THE CAPITAL, TALLAHASSEE, January 26, 2011 --
Republican lawmakers, still stung by the Florida Supreme Court’s rebuke of three constitutional amendments, continued on Wednesday a long running accusation that the court crafts state policy, usurping the Legislature’s policy making role.
“The folks from home call it legislating from the bench,” said Rep. Larry Metz, R-Yalaha.
The lawmakers’ target during a House Civil Justice Subcommittee was the court’s ability to make rules governing practice and procedure throughout the state’s judicial system. The court, some lawmakers said, was overstepping its authority by sometimes making policy through those rules, rather than focusing on simple judicial procedure.
Among the rules cited was the right to a speedy trial. The court determined that if a case is not heard 175 days after a felony arrest, it violates the defendant’s right to a speedy trial and he or she should be let go. Lawmakers argue that amount of time – what constitutes speedy – is something that should be decided by legislators through statute, not by the courts in a rule. Lawmakers can only change a court rule by a two-thirds vote, meaning for legislators to change what the courts decided would require 80 votes in the House and 27 in the Senate.
Rep. Eric Eisnaugle, R-Orlando, who chairs the committee, attempted to change the rules governing speedy trials last spring, but fell short of the 80 votes.
The Florida Supreme Court and the Republican-controlled state government have long been at odds. In 2006, the court knocked down the country’s largest school voucher program, the cornerstone of then Gov. Jeb Bush’s education policy. And this summer, the court also struck three proposed constitutional amendments from the November ballot that had been championed by the Republican Legislature, including House Speaker Dean Cannon and Senate President Mike Haridopolos. And those are just a couple examples; nearly every year for more than a decade lawmakers have complained about “activist courts” seeking to make law.
Eisnaugle noted that the court’s review of amendments and rule making were different processes, and for now, he said he is focused solely on the rule making process. The court’s actions this summer to knock down three amendments -- one chipping away at the Obama health care overhaul, one invalidating a citizen initiative on redistricting and one offering some residents property tax breaks – did not play into the committee’s discussion, he said.
“Court rulemaking has literally nothing, absolutely nothing to do with the amendment process,” he said. “They’re completely separate. There’s not even a connection. So no, I don’t think there’s a connection there at all. “
Still, in the bigger picture, the debate is rooted in that struggle for the power to steer state policy more broadly, whether it be in the rulemaking process, or in the ongoing fight over how legislators affect change through the ballot.
Lawmakers discussed on Wednesday several examples of what they viewed as the judicial branch making policy, including the speedy trial issue and a rule that creates a right to counsel for a dependent child.
Rep. Bill Hager, R-Boca Raton, said the Supreme Court was running an “end game” around the Legislature and that there were tools granted in the Constitution to ensure co-equal power among the three branches of government.
“If the executive branch was intruding into legislative forays in a manner inconsistent with the separation of powers, we’d take action,” he said. “Is there something I don’t understand in all that? “
House Speaker Dean Cannon has publicly commented that he believed the Legislature should work on court reform following the Supreme Court’s decision to strike down the three amendments. The details on what the Legilsature plans, haven’t fully emerged.
Senate President Mike Haridopolos told reporters Wednesday that his House counterpart would take the lead on legislation involving the amendments process and other possible issues dealing with the separation of powers. And he said he hoped it would include giving the attorney general the right to review proposed amendments that are ruled unconstitutional rather than scrapping those propopsals altogether.
“I think he [Cannon] has the support of a lot of Americans who feel the job of the courts is to interpret, not make, laws,” Haridopolos said. “If they find something to be unconstitutional, they ought to give us a second bite of the apple. I think that would’ve been more in line with what the Founders talked about.”
Eisnaugle said he has not had any discussions with Cannon about the issue and said he is not sure what form, if any, a bill on judicial rulemaking may take.
“I want to hear the feedback, see the ideas that come back before I make a decision,” he said.
Democrats on the committee urged their colleagues to be cautious in approaching court reform and to not ignore the fact that the majority of rules that the court passes have nothing to do with policy. Rep. Richard Steinberg, D-Miami Beach, the ranking Democrat on the committee, said there has always been “tension” between the branches of government and that the lawmakers’ comments were “nothing new.”
“I just hope we don’t take a sledgehammer to a file,” he said.
A spokesman for the Supreme Court could not immediately comment on the committee’s proceedings.