Merit Retention: The Biggest 2012 Ballot Decision You Might Not Have Heard Of

TALLAHASSEE – With only seven weeks left until what is arguably the most influential presidential election in a generation, one particular down-ballot issue in Florida is gaining visibility: the merit retention vote on three justices of the Florida Supreme Court.

As outlined in the state Constitution, merit retention is a process whereby the state’s appeals court judges, who are initially appointed by the Governor, are periodically evaluated by voters during general elections.

On November 6, voters will decide whether to retain or dismiss three of Florida’s seven Supreme Court justices, as well as 15 appellate judges. No Florida judge subjected to the process has ever failed to be retained. However, because of an increase in public awareness, this election cycle could be different.

This year, Supreme Court Justices Peggy Quince, Fred Lewis, and Barbara Pariente will appear on the ballot with a simple “yes” or “no” beside their names. Only a simple majority vote is required for their retention. Each justice is subjected to a retention vote during the first election cycle after being appointed to the court, then every six years thereafter.

Quince, Lewis, and Pariente have been branded liberal, activist judges by many Floridians upset with certain rulings. One such ruling blocked a 2010 ballot initiative that would have challenged ObamaCare’s individual mandate. Another ruling derailed the Opportunity Scholarship Program, which provided vouchers enabling the parents of students trapped in chronically failing schools to choose another school, public or private.

Several conservative activist groups have also come to view the three justices as the very core of a liberal voting bloc that often stifles meaningful reforms approved by elected officials in the Legislature.

Jesse Phillips of Restore Justice 2012, a Central Florida group opposed to retaining Quince, Lewis, and Pariente, told the Capitol Vanguard that, “Justice Quince said it best, ‘We have a merit retention system to determine if Justices are doing their jobs.’”

To that end, Phillips contends that the only way to tell is to “look at their decisions; are they living up to the Constitution?”

The justices have received solid backing from the Florida Bar, which represents all licensed attorneys in Florida. The Florida Bar is also conducting a high profile “educational” program ostensibly on behalf of the jurists called “The Vote’s in Your Court.”

Several prominent Republicans have also publicly denounced dismissing the three justices. On principle they support “keeping politics out of the retention process.”

As a result, Quince, Lewis, and Pariente may very well be secure. They’ve also raised nearly $200,000 apiece in campaign funds and will face no alternative candidate on the ballot.

But one senior attorney who served in the Crist Administration and who declined to be identified said that “attorneys across the state will not speak out against the justices because they’re afraid of ramifications. There are too many interests in support of retaining them.”

When asked why businesses aren’t contributing to the campaign opposed to retaining Lewis, Pariente, and Quince, the source said he was surprised. “A little bit of support could yield huge changes in future judicial outcomes. But businesses may be waiting instead to contribute to Gov. [Rick] Scott’s reelection rather than risk negative publicity in a battle they’re not likely to win.”

In support of keeping politics out of the merit retention process, Gary Blankenship of The Florida Bar News quoted former Florida Supreme Court Chief Justice Major Harding, who spoke about the issue earlier this summer.

“All of the judges in this room who have been on the bench any number of years have had cases that created public interest and emotional responses,” Harding declared. “If judges ever lose the ability to be fair and impartial and respond to those emotional responses, we will be in a sad state of affairs.”

A well-respected centrist, Harding laments the idea of judges raising campaign money – something he never did. “The culture has changed in a significant way,” he said, since he was up for retention in 1992 and 1998.

Harding and many others who are opposed to ousting the three justices maintain that the merit retention system was intended to dismiss judges only for wrongdoing or professional misconduct.

Phillips of Restore Justice disagrees. “That argument falls flat. There’s already a process in place to deal with judicial misconduct and ethics. We are not supposed to wait every six years to deal with a judge who did something wrong,” Phillips added.

Given the long odds the recall campaign faces, together with the tepid support it has received from business interests, Restore Justice’s fund-raising has been low. But Phillips claims funding isn’t his goal, but rather that Restore’s success will be determined by the level of public awareness it raises.

“The fact that we’re having this conversation means we [Restore Justice 2012] have been successful,” he told the Capitol Vanguard. “

* Florida did away with contested Supreme Court elections in 1976. After the high court was rocked by a series of embarrassing scandals, voters by a margin of 1,600,944 to 527,056 ratified a constitutional amendment switching the high court (and the district courts of appeal) to the merit retention system.