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The Case That Spawned the Attack on Our Supreme Court


In 2010, Florida State Representative Scott Plakon, R-Longwood, sponsored Amendment 9, a proposed state constitutional amendment aimed at stopping the federal health care law (aka “Obamacare”) from being implemented in Florida.

The Florida Legislature passed a joint resolution containing the text of the proposed amendment, as well as a ballot title and summary that the Legislature specified should be placed on the ballot.  In a 5-2 decision, the Florida Supreme Court, affirming a ruling of the Circuit Court, held that the ballot summary for Amendment 9 contained misleading and ambiguous language, in violation of Florida law.  Florida Dep’t of State v. Mangat, 43 So. 3d 642 (Fla. 2012).  The five justices in the majority were Jorge LaBarga, James Perry, Barbara Pariente, Fred Lewis, and Peggy Quince.

Upset with this ruling, Rep. Plakon’s friend, Orlando Tea Party activist Jesse Phillips, launched a campaign of retaliation against those five justices.  Mr. Phillips’ campaign was billed as a crusade against “judicial activism,” a misleading label, given that these justices had simply applied well-established Florida law to the proposed ballot summary.

Ironically, the proponents of Amendment 9 asked the Florida Supreme Court to rewrite the ballot summary and keep the amendment on the November 2010 ballot.  The Court declined, noting that “[o]ur role in this process is as a reviewer of constitutional validity, not as an editor or author.”  In other words, the Florida Supreme Court was asked to, and expressly refused to; engage in the process of rewriting legislation – or what people often call “judicial activism.”

Florida Supreme Court justices stand for “merit retention,” meaning that the public simply votes “yes” or “no” on whether a justice gets to keep his or her job.  In 2010, the unsubstantiated attack on Justices LaBarga and Perry was very nearly successful.  Justice LaBarga received 58.9% “yes” votes, while Justice Perry received 61.7%, both far below the standard 70-75% that justices had received in elections past.

Now, in 2012, Mr. Phillips, with more time and money to mount his attack, and through the vehicle of the misleadingly named “Restore Justice 2012,” is targeting the three other justices who struck the 2010 ballot language: Justices Pariente, Lewis, and Quince.  Their names will appear for merit retention on the November 2012 ballot.  So will Amendment 1, a rewritten version of Amendment 9 from 2010, which has corrected the deficiencies identified by the Court.

It seems that ironies never cease.

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