Senate Bill 1272

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    Florida Senate - 1998                                 SJR 1272

    By Senator Ostalkiewicz





    12-841-98                                              See HJR

  1                 Senate Joint Resolution No.     

  2         A joint resolution proposing an amendment to

  3         Section 12 of Article V of the State

  4         Constitution relating to recall of justices and

  5         judges.

  6

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

  8

  9         That the amendment to Section 12 of Article V of the

10  State Constitution set forth below is agreed to and shall be

11  submitted to the electors of Florida for approval or rejection

12  at the general election to be held in November 1998:

13         SECTION 12.  Discipline; removal and retirement;

14  recall.--

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

16  qualifications commission is created.

17         (1)  There shall be a judicial qualifications

18  commission vested with jurisdiction to investigate and

19  recommend to the Supreme Court of Florida the removal from

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

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

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

23  demonstrates a present unfitness to hold office, and to

24  investigate and recommend the discipline of a justice or judge

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

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

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

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

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

30  lawyer discipline. The commission shall have jurisdiction over

31  justices and judges regarding allegations that misconduct

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    Florida Senate - 1998                                 SJR 1272
    12-841-98                                              See HJR




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

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

  3  a justice or judge. The commission shall have jurisdiction

  4  regarding allegations of incapacity during service as a

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

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

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

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

  9  selected by the judges of those courts;

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

11  members of the bar of Florida, and who shall be chosen by the

12  governing body of the bar of Florida; and

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

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

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

16         (2)  The members of the judicial qualifications

17  commission shall serve staggered terms, not to exceed six

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

19  commission except a judge shall be eligible for state judicial

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

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

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

23  campaign for judicial office or hold public office; provided

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

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

26  chairperson.

27         (3)  Members of the judicial qualifications commission

28  not subject to impeachment shall be subject to removal from

29  the commission pursuant to the provisions of Article IV,

30  Section 7, Florida Constitution.

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    Florida Senate - 1998                                 SJR 1272
    12-841-98                                              See HJR




  1         (4)  The commission shall adopt rules regulating its

  2  proceedings, the filling of vacancies by the appointing

  3  authorities, the disqualification of members, the rotation of

  4  members between the panels, and the temporary replacement of

  5  disqualified or incapacitated members.  The commission's

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

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

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

  9  concurring. The commission shall have power to issue

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

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

12  court of Florida all proceedings by or before the commission

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

14  probable cause and the filing by the investigative panel with

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

16  such charges and all further proceedings before the commission

17  shall be public.

18         (5)  The commission shall have access to all

19  information from all executive, legislative and judicial

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

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

22  house of representatives or the governor, the commission shall

23  make available all information in the possession of the

24  commission for use in consideration of impeachment or

25  suspension, respectively.

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

27  investigative panel and a hearing panel as established by rule

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

29  jurisdiction to receive or initiate complaints, conduct

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

31  simple majority of the panel submit formal charges to the

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    Florida Senate - 1998                                 SJR 1272
    12-841-98                                              See HJR




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

  2  to receive and hear formal charges from the investigative

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

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

  5  involuntary retirement of a justice or judge for any permanent

  6  disability that seriously interferes with the performance of

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

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

  9  court that the justice or judge be subject to appropriate

10  discipline.

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

12  recommendations from the judicial qualifications commission's

13  hearing panel.

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

15  whole or in part the findings, conclusions, and

16  recommendations of the commission and it may order that the

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

18  removed from office with termination of compensation for

19  willful or persistent failure to perform judicial duties or

20  for other conduct unbecoming a member of the judiciary

21  demonstrating a present unfitness to hold office, or be

22  involuntarily retired for any permanent disability that

23  seriously interferes with the performance of judicial duties.

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

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

26  of a justice or judge whose conduct demonstrates a present

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

28  proceeding and upon request of the investigative panel, the

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

30  with or without compensation, pending final determination of

31  the inquiry.

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    Florida Senate - 1998                                 SJR 1272
    12-841-98                                              See HJR




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

  2  prevailing party.

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

  4  shall be both alternative and cumulative to the power of

  5  impeachment.

  6         (e)  Notwithstanding any of the foregoing provisions of

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

  8  by the judicial qualifications commission is a justice of the

  9  supreme court of Florida all justices of such court

10  automatically shall be disqualified to sit as justices of such

11  court with respect to all proceedings therein concerning such

12  person and the supreme court for such purposes shall be

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

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

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

16  determining seniority of such circuit judges in the event

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

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

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

20  circuit judge is under investigation by the judicial

21  qualifications commission or is otherwise disqualified or

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

23  circuit judge or judges shall serve in place of such

24  disqualified or disabled chief circuit judge.

25         (f)  RECALL.--

26         (1)  Any justice or judge may be removed from office by

27  petition and recall election.

28         (2)  Justices and judges serving a term approved by

29  retention or contested election shall be submitted to recall

30  election upon petition of a number of qualified electors that

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    Florida Senate - 1998                                 SJR 1272
    12-841-98                                              See HJR




  1  is equal to eight percent of the number of votes cast in the

  2  election that approved the term in question.

  3         (3)  Justices and judges serving a term not approved by

  4  retention or contested general election shall be submitted to

  5  recall election upon petition of a number of qualified

  6  electors as follows:  100,000, if a supreme court justice;

  7  20,000, if a district court of appeal judge; eight percent of

  8  the number of votes cast in the last preceding contested

  9  general election for state attorney or circuit court judge in

10  which a state attorney or circuit court judge was elected in

11  the circuit, if a circuit court judge; and eight percent of

12  the number of votes cast in the last preceding contested

13  general election for sheriff or county court judge in which a

14  sheriff or county court judge was elected in the county, if a

15  county court judge.

16         (4)  Recall petitions may be submitted by qualified

17  electors who reside anywhere in the state for supreme court

18  justices, anywhere in the district for district court of

19  appeal judges, anywhere in the circuit for circuit court

20  judges, and anywhere in the county for county court judges.

21  The recall election shall be limited to those electors who

22  would be qualified to vote in an election for the justice or

23  judge who is the subject of the recall election.

24         (5)  Recall petitions shall not be required to state

25  the reason for recall.

26         (6)  Recall elections shall be conducted not later than

27  on the day of the next succeeding primary or general election

28  that is conducted more than ninety days after the election

29  official prescribed by law has certified sufficient signed

30  petitions to initiate an election, except that no recall

31  election shall be held if the justice or judge subject to

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    Florida Senate - 1998                                 SJR 1272
    12-841-98                                              See HJR




  1  recall is seeking reelection or retention at the same primary

  2  or general election.

  3         (7)  The legislature shall regulate judicial recall

  4  elections by general law in a manner not inconsistent with

  5  this section.

  6         (g)(f)  SCHEDULE TO SECTION 12.--

  7         (1)  Except to the extent inconsistent with the

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

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

10  continue in effect until superseded in the manner authorized

11  by the constitution.

12         (2)  After this section becomes effective and until

13  adopted by rule of the commission consistent with it:

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

15  the chairperson, into one investigative panel and one hearing

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

17         b.  The investigative panel shall be composed of:

18         1.  Four judges,

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

20         3.  Three non-lawyers.

21         c.  The hearing panel shall be composed of:

22         1.  Two judges,

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

24         3.  Two non-lawyers.

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

26  determined by the rules of the commission provided that no

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

28  panel on the same proceeding.

29         e.  The commission shall hire separate staff for each

30  panel.

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    Florida Senate - 1998                                 SJR 1272
    12-841-98                                              See HJR




  1         f.  The members of the commission shall serve for

  2  staggered terms of six years.

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

  4  judicial qualifications commission shall expire upon the

  5  effective date of the amendments to this section approved by

  6  the legislature during the regular session of the legislature

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

  8  following staggered terms:

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

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

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

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

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

14  shall expire on December 31, 1998.

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

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

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

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

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

20  2000.

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

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

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

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

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

26  on December 31, 2002.

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

28  shall be for the remainder of the term.

29         i.  Selection of members by district courts of appeal

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

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

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    Florida Senate - 1998                                 SJR 1272
    12-841-98                                              See HJR




  1  respective courts' conferences. Selection of members by the

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

  3  than a majority of the board.

  4         j.  The commission shall be entitled to recover the

  5  costs of investigation and prosecution, in addition to any

  6  penalty levied by the supreme court.

  7         k.  The compensation of members and referees shall be

  8  the travel expenses or transportation and per diem allowance

  9  as provided by general law.

10         BE IT FURTHER RESOLVED that in accordance with the

11  requirements of section 101.161, Florida Statutes, the title

12  and substance of the amendment proposed herein shall appear on

13  the ballot as follows:

14                  RECALL OF JUSTICES AND JUDGES

15         Provides that supreme court justices, district court of

16  appeal judges, circuit court judges, and county court judges

17  may be subject to recall election upon submission of petitions

18  signed by a specified number of electors.

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