In this episode of The Florida Bar Podcast from the 2017 Annual Florida Bar Convention, special host Michael Higer talks to Judge Michelle Sisco, Richard Levenstein, Stephen Ware, Dean Cannon, and Brian Fitzpatrick about the Constitution Revision Commission and its potential proposals. They cover the selection process for judges and term limits.
Michael Higer is a partner of Berger Singerman’s dispute resolution team and is an experienced litigator and trial lawyer who has devoted his practice to commercial litigation and civil trial work.
Judge Michelle Sisco sits in the 13th Judicial Circuit Court in Tampa, Florida, and is the incoming chair of The Florida Bar’s Constitutional Judiciary Committee.
Richard Levenstein is the past vice chair of the Constitutional Judiciary Committee and a charter original member of the committee.
Stephen Ware is a professor of law at the University of Kansas where his interests include judicial selection, alternative dispute resolution, commercial law, and private law generally.
Dean Cannon is the executive vice president and statewide chair of government affairs at GrayRobinson.
Brian Fitzpatrick is a professor of law at Vanderbilt Law School. His research at Vanderbilt focuses on class action litigation, federal courts, judicial selection, and constitutional law.
The Florida Bar Podcast
2017 Annual Florida Bar Convention: The Constitution Revision Showcase
Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Institute. You are listening to Legal Talk Network.
Michael Higer: Hello and welcome to The Florida Bar Podcast, brought to you by The Practice Resource Institute on Legal Talk Network.
I am Michael Higer, President-Elect of The Florida Bar and we are live and recording from the 2017 Annual Florida Bar Convention in Boca Raton, Florida. Thank you for joining us today.
Joining me today to my left is Judge Sisco. Judge, could you introduce our guests and panelists that we have with us today.
Judge Michelle Sisco: Yes, I can, my pleasure to do so. Richard Levenstein, who is an attorney from Stuart, Florida. We have Professor Stephen Ware, a law professor from the University of Kansas. We have Dean Cannon, a former Speaker of the Florida House, and we have Professor Brian Fitzpatrick, a law professor from Vanderbilt University.
Michael Higer: Well, welcome to all of you. What a distinguished panel. Judge, I understand you had a symposium today on the Constitution Revision Commission, is that right?
Judge Michelle Sisco: Well, we did. The Constitutional Judiciary Committee, which is the Committee of The Florida Bar, we put on a panel discussion titled The Constitution Revision Commission and Florida’s Judiciary. As we know, the Constitution Revision Commission has begun its work and is beginning the process of listening to the public and beginning to develop proposals to put to the electorate for vote in the 2018 election and we thought this would be a very timely discussion for The Florida Bar Convention.
Michael Higer: So then each of your panelists I take it all brought something different to the table to talk about with respect to the Constitution Revision Commission.
Judge Michelle Sisco: Well, they certainly brought a number of varied perspectives and we dealt more broadly with the issue of judicial selection and retention and then we began with a broad prospective and then discussed more pointedly and specifically what would be potential proposals that might come forward from the CRC.
Michael Higer: Well, that’s something I think our listeners would really like to hear. What are the potential proposals that your panelists expect that we will see come out of the CRC in May of 2018 and maybe you could direct that question to your panelists.
Judge Michelle Sisco: And I will direct it to the panelists and I am actually going to start with our former legislator, Dean Cannon, as he has got the most experience I think with this, with regards to constitutional amendments and some of the issues that are out there in the public sphere, so former Speaker Cannon.
Dean Cannon: Thank you judge and thank you President Higer. So far the CRC has just gotten going and so there are a number of proposals filed. It’s way too soon to tell which ones will actually make it to the ballot, but some of them address the issues that Judge Sisco’s panel, we all got to talk about today, namely does it make sense to change the way we select our judges in Florida.
There are already some proposals filed that I do not think will make it to the ballot that might call for a reshaping of the judicial branch or even a reshaping of the other two branches.
What tends to happen with the CRC, as it happened 20 years ago is, it’s a pretty strong filter, so a proposal has to be fairly popular among a significant number of the CRC members. So I know Speaker Corcoran in the House has proposed judicial term limits. That’s something that I am not a big fan of and I think a lot of the professors here may have different views on that, but it’s too soon to tell what will actually make it, but we know for sure it’s going to be a topic of significant debate at the CRC.
Michael Higer: So I see my good friend, Richard Levenstein here as well. So from The Bar’s perspective, what are you hearing?
Richard Levenstein: Term limits is what I am hearing the most about, proposals to place term limits on the terms of judges at the appellate level mostly, which was something that we discussed in pretty great detail today and had a number of suggestions as to alternatives to term limits, which included longer — one single long-term for appellate judges, and in particular Supreme Court judges. So long as that term encompassed a full vesting in a pension program at the end of the term. And my thoughts when I was asked was that term should be about 20 years if there was to be a discussion of a lengthy single term.
Michael Higer: So Judge Sisco, I will turn it back to you again. Did you discuss the public forums that have been occurring throughout the state over the last few months and that are expected to continue starting in the fall of this year?
Judge Michelle Sisco: Well, we didn’t specifically get into the public forums, because it’s my understanding from people that have gone to those, that really the issues have really run the gamut, and so our panel was really focused just solely on the judiciary.
But I do think our professors had some very, very valuable research and insight that they have done, really regarding the selection and potential terms of Supreme Court justices in the state system, so I am going to turn it over, if that’s okay, to Professor Fitzpatrick from Vanderbilt Law School.
Brian Fitzpatrick: Thank you Judge Sisco. It’s a pleasure to be here on the Legal Talk Network. I just wanted to tell our listeners a little bit about some of the studies that we heard about today on how best to select judges. There’s a lot of different things that people look at when they think about how we should select judges. People care about independence. People care about accountability. They care about integrity. They care about competence, legitimacy, what have you.
But another thing that we talked about today is not often discussed, but I think is very important is what kind of ideological consequences do we get from one method of selection versus another. And we have some data now that suggests that the Commission method which Florida uses tends to lead to the selection of more liberal judges than the other methods of selection, and the reason for that is, is because The Bar has a big influence over how the Commission operates, and The Bar is much left to the public in virtually every state.
And so one of the things we talked about today is whether the Commission should be kept around in Florida or whether maybe we should move to a method, more like the federal method, the method for federal judges, where the Governor has more power over who he nominates and the State Senate confirms those people.
Michael Higer: Dean Cannon, with your years of experience in the legislature, could you talk a little bit about the perspective in terms of what it means to amend the constitution of a state, any state, and obviously in this case Florida, and what the significance of such an event might be.
Dean Cannon: Absolutely. And I want to pivot off that off something Professor Fitzpatrick said and that we all talked about in the panel and that is the Constitution is our foundational document and any amendment to it should be taken very seriously. I have had significant heartburn over the fact that we have things like pregnant pigs in our Constitution. We have term limits for legislators was passed — basically an eight year term limit was passed because at the time there was a popular television sitcom called Eight is Enough. So literally, we wrote part of our Constitution based on a catchy TV show name. That’s tragic to me as a jurist, as a guy who has been a member of the Bar, and an officer of the court since 1993, I find that just tragic.
To the point that Professor Fitzpatrick made and something that Professor Ware discovered, when any particular selection methodology produces judges who are too far ideologically different than the population, there tends to be, as I experienced, sort of a reaction from the legislative branch and then a counter reaction where the judicial branch says, oh, the legislative branch is intruding on the independence of the judiciary. We have seen that happen in Florida. I saw some of that happen while I was in office.
And one of the things that was really great about this panel that Judge Sisco put together is, we all got to kind of recognize some of these realities and I suggested that one good response to that is restraint in the use of power by both branches, the judicial branch and the legislative branch, goes a long way towards creating that sort of mutual respect between the coequal branches, but I know Professor Ware had seen some research on that.
Michael Higer: Professor Ware, can you share with us your thoughts on the matter.
Stephen Ware: Yes. Mr. Cannon nicely describes in Florida something that we see in many states around the country, which is when The Bar plays a significant role in the initial selection of judges, we often see those judges at the high court level, state Supreme Court level make relatively liberal rulings compared to the center of political gravity in that state as a whole. And then we see conservatives reacting to that by challenging those justices’ retention, elections, or by trying to change how the judges at the High Court are selected.
So a compromise that some of us support is for The Bar to focus its efforts on, as Mr. Levenstein said, long, nonrenewable term of office for judges, plus adequate pensions, so judge can be the last job a person has and in exchange The Bar would release its power in the initial selection process of picking or suggesting to the Governor members of the Nominating Commission.
Michael Higer: In your thought process, your proposal, your concept, where then do you see The Bar’s role in the process?
Stephen Ware: Well, the expertise lawyers bring in assessing potential judicial candidates is very important, and one of the beauties of the so-called federal model, the Senate Confirmation System is where both the executive branch, nominating a potential judge, and the Senate or legislature voting to confirm or not a potential judge, the input of lawyers is very important and very valued in that system. So I think the key here, as we have and most of our government here in our democratic society, is that experts play an important role in advising the democratically-elected representatives.
Michael Higer: Well, joining us now is the President of The Florida Bar, William Schifino, Bill Schifino. Bill is actually serving on the Constitution Revision Commission. He was appointed by Senator Negron as one of his appointees.
Bill, could you share with us some of your thoughts concerning the selection process?
William Schifino: The selection of the Commission itself.
Michael Higer: No, selection of judges and the way in which we select judges in Florida.
William Schifino: Presently?
Michael Higer: Presently.
William Schifino: Well, I think as history has shown, the process has worked very well. I am a big believer in the election process at a certain level for our trial court judges, I think that works. It gives the people an opportunity to speak.
I was a member of the Judicial Nominating Commission for eight years and served under Governors Bush and Crist, so I have had first-hand experience in the JNC process; that works very, very well. I have been very pleased with that.
I travel the state and interact with our judges frequently. I am a trial attorney on both the trial court level and the appellate court level, so I have got a bit of experience in that regard.
We have worked very well historically with the Governor’s office. Certainly, there are times when I may have wanted to see certain judges appointed, but that’s a personal opinion. The Governor is elected by the people and so no, I have been pleased with the process.
Michael Higer: If you could follow up and explain to us a little bit more in terms of The Bar’s role in the JNC, the Judicial Nominating Committee process and what qualitative experience it brings to that process?
William Schifino: Well, I think that clearly those that have sat on JNCs will know that, and Dean, I am sure you are a fellow practicing lawyer, significant experience. Why, because they are on the JNCs in the particular geographic markets where these judges are being selected from or recommended from.
What’s the benefit of that? When I was on the Commission and I watch their work now, we know the attorneys. We work hand in glove with those attorneys. We see their performance. We have had not a year, not one experience, but we have a body of work, sometimes 10, 15, 20 years. So you have input from all of the attorneys and all of the community activists that know them, so I don’t think there’s really any better way for that JNC process to work other than to have Florida Bar members, fellow lawyers making the recommendation as to who should be on our bench.
Michael Higer: I see you shaking your head Dean.
Dean Cannon: Yes, I have the sort of the unique perspective of having been an active both litigator and lawyer for The Bar for now 25 years almost and then being in the legislative branch, and the nice thing that Bill mentions about the JNC is you have lawyers that you want to have significant input, because they have the expertise to be able to evaluate judicial temperament, integrity, experience and that kind of thing, but you need to have input from the populous, via the legislature, because lawyers, we are not representative of the population. We all went to law school. We tend to argue a lot. We are not normal in that sense.
And as my wife says about the representative democracy of the House and Senate, the great and the terrible thing about a representative democracy is it is in fact representative of the population, which means that half of them are below average. And so you have to find a way to use the JNC device to marry up that need for democratic input with the technical expertise that we as lawyers have to try and get the best balance to avoid maybe some of the political consequences that Professor Ware spoke about.
Michael Higer: Yes professor.
Stephen Ware: Well, one way to do that is the way again we do for federal judges. The American Bar Association has a committee that looks at the qualifications of the nominees the President makes before the United States Senate gets to vote on them, and so some of us think that that’s a model that better balances The Bar’s role with the public’s role, is to not prevent the Governor from nominating someone, but to simply share The Bar’s opinion about the people the Governor wants to nominate.
Michael Higer: Now Bill, you actually have the benefit of serving on the CRC, you have been to these public hearings. Have you seen any notion of that percolating up at any of the public hearings that you have —
William Schifino: I think I have made seven of the nine, zero. No, that’s not an issue that in any way — I probably had listened to 500, 600 citizens get up and express their issues.
In fact, the only issues I have generally heard so far on the judiciary are from expanding the retirement age from 70 to 75, that’s the only issue that’s being raised.
Michael Higer: Meaning that if anything the public seems to be concerned that there shouldn’t be this arbitrary limit at 70, if anything, if there’s going to be a limit, it should be extended.
William Schifino: It should be extended. That’s correct.
Michael Higer: And I attended one of those meetings or the one in Miami and it seemed like the thought was, why would you want to force them to retire just when they are getting really good at their job. Is that the sentiment that you heard?
William Schifino: Sure. I mean, you think about it, how old are your — you look at your Governors, you look at your Presidents, you look at all kind of offices, there’s no mandatory retirement age.
Dean Cannon: Although the concept of that is, United States federal judges, as I learned today from Professor Fitzpatrick are the only judges in the world with lifetime tenure. Some limitation on that, that promotes some type of thoughtful turnover, again, insulating them from the influence of potential private influence after service makes sense, and I think we have to balance that.
I think we do want judges who are free to govern, and I know that one of the proposals I think Bill that the CRC, somebody may have filed, although you may not have heard it yet would require increased levels of experience as a lawyer before you can become a judge, because I think all of us, if you have been in court, we want people who have been there and know what they are doing rather than novices, starting to decide cases.
Michael Higer: Sure, ultimately the goal for all of us is to not only get the best and the brightest to apply to be judges, but you want to stay and keep them there, especially as they improve in their tenure as a judge.
Does anybody disagree with that?
William Schifino: Absolutely not.
Michael Higer: Let me turn the microphone back to you Judge Sisco.
Judge Michelle Sisco: Well, and I will just say that obviously President Schifino served very well on the JNC, because he was on the JNC when I was appointed by Governor Jeb Bush in 2002, so obviously he did an outstanding job.
William Schifino: Well, thank you Judge Sisco.
Judge Michelle Sisco: Thank you President Schifino.
William Schifino: Thank you. Very welcome.
Judge Michelle Sisco: But no, it was a very, very educational, thoughtful, informative program and I was very proud of the diversity of opinions that were represented and everyone conducted themselves intellectually, professionally, and it really was I think for the participants a really educational seminar and I think everyone got a lot out of it and I know I sure did.
William Schifino: I have heard great feedback already through the conference. Thank you for all of your work there.
Michael Higer: So tell me some of the other subjects that you talked about with the panel?
Judge Michelle Sisco: Well, we talked about — I mean we really did — we gave each of the professors 20 minutes to discuss their research, and I can tell you as a trial court judge, nothing moves me like facts. Opinions are opinions. Lawyers tell me their opinions all day long. What I want to hear are the facts and the law, so I am always very interested in research that is backed by facts, so I always find that part of any presentation to be the most interesting.
So even though I may not always agree with the opinions that our professors draw from those facts, I am more than happy to listen to them and then use them to come to my own independent conclusion. So, that was really, really, a really great part of our presentation.
And then we had Justice Wells, former Florida Supreme Court Justice Wells, and I think now that he is comfortably in retirement, he I think feels free to speak his mind and I think he gave us some very, again, thoughtful and wisdom built upon years, years of being on the Florida Supreme Court. So his viewpoint was really fascinating as well.
Michael Higer: And what about the audience participation. Did you have an actively engaged audience?
Judge Michelle Sisco: They were interrupting our speakers.
Dean Cannon: We had live debate with the audience, it was very great.
Judge Michelle Sisco: Yes, as the presentation was occurring, and I had told people we would do a question and answer at the end and I had even told them they could submit their questions anonymously, so as to encourage a candid question. I said as long as it’s respectful, questions like, Judge Sisco, why are you such a blank would not be asked, but other than that they could ask any question and they were so eager to ask questions. They were interrupting the speakers, even though I told them not to do that.
Michael Higer: Unless the blank was filled in with why are you such a great judge?
Judge Michelle Sisco: Then I am like, ask away, ask away. Take the mic. It’s all yours.
Michael Higer: Those questions were screened out.
Judge Michelle Sisco: Yes.
Michael Higer: I can see why you would have such an engaged audience. You had a superb panel that you put together.
This has been another edition of The Florida Bar Podcast, brought to you by The Practice Resource Institute on Legal Talk Network. I want to thank our guests for joining us.
If you liked what you heard today, please find us and rate us on iTunes. I have no idea how to do that, but I am sure our listening public does. I am Michael Higer, President-Elect of The Florida Bar. Until next time, thank you for listening.
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