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The court fight over the presidency may be over in Florida, but a GOP effort to punish the Florida Supreme Court for being too “liberal” has moved center stage, and trial lawyers and the state bar may get hurt in the process. The Florida Legislature convened on March 6 with many of its members still angry about what they perceived as high court favoritism for President George W. Bush’s main opponent, Al Gore. Some legislators are pushing bills and constitutional amendments to make it easier to remove justices from office or to restrict their jurisdiction and budget. Ideas include judicial term limits, contested elections for all judges and adding two new seats to the state supreme court. “It’s payback time,” says bar president Herman Russomanno. In a legislature in which Republican majorities in both houses exceed three-fifths — the size of the vote needed to put a constitutional amendment on the ballot — something seems likely to pass. The most far-reaching measure is a proposed state constitutional amendment that, among other things, would require justices to win two-thirds of the votes in retention elections to keep their jobs. Justices’ approval margins in most recent elections have exceeded 2 to 1. But in 1992, when there was an organized campaign against one justice, all four members of the supreme court who were on the ballot got fewer than two-thirds of the votes. If the amendment had been law, they would have been ousted. Supporters of the amendment include Representative Tom Feeney, the new speaker of the House, who accused the court of “turning Florida law on its head” during the presidential-ballot litigation. PARTISAN ‘FOOTBALL’ “Everything about the court system is now a football game between Republicans and Democrats,” says Paul Jess, general counsel of the Academy of Florida Trial Lawyers. The court consists of six justices appointed by Democratic governors and one appointed jointly by a Democrat and a Republican. It can’t fairly be characterized as either Democratic or Republican, liberal or conservative, says Martha W. Barnett, the American Bar Association president and a Tallahassee lobbyist for her law firm, Holland & Knight. She calls it “a very good substantive court,” one of the best in Florida’s history. Nevertheless, in the rancorous post-election atmosphere, long-simmering resentments over decisions on the death penalty, abortion, gun control, school vouchers, affirmative action and taxation have moved to the forefront. Those are the issues that bring out voters. The ones that attract money for judicial campaigns — tort reform and rules for establishing defendant liability — also are on the active agenda. The Florida Supreme Court has been “very claimant-oriented for the last two or three decades,” says University of Florida law professor Joseph Little, a plaintiffs’ lawyer. Gerald Kogan, a former Florida chief justice, says a conservative legislative backlash started during his tenure, 1987 to 1998, and gathered steam every session. It’s more serious now, he says, because Feeney is its leader. As House speaker, “he’s going to ramrod this thing through,” says Kogan, who is now with the Alliance for Ethical Government, a Miami organization. As the legislative session began, Speaker Feeney and John McKay, the state Senate president, announced the formation of a legislative committee to recommend “structural reforms” of the judiciary within two years. Feeney, a lawyer, says his support of the judicial amendment has nothing to do with partisan differences. He accuses the court of “inventing standards that have no basis in law.” He points to the ballot-recount cases as evidence and also cites a September 2000 state supreme court opinion nullifying a state constitutional amendment that had been designed to shore up the state’s death penalty if the electric chair were to be abolished. The death penalty also ranks high on the grievance lists of other Florida court critics, including Representative Frederick C. Brummer, the Chamber of Commerce activist who is the author of the judicial reform amendment, and George N. Meros, a corporate and insurance defense lobbyist. Brummer and Meros share another objective that’s of more concern to trial lawyers. Meros was chief architect of a 1999 omnibus tort reform statute that put strict limits on punitive damages and deep-pockets liability and barred suits against makers of most products more than 12 years old. A trial judge has struck it down as a violation of a state constitutional provision that says a law must deal with a single subject. The case is on appeal. Florida Consumer Action Network v. Bush, No. 99-6689 (Fla. 2d Judicial Cir.). Provoked by that ruling and others, Brummer crafted Section 1 of his amendment to deal with what he views as judicial over-reaching in striking down statutes. It would limit the supreme court’s original jurisdiction and make many advisory opinions non-binding. Brummer says it would have barred the nullification of the tort reform statute based on the single-subject rule. The amendment would slow up constitutional review by restricting the courts’ jurisdiction to “actual” cases and controversies, such as those filed on behalf of identifiable tort victims. “A person entirely unrelated to the situation wouldn’t go to them to get an opinion on the matter,” Brummer says. The plaintiffs named in the tort reform case include only one individual — Al J. Cone, an Ocala lawyer and founding father of the Academy of Florida Trial Lawyers. He sued as a lawyer, claiming that the statute interferes with his professional duties, and as a taxpayer, saying that it increases costs for public health care. All of the other plaintiffs are organizations, including the academy, the Florida Consumer Action Network and the NAACP. Brummer’s proposed constitutional amendment is unlikely to affect the tort reform suit. It will probably reach the supreme court before the amendment could be put on the ballot, in November 2002. Nor would the amendment change the rules in time for next year’s judicial retention elections. However, it would focus some unfriendly attention on the two members of the state supreme court — Chief Justice Charles T. Wells and Associate Justice Harry Lee Anstead — who must run in 2002. They will need a majority of the votes cast. The last time they ran, in 1996, Justice Wells was approved by 69 percent of the voters; Justice Anstead, by 68.5 percent. Those numbers are typical of returns in recent elections, except the one in 1992, when four justices’ votes fell short of the two-thirds requirement that Brummer’s amendment would impose. Supporters of the death penalty and opponents of abortion mounted a fierce campaign against former Justice Rosemary Barkett, now a member of the 11th U.S. Circuit Court of Appeals. She got 60.9 percent of the vote, and the highest approval score that year was 65.6 percent. BUSINESS AND BAR Former Chief Justice Kogan says that the National Rifle Association, the American Family Association and several other organizations would participate in any campaign against the court. He says the big money would come from Florida’s big businesses — “no question about that.” While the trial lawyers probably would play a major role in financing the defense of the court, its chief defender currently is the Florida Bar Association. The organization has a duty to educate the public whenever any court is attacked unfairly, says bar president Russomanno, a Miami trial lawyer. This time the bar has a direct stake in the outcome. Brummer’s judicial reform amendment would dismantle the organization by scrapping a court rule that requires all 67,000 Florida lawyers to be members and would end the bar’s participation in judicial selection. Under current law, a nine-member nominating commission in each judicial district sends the governor a list of three to six approved candidates for each vacancy on the bench. Each commission includes three members appointed by the governor and three appointed by the bar. Those six members choose three more. The amendment would abolish the commissions, giving the governor the power to make judicial appointments with the consent of the state Senate. THE OUTLOOK Brummer says he won election two years ago by making judicial reform his issue. He thinks it’s still a winner. While he has conducted no polls, he says support “is broad, and it’s substantial.” His criticisms of the supreme court — arrogance, lack of accountability and a need for tort and criminal justice reform — “rang true at the front door; they rang true at the Chamber of Commerce meeting,” he says. Steven J. Uhlfelder, a Tallahassee lawyer with connections in both political parties, isn’t convinced that the move against the court is more than saber-rattling at this point. Uhlfelder, a leader of Democrats for George W. Bush last fall, notes that Florida Governor Jeb Bush will be up for reelection in 2002. He speculates that Bush will not want a major fight over the court on the same ballot. In what may have been a telling gesture, the governor recently proposed a $6.5 million budget cut for the state courts, amounting to about 2.5 percent of their funding. That’s less than he has asked from some of his executive agencies and much less than the $100 million or so being contemplated by some legislators. But, just in case, Uhlfelder says that he and other lawyers have talked of forming a committee to defend Justices Wells and Anstead, and there have been meetings and e-mails among lawyers interested in creating a separate group to defend judicial independence.

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