Arguing Florida lawmakers agree on one thing: silence the Supreme Court

James Rosica | Saint Peters Blog | 08/24/2015

Lawmakers couldn’t agree on congressional redistricting but they do seem to agree on one thing: Muzzling the Florida Supreme Court.

The latest special session ended last week with no new map to apportion Florida’s 27 U.S. House districts. It did result in lots of rhetoric, including from some Democrats, on “judicial overreach” and breaching the separation of powers.

A majority of justices declared the current map violated the “Fair Districts” constitutional amendments, passed to combat gerrymandering, or the drawing of political boundary lines to favor a particular party or incumbent.

But the court also gave specific instructions on fixing the maps, such as telling legislators that Democratic Congresswoman Kathy Castor’s district couldn’t cross Tampa Bay.

It also prescribed to whom they could talk while figuring out new maps and how that communication could occur. That level of intervention struck some elected officeholders in the Capitol as meddling.

Charles McBurney, the Jacksonville Republican who chairs the House Judiciary committee, last week even said he’s going to look into “reform(ing) the balance of power between the legislative and judicial branches,” but didn’t yet have specifics.

Yet, more than four years later, it’s the same complaint when it comes to reining in the court.

In 2011, House Republicans were irate at the perceived liberal majority on the court jettisoning a trio of proposed constitutional amendments off the ballot the year before. One of those would have strengthened the Legislature’s hand in redrawing congressional and legislative districts.

Then-House Speaker Dean Cannon plotted his revenge, coming up with a series of overhauls that, ironically, Democrats called “a court-packing plan” to help Republicans win redistricting disputes. Most required a change to the constitution, which has to be passed by voters.

One of Cannon’s proposals would have increased the justices from seven to 10 but then split the court in half, creating one five-justice court that would have handled only criminal appeals, the other civil matters.

The more liberal jurists would have been shuffled to the criminal side, including death penalty appeals, leaving the civil side, which would have handled business and political disputes, to be filled with more conservative picks by Gov. Rick Scott.

Other proposals – none of which passed – included increasing the legislature’s power to repeal and revise court rules, and upping the percentage that sitting justices needed to win in merit retention elections to 60 percent.

“We wouldn’t necessarily agree or disagree with any of those proposals,” McBurney said, when asked about Cannon’s plan. “It just depends on what comes up.”

State Sen. Rob Bradley, the Fleming Island Republican whose name is often mentioned as a future Attorney General candidate, said “there are many now in the House and the Senate concerned with the issue of judicial accountability.”

“Certainly many of us are disappointed by what we see as overreach,” said Bradley, who chairs his chamber’s Regulated Industries committee. “We need to make sure that if they are going to engage in what is a traditional legislative activity, such as drawing maps, that the rules in play are also in play for the judiciary.

“This redistricting process has opened many eyes as to the some of the decisions coming out of the Florida Supreme Court that many of us in the legislative process find concerning,” he added. “It’s not about Democrat versus Republican; it’s about preserving the delicate balance and making sure the Legislature is maintained as a co-equal branch.”

Indeed, McBurney said he’d “like to do something positive, something that would be a win-win.”

Elizabeth Slattery, a legal fellow at the Heritage Foundation, a conservative Washington-based think tank, said legislatures have long called out high courts when they make rulings that offend the controlling majority.

“Particularly in the area of constitutional amendments, it sort of invites mischief, because when (courts) get language to interpret, they interpret it,” but not always in the way a legislature might prefer, she said.

Lawmakers could fiddle with the court’s appellate authority, constraining the kinds of cases it can review, Slattery said. They also could change the manner in which justices are appointed or retained, similar to Cannon’s bill.

But Arthenia Joyner, the state Senate’s top Democrat, tells her Republican colleagues: Be careful what you wish for.

The court “didn’t create this (redistricting) mess. They just rendered an opinion,” said Tampa’s Joyner, the Senate Minority Leader. “We don’t always agree with (court) opinions but we abide by them because they are the law. … The Legislature has the responsibility of making the laws; the court has the responsibility of interpreting the laws. That’s all that they have done.

“Some tempers flared up and there’s some momentary anger and it’ll pass,” she added. “We’ll see what happens but I will fight against any effort to negatively impact the court just because they made a decision somebody didn’t like.”

The next time “there may be an opinion that’s favorable (to Republicans),” Joyner said. “You constrain them, then a few years later, you get a court that has different philosophical leanings. I say to those who speak out against the court, just get over it.”

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