Check and balance
The speaker, the justice and the future of Florida’s judicial system
BY RICHARD GOLDSTEIN
Two University of Florida Levin College of Law alumni shape Florida government at
its highest levels. Justice Jorge Labarga (JD 79) took office in January 2009 as a Justice of the Florida Supreme Court, and Speaker Dean Cannon (JD 92) was elevated to a two-year term as speaker of the Florida House of Representatives two years later. The men operate on different sides of a divide defined by the Founding Fathers — the Separation of Powers — and are writing the latest plot twist in the never-ending-story of American government.
By the time you read these words, proposals in the Legislature for revamping the state’s system of justice may have died in the Legislature. But they also may continue as living questions of public policy awaiting an argument before the Florida Supreme Court, a vote by the people or a signature by the governor. Disparate views prevail among lawmakers, judges and lawyers about the best way forward for Florida’s judicial system. But there is substantial agreement that Separation of Powers maintained by a system of checks and balances will continue to generate much heat and light among the executive, judicial and legislative branches of government.
“Mr. Chief Justice, justices. May it please the court: My name is Dean Cannon, and I represent the Florida Senate and the Florida House of Representatives.”
So began an unusual, if not unique, oral argument. On Aug. 18 Cannon, a trim, tenor-voiced Republican from Winter Park, took his case before the Florida Supreme Court while also preparing to take office as the next speaker of the Florida House of Representatives, the House’s top job.
As an attorney, Cannon represented the legislative branch of government. As speaker-designate, you might say he embodied it. Cannon grew up in Lakeland and was, he said, “That nerdy kid in high school who read The Federalist Papers and loved it before I ever became a real practicing lawyer.”
He was the third generation of his family to attend the University of Florida, where he earned an undergraduate degree in telecommunications. You could say Cannon had a successful run at the university. He was inducted into the UF Hall of Fame, became Florida Blue Key vice president and in his second year of law school was elected president of the UF student body.
“I had a great opportunity to both study the law from an academic perspective and also study government by winding up sitting next to Justice (Stephen H.) Grimes (LLB 54) of the Supreme Court during UF football games,” Cannon said. “It was a tremendous opportunity to get to know some of the real players in government at the same time I was studying about the Constitution, the Separation of Powers and the way government operates.”
In the fall 1991 issue of University of Florida Lawyer, the predecessor publication to UF LAW, Cannon said: “One thing that I have learned from all of this is that I don’t want to be a politician. The pursuit of politics will really wear you out.”
Cannon would embark on a legal practice focused on the intersection of law, politics and government policy, working in several Republican campaigns along the way. When the opportunity arose in 2004, Cannon proved his younger self wrong. He mobilized his contacts and won election to the House of Representatives, rising quickly to the top of the House hierarchy.
Cannon stepped before the justices in August as an AV Martindale-Hubbell rated attorney and member of The Florida Bar. He had never delivered an oral argument before the justices. But he had argued before lower appellate courts and prepared rigorously for this case, spending hours anticipating justices’ objections and studying cases that would bear on the topic.
“Basically, I moot-courted it as much as possible,” Cannon said, referring to the well-worn law school tradition of arguing mock appellate cases to hone skills in appellate argument.
Cannon deployed legislative staff, outside lawyers, even a former state Supreme Court justice, to grill him in preparation for the oral argument.
Andy Bardos (JD 04, LLM 05 in tax) was one who helped prepare the future House speaker. Bardos worked in Tallahassee for the law fi rm GrayRobinson, where his job included assisting the Legislature in appellate cases. Shortly before the 2010 election, he came on as special counsel to Sen-ate President Mike Haridopolos, R-Merritt Island. Bardos helps develop legislation and oversees the Senate Judiciary Committee.
“That was a great experience because he’s an outstanding attorney in addition to what he does in the Legislature,” Bardos said. “I was really impressed with how hard he worked and how much time he dedicated to it. We wanted him to be, and he wanted to be, ready for every possible argument and every possible question.”
Cannon figured he was just doing his duty.
“I think I briefed 70-something cases and went back to the basics and sort of put everything else on hold to prepare because as someone who respects the court and cares very deeply about the practice of law and the importance of our profession, I wanted to present the best argument that I could,” Cannon said.
FROM CASTRO TO BUSH V. GORE
Inside the Supreme Court, seated on the bench with six other justices, Labarga gazed down while Cannon delivered his oral argument. As a member of the Supreme Court since January 2009, Labarga was new to the high court but not to the judiciary. He has been a judge for 15 years, and in 2000 Labarga presided over one of several Bush v. Gore trials when the fate of a presidential election was submitted to the courts in Palm Beach County.
It was Labarga who fi rst considered whether “hanging chads” were to be counted as votes. He ruled that the not quite-punched-out bits of paper should be counted because they indicate voters’ in-tentions. Labarga ruled against a revote of the presidential election in the face of claims that the election resulting in a virtual tie in Florida and the nation had been fatally flawed. He said the Constitution provided for presidential elections to be held on one day only.
And after court had closed for the day, the lean Cuban-American, who came to Florida as an 11-year-old when his family fl ed the soldiers of Fidel Castro, donned a baseball cap to go with jeans and a T-shirt. Labarga was working late during that weeklong trial and a nighttime stroll appealed to him.
An international media storm enveloped Labarga during the day. In darkness he meandered anonymously among the humming satellite trucks that lined the boulevard at West Palm Beach County Courthouse like an occupying army.
Labarga paused next to the CNN truck where up-and-coming TV news host Greta Van Susteren conducted an interview.
“I was standing right behind the person she was interviewing. She did not recognize me and she was asking questions about what I was doing. Who was I? Where did I come from? Who was this judge who was going to rule on all these cases? And this guy is going on — and he was a local guy — going on and on about me. Of course, he had his back to me. He couldn’t see me. I’m standing there listening to him. And she’s looking straight at me and had no clue that I was standing there listening to her.”
Labarga wanted to be a lawyer for as long as he can remember, and some of his formative experiences with the administration of justice came years before when confronted with Castro’s blossoming police state.
Labarga’s father had raised money for the Cuban revolution to overthrow the Fulgencio Batista regime. He said his father, Jorge Labarga Sr., believed Castro’s promises that he would install an American-style democracy in the Caribbean nation. After Castro took power in 1959, he would find out otherwise. The elder Labarga turned against the new regime, and, to avoid retribution, fled the country. Justice Labarga recalls that his father left his family home on a Monday. On Wednesday, the soldiers arrived.
“They would come late at night with a truck full of soldiers to instill terror among the neighborhoods, and the soldiers would surround the house and come in and ransack it, and they would eventually drag the person they were looking for out to the truck and take him away,” Labarga said. “They did that at my house, and I recall my brothers and me hiding behind my mother as they were searching my house and my grandfather, who was in his mid-80s, started protesting only to be told to shut up or be shot.”
The soldiers left and arrested his father’s friends. One was soon executed. There was no check on the power of the executive branch in Castro’s Cuba.
“Needless to say, I have an acute appreciation for the Fourth Amendment of our Constitution and its prohibition of illegal searches and seizure,” Labarga said. “The whole idea of police officers kicking somebody’s door open and entering somebody’s house and searching somebody’s home illegally is obviously something that I find abhorrent. On the other hand, when it is done legally for a lawful purpose it is something that obviously needs to be done. My concern as a judge, as a lawyer, even as a prosecutor, always has been that police officers show the requisite probable cause to enter somebody’s home.”
During the August oral argument in the Supreme Court on the fate of the proposed constitutional amendment, Cannon yielded no rhetorical ground to justices. Cannon answered skeptical questions in a polite but confident tone.
JUSTICE R. FRED LEWIS: I’m concerned that here it is the actual language that goes to the voter, not a sophisticated legislator or judicial offi cers. The public — what will the public think this means?
CANNON: The public will hopefully give the words the meaning that they give to them just like if they were voting on the right to privacy or the right to due process. We gave the words to the voters, your honor, so they would have the ability to read them themselves and choose to add them to their organic law or not.
Months later, Labarga declared himself impressed by Cannon’s performance. “He did an outstanding job, and whenever he goes back into practice he’s going to be an outstanding lawyer. I think I told him at a reception that he’s wasting his talents,” the justice said with a grin.
Florida Department of State vs. Florida State Conference of NAACP Branches concerned a constitutional amendment proposed by the Legislature and slated for a statewide ballot that would have changed Florida’s methods of legislative redistricting. The state NAACP and other groups filed suit, claiming the measure would invite radical gerrymandering and that the ballot summary was misleading. In a sense, the case was also directed at the power of the Florida Supreme Court itself. Cannon contended that the state Supreme Court had no authority under the state Constitution to remove a constitutional amendment proposed by the Legislature from the ballot, since the language of the amendment itself was to be given to the voters.
In this contest between the legislative and judicial branches, the judicial branch flexed its muscles.
A 5-2 court majority that included Labarga ruled against Cannon and the state. The court threw out the ballot measure and, in doing so, reaffi rmed its authority to dismiss constitutional amendments proposed by the Legislature before voters could weigh in. The majority held that the ballot summary and its headline were misleading despite the fact that it repeated language of the proposed amendment.
“We hold that the ballot language setting forth the substance of Amendment 7 does not inform the voter of the true purpose and effect of the amendment on existing constitutional provisions and, further, is misleading,” the court majority wrote in an unsigned opinion.
That opinion may not represent the final word.
Speaking in his Tallahassee legislative office where a parchment copy of the U.S. Constitution hangs above his desk and a book about former President Ronald Reagan stands prominently on his bookshelf, Cannon explained a fundamental disagreement with the court.
“If we propose a bad question then the St. Pete Times editorial board and the Gainesville Sun editorial board and everyone on the Internet and the blogosphere will know that it’s a bad question. It shouldn’t be up to a political super-committee, superlegislature of five justices to decide that something we’ve passed with a three-fifths majority of both the House and Senate might confuse people. That’s the underlying argument for the Separation of Powers,” Cannon said. “We pass something and they don’t like it and it doesn’t go to the voters. There’s no check, there’s no balance to that.”
A spokeswoman said Cannon favors new checks on the Supreme Court to allow more constitutional proposals to appear before voters. And during the spring legislative session, Cannon helped push legislation through the House and the Senate that would set a timeline for legal challenges of proposed ballot summary language.
Days after Cannon spoke to UF LAW, he unveiled a far-reaching package of reforms to change the way Florida’s system of justice operates. A constitutional proposal would make it easier for the Legislature to overturn rules regarding the practice and procedures in state courts. It would require a simple majority of the Legislature to overturn new Supreme Court rules instead of the current two-thirds majority.
Another constitutional change would divide the Supreme Court into two divisions — with one division deciding criminal cases and the other division ruling on civil cases. The proposal would add three justices, bringing the total to 10 — five in each division.
Proponents of splitting the Supreme Court into civil and criminal divisions say it would promote efficiency and decrease the backlog of cases weighing down the judicial system. Texas uses a similar system.
The ideas are stirring consternation within the legal community.
At each turn, UF Law alumni are on the frontlines confronting these questions. Mayanne Downs (JD 87), president of The Florida Bar, placed the justice-system proposals at the top of her legislative lobbying agenda during the spring and toured the state speaking about their consequences.
Meanwhile, UF Law alumnus Stephen N. Zack (JD 71), president of the American Bar Association and a past president of The Florida Bar, asserts that increasing the state’s funding of the judiciary from its current level of $462 million would do more to clear a backlog of cases than would dividing the state Supreme Court and adding justices.
“Some people would see it as just another type of court packing,” Zack said, alluding to President Franklin Delano Roosevelt’s bid to increase the number of justices on the U.S. Supreme Court. Roosevelt was incensed by the court’s habit of declaring his domestic policy initiatives unconstitutional, and in 1937 he proposed adding up to six Supreme Court justices to the nine-member court who would be appointed by the president and who would presumably vote in sympathy with his agenda. Roosevelt’s court-packing proposal turned into a legislative failure and a political disaster.
In Florida during the spring, a sudden decline in mortgage fi ling fees threatened to shut down the state courts temporarily for lack of money. However, one of the proposed constitutional changes would provide a guaranteed minimum appropriation for the courts from all revenue sources equal to 2.25 percent of General Revenue. Had the proposal been law during the 2010-2011 fiscal year the courts’ budget would have received an additional 16 percent, or $73 million, according to the Speaker’s Office.
“The House proposal addresses the longstanding criticism that the courts are underfunded and judicial dockets are overcrowded by providing a minimum appropriation for the courts,” Cannon said. “This proposal provides stable funding for the court, but offers fl exibility to the Legislature in terms of allocating that funding each year.”
But late in the legislative session, the Senate removed elements of the constitutional amendment as passed by the House, including the minimum funding provision and adding justices to the Supreme Court.
Remaining in the constitutional proposal was a change that would give the state Senate the power to accept or reject Supreme Court nominees, introducing the same system used for the federal judiciary. A separate legislative proposal that died in the Senate would have changed the makeup of Florida’s nine-member judicial nominating commissions, the bodies that recommend appellate and Supreme Court nominees to the governor.
Under current law, the nine commission members are appointed by the governor, the Florida Bar and commission members themselves.
For Zack, who participated in the selection of judges as general counsel to former Gov. Bob Graham, it would be a mistake to send the governor’s nominees before the state Senate for approval. Zack said it is impossible to remove politics from judicial selections, but placing nominees before the state Senate would only make it worse.
“When I started practicing law 40 years ago, the definition of a judge was someone who was a friend of the governor. We don’t want that to be the definition of a judge today,” Zack said. “I never asked nor knew the political philosophy of a judge, nor did we ask their position on any issue. In a United States Senate confirmation that’s exactly what happens, and I don’t think that people who have watched that process think that it is one that we should bring to Florida.”
AN UNEXPECTED COMPLICATION
Labarga is intimately familiar with the current system of nominating appellate court judges and justices in Florida. It was two months before he was scheduled to appear before the Judicial Nominating Commission as an applicant for the Supreme Court when he met an unexpected complication.
“I grew up in Palm Beach on the beaches so I was in the sun my entire young life. I found a little spot underneath my nail in my index finger, and it was diagnosed to be melanoma, and I had to have my finger amputated.
“I had to undergo a regimen of chemotherapy for 30 shots and that nearly killed me, and I lost about 20 pounds, and I had not eaten in three days. And my last shot was two days before my interview with the Judicial Nominating Commission in Tampa. I was so skinny my suits didn’t fit me. I could not fl y because I would get nauseous. So my wife (Zulma) drove me to the interview from West Palm Beach to Tampa and it was at The Florida Bar office at the Tampa Airport.
“The trip itself nearly killed me so I went to bed to sleep and my wife woke me up around 4:30.”
He forced down a bagel “and somehow the adrenalin kicked in because I went in and gave an interview, and I don’t remember it all, but obviously I did something right because I was able to be nominated and beat out a great number of other very qualified people.
“I have spoken to so many of those members of that commission since and I asked them, ‘Did you not realize something about me that day?’ They said, ‘No, you looked fine to me.’ I said, ‘Well, I was dying.’”
Labarga’s cancer is now in remission and his suits fit just fine.
HISTORY REPEATS ITSELF
To appear on a statewide ballot, the constitutional proposals must pass both houses of the Legislature with sufficient majorities. But they also could wind up before the Florida Supreme Court before appearing on the ballot. And that would return to where this story began — the Legislature confronting the Supreme Court.
This tension between the branches, experts say, is the way of our American system of government.
Cannon agrees with the notion that Separation of Powers and an independent judiciary are important principles, but he added, “Independent does not mean unaccountable or omnipotent and it will be great to continue this debate going forward.”
Jon Mills (JD 72), director of UF Law’s Center for Governmental Responsibility and UF Law dean emeritus, co-authored part of the state Constitution as a member of the Florida Constitution Revision Commission from 1996 to 1998. From 1986 to 1988 Mills held the the speaker’s job. Since then, he has taught constitutional law to hundreds of students, including Cannon, whom he remembers as a very good student.
Mills is a Democrat, but he recognizes the frustration expressed by his fellow alumnus and Republican successor in the speaker’s chair.
“That tension was designed by the drafters of our constitution and the federal Constitution. The court interprets legislative action all the time. When I was in the Legislature I agreed with it sometimes, and I didn’t agree with i t other times,” Mills said. “We have to preserve the separation and even preserve the tension.” Labarga draws another lesson from the history of his homeland and the ease with which an apparently just constitution established in the 1940s was overturned by a determined dictator.
“A Constitution is basically words on a piece of paper. It is what we the people do with it that make it work. In Cuba, the first thing Fidel did when he came to power was to get rid of the judicial branch of government creating his own, and you had military tribunals deciding cases because he wanted control. He did not want an independent body telling him — as a dictator — what you’re doing is wrong, it’s unconstitutional,” Labarga said. “So a judicial branch of government plays a crucial role in our democracy, but we need to have the liberty, the independence to make those decisions without the fear of any type of retaliation — whether political or financial.”