Martin Dyckman

History makes plain the perils of politicizing Florida's judiciary

Lawyers seem to think poorly of Paul Hawkes as a judge, but there is no doubting his skill as a politician. The evidence, first revealed by my Times colleague Lucy Morgan, consists of the opulent courthouse soon to be occupied by the 1st District Court of Appeal 6 miles from the Capitol in Tallahassee.

The $48 million building owes its excessive cost, if not its existence, largely to Chief Judge Hawkes' influence with the Legislature as a former member, governor's aide, and policy director for the House of Representatives from 2000 to 2002.

An audit commissioned by Chief Financial Officer Alex Sink accused the court of essentially usurping control of construction from the state agency that was legally responsible.

"We think the project is the 1st District's and that the 1st District occupies the position of owners," Hawkes wrote in a May 2007 e-mail only hours after a stealth amendment to transportation legislation meant it would be built.

The real owners are, of course, the people of Florida, who are stuck with the bill. What ought to concern them more than the cost, however, is why a politician like Hawkes is perched on an Florida appellate bench.

That wasn't supposed to happen.

Not long after his inauguration in 1971, Gov. Reubin Askew voluntarily gave up the governor's historical perquisite of appointing friends to judgeships. He established nominating commissions to recommend candidates for interim vacancies. Askew intended for no one person to control the process. The governor named only three of each commission's nine members. The Florida Bar chose three more. The first six then selected three nonlawyer citizens to complete the commission's membership.

The Constitution was amended in 1976 to use this process to appoint rather than elect all members of the appellate bench. The occasion was a stench emanating from the Florida Supreme Court. Two elected justices had been forced to resign for having tried to fix cases for campaign supporters. One of those justices and another justice had also let themselves be lobbied privately by a lawyer interested in the outcome of a major public utility rate case.

The lawyer represented St. Joseph Telephone Co., part of a conglomerate that devolved into the St. Joe Co. Its Southwood development is now home both to the new 1st District courthouse and Hawkes' private residence.

While Hawkes and the court were trying to nail down the courthouse site, he wrote a 2005 opinion that hugely favored St. Joe by denying class-action status to homeowners claiming pollution damages against the company. They have yet to get their cases tried, let alone win a cent.

Because of its involvement with St. Joe, the entire court should have been disqualified in that 2005 case. The appearance of impropriety is as glaring as the events that once disgraced the Supreme Court.

The nominating commissions had worked well, if not always perfectly, for three decades. Their nominees for the Supreme Court and five district appeals courts typically had substantial records as lawyers, judges, teachers, or service to the Bar. They were not distinguished for their politics.

But in 2001 — when Hawkes headed the House policy staff — the Legislature gave Gov. Jeb Bush the power to appoint all nine members of each nominating commission. The only compromise was to give the Bar input on four seats, a minority, on each of the commissions. Acting like Republican patronage committees, some of them began nominating people distinguished primarily by their political service. Of the 15 judges on the 1st District bench, four are former aides to Govs. Bush or Charlie Crist, including Hawkes.

The 2001 legislation was an atrocity. But because of term limits, only a few of the perpetrators (or opponents) are still around to be judged by the people.

One of them is Republican U.S. Senate candidate Marco Rubio. He was in the majority in the 65-50 House vote on March 21, 2001, that foretold the end of an independent judiciary. His present Democratic opponent, Kendrick Meek, voted against the bill in the state Senate.

Other opponents included then-Reps. Jeff Atwater, a Republican, and Loranne Ausley, a Democrat, the present rivals for chief financial officer; Dan Gelber, the Democratic candidate for attorney general; and Charlie Justice, the Democratic candidate for the 10th Congressional District. Atwater changed his vote when the bill came back from the Senate with the compromise language involving the Bar. Dennis Ross, now the Republican candidate in the 12th Congressional District, voted for it on the first occasion and against it on the second. The Senate vote was 29-10. Rod Smith, Sink's running mate, had negotiated the compromise and voted for the bill. Republican Jack Latvala, who is seeking a return to the Senate, also voted for it. Dennis Jones was the only Senate Republican who voted no.

Justices and district appellate judges are subject to "yes" or "no" votes every six years. There have been 329 of these merit retention elections; the closest any judge came to losing one was with 54.9 percent approval in 1978. Because of the furor over his court's "Taj Mahal," Hawkes is in plausible danger of becoming the first. He's on the Nov. 2 ballot, and there's a hard core of 1st District citizens, ranging from 30 percent to 40 percent, who vote "no" every time even without an issue to inflame them. In this instance, there is also a Bar poll in which 53 percent of the lawyers who claim the most familiarity with Hawkes' record opposed his retention. No other judge has ever polled so poorly.

It would be a shame if he took other judges down with him. The primary issue, after all, ought to be the qualifications of those who will occupy the magnificent building. The cost of even so much marble, mahogany and etched glass is small compared to the incalculable consequences of politicizing the judiciary.

Martin Dyckman, a retired associate editor of the Times, is author of "A Most Disorderly Court: Scandal and Reform in the Florida Judiciary," published by the University Press of Florida.

History makes plain the perils of politicizing Florida's judiciary 10/22/10 [Last modified: Friday, October 22, 2010 8:21pm]

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