Florida Senate - 2011 SENATOR AMENDMENT
Bill No. CS/HJR 7111, 2nd Eng.
Barcode 802676
LEGISLATIVE ACTION
Senate . House
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Floor: WD/3R .
05/02/2011 06:01 PM .
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Senators Bogdanoff, Simmons, Dockery, Jones, Detert, Storms,
Diaz de la Portilla, Fasano, Latvala, and Evers moved the
following:
1 Senate Amendment (with title amendment)
2
3
4 Delete everything after the resolving clause
5 and insert:
6 That the following amendment to Sections 2, 4, 11, 12, and
7 14 of Article V of the State Constitution is agreed to and shall
8 be submitted to the electors of this state for approval or
9 rejection at the next general election or at an earlier special
10 election specifically authorized by law for that purpose:
11 ARTICLE V
12 JUDICIARY
13 SECTION 2. Administration; practice and procedure.—
14 (a) The supreme court shall adopt rules for the practice
15 and procedure in all courts including the time for seeking
16 appellate review, the administrative supervision of all courts,
17 the transfer to the court having jurisdiction of any proceeding
18 when the jurisdiction of another court has been improvidently
19 invoked, and a requirement that no cause shall be dismissed
20 because an improper remedy has been sought. The supreme court
21 shall adopt rules to allow it the court and the district courts
22 of appeal to submit questions relating to military law to the
23 federal Court of Appeals for the Armed Forces for an advisory
24 opinion. Rules of court may be repealed by general law that
25 expresses the policy behind the repeal enacted by two-thirds
26 vote of the membership of each house of the legislature. The
27 court may readopt the repealed rule only in conformity with the
28 public policy expressed by the legislature. If the legislature
29 repeals the readopted rule, the rule may not be readopted
30 thereafter without prior approval of the legislature.
31 (b) The chief justice of the supreme court of Florida shall
32 be chosen by a majority of the members of the court; shall be
33 the chief administrative officer of the judicial system; and
34 shall have the power to assign justices or judges, including
35 consenting retired justices or judges, to temporary duty in any
36 court for which the judge is qualified and to delegate to a
37 chief judge of a judicial circuit the power to assign judges for
38 duty in that circuit.
39 (c) A chief judge for each district court of appeal shall
40 be chosen by a majority of the judges thereof or, if there is no
41 majority, by the chief justice. The chief judge of a district
42 court shall be responsible for the administrative supervision of
43 the district court.
44 (d) A chief judge in each circuit shall be chosen from
45 among the circuit judges as provided by supreme court rule. The
46 chief judge of a circuit shall be responsible for the
47 administrative supervision of the circuit courts and county
48 courts in the his circuit.
49 SECTION 4. District courts of appeal.—
50 (a) ORGANIZATION.—There shall be a district court of appeal
51 serving each appellate district. Each district court of appeal
52 shall consist of at least three judges. Three judges shall
53 consider each case and the concurrence of two shall be necessary
54 to a decision.
55 (b) JURISDICTION.—
56 (1) District courts of appeal shall have jurisdiction to
57 hear appeals, that may be taken as a matter of right, from final
58 judgments or orders of trial courts, including those entered on
59 review of administrative action, not directly appealable to the
60 supreme court or a circuit court. They may review interlocutory
61 orders in such cases to the extent provided by rules adopted by
62 the supreme court.
63 (2) District courts of appeal shall have the power of
64 direct review of administrative action, as prescribed by general
65 law.
66 (3) A district court of appeal or any judge thereof may
67 issue writs of habeas corpus returnable before the court or any
68 judge thereof or before any circuit judge within the territorial
69 jurisdiction of the court. A district court of appeal may issue
70 writs of mandamus, certiorari, prohibition, quo warranto, and
71 other writs necessary to the complete exercise of its
72 jurisdiction. To the extent necessary to dispose of all issues
73 in a cause properly before it, a district court of appeal may
74 exercise any of the appellate jurisdiction of the circuit
75 courts.
76 (c) CLERKS AND MARSHALS.—Each district court of appeal
77 shall appoint a clerk and a marshal who shall hold office during
78 the pleasure of the court and perform such duties as the court
79 directs. Their compensation shall be fixed by general law. The
80 marshal shall have the power to execute the process of the court
81 throughout the territorial jurisdiction of the court, and in any
82 county may deputize the sheriff or a deputy sheriff for such
83 purpose.
84 SECTION 11. Vacancies.—
85 (a) Whenever a vacancy occurs in a judicial office to which
86 election for retention applies, the governor shall fill the
87 vacancy by appointing for a term ending on the first Tuesday
88 after the first Monday in January of the year following the next
89 general election occurring at least one year after the date of
90 appointment, one of not fewer than three persons nor more than
91 six persons nominated by the appropriate judicial nominating
92 commission.
93 (b) The governor shall fill each vacancy on a circuit court
94 or on a county court, wherein the judges are elected by a
95 majority vote of the electors, by appointing for a term ending
96 on the first Tuesday after the first Monday in January of the
97 year following the next primary and general election occurring
98 at least one year after the date of appointment, one of not
99 fewer than three persons nor more than six persons nominated by
100 the appropriate judicial nominating commission. An election
101 shall be held to fill that judicial office for the term of the
102 office beginning at the end of the appointed term.
103 (c) The nominations shall be made within thirty days from
104 the occurrence of a vacancy unless the period is extended by the
105 governor for a time not to exceed thirty days. The governor
106 shall make the appointment within sixty days after the
107 nominations have been certified to the governor.
108 (d) Each appointment of a justice of the supreme court is
109 subject to confirmation by the senate. The senate may sit for
110 the purpose of confirmation regardless of whether the house of
111 representatives is in session or not. If the senate fails to
112 vote on the appointment of a justice within 90 days, the justice
113 shall be deemed confirmed. If the senate votes to not confirm
114 the appointment, the supreme court judicial nominating
115 commission shall reconvene as though a new vacancy had occurred
116 but may not renominate any person whose prior appointment to
117 fill the same vacancy was not confirmed by the senate. The
118 appointment of a justice is effective upon confirmation by the
119 senate.
120 (e)(d) There shall be a separate judicial nominating
121 commission as provided by general law for the supreme court, one
122 for each district court of appeal, and one for each judicial
123 circuit for all trial courts within the circuit. Uniform rules
124 of procedure shall be established by the judicial nominating
125 commissions at each level of the court system. Such rules, or
126 any part thereof, may be repealed by general law enacted by a
127 majority vote of the membership of each house of the
128 legislature, or by the supreme court, five justices concurring.
129 Except for deliberations of the judicial nominating commissions,
130 the proceedings of the commissions and their records shall be
131 open to the public.
132 SECTION 12. Discipline; removal and retirement.—
133 (a) JUDICIAL QUALIFICATIONS COMMISSION.—A judicial
134 qualifications commission is created.
135 (1) There shall be a judicial qualifications commission
136 vested with jurisdiction to investigate and recommend to the
137 Supreme Court of Florida the removal from office of any justice
138 or judge whose conduct, during term of office or otherwise,
139 occurring on or after November 1, 1966, (without regard to the
140 effective date of this section) demonstrates a present unfitness
141 to hold office, and to investigate and recommend the discipline
142 of a justice or judge whose conduct, during term of office or
143 otherwise occurring on or after November 1, 1966 (without regard
144 to the effective date of this section), warrants such
145 discipline. For purposes of this section, discipline is defined
146 as any or all of the following: reprimand, fine, suspension with
147 or without pay, or lawyer discipline. The commission shall have
148 jurisdiction over justices and judges regarding allegations that
149 misconduct occurred before or during service as a justice or
150 judge if a complaint is made no later than one year following
151 service as a justice or judge. The commission shall have
152 jurisdiction regarding allegations of incapacity during service
153 as a justice or judge. The commission shall be composed of:
154 a. Two judges of district courts of appeal selected by the
155 judges of those courts, two circuit judges selected by the
156 judges of the circuit courts and two judges of county courts
157 selected by the judges of those courts;
158 b. Four electors who reside in the state, who are members
159 of the bar of Florida, and who shall be chosen by the governing
160 body of the bar of Florida; and
161 c. Five electors who reside in the state, who have never
162 held judicial office or been members of the bar of Florida, and
163 who shall be appointed by the governor.
164 (2) The members of the judicial qualifications commission
165 shall serve staggered terms, not to exceed six years, as
166 prescribed by general law. No member of the commission except a
167 judge shall be eligible for state judicial office while acting
168 as a member of the commission and for a period of two years
169 thereafter. No member of the commission shall hold office in a
170 political party or participate in any campaign for judicial
171 office or hold public office; provided that a judge may campaign
172 for judicial office and hold that office. The commission shall
173 elect one of its members as its chairperson.
174 (3) Members of the judicial qualifications commission not
175 subject to impeachment shall be subject to removal from the
176 commission pursuant to the provisions of Article IV, Section 7,
177 Florida Constitution.
178 (4) The commission shall adopt rules regulating its
179 proceedings, the filling of vacancies by the appointing
180 authorities, the disqualification of members, the rotation of
181 members between the panels, and the temporary replacement of
182 disqualified or incapacitated members. The commission’s rules,
183 or any part thereof, may be repealed by general law enacted by a
184 majority vote of the membership of each house of the
185 legislature, or by the supreme court, five justices concurring.
186 The commission shall have power to issue subpoenas. Until formal
187 charges against a justice or judge are filed by the
188 investigative panel with the clerk of the supreme court of
189 Florida all proceedings by or before the commission shall be
190 confidential; provided, however, upon a finding of probable
191 cause and the filing by the investigative panel with said clerk
192 of such formal charges against a justice or judge such charges
193 and all further proceedings before the commission shall be
194 public.
195 (5) The commission shall have access to all information
196 from all executive, legislative and judicial agencies, including
197 grand juries, subject to the rules of the commission. At any
198 time, on request of the speaker of the house of representatives
199 or the governor, the commission shall make available to the
200 house of representatives all information in the possession of
201 the commission, which information shall remain confidential
202 during any investigation and until such information is used in
203 the pursuit for use in consideration of impeachment or
204 suspension, respectively.
205 (b) PANELS.—The commission shall be divided into an
206 investigative panel and a hearing panel as established by rule
207 of the commission. The investigative panel is vested with the
208 jurisdiction to receive or initiate complaints, conduct
209 investigations, dismiss complaints, and upon a vote of a simple
210 majority of the panel submit formal charges to the hearing
211 panel. The hearing panel is vested with the authority to receive
212 and hear formal charges from the investigative panel and upon a
213 two-thirds vote of the panel recommend to the supreme court the
214 removal of a justice or judge or the involuntary retirement of a
215 justice or judge for any permanent disability that seriously
216 interferes with the performance of judicial duties. Upon a
217 simple majority vote of the membership of the hearing panel, the
218 panel may recommend to the supreme court that the justice or
219 judge be subject to appropriate discipline.
220 (c) SUPREME COURT.—The supreme court shall receive
221 recommendations from the judicial qualifications commission’s
222 hearing panel.
223 (1) The supreme court may accept, reject, or modify in
224 whole or in part the findings, conclusions, and recommendations
225 of the commission and it may order that the justice or judge be
226 subjected to appropriate discipline, or be removed from office
227 with termination of compensation for willful or persistent
228 failure to perform judicial duties or for other conduct
229 unbecoming a member of the judiciary demonstrating a present
230 unfitness to hold office, or be involuntarily retired for any
231 permanent disability that seriously interferes with the
232 performance of judicial duties. Malafides, scienter or moral
233 turpitude on the part of a justice or judge shall not be
234 required for removal from office of a justice or judge whose
235 conduct demonstrates a present unfitness to hold office. After
236 the filing of a formal proceeding and upon request of the
237 investigative panel, the supreme court may suspend the justice
238 or judge from office, with or without compensation, pending
239 final determination of the inquiry.
240 (2) The supreme court may award costs to the prevailing
241 party.
242 (d) REMOVAL POWER.—The power of removal conferred by this
243 section shall be both alternative and cumulative to the power of
244 impeachment.
245 (e) PROCEEDINGS INVOLVING SUPREME COURT JUSTICE.
246 Notwithstanding any of the foregoing provisions of this section,
247 if the person who is the subject of proceedings by the judicial
248 qualifications commission is a justice of the supreme court of
249 Florida all justices of such court automatically shall be
250 disqualified to sit as justices of such court with respect to
251 all proceedings therein concerning such person and the supreme
252 court for such purposes shall be composed of a panel consisting
253 of the seven chief judges of the judicial circuits of the state
254 of Florida most senior in tenure of judicial office as circuit
255 judge. For purposes of determining seniority of such circuit
256 judges in the event there be judges of equal tenure in judicial
257 office as circuit judge the judge or judges from the lower
258 numbered circuit or circuits shall be deemed senior. In the
259 event any such chief circuit judge is under investigation by the
260 judicial qualifications commission or is otherwise disqualified
261 or unable to serve on the panel, the next most senior chief
262 circuit judge or judges shall serve in place of such
263 disqualified or disabled chief circuit judge.
264 (f) SCHEDULE TO SECTION 12.—
265 (1) Except to the extent inconsistent with the provisions
266 of this section, all provisions of law and rules of court in
267 force on the effective date of this article shall continue in
268 effect until superseded in the manner authorized by the
269 constitution.
270 (2) After this section becomes effective and until adopted
271 by rule of the commission consistent with it:
272 a. The commission shall be divided, as determined by the
273 chairperson, into one investigative panel and one hearing panel
274 to meet the responsibilities set forth in this section.
275 b. The investigative panel shall be composed of:
276 1. Four judges,
277 2. Two members of the bar of Florida, and
278 3. Three non-lawyers.
279 c. The hearing panel shall be composed of:
280 1. Two judges,
281 2. Two members of the bar of Florida, and
282 3. Two non-lawyers.
283 d. Membership on the panels may rotate in a manner
284 determined by the rules of the commission provided that no
285 member shall vote as a member of the investigative and hearing
286 panel on the same proceeding.
287 e. The commission shall hire separate staff for each panel.
288 f. The members of the commission shall serve for staggered
289 terms of six years.
290 g. The terms of office of the present members of the
291 judicial qualifications commission shall expire upon the
292 effective date of the amendments to this section approved by the
293 legislature during the regular session of the legislature in
294 1996 and new members shall be appointed to serve the following
295 staggered terms:
296 1. Group I.—The terms of five members, composed of two
297 electors as set forth in s. 12(a)(1)c. of Article V, one member
298 of the bar of Florida as set forth in s. 12(a)(1)b. of Article
299 V, one judge from the district courts of appeal and one circuit
300 judge as set forth in s. 12(a)(1)a. of Article V, shall expire
301 on December 31, 1998.
302 2. Group II.—The terms of five members, composed of one
303 elector as set forth in s. 12(a)(1)c. of Article V, two members
304 of the bar of Florida as set forth in s. 12(a)(1)b. of Article
305 V, one circuit judge and one county judge as set forth in s.
306 12(a)(1)a. of Article V shall expire on December 31, 2000.
307 3. Group III.—The terms of five members, composed of two
308 electors as set forth in s. 12(a)(1)c. of Article V, one member
309 of the bar of Florida as set forth in s. 12(a)(1)b., one judge
310 from the district courts of appeal and one county judge as set
311 forth in s. 12(a)(1)a. of Article V, shall expire on December
312 31, 2002.
313 g.h. An appointment to fill a vacancy of the commission
314 shall be for the remainder of the term.
315 h.i. Selection of members by district courts of appeal
316 judges, circuit judges, and county court judges, shall be by no
317 less than a majority of the members voting at the respective
318 courts’ conferences. Selection of members by the board of
319 governors of the bar of Florida shall be by no less than a
320 majority of the board.
321 i.j. The commission shall be entitled to recover the costs
322 of investigation and prosecution, in addition to any penalty
323 levied by the supreme court.
324 j.k. The compensation of members and referees shall be the
325 travel expenses or transportation and per diem allowance as
326 provided by general law.
327 SECTION 14. Funding.—
328 (a) All justices and judges shall be compensated only by
329 state salaries fixed by general law. Funding for the state
330 courts system, state attorneys’ offices, public defenders’
331 offices, and court-appointed counsel, except as otherwise
332 provided in subsection (c), shall be provided from state
333 revenues appropriated by general law.
334 (b) All funding for the offices of the clerks of the
335 circuit and county courts performing court-related functions,
336 except as otherwise provided in this subsection and subsection
337 (c), shall be provided by adequate and appropriate filing fees
338 for judicial proceedings and service charges and costs for
339 performing court-related functions as required by general law.
340 Selected salaries, costs, and expenses of the state courts
341 system may be funded from appropriate filing fees for judicial
342 proceedings and service charges and costs for performing court
343 related functions, as provided by general law. Where the
344 requirements of either the United States Constitution or the
345 Constitution of the State of Florida preclude the imposition of
346 filing fees for judicial proceedings and service charges and
347 costs for performing court-related functions sufficient to fund
348 the court-related functions of the offices of the clerks of the
349 circuit and county courts, the state shall provide, as
350 determined by the legislature, adequate and appropriate
351 supplemental funding from state revenues appropriated by general
352 law.
353 (c) No county or municipality, except as provided in this
354 subsection, shall be required to provide any funding for the
355 state courts system, state attorneys’ offices, public defenders’
356 offices, court-appointed counsel or the offices of the clerks of
357 the circuit and county courts performing court-related
358 functions. Counties shall be required to fund the cost of
359 communications services, existing radio systems, existing multi
360 agency criminal justice information systems, and the cost of
361 construction or lease, maintenance, utilities, and security of
362 facilities for the trial courts, public defenders’ offices,
363 state attorneys’ offices, and the offices of the clerks of the
364 circuit and county courts performing court-related functions.
365 Counties shall also pay reasonable and necessary salaries,
366 costs, and expenses of the state courts system to meet local
367 requirements as determined by general law.
368 (d) The judiciary shall have no power to fix
369 appropriations.
370 BE IT FURTHER RESOLVED that the following statement be
371 placed on the ballot:
372 CONSTITUTIONAL AMENDMENT
373 ARTICLE V, SECTIONS 2, 4, 11, 12, AND 14
374 STATE COURTS.—Proposing a revision of Article V of the
375 State Constitution relating to the judiciary.
376 Under current law, the Governor appoints a justice from a
377 list of nominees provided by a judicial nominating commission,
378 and appointments by the Governor are not subject to
379 confirmation. This revision requires Senate confirmation of a
380 justice before the appointee can take office. If the Senate
381 votes not to confirm the appointment, the judicial nominating
382 commission must reconvene and may not renominate any person
383 whose prior appointment to fill the same vacancy was not
384 confirmed by the Senate. For the purpose of confirmation, the
385 Senate may meet at any time. If the Senate does not vote against
386 confirmation within 90 days, the justice will be deemed
387 confirmed and will take office.
388 The State Constitution authorizes the Supreme Court to
389 adopt rules for the practice and procedure in all courts. The
390 constitution further provides that a rule of court may be
391 repealed by a general law enacted by a two-thirds vote of the
392 membership of each house of the Legislature. This proposed
393 constitutional revision eliminates the requirement that a
394 general law repealing a court rule pass by a two-thirds vote of
395 each house. The Legislature could repeal a rule of court by a
396 general law approved by a majority vote of each house of the
397 Legislature that expresses the policy behind the repeal. The
398 court could readopt the rule in conformity with the public
399 policy expressed by the Legislature, but if the Legislature
400 repeals the readopted rule, this proposed revision prohibits the
401 court from readopting the repealed rule without the
402 Legislature’s prior approval.
403 The Judicial Qualifications Commission is an independent
404 commission created by the State Constitution to investigate and
405 prosecute before the Florida Supreme Court alleged misconduct by
406 a justice or judge. Currently under the constitution, commission
407 proceedings are confidential until formal charges are filed by
408 the investigative panel of the commission. Once formal charges
409 are filed, the formal charges and all further proceedings of the
410 commission are public. Currently, the constitution authorizes
411 the House of Representatives to impeach a justice or judge.
412 Further, the Speaker of the House of Representatives may
413 request, and the Judicial Qualifications Commission must make
414 available, all information in the commission’s possession for
415 use in deciding whether to impeach a justice or judge. This
416 proposed revision requires the commission to make all of its
417 files available to the Speaker of the House of Representatives,
418 rather than just the file of a justice or judge under
419 investigation by the House of Representatives. Such files would
420 maintain their confidentiality unless the House of
421 Representatives initiates impeachment proceedings against a
422 justice or judge, in which case the files related to that
423 justice or judge may be open. This revision deletes a
424 requirement that a general law repealing a commission rule be
425 passed by a majority vote of the membership of each house of the
426 Legislature and revises the number of Supreme Court justices
427 needed to repeal such a rule.
428 This revision will take effect January 7, 2013, if approved
429 by the electors. This revision makes other conforming and
430 modernizing changes to the State Constitution regarding the
431 judicial system; removing outdated schedules related to the
432 Judicial Qualifications Commission; and making conforming and
433 technical changes in the judicial articles of the constitution.
434
435 BE IT FURTHER RESOLVED that the following statement be
436 placed on the ballot if a court declares the preceding statement
437 defective and the decision of the court is not reversed:
438 CONSTITUTIONAL AMENDMENT
439 ARTICLE V, SECTIONS 2, 4, 11, 12, AND 14
440 JUDICIARY.—Proposing a revision of the Judiciary Article of
441 the Florida Constitution; requiring Senate confirmation for
442 appointment of a Supreme Court justice; providing standards and
443 procedures for legislative repeal of a court rule; allowing
444 legislative review of confidential files of the Judicial
445 Qualifications Commission; and making other ancillary
446 amendments, including, but not limited to, technical and
447 conforming amendments.
448
449 BE IT FURTHER RESOLVED that the following statement be
450 placed on the ballot if a court declares the preceding
451 statements defective and the decision of the court is not
452 reversed:
453 CONSTITUTIONAL AMENDMENT
454 ARTICLE V, SECTIONS 2, 4, 11, 12, AND 14
455 STATE COURTS.—Proposing a revision to Article V of the
456 State Constitution relating to the judiciary; changing the
457 authority of the Legislature to repeal a court rule by 2/3 vote
458 of the membership of each house to a simple majority of each
459 house; limiting the Supreme Court’s ability to readopt a rule
460 repealed by the Legislature; requiring Senate confirmation
461 before a justice may take office; providing that if the Senate
462 does not act within 90 days the nominee is deemed confirmed as a
463 justice; allowing the Senate to meet outside of regular session
464 without having the House of Representatives convene at the same
465 time; deleting outdated references; requiring the Judicial
466 Qualifications Commission to provide the House of
467 Representatives access to records; providing for confidentiality
468 of records.
469
470 ================= T I T L E A M E N D M E N T ================
471 And the title is amended as follows:
472 Delete everything before the resolving clause
473 and insert:
474 A bill to be entitled
475 A joint resolution proposing a revision of Article V
476 of the State Constitution, relating to the judiciary,
477 consisting of amendments to Sections 2, 4, 11, 12, and
478 14 of Article V of the State Constitution; revising
479 provisions relating to repeal of court rules; limiting
480 readoption of a repealed court rule; providing for
481 Senate confirmation of Supreme Court justices;
482 requiring the Judicial Qualifications Commission to
483 make all of its files available to the Speaker of the
484 House of Representatives; revising provisions relating
485 to repeal of commission rules; making other conforming
486 and modernizing changes to the State Constitution
487 regarding the judicial system; providing an effective
488 date.