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Martin Dyckman

The shoddy history of politicized courts

Not so long ago, what Floridians were reading about their Supreme Court could have foretold one of John Grisham's conspiratorial novels. The scandals were so outrageous that the justices could look for approval only to their shaving mirrors.

This was in the 1970s, when most present-day Florida legislators were either unborn, in diapers, in school, or living elsewhere. Their ignorance of Florida's history with politicized courts threatens to make Florida repeat it.

Here's what was happening:

• Justice David McCain tampered with a lower court on behalf of three campaign supporters appealing a bribery conviction. When that didn't work, he participated in a radical Supreme Court decision that erased the charges. There was evidence that McCain himself had been bribed. Throughout his tenure, he short-circuited the court's random assignment process to do favors for friends.

• Justice Joseph A. Boyd, chosen to write the majority opinion in a hugely important utility rate case, had writer's block. He discussed it during a golf game with a lawyer friend who represented one of the companies. That was a severe ethical violation, which he compounded by secretly receiving a draft opinion from the man. After Boyd's law clerk questioned the mysterious source, Boyd destroyed the evidence, tearing the document into "seventeen equal parts," as he said later, and flushing them down a toilet. He changed his vote to oppose the utilities.

Boyd did not know that the lawyer had given another copy to Justice Hal P. Dekle. When Dekle saw Boyd voting the wrong way, Dekle used the lawyer's document to prepare his own proposed opinion for the court. Dekle's insensitivity to the applicable ethics codes was even more astonishing than Boyd's. At the time, he knew the Judicial Qualifications Commission was investigating him for lobbying a circuit judge in the Panhandle to decide a civil suit in favor of a campaign supporter from Miami.

• Chief Justice Vassar Carlton was sweating out his own likely investigation by the JQC. A Miami television station had filmed him rolling dice on a high-roller junket to Las Vegas. (His abrupt resignation, a year before his term was up, put that to rest.) When two law clerks who had seen Boyd's document warned Carlton that Dekle's opinion had suspicious origins, Carlton orchestrated a coverup. He told Dekle to rewrite it, disguising the source.

The justices had just reissued Florida's Code of Judicial Conduct, which obliged them to report ethical violations. None did.

The lawyer came around to lobby the court yet again. Dekle described his visit in a matter-of-fact memorandum to McCain. The law clerks copied it, realized that the ethical morass at the court seemed bottomless, and leaked that document to me. That jump-started the JQC, which tried Dekle and Boyd and recommended they be kicked off the court. The other justices bucked the decision to carefully selected substitutes who voted to only reprimand them. The resulting public outrage echoed in the Florida House of Representatives, which began impeachment investigations that forced Dekle and McCain to resign. The committee spared Boyd on the condition he submit to a mental examination. He passed and spent the rest of his life boasting that he was the only justice who had been certified sane.

Everything that was wrong was rooted in old-style politics. Boyd, Carlton and Dekle had won their elections largely because their names were first on the ballot. Carlton and Dekle were already judges but Boyd, a Dade metro commissioner, was singularly unprepared. His only experience in judging, he once joked, was the Miss Hialeah Pageant. The Florida Bar tried vehemently to discourage Gov. Claude R. Kirk from promoting McCain, who already had a checkered record as an appeals court judge, to a vacancy on the Supreme Court. But McCain was a Republican and a friend of the governor's, who blew off the Bar's detailed objections to McCain's ethics and alcoholism.

Gov. Reubin Askew, Kirk's successor, established nominating commissions, whose votes he could not control, to select candidates for judicial appointment. The Supreme Court scandals persuaded the Legislature and the voters to abolish elections for the appeals courts and rely entirely on the commissions. But in 2001, the Legislature destroyed the independence of the nominating commissions. Tawdry politics have been creeping into the selection process ever since.

Now House Speaker Dean Cannon and his allies want to pack the Supreme Court, politicizing it even more. What the courts — and most important, the people they serve — deserve instead is the restoration of independent nominating commissions. Otherwise, there are certain to be more scandals.

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

The shoddy history of politicized courts 04/12/11 [Last modified: Tuesday, April 12, 2011 8:36pm]
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