1. Archive

Secrecy courts corruption

Published Oct. 10, 2005

The Florida archives are housed in a building directly behind the Supreme Court. It's time for the justices to go over and have a look.

There they would find the documents, some six or seven boxfuls, to remind them of a time not so long ago when an open sewer was found beneath the court's marble facade.

Justices had tried to sway decisions for friends in lower courts. One fixed cases at the Supreme Court itself and there was sworn evidence of a $10,000 bribe. Two justices secretly received a proposed opinion from a utility lawyer involved in a major rate case.

There were paper trails for much of that but not where the public or the press could get at them. But for a timely leak of one key document, it might never have been known how corrupt the court had become and the House of Representatives would never have impanelled the impeachment committee that chased two of the justices from the bench and nearly nailed a third.

It appears the court has forgotten, even though it happened only 17 years ago _ well within the professional memory of all seven justices now on the bench. One joined the court as it was unfolding. Another's law partner was involved.

What impugns the court's memory is its lobbying to have the judiciary left all but totally exempt from a proposed constitutional amendment to guarantee the public's access to government records and meetings. Both the House and Senate versions already exempt jury deliberations and pending court decisions but that's not enough for Chief Justice Leander Shaw. Apart from financial records _ bless his soul for conceding those _ he insists that the court itself have the last word on what judicial records and meetings the public will be allowed to see. This is to separation of powers as Frankenstein's monster was to scientific research.

The amendment would make Florida's Constitution the nation's model _ if not the world's _ for open government. Apart from the court and the Florida Bar _ whose meddling could easily kill the effort _ there is no opposition.

It's not a bad court. It's a good court, even if it does issue some wacko decisions from time to time. But the seven current justices are neither immortal nor infallible. Sunshine is no guarantee that the court will stay clean but it sure beats secrecy.

The document that unlocked the 1970s scandal is exactly the type of "internal" memorandum that a court, left to itself, would keep secret.

What happened _ as testimony later revealed _ was that Justice Joseph A. Boyd had been assigned to write an opinion favoring utility firms instead of the public in the rate case. His law clerk thought the public should win and wouldn't help him write it. Boyd and Edwin Mason, a lawyer for one of the utilities went golfing _ itself a questionable activity while such a case was pending. According to Mason's testimony, they agreed that he would write something to help Boyd "articulate" his thoughts. Boyd denied it, insisting he never knew where the draft came from, but did admit that he and his law clerk had finally torn their copy into "17 equal pieces" and flushed them down the toilet. He also changed his vote.

Word got out. The lawyer had given another copy to Justice Hal P. Dekle and started lobbying the court. It was reflected in a memorandum to Justice David McCain from his secretary:

"Judge Dekle asked me to write you this note: He says that he thought you were with him on his "dissent,' that Ed Mason spoke to him on it but missed seeing you."

A copy of this memorandum was leaked to me. The court's reaction was to have the local state attorney, a justice's cousin, investigate me and to conduct a witch hunt for the leakers.

McCain, meanwhile, had been trying to fix the appeal of a bribery case in a lower court and had been greasing cases for friends at the Supreme Court itself. The Judicial Qualifications Commission was alerted but it was left to the House of Representatives to complete the probe.

The court hears only a fraction of the appeals submitted. Two weeks before voting to impeach McCain, a House committee heard four of the court's former law clerks describe how McCain would open the door for friends and campaign supporters. "This case is a fix," he had told one of them. So frequently that they called it "the McCain technique," he would ask for a friend's newly arrived case file and write a memorandum urging the court to accept jurisdiction and speed up the case. The friend won 13 of 15 cases he took to the court. The memorandums would have spilled the beans, of course, but they never showed up in any file the press was allowed to see.

Dekle and McCain resigned. Mason was suspended from the practice of law for a year. Nothing happened to Boyd, who later became chief justice and has since retired. McCain was charged with drug smuggling after his disbarment, jumped bail and was a fugitive when he died of lung cancer.

Come on, Mr. Chief Justice. Surely you remember.

Martin Dyckman is associate editor of the St. Petersburg Times.