Courts of Appeal) to 12 consecutive years in office and prohibits them from being reappointed for 1 year after leaving office. Proponents complained the state’s retention election system was “broken” because no appellate judge had ever lost a race and that therefore term limits were required.
HB 175 approved 11-5 would remove the supreme court’s power over judicial training and shift it to the Florida Court Educational Council which currently advises the supreme court on judicial education.
HB 301 approved 13-3 and discussed here requires the Florida Supreme Court to provide a “detailed explanation” to the governor and legislature when a case goes longer than 180 days from oral argument to decision.
The bills now move on to the full Judiciary Committee.
Proposals to subject Florida appellate judges to term limits have been refiled for the 2017 session. A version passed the House in 2015 (see discussion here). As a I noted at the time, no state has term limits for its judges (with the odd exception of New Mexico’s part-time, non-attorney Probate Court judges).
HJR 1 appears to be similar if not identical to the 2015 version (HJR 197); it limits appellate judges (Supreme Court and District Courts of Appeal) to 12 consecutive years in office and prohibits them from being reappointed for 1 year after leaving office. It is specifically not retroactive and does not count any prior years of service on a court against a judge (“time served by the justice or district court judge in that office prior to January 9, 2019, shall not be included in the calculation of the total number of consecutive years served in that office.”)
SJR 482 also has a term limits provision (two consecutive full terms) but includes some unique elements.
First, it would require a nominee for the Supreme Court have been a judge for a least one year. While effectively every state requires appellate judges be attorney s, no state requires prior judicial experience.
Second, it would require nominees for both appellate courts to be at least 50 years old. While some states require appellate judges be at least a certain age, they range from 25 to 35, not 50.
Finally, and perhaps most critically, the term limit provisions would be retroactive (“The limitations of the amendment on the terms of justices and judges apply to justices and judges in office on the effective date of this amendment [January 1, 2019].”)
Both bills have been filed in their respective chambers but not yet sent to committee.
A newly elected attorney-legislator to the Florida House wants the state’s top court to report why it is taking longer than 180 days to reach decisions in cases.
Under HB 301 as filed the Florida Supreme Court would be required submit annually a two-part report.
Part I would be a listing of all cases currently before the court as of September 30 for which a decision or disposition has not been rendered within 180 days. In addition to the list, the court would have to explain its delay to the legislature and governor for the delay in each case.
A detailed explanation of the court’s failure to render a decision or disposition within 180 days after oral argument was heard or after the date on which the case was submitted to the court panel for a decision without oral argument.
Additionally, the court would have to give a date on which it anticipates reaching a decision.
Part II would be a listing of all cases decided by the court in the prior year for which a decision or disposition took longer than 180 days. In addition to the list, the court would have to explain its delay to the legislature and governor for the delay in each case.
A similar law was enacted in Kansas in 2014 as a section 4 of HB 2446. That law set time limits of 120 days (trial courts) or 180 days (appellate court) for decisions. Section 4 of HB 2446 was struck down as an unconstitutional infringement on the separation of powers a year later (State v. Buser).
HB 301 has been filed but not yet directed into a committee.
Two bills were filed in the Florida legislature yesterday that would measure the sentences judges hand down in criminal cases and possibly force judges off of such cases if the racial and other disparities are too great. The bills appear to be in response to reporting done by the Sarasota Herald-Tribune which collected sentencing data on all judges in the state and claimed racial disparities in sentencing practices.
Under HB 255 and SB 382 the legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA) would be required to collect data on all criminal sentences handed down from 2013-2017 (House) or “the previous 5 calendar years” (Senate). Data would include:
(a) The judge who presided over each trial.
(b) The judge who presided over the sentencing phase.
(c) The circuit in which, and the specific location of the court at which, each case was heard.
(d) Each offense for which the defendant was convicted or entered a plea of nolo contendere.
(e) The range of possible sentences for each offense.
(f) The sentence imposed for each offense, including, but not limited to, any fines or jail, prison, probation, or other imposed terms.
(g) Demographic information about the defendant, including, but not limited to:
5. Prior criminal history.
If OPPAGA’s analysis found evidence of disparity in sentencing by a judge with regard to any demographic group, the judge would be disqualified from any case involving a member of that demographic group, pursuant to s. 38.10.
Additionally, OPPAGA’s judge-by-judge reports would be delivered to the individual judge as well as the Governor, Chief Justice, and Legislative leaders.
Both bills have been filed but not yet assigned to a committee.
A plan to allow the Florida legislature to override any state court decisions that strike a “legislative act” as unconstitutional has been prefiled for the 2017 session.
HJR 121 provides
Any law, resolution, or other legislative act declared void by the supreme court, district court of appeal, circuit court, or county court of this state may be deemed active and operational, notwithstanding the court’s ruling, if agreed to by the legislature pursuant to a resolution adopted by a two-thirds vote of each house within five years after the date that the ruling becomes final. Such resolution is exempt from section 8 of this article and shall take effect immediately upon passage.
Section 8 refers to the governor’s power to sign or veto bills, thus the governor would have no role in the legislative override process.
The proponent has posted on own website that the rationale for the proposal, and a similar one urging Congress to enact a federal 2/3rds override plan, is to “curtail the tendency of activist judges to manipulate the law to suit their political views and agendas.”
This isn’t the first such proposal introduced in recent years, but it broader than most which usually only target only the state’s supreme court such as Montana SB 334 of 2009, New Jersey ACR 118 and the companion SCR 63 both of 2008, and Wyoming’s HJR 7 of 2016.
The Florida House yesterday passed 76-38 a constitutional amendment to impose term limits on the state’s appellate courts. HJR 197 needed at least 72 votes (60%) to clear the chamber. The plan calls for all future appellate judges to be limited to two terms for a total of 12 years.
During the floor debate a House member attempted to amend the bill to impose a “Scalia rule”: if a Florida Supreme Court justice died in office during a governor’s 4th year in office, the governor was banned from naming a replacement (Amendment 962737)
However, if a justice of the supreme court dies within one year before the term of the governor expires, that justice may not be replaced until the governor whose term commences after expiration of the term of the governor in office when the justice died appoints a successor justice.
The amendment was rejected on a 5-98 vote.
HJR 197 now goes to the Senate where its companion (SJR 322) has not yet moved or had a hearing.