As we approach election time again and grow weary of political television advertisements and the auto-dialed, recorded political messages, remember the importance of exercising your fundamental right to vote.
In Florida, we not only vote on who will represent us in the various legislative and executive positions in this state and the country, but we also play a role in the maintenance of our state appellate judiciary.
This article addresses the history of merit selection/retention in this state and how merit retention “elections” differ from traditional political elections.
In Florida, our appellate judiciary consists of five District Courts of Appeal and the Florida Supreme Court.
The five District Courts are made up of nine to 15 judges (depending on the District) and the Supreme Court has seven justices.
In 1978, the people of Florida voted to amend the state Constitution to change the way our appellate judiciary is selected and retained on the bench. Today, pursuant to Florida’s Constitution, appellate judges are appointed by the governor from nominations made by judicial nominating commissions (JNCs).
JNCs are nine-member, nonpartisan commissions made up of lawyers and nonlawyers tasked with locating, recruiting and evaluating applicants for judicial office.
After appointment, Florida appellate judges are subject to merit retention “elections” every six years.
In a merit retention election, the voters decide whether or not the judge will serve an additional six-year term. The ballot reads, “Shall Justice/Judge _________ of the _________ court be retained in office.”
In response to this question, the voter marks “Yes” or “No.” If a judge does not receive a majority of favorable responses, the judge leaves office and the office is refilled through the merit selection process.
Florida’s merit retention law was proposed (and ultimately adopted by referendum as a constitutional amendment) to address the inconsistency of demanding judges to be impartial while at the same time requiring them to raise money every six years to re-run for office in a contested election.
Unlike legislators and executives who are expected to respond to the will of the people when making laws or policies, judges should not be swayed by popular views or public sentiment. Judges are required to be nonpartisan and to rule based on the requirements of the law as contained within the Constitution, Statutes and applicable codes and rules. Ultimately, the right decision is not always the popular decision.
The former election process for selection of judges brought into question the impartiality of judges as the judges would typically raise campaign funds from lawyers who would appear before them and subject the candidates to criticisms about particular rulings made to which they could not fully respond.
In fact, appellate judges generally cannot campaign or even raise money unless they certify through the Secretary of State that their candidacy has drawn opposition. Even then, judges cannot campaign “on the issues.” Canon 7 of the Code of Judicial Conduct forbids the judges and justices from stating how they will decide future cases as they are required to remain impartial.
While most citizens, lawyers included, have very little contact with the appellate judiciary, their biographies are accessible through www.FloridaBar.org, The Vote’s in Your Court.
In addition, their decisions can be seen on the opinion pages, as published by the appellate courts of the state.
Look for Merit Retention: Part II in upcoming Bulletins as we approach Election Day.