Independence panel concerned by threats
J.A.I.L.4Judges seeks to subject sitting judges to civil and criminal penalties imposed by special tribunals
July 15, 2006
The Bar's Judicial Independence Committee is looking locally and internationally at possible threats to the ability of judges and lawyers to do their jobs.
The committee met June 22 at the Bar's Annual Convention in Boca Raton. Its discussion items included efforts in England and Wales to place regulation of lawyers under the executive branch and a voter initiative in Florida called J.A.I.L.4Judges that seeks to subject sitting judges to civil and criminal penalties imposed by special tribunals.
The committee also discussed problems with judicial elections.
Committee Chair Jesse Diner said the J.A.I.L.4Judges campaign in Florida, although established a couple years ago, recently set up a Web site for its campaign for a constitutional amendment. He said the effort is based on an existing campaign in South Dakota where the initiative goes to voters this fall.
"Basically, they want to take away the immunities that are provided to a judge in this state, except as specifically provided in the amendment, which is basically nothing," Diner said. "It is statewide grand juries for the purpose of prosecuting judges for deviating from what they consider the standards of what a judge should do.
"The proposed amendment seeks to not only hold accountable judges, justices, and magistrates, but also judicial mediators
and arbitrators and referees and anyone who is shielded by judicial immunity," he added.
Tax on Judges
Other features provide that the program would be paid for by a 2.9 percent tax on judges' salaries, and grand jurors who would serve for a year would be paid a salary equal to that of circuit judges. Committee member Debra Curtis said there would be no appeal from the special grand jury's rulings and that the grand jury could initiate criminal charges without the involvement of a state attorney.
Committee member Richard Levenstein noted the amendment provides that a grand juror must be at least 30, have been a citizen for nine years, and may not be a judge or a lawyer.
The amendment also provides that it takes precedence over any conflicting state constitutional provisions. Judges found by the grand jury to have made three mistakes would be automatically removed from office and would have whatever pension benefits they were due reduced by one-half. Judges are also prohibited from billing the public when they defend themselves from any charges filed with a grand jury.
Diner said the goal of the national campaign is to pass the amendment in South Dakota, and then undertake campaigns in California and Florida.
According to the Florida J.A.I.L.4Judges Web site, "Our goal is to take Florida and California by storm, then the other states by fall-out. What begins in Florida and California sweeps the nation. With pressure from the other states, we will create a call for federal judicial accountability."
The viability of the group's Florida campaign remains uncertain. Dana Watson, a legislative aide with the Bar who serves as staff for the committee, said the group began its state petition drive four years ago, but has collected only 16 signatures. About 611,000 verified signatures are necessary to get the amendment on the ballot.
That could change, however, as the group just posted its Web site on the Internet, which could raise its visibility. Diner noted the Web site lists county directors, although most counties, including some of the largest in the state, apparently do not yet have directors.
The committee did not vote to take any action on the group, but Diner said, "Let's keep our eyes open on this and be as informed as we can be."
England and Wales
The international discussion came on a bill expected to pass the British Parliament that changes the regulation of the bar. The committee discussed that with Brock McClane, a member of the International Law Section and the International Bar Association, who attended a recent IBA conference in London.
"It's a troublesome development," McClane said.
The issue arose from an investigation of a single issue on whether the bar was being responsive to consumers, and the report concluded that the self-regulated bar was doing a poor job on that issue. Consequently, the report recommended that the government take over that regulation and a bill has been drafted and, being sponsored by the Labor Party, is expected to pass.
"It will establish a new bureaucracy in England and Wales that will take over the regulation of lawyers," McClane said. "To address the lawyers' concern that they should not be regulated by the government for independence reasons, certain duties will be delegated back to the bar. But consumer complaints will be regulated by the government.
"It's probably not going to ruin the legal profession in England, but it's a concern to us that the regulation of lawyers is being delegated to the government. It's not a positive trend. It's a slippery slope that we should be concerned about."
Panel members said they were worried that action could be used as justification to take away regulation of the Florida legal profession by the Supreme Court and put it under the executive branch. There have been periodic attempts, they said, to place lawyer regulation under the Department of Business and Professional Regulation.
"Once the nose is under the tent, it's only a matter of time until the other pieces will follow," said incoming Committee Chair Eugene Pettis. "We need to be in the position of not blinking."
"In terms of a change from the Bar to DBPR, it comes up periodically," said former Bar President Kelly Overstreet Johnson. "It's a problem and you have to keep fighting it off. It's always on the radar screen."
On judicial elections, committee member Benjamin Chavies said contested judicial races raise troubling issues.
"The thought a judge might pause before she makes a decision in a case because the person who is appearing before her might turn against her in the next race or because it might offend a group of persons . . . is very disturbing," he said.
Chavies also said it continues to be a problem, especially in Miami-Dade County, where "publicists" charge candidates $25,000 for their services in elections. Those who don't pay may find themselves opposed in an election by another candidate backed by the publicist.
Even respected judges who are doing outstanding jobs can find themselves opposed in an election, he said,
"This year, we had 15 active races [for circuit and county judgeships in Miami-Dade], 11 races involving sitting judges," Chavies said. Two of those races involve circuit judges and nine involve county judges. He suggested the committee should invite the judges back to talk about their experiences, after the election.
Committee member Kim Bald said in the 12th Circuit, which covers the Sarasota-Bradenton area, two judges had been removed by the Supreme Court after winning election because their election tactics violated judicial canons.
Committee members discussed the value of using local bar campaign monitoring committees to help police judicial races and prevent abuses, and Bar General Counsel Paul Hill said that issue would be part of the Bar's upcoming voluntary bar leaders conference.
Pettis, who takes over at the committee's September meeting, closed the gathering noting the committee has had profitable discussions on a wide range of issues in the past year. In the coming year, he hopes the committee begins making concrete recommendations on dealing with the difficult problems related to preserving judicial independence.
Copyright 2006, The Florida Bar
From: The Florida Bar News, July 15, 2006, http://www.floridabar.org/..., accessed 09/20/06. Gary Blankenship is a Senior Editor. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.