House Bill hb1465

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    Florida House of Representatives - 2002               HJR 1465

        By Representative Brummer






  1                      House Joint Resolution

  2         A joint resolution proposing amendments to

  3         Sections 3, 8, 10, 11, and 12 of Article V of

  4         the State Constitution and the creation of

  5         Section 26 of Article XII of the State

  6         Constitution to provide a method for selection,

  7         and for terms of office, of Supreme Court

  8         justices, district courts of appeal judges, and

  9         county court judges, to require judicial

10         nominating commission proceedings to be public,

11         and to propose an amendment relating to the

12         Judicial Qualifications Commission.

13

14  Be It Resolved by the Legislature of the State of Florida:

15

16         That the following amendments to Sections 3, 8, 10, 11,

17  and 12 of Article V of the State Constitution and the creation

18  of Section 26 of Article XII of the State Constitution are

19  agreed to and shall be submitted to the electors of this state

20  for approval or rejection at the next general election or at

21  an earlier special election specifically authorized by law for

22  that purpose:

23                            ARTICLE V

24                            JUDICIARY

25         SECTION 3.  Supreme court.--

26         (a)  ORGANIZATION.--The supreme court shall consist of

27  seven justices.  Of the seven justices, each appellate

28  district shall have at least one justice elected or appointed

29  from the district on to the supreme court who is a resident of

30  the district at the time of the original appointment or

31  election.  Five justices shall constitute a quorum.  The

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  1  concurrence of four justices shall be necessary to a decision.

  2  When recusals for cause would prohibit the court from

  3  convening because of the requirements of this section, judges

  4  assigned to temporary duty may be substituted for justices.

  5         (b)  JURISDICTION.--The supreme court:

  6         (1)  Shall hear appeals from final judgments of trial

  7  courts imposing the death penalty and from decisions of

  8  district courts of appeal declaring invalid a state statute or

  9  a provision of the state constitution.

10         (2)  When provided by general law, shall hear appeals

11  from final judgments entered in proceedings for the validation

12  of bonds or certificates of indebtedness and shall review

13  action of statewide agencies relating to rates or service of

14  utilities providing electric, gas, or telephone service.

15         (3)  May review any decision of a district court of

16  appeal that expressly declares valid a state statute, or that

17  expressly construes a provision of the state or federal

18  constitution, or that expressly affects a class of

19  constitutional or state officers, or that expressly and

20  directly conflicts with a decision of another district court

21  of appeal or of the supreme court on the same question of law.

22         (4)  May review any decision of a district court of

23  appeal that passes upon a question certified by it to be of

24  great public importance, or that is certified by it to be in

25  direct conflict with a decision of another district court of

26  appeal.

27         (5)  May review any order or judgment of a trial court

28  certified by the district court of appeal in which an appeal

29  is pending to be of great public importance, or to have a

30  great effect on the proper administration of justice

31

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  1  throughout the state, and certified to require immediate

  2  resolution by the supreme court.

  3         (6)  May review a question of law certified by the

  4  Supreme Court of the United States or a United States Court of

  5  Appeals which is determinative of the cause and for which

  6  there is no controlling precedent of the supreme court of

  7  Florida.

  8         (7)  May issue writs of prohibition to courts and all

  9  writs necessary to the complete exercise of its jurisdiction.

10         (8)  May issue writs of mandamus and quo warranto to

11  state officers and state agencies.

12         (9)  May, or any justice may, issue writs of habeas

13  corpus returnable before the supreme court or any justice, a

14  district court of appeal or any judge thereof, or any circuit

15  judge.

16         (10)  Shall, when requested by the attorney general

17  pursuant to the provisions of Section 10 of Article IV, render

18  an advisory opinion of the justices, addressing issues as

19  provided by general law.

20         (c)  CLERK AND MARSHAL.--The supreme court shall

21  appoint a clerk and a marshal who shall hold office during the

22  pleasure of the court and perform such duties as the court

23  directs. Their compensation shall be fixed by general law.

24  The marshal shall have the power to execute the process of the

25  court throughout the state, and in any county may deputize the

26  sheriff or a deputy sheriff for such purpose.

27         SECTION 8.  Eligibility.--No person shall be eligible

28  for office of justice or judge of any court unless the person

29  is an elector of the state and resides in the territorial

30  jurisdiction of the court.  No justice or judge shall serve

31  after attaining the age of seventy years except upon temporary

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  1  assignment or to complete a term, one-half of which has been

  2  served.  No person is eligible for the office of justice of

  3  the supreme court or judge of a district court of appeal

  4  unless the person is, and has been for the preceding ten

  5  years, a member of the bar of Florida.  No person is eligible

  6  for the office of circuit judge unless the person is, and has

  7  been for the preceding five years, a member of the bar of

  8  Florida.  Unless otherwise provided by general law, no person

  9  is eligible for the office of county court judge unless the

10  person is, and has been for the preceding five years, a member

11  of the bar of Florida.  Unless otherwise provided by general

12  law, a person shall be eligible for election or appointment to

13  the office of county court judge in a county having a

14  population of 40,000 or less if the person is a member in good

15  standing of the bar of Florida.

16         SECTION 10.  Retention; election and terms.--

17         (a)  Any justice or judge of a district court of appeal

18  may qualify for retention by a vote of the electors in the

19  general election next preceding the expiration of the

20  justice's or judge's term in the manner prescribed by law.  If

21  a justice or judge of a district court of appeal is ineligible

22  or fails to qualify for retention, a vacancy shall exist in

23  that office upon the expiration of the term being served by

24  the justice or judge.  When a justice or judge so qualifies

25  for retention, the ballot shall read substantially as follows:

26  "Shall Justice (or Judge) ...(name of justice or judge)... of

27  the ...(name of the district court of appeal)... be retained

28  in office?" If a majority of the qualified electors voting on

29  the question of retention within the territorial jurisdiction

30  of the court vote to retain, the justice or judge shall be so

31  retained for a term of six years.  The term of the justice or

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  1  judge retained shall commence on the first Tuesday after the

  2  first Monday in January following the general election.  If a

  3  majority of the qualified electors voting on the question of

  4  retention within the territorial jurisdiction of the district

  5  court of appeal vote to not retain, a vacancy shall exist in

  6  that office upon the expiration of the term being served by

  7  the justice or judge.

  8         (b)

  9         (1)  The election of circuit judges shall be preserved

10  notwithstanding the provisions of subsection (a) unless a

11  majority of those voting in the jurisdiction of that circuit

12  approves a local option to select circuit judges by merit

13  selection and retention rather than by election.  The election

14  of circuit judges shall be by a vote of the qualified electors

15  within the territorial jurisdiction of the court.

16         (2)  The election of county court judges shall be

17  preserved notwithstanding the provisions of subsection (a)

18  unless a majority of those voting in the jurisdiction of that

19  county approves a local option to select county judges by

20  merit selection and retention rather than by election. The

21  election of county court judges shall be by a vote of the

22  qualified electors within the territorial jurisdiction of the

23  court.

24         (3)

25         a.  A vote to exercise a local option to select circuit

26  court judges and county court judges by merit selection and

27  retention rather than by election shall be held in each

28  circuit and county at the general election in the year 2000.

29  If a vote to exercise this local option fails in a vote of the

30  electors, such option shall not again be put to a vote of the

31

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  1  electors of that jurisdiction until the expiration of at least

  2  two years.

  3         b.  After the year 2000, a circuit may initiate the

  4  local option for merit selection and retention or the election

  5  of circuit judges, whichever is applicable, by filing with the

  6  secretary of state a petition signed by the number of electors

  7  equal to at least ten percent of the votes cast in the circuit

  8  in the last preceding election in which presidential electors

  9  were chosen.

10         c.  After the year 2000, a county may initiate the

11  local option for merit selection and retention or the election

12  of county court judges, whichever is applicable, by filing

13  with the supervisor of elections a petition signed by the

14  number of electors equal to at least ten percent of the votes

15  cast in the county in the last preceding election in which

16  presidential electors were chosen.

17         (2)  The terms of circuit judges and judges of county

18  courts shall be for six years.

19         SECTION 11.  Vacancies.--

20         (a)  Whenever a vacancy occurs in a district court of

21  appeal judicial office to which election for retention

22  applies, the governor shall fill the vacancy by appointing, by

23  and with the advice and consent of the senate, for a term

24  ending on the first Tuesday after the first Monday in January

25  of the year following the next general election occurring at

26  least one year after the date of appointment, one of the not

27  fewer than three persons nor more than six persons nominated

28  by the appropriate judicial nominating commission.

29         (b)  The governor shall fill each vacancy on a circuit

30  court or on a county court, wherein the judges are elected by

31  a majority vote of the electors, by appointing, by and with

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  1  the advice and consent of the senate, for a term ending on the

  2  first Tuesday after the first Monday in January of the year

  3  following the next primary and general election occurring at

  4  least one year after the date of appointment, one of the not

  5  fewer than three persons nor more than six persons nominated

  6  by the appropriate judicial nominating commission.  An

  7  election shall be held to fill that judicial office for the

  8  term of the office beginning at the end of the appointed term.

  9         (c)  Each judicial nominating commission shall nominate

10  at least three but no less than one-third of the eligible

11  applicants for any judicial vacancy. The nominations shall be

12  made within thirty days from the occurrence of a vacancy

13  unless the period is extended by the governor for a time not

14  to exceed thirty days. A report containing any information

15  required by the rules of procedure or general law, in addition

16  to any other information that the commission deems useful to

17  the governor in filling the judicial vacancy shall accompany

18  the certified nominations. The governor shall make the

19  appointment within sixty days after the nominations have been

20  certified to the governor. The appointment shall be

21  transmitted to the senate with the governor's signature. If

22  the senate is not in session at the time the governor

23  transmits the appointment, the senate may call itself into

24  session, by proclamation of the senate president or as

25  otherwise provided by its rules, to consider the nomination.

26  If the senate is not in session during the thirty-day period

27  following the governor's transmission of an appointment, and

28  the senate does not convene within such thirty-day period, the

29  appointment shall be deemed confirmed. If the senate is in

30  session at any time during such thirty days and does not

31  confirm such appointment by majority vote of senators voting

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  1  on the question within such thirty days, the appointment shall

  2  be rejected, unless the rules of the senate in effect

  3  immediately prior to the appointment provide for confirmation

  4  in such circumstances. A person appointed to judicial office

  5  and rejected by the senate shall not be eligible for

  6  nomination to any judicial office until the next following

  7  general election. Whenever a vacancy occurs as the result of

  8  the expiration of the term of office of an incumbent justice

  9  of the supreme court, the commission shall include the name of

10  the incumbent in its nominations, provided the incumbent is

11  constitutionally eligible for nomination and has not otherwise

12  submitted a written statement to the commission requesting not

13  to be considered for nomination.

14         (d)  There shall be a separate judicial nominating

15  commission as provided by general law for the supreme court,

16  each district court of appeal, and each judicial circuit for

17  all trial courts within the circuit.  Uniform rules of

18  procedure shall be established by the judicial nominating

19  commissions at each level of the court system.  Such rules, or

20  any part thereof, may be repealed by joint resolution adopted

21  by a majority of each house of the legislature. general law

22  enacted by a majority vote of the membership of each house of

23  the legislature, or by the supreme court, five justices

24  concurring. Except for deliberations of the judicial

25  nominating commissions, The proceedings of the commissions and

26  their records shall be open to the public.

27         (e)  Whenever a vacancy occurs in the office of justice

28  of the supreme court, including a vacancy occurring due to the

29  expiration of the term of office of an incumbent justice of

30  the supreme court, the governor shall fill the vacancy by

31  appointment. The appointee must be confirmed by the senate in

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  1  accordance with this section. The term of office of a justice

  2  of the supreme court is six years. However, if a vacancy

  3  occurs before the expiration of the term of office of an

  4  incumbent justice, the appointment shall be for the unexpired

  5  portion of that term. A justice may be reappointed for two

  6  full terms, but a person may not serve as a justice for more

  7  than eighteen years consecutively.

  8         SECTION 12.  Discipline; removal and retirement.--

  9         (a)  JUDICIAL QUALIFICATIONS COMMISSION.--A judicial

10  qualifications commission is created.

11         (1)  There shall be a judicial qualifications

12  commission vested with jurisdiction to investigate and

13  recommend to the Supreme Court of Florida the removal from

14  office of any justice or judge whose conduct, during term of

15  office or otherwise occurring on or after November 1, 1966,

16  (without regard to the effective date of this section)

17  demonstrates a present unfitness to hold office, and to

18  investigate and recommend the discipline of a justice or judge

19  whose conduct, during term of office or otherwise occurring on

20  or after November 1, 1966 (without regard to the effective

21  date of this section), warrants such discipline. For purposes

22  of this section, discipline is defined as any or all of the

23  following: reprimand, fine, suspension with or without pay, or

24  lawyer discipline. The commission shall have jurisdiction over

25  justices and judges regarding allegations that misconduct

26  occurred before or during service as a justice or judge if a

27  complaint is made no later than one year following service as

28  a justice or judge. The commission shall have jurisdiction

29  regarding allegations of incapacity during service as a

30  justice or judge.  The commission shall be composed of:

31

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  1         a.  Two judges of district courts of appeal selected by

  2  the judges of those courts, two circuit judges selected by the

  3  judges of the circuit courts and two judges of county courts

  4  selected by the judges of those courts;

  5         b.  Four electors who reside in the state, who are

  6  members of the bar of Florida, and who shall be appointed by

  7  the governor chosen by the governing body of the bar of

  8  Florida; and

  9         c.  Five electors who reside in the state, who have

10  never held judicial office or been members of the bar of

11  Florida, and who shall be appointed by the governor.

12         (2)  The members of the judicial qualifications

13  commission shall serve staggered terms, not to exceed six

14  years, as prescribed by general law.  No member of the

15  commission except a judge shall be eligible for state judicial

16  office while acting as a member of the commission and for a

17  period of two years thereafter.  No member of the commission

18  shall hold office in a political party or participate in any

19  campaign for judicial office or hold public office; provided

20  that a judge may campaign for judicial office and hold that

21  office.  The commission shall elect one of its members as its

22  chairperson.

23         (3)  Members of the judicial qualifications commission

24  not subject to impeachment shall be subject to removal from

25  the commission pursuant to the provisions of Article IV,

26  Section 7, Florida Constitution.

27         (4)  The commission shall adopt rules regulating its

28  proceedings, the filling of vacancies by the appointing

29  authorities, the disqualification of members, the rotation of

30  members between the panels, and the temporary replacement of

31  disqualified or incapacitated members.  The commission's

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  1  rules, or any part thereof, may be repealed by general law

  2  enacted by a majority vote of the membership of each house of

  3  the legislature, or by the supreme court, five justices

  4  concurring. The commission shall have power to issue

  5  subpoenas. Until formal charges against a justice or judge are

  6  filed by the investigative panel with the clerk of the supreme

  7  court of Florida all proceedings by or before the commission

  8  shall be confidential; provided, however, upon a finding of

  9  probable cause and the filing by the investigative panel with

10  said clerk of such formal charges against a justice or judge

11  such charges and all further proceedings before the commission

12  shall be public.

13         (5)  The commission shall have access to all

14  information from all executive, legislative and judicial

15  agencies, including grand juries, subject to the rules of the

16  commission.  At any time, on request of the speaker of the

17  house of representatives or the governor, the commission shall

18  make available all information in the possession of the

19  commission for use in consideration of impeachment or

20  suspension, respectively.

21         (b)  PANELS.--The commission shall be divided into an

22  investigative panel and a hearing panel as established by rule

23  of the commission. The investigative panel is vested with the

24  jurisdiction to receive or initiate complaints, conduct

25  investigations, dismiss complaints, and upon a vote of a

26  simple majority of the panel submit formal charges to the

27  hearing panel. The hearing panel is vested with the authority

28  to receive and hear formal charges from the investigative

29  panel and upon a two-thirds vote of the panel recommend to the

30  supreme court the removal of a justice or judge or the

31  involuntary retirement of a justice or judge for any permanent

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  1  disability that seriously interferes with the performance of

  2  judicial duties. Upon a simple majority vote of the membership

  3  of the hearing panel, the panel may recommend to the supreme

  4  court that the justice or judge be subject to appropriate

  5  discipline.

  6         (c)  SUPREME COURT.--The supreme court shall receive

  7  recommendations from the judicial qualifications commission's

  8  hearing panel.

  9         (1)  The supreme court may accept, reject, or modify in

10  whole or in part the findings, conclusions, and

11  recommendations of the commission and it may order that the

12  justice or judge be subjected to appropriate discipline, or be

13  removed from office with termination of compensation for

14  willful or persistent failure to perform judicial duties or

15  for other conduct unbecoming a member of the judiciary

16  demonstrating a present unfitness to hold office, or be

17  involuntarily retired for any permanent disability that

18  seriously interferes with the performance of judicial duties.

19  Malafides, scienter or moral turpitude on the part of a

20  justice or judge shall not be required for removal from office

21  of a justice or judge whose conduct demonstrates a present

22  unfitness to hold office.  After the filing of a formal

23  proceeding and upon request of the investigative panel, the

24  supreme court may suspend the justice or judge from office,

25  with or without compensation, pending final determination of

26  the inquiry.

27         (2)  The supreme court may award costs to the

28  prevailing party.

29         (d)  The power of removal conferred by this section

30  shall be both alternative and cumulative to the power of

31  impeachment.

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  1         (e)  Notwithstanding any of the foregoing provisions of

  2  this section, if the person who is the subject of proceedings

  3  by the judicial qualifications commission is a justice of the

  4  supreme court of Florida all justices of such court

  5  automatically shall be disqualified to sit as justices of such

  6  court with respect to all proceedings therein concerning such

  7  person and the supreme court for such purposes shall be

  8  composed of a panel consisting of the seven chief judges of

  9  the judicial circuits of the state of Florida most senior in

10  tenure of judicial office as circuit judge. For purposes of

11  determining seniority of such circuit judges in the event

12  there be judges of equal tenure in judicial office as circuit

13  judge the judge or judges from the lower numbered circuit or

14  circuits shall be deemed senior. In the event any such chief

15  circuit judge is under investigation by the judicial

16  qualifications commission or is otherwise disqualified or

17  unable to serve on the panel, the next most senior chief

18  circuit judge or judges shall serve in place of such

19  disqualified or disabled chief circuit judge.

20         (f)  SCHEDULE TO SECTION 12.--

21         (1)  Except to the extent inconsistent with the

22  provisions of this section, all provisions of law and rules of

23  court in force on the effective date of this article shall

24  continue in effect until superseded in the manner authorized

25  by the constitution.

26         (2)  After this section becomes effective and until

27  adopted by rule of the commission consistent with it:

28         a.  The commission shall be divided, as determined by

29  the chairperson, into one investigative panel and one hearing

30  panel to meet the responsibilities set forth in this section.

31         b.  The investigative panel shall be composed of:

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  1         1.  Four judges,

  2         2.  Two members of the bar of Florida, and

  3         3.  Three non-lawyers.

  4         c.  The hearing panel shall be composed of:

  5         1.  Two judges,

  6         2.  Two members of the bar of Florida, and

  7         3.  Two non-lawyers.

  8         d.  Membership on the panels may rotate in a manner

  9  determined by the rules of the commission provided that no

10  member shall vote as a member of the investigative and hearing

11  panel on the same proceeding.

12         e.  The commission shall hire separate staff for each

13  panel.

14         f.  The members of the commission shall serve for

15  staggered terms of six years.

16         g.  The terms of office of the present members of the

17  judicial qualifications commission shall expire upon the

18  effective date of the amendments to this section approved by

19  the legislature during the regular session of the legislature

20  in 1996 and new members shall be appointed to serve the

21  following staggered terms:

22         1.  Group I.--The terms of five members, composed of

23  two electors as set forth in s. 12(a)(1)c. of Article V, one

24  member of the bar of Florida as set forth in s. 12(a)(1)b. of

25  Article V, one judge from the district courts of appeal and

26  one circuit judge as set forth in s. 12(a)(1)a. of Article V,

27  shall expire on December 31, 1998.

28         2.  Group II.--The terms of five members, composed of

29  one elector as set forth in s. 12(a)(1)c. of Article V, two

30  members of the bar of Florida as set forth in s. 12(a)(1)b. of

31  Article V, one circuit judge and one county judge as set forth

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  1  in s. 12(a)(1)a. of Article V shall expire on December 31,

  2  2000.

  3         3.  Group III.--The terms of five members, composed of

  4  two electors as set forth in s. 12(a)(1)c. of Article V, one

  5  member of the bar of Florida as set forth in s. 12(a)(1)b.,

  6  one judge from the district courts of appeal and one county

  7  judge as set forth in s. 12(a)(1)a. of Article V, shall expire

  8  on December 31, 2002.

  9         h.  An appointment to fill a vacancy of the commission

10  shall be for the remainder of the term.

11         i.  Selection of members by district courts of appeal

12  judges, circuit judges, and county court judges, shall be by

13  no less than a majority of the members voting at the

14  respective courts' conferences. Selection of members by the

15  board of governors of the bar of Florida shall be by no less

16  than a majority of the board.

17         j.  The commission shall be entitled to recover the

18  costs of investigation and prosecution, in addition to any

19  penalty levied by the supreme court.

20         k.  The compensation of members and referees shall be

21  the travel expenses or transportation and per diem allowance

22  as provided by general law.

23                           ARTICLE XII

24                             SCHEDULE

25         SECTION 26.  Schedule to Article V amendment.--The

26  amendment of Sections 3, 8, 10, 11, and 12 of Article V by

27  this joint resolution, if approved, shall take effect on the

28  first Tuesday after the first Monday in January 2003. However,

29  each person serving as a justice of the supreme court or judge

30  of a district court of appeal on the day such amendment is

31  approved may continue in that office until the expiration of

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  1  the term. The limitation on years of service expressed in

  2  Section 11(e) of Article V does not apply with respect to any

  3  such person until the expiration of the term the person is

  4  serving on the day the amendment is approved.

  5         BE IT FURTHER RESOLVED that in accordance with the

  6  requirements of section 101.161, Florida Statutes, the title

  7  and substance of the amendments proposed herein shall appear

  8  on the ballot as follows:

  9                     CONSTITUTIONAL AMENDMENT

10            ARTICLE V, SECTIONS 3, 8, 10, 11, and 12;

11                     ARTICLE XII, SECTION 26

12         APPOINTMENT, CONFIRMATION, TERMS OF SUPREME COURT

13  JUSTICES, COURT OF APPEAL JUDGES; JUDICIAL NOMINATING

14  COMMISSION PROCEEDINGS; JUDICIAL QUALIFICATIONS

15  COMMISSION.--Proposes to make proceedings of judicial

16  nominating commissions public. Proposes to abolish retention

17  elections for the offices of Supreme Court justice, making the

18  offices appointive by the Governor, subject to Senate

19  confirmation, allowing reappointment for full 6-year terms,

20  with no one eligible to serve more than 18 consecutive years.

21  Provides that confirmation is automatic if the Senate does not

22  convene within 30 days after transmittal of an appointment,

23  provides that if the Senate convenes within such 30-day period

24  and fails to confirm, the appointment is rejected unless the

25  Rules of the Senate provide otherwise. Proposes to eliminate

26  the local option provisions for the selection of circuit

27  judges and county court judges. Proposes that judicial

28  nominating commissions nominate at least three but no less

29  than one-third of the eligible applicants for any judicial

30  vacancy and requires inclusion of the name of an incumbent

31  justice with respect to Supreme Court vacancies when the

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    Florida House of Representatives - 2002               HJR 1465

    703-141C-02






  1  vacancy occurs as the result of the expiration of the term of

  2  office unless the incumbent does not desire to be considered

  3  or is not constitutionally eligible. Proposes a procedure for

  4  appointment. Proposes that the four electors who reside in the

  5  state selected for the Judicial Qualifications Commission who

  6  are members of the bar of Florida be appointed by the Governor

  7  rather than by the governing body of the bar of Florida.

  8  Removes the ability of the Supreme Court to repeal uniform

  9  rules of procedure established by the judicial nominating

10  commissions. Removes 70-year maximum age limitation for all

11  judges and justices. Provides that each justice in office at

12  the time the amendments are adopted may complete the justice's

13  term of office regardless of years of service.

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