Florida Senate - 2011 SENATOR AMENDMENT
Bill No. CS/HJR 7111, 2nd Eng.
Barcode 857806
LEGISLATIVE ACTION
Senate . House
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Floor: WD/3R .
05/02/2011 04:24 PM .
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Senator Simmons moved the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the resolving clause
4 and insert:
5 That the following amendment to Sections 2, 4, 11, 12, and
6 14 of Article V of the State Constitution is agreed to and shall
7 be submitted to the electors of this state for approval or
8 rejection at the next general election or at an earlier special
9 election specifically authorized by law for that purpose:
10 ARTICLE V
11 JUDICIARY
12 SECTION 2. Administration; practice and procedure.—
13 (a) The supreme court shall adopt rules for the practice
14 and procedure in all courts including the time for seeking
15 appellate review, the administrative supervision of all courts,
16 the transfer to the court having jurisdiction of any proceeding
17 when the jurisdiction of another court has been improvidently
18 invoked, and a requirement that no cause shall be dismissed
19 because an improper remedy has been sought. The supreme court
20 shall adopt rules to allow it the court and the district courts
21 of appeal to submit questions relating to military law to the
22 federal Court of Appeals for the Armed Forces for an advisory
23 opinion. Rules of court may be repealed by general law that
24 expresses the policy behind the repeal enacted by two-thirds
25 vote of the membership of each house of the legislature. The
26 court may readopt the repealed rule only in conformity with the
27 public policy expressed by the legislature. If the legislature
28 repeals the readopted rule, the rule may not be readopted
29 thereafter without prior approval of the legislature. The
30 divisions of the court shall meet jointly to adopt rules or the
31 court may designate a division to adopt any specific class of
32 rules.
33 (b) The chief justice of the supreme court of Florida shall
34 be chosen by a majority of the members of the court; shall be
35 the chief administrative officer of the judicial system; and
36 shall have the power to assign justices or judges, including
37 consenting retired justices or judges, to temporary duty in any
38 court for which the judge is qualified and to delegate to a
39 chief judge of a judicial circuit the power to assign judges for
40 duty in that circuit.
41 (c) A chief judge for each district court of appeal shall
42 be chosen by a majority of the judges thereof or, if there is no
43 majority, by the chief justice. The chief judge of a district
44 court shall be responsible for the administrative supervision of
45 the district court.
46 (d) A chief judge in each circuit shall be chosen from
47 among the circuit judges as provided by supreme court rule. The
48 chief judge of a circuit shall be responsible for the
49 administrative supervision of the circuit courts and county
50 courts in the his circuit.
51 SECTION 4. District courts of appeal.—
52 (a) ORGANIZATION.—There shall be a district court of appeal
53 serving each appellate district. Each district court of appeal
54 shall consist of at least three judges. Three judges shall
55 consider each case and the concurrence of two shall be necessary
56 to a decision.
57 (b) JURISDICTION.—
58 (1) District courts of appeal shall have jurisdiction to
59 hear appeals, that may be taken as a matter of right, from final
60 judgments or orders of trial courts, including those entered on
61 review of administrative action, not directly appealable to the
62 supreme court or a circuit court. They may review interlocutory
63 orders in such cases to the extent provided by rules adopted by
64 the supreme court.
65 (2) District courts of appeal shall have the power of
66 direct review of administrative action, as prescribed by general
67 law.
68 (3) A district court of appeal or any judge thereof may
69 issue writs of habeas corpus returnable before the court or any
70 judge thereof or before any circuit judge within the territorial
71 jurisdiction of the court. A district court of appeal may issue
72 writs of mandamus, certiorari, prohibition, quo warranto, and
73 other writs necessary to the complete exercise of its
74 jurisdiction. To the extent necessary to dispose of all issues
75 in a cause properly before it, a district court of appeal may
76 exercise any of the appellate jurisdiction of the circuit
77 courts.
78 (c) CLERKS AND MARSHALS.—Each district court of appeal
79 shall appoint a clerk and a marshal who shall hold office during
80 the pleasure of the court and perform such duties as the court
81 directs. Their compensation shall be fixed by general law. The
82 marshal shall have the power to execute the process of the court
83 throughout the territorial jurisdiction of the court, and in any
84 county may deputize the sheriff or a deputy sheriff for such
85 purpose.
86 SECTION 11. Vacancies.—
87 (a) Whenever a vacancy occurs in a judicial office to which
88 election for retention applies, the governor shall fill the
89 vacancy by appointing for a term ending on the first Tuesday
90 after the first Monday in January of the year following the next
91 general election occurring at least one year after the date of
92 appointment, one of not fewer than three persons nor more than
93 six persons nominated by the appropriate judicial nominating
94 commission.
95 (b) The governor shall fill each vacancy on a circuit court
96 or on a county court, wherein the judges are elected by a
97 majority vote of the electors, by appointing for a term ending
98 on the first Tuesday after the first Monday in January of the
99 year following the next primary and general election occurring
100 at least one year after the date of appointment, one of not
101 fewer than three persons nor more than six persons nominated by
102 the appropriate judicial nominating commission. An election
103 shall be held to fill that judicial office for the term of the
104 office beginning at the end of the appointed term.
105 (c) The nominations shall be made within thirty days from
106 the occurrence of a vacancy unless the period is extended by the
107 governor for a time not to exceed thirty days. The governor
108 shall make the appointment within sixty days after the
109 nominations have been certified to the governor.
110 (d) Each appointment of a justice of the supreme court is
111 subject to confirmation by the senate. The senate may sit for
112 the purpose of confirmation regardless of whether the house of
113 representatives is in session or not. If the senate fails to
114 vote on the appointment of a justice within 90 days, the justice
115 shall be deemed confirmed. If the senate votes to not confirm
116 the appointment, the supreme court judicial nominating
117 commission shall reconvene as though a new vacancy had occurred
118 but may not renominate any person whose prior appointment to
119 fill the same vacancy was not confirmed by the senate. The
120 appointment of a justice is effective upon confirmation by the
121 senate.
122 (e)(d) There shall be a separate judicial nominating
123 commission as provided by general law for the supreme court, one
124 for each district court of appeal, and one for each judicial
125 circuit for all trial courts within the circuit. Uniform rules
126 of procedure shall be established by the judicial nominating
127 commissions at each level of the court system. Such rules, or
128 any part thereof, may be repealed by general law enacted by a
129 majority vote of the membership of each house of the
130 legislature, or by the supreme court, five justices concurring.
131 Except for deliberations of the judicial nominating commissions,
132 the proceedings of the commissions and their records shall be
133 open to the public.
134 SECTION 12. Discipline; removal and retirement.—
135 (a) JUDICIAL QUALIFICATIONS COMMISSION.—A judicial
136 qualifications commission is created.
137 (1) There shall be a judicial qualifications commission
138 vested with jurisdiction to investigate and recommend to the
139 Supreme Court of Florida the removal from office of any justice
140 or judge whose conduct, during term of office or otherwise,
141 occurring on or after November 1, 1966, (without regard to the
142 effective date of this section) demonstrates a present unfitness
143 to hold office, and to investigate and recommend the discipline
144 of a justice or judge whose conduct, during term of office or
145 otherwise occurring on or after November 1, 1966 (without regard
146 to the effective date of this section), warrants such
147 discipline. For purposes of this section, discipline is defined
148 as any or all of the following: reprimand, fine, suspension with
149 or without pay, or lawyer discipline. The commission shall have
150 jurisdiction over justices and judges regarding allegations that
151 misconduct occurred before or during service as a justice or
152 judge if a complaint is made no later than one year following
153 service as a justice or judge. The commission shall have
154 jurisdiction regarding allegations of incapacity during service
155 as a justice or judge. The commission shall be composed of:
156 a. Two judges of district courts of appeal selected by the
157 judges of those courts, two circuit judges selected by the
158 judges of the circuit courts and two judges of county courts
159 selected by the judges of those courts;
160 b. Four electors who reside in the state, who are members
161 of the bar of Florida, and who shall be chosen by the governing
162 body of the bar of Florida; and
163 c. Five electors who reside in the state, who have never
164 held judicial office or been members of the bar of Florida, and
165 who shall be appointed by the governor.
166 (2) The members of the judicial qualifications commission
167 shall serve staggered terms, not to exceed six years, as
168 prescribed by general law. No member of the commission except a
169 judge shall be eligible for state judicial office while acting
170 as a member of the commission and for a period of two years
171 thereafter. No member of the commission shall hold office in a
172 political party or participate in any campaign for judicial
173 office or hold public office; provided that a judge may campaign
174 for judicial office and hold that office. The commission shall
175 elect one of its members as its chairperson.
176 (3) Members of the judicial qualifications commission not
177 subject to impeachment shall be subject to removal from the
178 commission pursuant to the provisions of Article IV, Section 7,
179 Florida Constitution.
180 (4) The commission shall adopt rules regulating its
181 proceedings, the filling of vacancies by the appointing
182 authorities, the disqualification of members, the rotation of
183 members between the panels, and the temporary replacement of
184 disqualified or incapacitated members. The commission’s rules,
185 or any part thereof, may be repealed by general law enacted by a
186 majority vote of the membership of each house of the
187 legislature, or by the supreme court, five justices concurring.
188 The commission shall have power to issue subpoenas. Until formal
189 charges against a justice or judge are filed by the
190 investigative panel with the clerk of the supreme court of
191 Florida all proceedings by or before the commission shall be
192 confidential; provided, however, upon a finding of probable
193 cause and the filing by the investigative panel with said clerk
194 of such formal charges against a justice or judge such charges
195 and all further proceedings before the commission shall be
196 public.
197 (5) The commission shall have access to all information
198 from all executive, legislative and judicial agencies, including
199 grand juries, subject to the rules of the commission. At any
200 time, on request of the speaker of the house of representatives
201 or the governor, the commission shall make available to the
202 house of representatives all information in the possession of
203 the commission, which information shall remain confidential
204 during any investigation and until such information is used in
205 the pursuit for use in consideration of impeachment or
206 suspension, respectively.
207 (b) PANELS.—The commission shall be divided into an
208 investigative panel and a hearing panel as established by rule
209 of the commission. The investigative panel is vested with the
210 jurisdiction to receive or initiate complaints, conduct
211 investigations, dismiss complaints, and upon a vote of a simple
212 majority of the panel submit formal charges to the hearing
213 panel. The hearing panel is vested with the authority to receive
214 and hear formal charges from the investigative panel and upon a
215 two-thirds vote of the panel recommend to the supreme court the
216 removal of a justice or judge or the involuntary retirement of a
217 justice or judge for any permanent disability that seriously
218 interferes with the performance of judicial duties. Upon a
219 simple majority vote of the membership of the hearing panel, the
220 panel may recommend to the supreme court that the justice or
221 judge be subject to appropriate discipline.
222 (c) SUPREME COURT.—The supreme court shall receive
223 recommendations from the judicial qualifications commission’s
224 hearing panel.
225 (1) The supreme court may accept, reject, or modify in
226 whole or in part the findings, conclusions, and recommendations
227 of the commission and it may order that the justice or judge be
228 subjected to appropriate discipline, or be removed from office
229 with termination of compensation for willful or persistent
230 failure to perform judicial duties or for other conduct
231 unbecoming a member of the judiciary demonstrating a present
232 unfitness to hold office, or be involuntarily retired for any
233 permanent disability that seriously interferes with the
234 performance of judicial duties. Malafides, scienter or moral
235 turpitude on the part of a justice or judge shall not be
236 required for removal from office of a justice or judge whose
237 conduct demonstrates a present unfitness to hold office. After
238 the filing of a formal proceeding and upon request of the
239 investigative panel, the supreme court may suspend the justice
240 or judge from office, with or without compensation, pending
241 final determination of the inquiry.
242 (2) The supreme court may award costs to the prevailing
243 party.
244 (d) REMOVAL POWER.—The power of removal conferred by this
245 section shall be both alternative and cumulative to the power of
246 impeachment.
247 (e) PROCEEDINGS INVOLVING SUPREME COURT JUSTICE.
248 Notwithstanding any of the foregoing provisions of this section,
249 if the person who is the subject of proceedings by the judicial
250 qualifications commission is a justice of the supreme court of
251 Florida all justices of such court automatically shall be
252 disqualified to sit as justices of such court with respect to
253 all proceedings therein concerning such person and the supreme
254 court for such purposes shall be composed of a panel consisting
255 of the seven chief judges of the judicial circuits of the state
256 of Florida most senior in tenure of judicial office as circuit
257 judge. For purposes of determining seniority of such circuit
258 judges in the event there be judges of equal tenure in judicial
259 office as circuit judge the judge or judges from the lower
260 numbered circuit or circuits shall be deemed senior. In the
261 event any such chief circuit judge is under investigation by the
262 judicial qualifications commission or is otherwise disqualified
263 or unable to serve on the panel, the next most senior chief
264 circuit judge or judges shall serve in place of such
265 disqualified or disabled chief circuit judge.
266 (f) SCHEDULE TO SECTION 12.—
267 (1) Except to the extent inconsistent with the provisions
268 of this section, all provisions of law and rules of court in
269 force on the effective date of this article shall continue in
270 effect until superseded in the manner authorized by the
271 constitution.
272 (2) After this section becomes effective and until adopted
273 by rule of the commission consistent with it:
274 a. The commission shall be divided, as determined by the
275 chairperson, into one investigative panel and one hearing panel
276 to meet the responsibilities set forth in this section.
277 b. The investigative panel shall be composed of:
278 1. Four judges,
279 2. Two members of the bar of Florida, and
280 3. Three non-lawyers.
281 c. The hearing panel shall be composed of:
282 1. Two judges,
283 2. Two members of the bar of Florida, and
284 3. Two non-lawyers.
285 d. Membership on the panels may rotate in a manner
286 determined by the rules of the commission provided that no
287 member shall vote as a member of the investigative and hearing
288 panel on the same proceeding.
289 e. The commission shall hire separate staff for each panel.
290 f. The members of the commission shall serve for staggered
291 terms of six years.
292 g. The terms of office of the present members of the
293 judicial qualifications commission shall expire upon the
294 effective date of the amendments to this section approved by the
295 legislature during the regular session of the legislature in
296 1996 and new members shall be appointed to serve the following
297 staggered terms:
298 1. Group I.—The terms of five members, composed of two
299 electors as set forth in s. 12(a)(1)c. of Article V, one member
300 of the bar of Florida as set forth in s. 12(a)(1)b. of Article
301 V, one judge from the district courts of appeal and one circuit
302 judge as set forth in s. 12(a)(1)a. of Article V, shall expire
303 on December 31, 1998.
304 2. Group II.—The terms of five members, composed of one
305 elector as set forth in s. 12(a)(1)c. of Article V, two members
306 of the bar of Florida as set forth in s. 12(a)(1)b. of Article
307 V, one circuit judge and one county judge as set forth in s.
308 12(a)(1)a. of Article V shall expire on December 31, 2000.
309 3. Group III.—The terms of five members, composed of two
310 electors as set forth in s. 12(a)(1)c. of Article V, one member
311 of the bar of Florida as set forth in s. 12(a)(1)b., one judge
312 from the district courts of appeal and one county judge as set
313 forth in s. 12(a)(1)a. of Article V, shall expire on December
314 31, 2002.
315 g.h. An appointment to fill a vacancy of the commission
316 shall be for the remainder of the term.
317 h.i. Selection of members by district courts of appeal
318 judges, circuit judges, and county court judges, shall be by no
319 less than a majority of the members voting at the respective
320 courts’ conferences. Selection of members by the board of
321 governors of the bar of Florida shall be by no less than a
322 majority of the board.
323 i.j. The commission shall be entitled to recover the costs
324 of investigation and prosecution, in addition to any penalty
325 levied by the supreme court.
326 j.k. The compensation of members and referees shall be the
327 travel expenses or transportation and per diem allowance as
328 provided by general law.
329 SECTION 14. Funding.—
330 (a) All justices and judges shall be compensated only by
331 state salaries fixed by general law. Funding for the state
332 courts system, state attorneys’ offices, public defenders’
333 offices, and court-appointed counsel, except as otherwise
334 provided in subsection (c), shall be provided from state
335 revenues appropriated by general law.
336 (b) All funding for the offices of the clerks of the
337 circuit and county courts performing court-related functions,
338 except as otherwise provided in this subsection and subsection
339 (c), shall be provided by adequate and appropriate filing fees
340 for judicial proceedings and service charges and costs for
341 performing court-related functions as required by general law.
342 Selected salaries, costs, and expenses of the state courts
343 system may be funded from appropriate filing fees for judicial
344 proceedings and service charges and costs for performing court
345 related functions, as provided by general law. Where the
346 requirements of either the United States Constitution or the
347 Constitution of the State of Florida preclude the imposition of
348 filing fees for judicial proceedings and service charges and
349 costs for performing court-related functions sufficient to fund
350 the court-related functions of the offices of the clerks of the
351 circuit and county courts, the state shall provide, as
352 determined by the legislature, adequate and appropriate
353 supplemental funding from state revenues appropriated by general
354 law.
355 (c) No county or municipality, except as provided in this
356 subsection, shall be required to provide any funding for the
357 state courts system, state attorneys’ offices, public defenders’
358 offices, court-appointed counsel or the offices of the clerks of
359 the circuit and county courts performing court-related
360 functions. Counties shall be required to fund the cost of
361 communications services, existing radio systems, existing multi
362 agency criminal justice information systems, and the cost of
363 construction or lease, maintenance, utilities, and security of
364 facilities for the trial courts, public defenders’ offices,
365 state attorneys’ offices, and the offices of the clerks of the
366 circuit and county courts performing court-related functions.
367 Counties shall also pay reasonable and necessary salaries,
368 costs, and expenses of the state courts system to meet local
369 requirements as determined by general law.
370 (d) The judiciary shall have no power to fix
371 appropriations.
372 (e) The total appropriation of all fund sources to the
373 judicial branch shall equal no less than 2.25 percent of the
374 total general revenue funds appropriated in the general
375 appropriation bill referred to in Section 19(b) of Article III.
376 Any adjustments to the total appropriations of all fund sources
377 to the judicial branch made in any special appropriations act
378 shall equal no more than the percent of total general revenue
379 appropriations adjusted in such special appropriations act. For
380 purposes of this subsection, the judicial branch does not
381 include the Justice Administrative Commission or any of the
382 entities for which the Justice Administrative Commission
383 provides administrative services.
384 BE IT FURTHER RESOLVED that the following statement be
385 placed on the ballot:
386 CONSTITUTIONAL AMENDMENT
387 ARTICLE V, SECTIONS 2, 4, 11, 12, AND 14
388 STATE COURTS.—Proposing a revision of Article V of the
389 State Constitution relating to the judiciary.
390 Under current law, the Governor appoints a justice from a list
391 of nominees provided by a judicial nominating commission, and
392 appointments by the Governor are not subject to confirmation.
393 This revision requires Senate confirmation of a justice before
394 the appointee can take office. If the Senate votes not to
395 confirm the appointment, the judicial nominating commission must
396 reconvene and may not renominate any person whose prior
397 appointment to fill the same vacancy was not confirmed by the
398 Senate. For the purpose of confirmation, the Senate may meet at
399 any time. If the Senate does not vote against confirmation
400 within 90 days, the justice will be deemed confirmed and will
401 take office.
402 The State Constitution authorizes the Supreme Court to
403 adopt rules for the practice and procedure in all courts. The
404 constitution further provides that a rule of court may be
405 repealed by a general law enacted by a two-thirds vote of the
406 membership of each house of the Legislature. This proposed
407 constitutional revision eliminates the requirement that a
408 general law repealing a court rule pass by a two-thirds vote of
409 each house. The Legislature could repeal a rule of court by a
410 general law approved by a majority vote of each house of the
411 Legislature that expresses the policy behind the repeal. The
412 court could readopt the rule in conformity with the public
413 policy expressed by the Legislature, but if the Legislature
414 repeals the readopted rule, this proposed revision prohibits the
415 court from readopting the repealed rule without the
416 Legislature’s prior approval.
417 The Judicial Qualifications Commission is an independent
418 commission created by the State Constitution to investigate and
419 prosecute before the Florida Supreme Court alleged misconduct by
420 a justice or judge. Currently under the constitution, commission
421 proceedings are confidential until formal charges are filed by
422 the investigative panel of the commission. Once formal charges
423 are filed, the formal charges and all further proceedings of the
424 commission are public. Currently, the constitution authorizes
425 the House of Representatives to impeach a justice or judge.
426 Further, the Speaker of the House of Representatives may
427 request, and the Judicial Qualifications Commission must make
428 available, all information in the commission’s possession for
429 use in deciding whether to impeach a justice or judge. This
430 proposed revision requires the commission to make all of its
431 files available to the Speaker of the House of Representatives,
432 rather than just the file of a justice or judge under
433 investigation by the House of Representatives. Such files would
434 maintain their confidentiality unless the House of
435 Representatives initiates impeachment proceedings against a
436 justice or judge, in which case the files related to that
437 justice or judge may be open. This revision deletes a
438 requirement that a general law repealing a commission rule be
439 passed by a majority vote of the membership of each house of the
440 Legislature and revises the number of Supreme Court justices
441 needed to repeal such a rule.
442 State appropriations are made annually by general law.
443 Current law does not require any specific level of funding for
444 any agency or department. This revision requires that the courts
445 be appropriated a minimum of 2.25 percent of general revenue
446 funding beginning with the 2013-2014 fiscal year.
447 This revision will take effect January 7, 2013, if approved
448 by the electors. This revision makes other conforming and
449 modernizing changes to the State Constitution regarding the
450 judicial system; removing outdated schedules related to the
451 Judicial Qualifications Commission; and making conforming and
452 technical changes in the judicial articles of the constitution.
453
454 BE IT FURTHER RESOLVED that the following statement be
455 placed on the ballot if a court declares the preceding statement
456 defective and the decision of the court is not reversed:
457 CONSTITUTIONAL AMENDMENT
458 ARTICLE V, SECTIONS 2, 4, 11, 12, AND 14
459 JUDICIARY.—Proposing a revision of the Judiciary Article of
460 the Florida Constitution; requiring Senate confirmation for
461 appointment of a Supreme Court justice; providing standards and
462 procedures for legislative repeal of a court rule; providing a
463 minimum level of court funding; allowing legislative review of
464 confidential files of the Judicial Qualifications Commission;
465 and making other ancillary amendments, including, but not
466 limited to, technical and conforming amendments.
467
468 BE IT FURTHER RESOLVED that the following statement be
469 placed on the ballot if a court declares the preceding
470 statements defective and the decision of the court is not
471 reversed:
472 CONSTITUTIONAL AMENDMENT
473 ARTICLE V, SECTIONS 2, 4, 11, 12, AND 14
474 STATE COURTS.—Proposing a revision to Article V of the State
475 Constitution relating to the judiciary; changing the authority
476 of the Legislature to repeal a court rule by 2/3 vote of the
477 membership of each house to a simple majority of each house;
478 limiting the Supreme Court’s ability to readopt a rule repealed
479 by the Legislature; requiring Senate confirmation before a
480 justice may take office; providing that if the Senate does not
481 act within 90 days the nominee is deemed confirmed as a justice;
482 allowing the Senate to meet outside of regular session without
483 having the House of Representatives convene at the same time;
484 deleting outdated references; requiring the Judicial
485 Qualifications Commission to provide the House of
486 Representatives access to records; providing for confidentiality
487 of records; and requiring a minimum level of funding for the
488 judicial system.
489
490 ================= T I T L E A M E N D M E N T ================
491 And the title is amended as follows:
492 Delete everything before the resolving clause
493 and insert:
494 A bill to be entitled
495 A joint resolution proposing a revision of Article V
496 of the State Constitution, relating to the judiciary,
497 consisting of amendments to Sections 2, 4, 11, 12, and
498 14 of Article V of the State Constitution; revising
499 provisions relating to repeal of court rules; limiting
500 readoption of a repealed court rule; providing for
501 Senate confirmation of Supreme Court justices;
502 requiring the Judicial Qualifications Commission to
503 make all of its files available to the Speaker of the
504 House of Representatives; revising provisions relating
505 to repeal of commission rules; requiring that a
506 specified minimum percentage of general revenue funds
507 be appropriated to the courts; making other conforming
508 and modernizing changes to the State Constitution
509 regarding the judicial system.