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Why We Have Merit Retention — Hard Lessons from the 1970’s


When Governor Reubin Askew took office in 1971, he was one of the driving forces behind changing the process to be followed when selecting judges to fill vacancies.  Judicial Qualifications Commissions were established to recommend judges to fill vacancies on the bench.  In 1972, the Florida Constitution was amended to include this change.  Following multiple scandals involving the Florida Supreme Court during the 1970’s, an additional amendment establishing “merit retention” was added to the state constitution and established that judges would run for retention based on their records every six years.

In the mid-1970’s, the Florida Supreme Court was in turmoil.  Not because they had decided a case that the Governor disagreed with, but because multiple members of the court were being investigated for improprieties while serving on the bench.  No one disagrees that improprieties while serving on the bench are proper grounds for removal from the bench.

Two of the justices, Hal Dekle and David McCain, resigned during the investigation, which halted the impeachment inquiry.  A third justice of the court, Joseph Boyd, was forced to undergo complete mental and physical testing to retain his seat on the bench.

Justice McCain was accused of lobbying a lower court to overturn a bribery conviction of one of his supporters and accepting a $10,000 bribe to do so.  He resigned the day before the Florida House would have voted to impeach him.  He was eventually disbarred from the practice of law.  While the Florida Supreme Court was considering a decision involving a multimillion dollar utility lawsuit, Justice Boyd was accused of soliciting a memorandum from counsel for the utility company, sharing that memorandum with Justice Dekle and using that memorandum in rendering the opinion for the court.  The JQC investigated the accusations and recommended Justices Boyd and Dekle be removed from the bench.  Another panel reviewed the findings of the JQC and recommended in a 6-1 vote to publicly reprimand Justice Boyd rather than remove him from his seat on the Court.

Importantly, the singular vote for removal was made by retired Supreme Court justice Alto Adams and as part of this dissenting opinion he wrote, “…his misconduct was so great and continued over so long a period of time as to show a complete disregard for the dignity and welfare of the office which he occupies.”

That is the type of behavior that should cause voters to want to remove someone from the Florida Supreme Court and these scandals serve as the most poignant example of why judges and justices should be removed from the bench.  Disagreeing with the Governor, or the party in power, quite simply is not.

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