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Judicial referendums need clarity

DL: TALLAHASSEE

Floridians will vote Nov. 7, circuit by circuit and county by county, on whether to continue electing local judges or have them appointed in the same manner as appeals court judges and Supreme Court justices have been since 1976. The Constitution, as revised two years ago, requires these local-option referendums. They couldn't have been postponed.

But the Legislature made a fine mess of it. Ballot language it approved last year did not notify the voters that by approving "merit selection and retention" they would be giving up the opportunity, infrequent as it may be, to elect new judges. So this year legislators rewrote the question in a way that implies they want the voters to vote against appointment.

As now worded, it asks: "Shall the method . . . be changed from election by a vote of the people to selection by the judicial nominating commission and appointment by the governor with subsequent terms determined by a retention vote of the people?"

That's misleading too, as it suggests that the governor has no choice. In fact, nominating commissions are required to send him three to six names for each vacancy. They do not select, they nominate.

"They select nominees," Solicitor General Tom Warner told the Supreme Court Tuesday, putting the best face on it.

Moreover, the term "merit selection and retention," which appears five times in the constitutional provision establishing the referendums, is no longer on the ballot.

During oral arguments Tuesday, justices were plainly perturbed at being handed a problem with no good solutions, and they disposed of it in near-record time by taking barely three hours to unanimously deny a petition that asked them in effect to rewrite the ballot language. They said they'd explain later, which leaves open the possibility that we haven't heard the last of it. However the various local option referendums come out, further appeals to the court may follow.

Some South Florida lawyers, backed by 20 former Bar presidents, had asked the court to either restore the 1999 language or write its own ballot question. That, however, would have been a choice between the unacceptable and the unprecedented. The court has never dared to rewrite misleading ballot questions; normally, it simply throws them off the ballot.

It helped Warner, in urging the court to deny the petition, that this was the least drastic outcome. For now. He acknowledged that it could lead to challenges after the election, and the court _ already under fire for a retrospective decision last week _ appeared to regard that as a painful prospect, too. We'll see whether the subsequent opinion forecloses it.

At very least, the court has a duty to set some standards of clarity for subsequent elect-or-appoint referendums, which may be endless. The Constitution allows a county or circuit to vote as often as every two years on switching from one system to the other, provided enough people petition for a revote.

The court's only other option Tuesday, also unprecedented, would have been to scrap both of the Legislature's versions and lift a new question out of the Constitution more or less verbatim: Shall the jurisdiction "select circuit (or county) judges by merit selection and retention rather than by election?"

Bruce Rogow, the plaintiffs' lead counsel, said it would reflect "the utmost loyalty to the Constitution." (If not that, then certainly more loyalty than the Legislature showed.) But he lost.

The election of judges is nearly a myth anyway. Of 160 circuit judgeships up this year, only 17 were contested. Of 138 incumbents seeking re-election, all but eight drew byes, and only one lost. But in the process, lawyers contributed at least $1.4-million to various campaigns. Wealthy candidates "loaned" at least another $1-million to themselves. That's money talking. Merit selection is by no means apolitical, but it's surely cleaner than that.

Martin Dyckman is an associate editor at the Times.

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