HJR 7037

1	House Joint Resolution
2	A joint resolution proposing an amendment to Section 12 of
3	Article V of the State Constitution to provide that
4	records, materials, and proceedings of the Judicial
5	Qualifications Commission shall be public upon the filing
6	of formal charges or upon a finding that formal charges
7	will not be filed, to provide exceptions, and to delete
8	outdated provisions.
9
10	Be It Resolved by the Legislature of the State of Florida:
11
12	That the following amendment to Section 12 of Article V of
13	the State Constitution is agreed to and shall be submitted to
14	the electors of this state for approval or rejection at the next
15	general election or at an earlier special election specifically
16	authorized by law for that purpose:
17	ARTICLE V
18	JUDICIARY
19	SECTION 12.  Discipline; removal and retirement.-
20	(a)  JUDICIAL QUALIFICATIONS COMMISSION.-A judicial
21	qualifications commission is created.
22	(1)  There shall be a judicial qualifications commission
23	vested with jurisdiction to investigate and recommend to the
24	Supreme Court of Florida the removal from office of any justice
25	or judge whose conduct, during term of office or otherwise,
26	occurring on or after November 1, 1966, (without regard to the
27	effective date of this section) demonstrates a present unfitness
28	to hold office, and to investigate and recommend the discipline
29	of a justice or judge whose conduct, during term of office or
30	otherwise occurring on or after November 1, 1966 (without regard
31	to the effective date of this section), warrants such
32	discipline. For purposes of this section, discipline is defined
33	as any or all of the following: reprimand, fine, suspension with
34	or without pay, or lawyer discipline. The commission shall have
35	jurisdiction over justices and judges regarding allegations that
36	misconduct occurred before or during service as a justice or
37	judge if a complaint is made no later than one year following
38	service as a justice or judge. The commission shall have
39	jurisdiction regarding allegations of incapacity during service
40	as a justice or judge. The commission shall be composed of:
41	a.  Two judges of district courts of appeal selected by the
42	judges of those courts, two circuit judges selected by the
43	judges of the circuit courts, and two judges of county courts
44	selected by the judges of those courts;
45	b.  Four electors who reside in the state, who are members
46	of the bar of Florida, and who shall be chosen by the governing
47	body of the bar of Florida; and
48	c.  Five electors who reside in the state, who have never
49	held judicial office or been members of the bar of Florida, and
50	who shall be appointed by the governor.
51	(2)  The members of the judicial qualifications commission
52	shall serve staggered terms, not to exceed six years, as
53	prescribed by general law. No member of the commission except a
54	judge shall be eligible for state judicial office while acting
55	as a member of the commission and for a period of two years
56	thereafter. No member of the commission shall hold office in a
57	political party or participate in any campaign for judicial
58	office or hold public office; provided that a judge may campaign
59	for judicial office and hold that office. The commission shall
60	elect one of its members as its chairperson.
61	(3)  Members of the judicial qualifications commission not
62	subject to impeachment shall be subject to removal from the
63	commission pursuant to the provisions of Article IV, Section 7,
64	Florida Constitution.
65	(4)a.  The commission shall adopt rules regulating its
66	proceedings, the filling of vacancies by the appointing
67	authorities, the disqualification of members, the rotation of
68	members between the panels, and the temporary replacement of
69	disqualified or incapacitated members. The commission's rules,
70	or any part thereof, may be repealed by general law enacted by a
71	majority vote of the membership of each house of the
72	legislature, or by the supreme court, five justices concurring.
73	The commission shall have power to issue subpoenas.
74	b.  While an Until formal charges against a justice or
75	judge are filed by the investigative panel is investigating a
76	complaint, with the clerk of the supreme court of Florida all
77	proceedings by or before the commission and all records related
78	thereto shall be confidential. All records, materials, and
79	proceedings related to a complaint and investigation shall be
80	public upon either the filing of formal charges with the hearing
81	panel or upon a finding of the investigative panel that formal
82	charges will not be brought regarding a complaint. However,
83	information that is otherwise confidential or exempt shall
84	retain its status. This subparagraph applies to all records of
85	the commission; provided, however, upon a finding of probable
86	cause and the filing by the investigative panel with said clerk
87	of such formal charges against a justice or judge such charges
88	and all further proceedings before the commission shall be
89	public.
90	(5)  The commission shall have access to all information
91	from all executive, legislative and judicial agencies, including
92	grand juries, subject to the rules of the commission. At any
93	time, on request of the speaker of the house of representatives
94	or the governor, the commission shall make available all
95	information in the possession of the commission for use in
96	consideration of impeachment or suspension, respectively.
97	(b)  PANELS.-The commission shall be divided into an
98	investigative panel and a hearing panel as established by rule
99	of the commission. The investigative panel is vested with the
100	jurisdiction to receive or initiate complaints, conduct
101	investigations, dismiss complaints, and upon a vote of a simple
102	majority of the panel submit formal charges to the hearing
103	panel. The hearing panel is vested with the authority to receive
104	and hear formal charges from the investigative panel and upon a
105	two-thirds vote of the panel recommend to the supreme court the
106	removal of a justice or judge or the involuntary retirement of a
107	justice or judge for any permanent disability that seriously
108	interferes with the performance of judicial duties. Upon a
109	simple majority vote of the membership of the hearing panel, the
110	panel may recommend to the supreme court that the justice or
111	judge be subject to appropriate discipline.
112	(c)  SUPREME COURT.-The supreme court shall receive
113	recommendations from the judicial qualifications commission's
114	hearing panel.
115	(1)  The supreme court may accept, reject, or modify in
116	whole or in part the findings, conclusions, and recommendations
117	of the commission and it may order that the justice or judge be
118	subjected to appropriate discipline, or be removed from office
119	with termination of compensation for willful or persistent
120	failure to perform judicial duties or for other conduct
121	unbecoming a member of the judiciary demonstrating a present
122	unfitness to hold office, or be involuntarily retired for any
123	permanent disability that seriously interferes with the
124	performance of judicial duties. Malafides, scienter or moral
125	turpitude on the part of a justice or judge shall not be
126	required for removal from office of a justice or judge whose
127	conduct demonstrates a present unfitness to hold office. After
128	the filing of a formal proceeding and upon request of the
129	investigative panel, the supreme court may suspend the justice
130	or judge from office, with or without compensation, pending
131	final determination of the inquiry.
132	(2)  The supreme court may award costs to the prevailing
133	party.
134	(d)  The power of removal conferred by this section shall
135	be both alternative and cumulative to the power of impeachment.
136	(e)  Notwithstanding any of the foregoing provisions of
137	this section, if the person who is the subject of proceedings by
138	the judicial qualifications commission is a justice of the
139	supreme court of Florida all justices of such court
140	automatically shall be disqualified to sit as justices of such
141	court with respect to all proceedings therein concerning such
142	person and the supreme court for such purposes shall be composed
143	of a panel consisting of the seven chief judges of the judicial
144	circuits of the state of Florida most senior in tenure of
145	judicial office as circuit judge. For purposes of determining
146	seniority of such circuit judges in the event there be judges of
147	equal tenure in judicial office as circuit judge the judge or
148	judges from the lower numbered circuit or circuits shall be
149	deemed senior. In the event any such chief circuit judge is
150	under investigation by the judicial qualifications commission or
151	is otherwise disqualified or unable to serve on the panel, the
152	next most senior chief circuit judge or judges shall serve in
153	place of such disqualified or disabled chief circuit judge.
154	(f)  SCHEDULE TO SECTION 12.-
155	(1)  Except to the extent inconsistent with the provisions
156	of this section, all provisions of law and rules of court in
157	force on the effective date of this article shall continue in
158	effect until superseded in the manner authorized by the
159	constitution.
160	(2)  After this section becomes effective and until adopted
161	by rule of the commission consistent with it:
162	a.  The commission shall be divided, as determined by the
163	chairperson, into one investigative panel and one hearing panel
164	to meet the responsibilities set forth in this section.
165	b.  The investigative panel shall be composed of:
166	1.  Four judges,
167	2.  Two members of the bar of Florida, and
168	3.  Three non-lawyers.
169	c.  The hearing panel shall be composed of:
170	1.  Two judges,
171	2.  Two members of the bar of Florida, and
172	3.  Two non-lawyers.
173	d.  Membership on the panels may rotate in a manner
174	determined by the rules of the commission provided that no
175	member shall vote as a member of the investigative and hearing
176	panel on the same proceeding.
177	e.  The commission shall hire separate staff for each
178	panel.
179	f.  The members of the commission shall serve for staggered
180	terms of six years.
181	g.  The terms of office of the present members of the
182	judicial qualifications commission shall expire upon the
183	effective date of the amendments to this section approved by the
184	legislature during the regular session of the legislature in
185	1996 and new members shall be appointed to serve the following
186	staggered terms:
187	1.  Group I.-The terms of five members, composed of two
188	electors as set forth in s. 12(a)(1)c. of Article V, one member
189	of the bar of Florida as set forth in s. 12(a)(1)b. of Article
190	V, one judge from the district courts of appeal and one circuit
191	judge as set forth in s. 12(a)(1)a. of Article V, shall expire
192	on December 31, 1998.
193	2.  Group II.-The terms of five members, composed of one
194	elector as set forth in s. 12(a)(1)c. of Article V, two members
195	of the bar of Florida as set forth in s. 12(a)(1)b. of Article
196	V, one circuit judge and one county judge as set forth in s.
197	12(a)(1)a. of Article V shall expire on December 31, 2000.
198	3.  Group III.-The terms of five members, composed of two
199	electors as set forth in s. 12(a)(1)c. of Article V, one member
200	of the bar of Florida as set forth in s. 12(a)(1)b., one judge
201	from the district courts of appeal and one county judge as set
202	forth in s. 12(a)(1)a. of Article V, shall expire on December
203	31, 2002.
204	g.h.  An appointment to fill a vacancy of the commission
205	shall be for the remainder of the term.
206	h.i.  Selection of members by district courts of appeal
207	judges, circuit judges, and county court judges, shall be by no
208	less than a majority of the members voting at the respective
209	courts' conferences. Selection of members by the board of
210	governors of the bar of Florida shall be by no less than a
211	majority of the board.
212	i.j.  The commission shall be entitled to recover the costs
213	of investigation and prosecution, in addition to any penalty
214	levied by the supreme court.
215	j.k.  The compensation of members and referees shall be the
216	travel expenses or transportation and per diem allowance as
217	provided by general law.
218	BE IT FURTHER RESOLVED that the following statement be
219	placed on the ballot:
220	CONSTITUTIONAL AMENDMENT
221	ARTICLE V, SECTION 12
222	OPEN RECORDS OF THE JUDICIAL QUALIFICATIONS COMMISSION.-
223	Proposing an amendment to the State Constitution to provide that
224	all records, materials, and proceedings related to complaints
225	and investigations of the Judicial Qualifications Commission not
226	otherwise exempt from disclosure shall be public upon the filing
227	of formal charges against the judge or upon a determination by
228	the commission or investigative panel that formal charges will
229	not be filed against the judge.
230	Under current law, records, materials, and proceedings
231	related to complaints and investigations of the Judicial
232	Qualifications Commission do not become public unless formal
233	charges are filed against the judge. This amendment makes most
234	records, materials, and proceedings open for public inspection
235	and review once the commission makes a determination whether or
236	not to file formal charges against the judge. However, general
237	public records exemption laws applicable to the judicial branch
238	will continue to apply to records of the commission. This
239	provision shall apply to all records and materials currently in
240	possession of the commission and to all records, materials, and
241	proceedings of the commission subsequently created or held.
242	This proposed amendment also removes outdated provisions
243	related to the Judicial Qualifications Commission.

CODING: Words stricken are deletions; words underlined are additions.