Florida Senate - 2011                          SENATOR AMENDMENT
       Bill No. CS/HJR 7111, 2nd Eng.
       
       
       
       
       
       
                                Barcode 289464                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/AD/3R         .         Floor: SA1/CA          
             05/02/2011 06:14 PM       .      05/03/2011 05:47 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         Delete everything after the resolving clause
    4  and insert:
    5         That the following amendment to Sections 2, 4, 11, and 12,
    6  of Article V of the State Constitution is agreed to and shall be
    7  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 Rules of court may be repealed by general law that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   26  court may readopt the repealed rule only in conformity with the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.
   30         (b) The chief justice of the supreme court of Florida shall
   31  be chosen by a majority of the members of the court; shall be
   32  the chief administrative officer of the judicial system; and
   33  shall have the power to assign justices or judges, including
   34  consenting retired justices or judges, to temporary duty in any
   35  court for which the judge is qualified and to delegate to a
   36  chief judge of a judicial circuit the power to assign judges for
   37  duty in that circuit.
   38         (c) A chief judge for each district court of appeal shall
   39  be chosen by a majority of the judges thereof or, if there is no
   40  majority, by the chief justice. The chief judge of a district
   41  court shall be responsible for the administrative supervision of
   42  the district court.
   43         (d) A chief judge in each circuit shall be chosen from
   44  among the circuit judges as provided by supreme court rule. The
   45  chief judge of a circuit shall be responsible for the
   46  administrative supervision of the circuit courts and county
   47  courts in the his circuit.
   48         SECTION 4. District courts of appeal.—
   49         (a) ORGANIZATION.—There shall be a district court of appeal
   50  serving each appellate district. Each district court of appeal
   51  shall consist of at least three judges. Three judges shall
   52  consider each case and the concurrence of two shall be necessary
   53  to a decision.
   54         (b) JURISDICTION.—
   55         (1) District courts of appeal shall have jurisdiction to
   56  hear appeals, that may be taken as a matter of right, from final
   57  judgments or orders of trial courts, including those entered on
   58  review of administrative action, not directly appealable to the
   59  supreme court or a circuit court. They may review interlocutory
   60  orders in such cases to the extent provided by rules adopted by
   61  the supreme court.
   62         (2) District courts of appeal shall have the power of
   63  direct review of administrative action, as prescribed by general
   64  law.
   65         (3) A district court of appeal or any judge thereof may
   66  issue writs of habeas corpus returnable before the court or any
   67  judge thereof or before any circuit judge within the territorial
   68  jurisdiction of the court. A district court of appeal may issue
   69  writs of mandamus, certiorari, prohibition, quo warranto, and
   70  other writs necessary to the complete exercise of its
   71  jurisdiction. To the extent necessary to dispose of all issues
   72  in a cause properly before it, a district court of appeal may
   73  exercise any of the appellate jurisdiction of the circuit
   74  courts.
   75         (c) CLERKS AND MARSHALS.—Each district court of appeal
   76  shall appoint a clerk and a marshal who shall hold office during
   77  the pleasure of the court and perform such duties as the court
   78  directs. Their compensation shall be fixed by general law. The
   79  marshal shall have the power to execute the process of the court
   80  throughout the territorial jurisdiction of the court, and in any
   81  county may deputize the sheriff or a deputy sheriff for such
   82  purpose.
   83         SECTION 11. Vacancies.—
   84         (a) Whenever a vacancy occurs in a judicial office to which
   85  election for retention applies, the governor shall fill the
   86  vacancy by appointing for a term ending on the first Tuesday
   87  after the first Monday in January of the year following the next
   88  general election occurring at least one year after the date of
   89  appointment, one of not fewer than three persons nor more than
   90  six persons nominated by the appropriate judicial nominating
   91  commission.
   92         (b) The governor shall fill each vacancy on a circuit court
   93  or on a county court, wherein the judges are elected by a
   94  majority vote of the electors, by appointing for a term ending
   95  on the first Tuesday after the first Monday in January of the
   96  year following the next primary and general election occurring
   97  at least one year after the date of appointment, one of not
   98  fewer than three persons nor more than six persons nominated by
   99  the appropriate judicial nominating commission. An election
  100  shall be held to fill that judicial office for the term of the
  101  office beginning at the end of the appointed term.
  102         (c) The nominations shall be made within thirty days from
  103  the occurrence of a vacancy unless the period is extended by the
  104  governor for a time not to exceed thirty days. The governor
  105  shall make the appointment within sixty days after the
  106  nominations have been certified to the governor.
  107         (d)Each appointment of a justice of the supreme court is
  108  subject to confirmation by the senate. The senate may sit for
  109  the purpose of confirmation regardless of whether the house of
  110  representatives is in session or not. If the senate fails to
  111  vote on the appointment of a justice within 90 days, the justice
  112  shall be deemed confirmed. If the senate votes to not confirm
  113  the appointment, the supreme court judicial nominating
  114  commission shall reconvene as though a new vacancy had occurred
  115  but may not renominate any person whose prior appointment to
  116  fill the same vacancy was not confirmed by the senate. The
  117  appointment of a justice is effective upon confirmation by the
  118  senate.
  119         (e)(d) There shall be a separate judicial nominating
  120  commission as provided by general law for the supreme court, one
  121  for each district court of appeal, and one for each judicial
  122  circuit for all trial courts within the circuit. Uniform rules
  123  of procedure shall be established by the judicial nominating
  124  commissions at each level of the court system. Such rules, or
  125  any part thereof, may be repealed by general law enacted by a
  126  majority vote of the membership of each house of the
  127  legislature, or by the supreme court, five justices concurring.
  128  Except for deliberations of the judicial nominating commissions,
  129  the proceedings of the commissions and their records shall be
  130  open to the public.
  131         SECTION 12. Discipline; removal and retirement.—
  132         (a) JUDICIAL QUALIFICATIONS COMMISSION.—A judicial
  133  qualifications commission is created.
  134         (1) There shall be a judicial qualifications commission
  135  vested with jurisdiction to investigate and recommend to the
  136  Supreme Court of Florida the removal from office of any justice
  137  or judge whose conduct, during term of office or otherwise,
  138  occurring on or after November 1, 1966, (without regard to the
  139  effective date of this section) demonstrates a present unfitness
  140  to hold office, and to investigate and recommend the discipline
  141  of a justice or judge whose conduct, during term of office or
  142  otherwise occurring on or after November 1, 1966 (without regard
  143  to the effective date of this section), warrants such
  144  discipline. For purposes of this section, discipline is defined
  145  as any or all of the following: reprimand, fine, suspension with
  146  or without pay, or lawyer discipline. The commission shall have
  147  jurisdiction over justices and judges regarding allegations that
  148  misconduct occurred before or during service as a justice or
  149  judge if a complaint is made no later than one year following
  150  service as a justice or judge. The commission shall have
  151  jurisdiction regarding allegations of incapacity during service
  152  as a justice or judge. The commission shall be composed of:
  153         a. Two judges of district courts of appeal selected by the
  154  judges of those courts, two circuit judges selected by the
  155  judges of the circuit courts and two judges of county courts
  156  selected by the judges of those courts;
  157         b. Four electors who reside in the state, who are members
  158  of the bar of Florida, and who shall be chosen by the governing
  159  body of the bar of Florida; and
  160         c. Five electors who reside in the state, who have never
  161  held judicial office or been members of the bar of Florida, and
  162  who shall be appointed by the governor.
  163         (2) The members of the judicial qualifications commission
  164  shall serve staggered terms, not to exceed six years, as
  165  prescribed by general law. No member of the commission except a
  166  judge shall be eligible for state judicial office while acting
  167  as a member of the commission and for a period of two years
  168  thereafter. No member of the commission shall hold office in a
  169  political party or participate in any campaign for judicial
  170  office or hold public office; provided that a judge may campaign
  171  for judicial office and hold that office. The commission shall
  172  elect one of its members as its chairperson.
  173         (3) Members of the judicial qualifications commission not
  174  subject to impeachment shall be subject to removal from the
  175  commission pursuant to the provisions of Article IV, Section 7,
  176  Florida Constitution.
  177         (4) The commission shall adopt rules regulating its
  178  proceedings, the filling of vacancies by the appointing
  179  authorities, the disqualification of members, the rotation of
  180  members between the panels, and the temporary replacement of
  181  disqualified or incapacitated members. The commission’s rules,
  182  or any part thereof, may be repealed by general law enacted by a
  183  majority vote of the membership of each house of the
  184  legislature, or by the supreme court, five justices concurring.
  185  The commission shall have power to issue subpoenas. Until formal
  186  charges against a justice or judge are filed by the
  187  investigative panel with the clerk of the supreme court of
  188  Florida all proceedings by or before the commission shall be
  189  confidential; provided, however, upon a finding of probable
  190  cause and the filing by the investigative panel with said clerk
  191  of such formal charges against a justice or judge such charges
  192  and all further proceedings before the commission shall be
  193  public.
  194         (5) The commission shall have access to all information
  195  from all executive, legislative and judicial agencies, including
  196  grand juries, subject to the rules of the commission. At any
  197  time, on request of the speaker of the house of representatives
  198  or the governor, the commission shall make available to the
  199  house of representatives all information in the possession of
  200  the commission, which information shall remain confidential
  201  during any investigation and until such information is used in
  202  the pursuit for use in consideration of impeachment or
  203  suspension, respectively.
  204         (b) PANELS.—The commission shall be divided into an
  205  investigative panel and a hearing panel as established by rule
  206  of the commission. The investigative panel is vested with the
  207  jurisdiction to receive or initiate complaints, conduct
  208  investigations, dismiss complaints, and upon a vote of a simple
  209  majority of the panel submit formal charges to the hearing
  210  panel. The hearing panel is vested with the authority to receive
  211  and hear formal charges from the investigative panel and upon a
  212  two-thirds vote of the panel recommend to the supreme court the
  213  removal of a justice or judge or the involuntary retirement of a
  214  justice or judge for any permanent disability that seriously
  215  interferes with the performance of judicial duties. Upon a
  216  simple majority vote of the membership of the hearing panel, the
  217  panel may recommend to the supreme court that the justice or
  218  judge be subject to appropriate discipline.
  219         (c) SUPREME COURT.—The supreme court shall receive
  220  recommendations from the judicial qualifications commission’s
  221  hearing panel.
  222         (1) The supreme court may accept, reject, or modify in
  223  whole or in part the findings, conclusions, and recommendations
  224  of the commission and it may order that the justice or judge be
  225  subjected to appropriate discipline, or be removed from office
  226  with termination of compensation for willful or persistent
  227  failure to perform judicial duties or for other conduct
  228  unbecoming a member of the judiciary demonstrating a present
  229  unfitness to hold office, or be involuntarily retired for any
  230  permanent disability that seriously interferes with the
  231  performance of judicial duties. Malafides, scienter or moral
  232  turpitude on the part of a justice or judge shall not be
  233  required for removal from office of a justice or judge whose
  234  conduct demonstrates a present unfitness to hold office. After
  235  the filing of a formal proceeding and upon request of the
  236  investigative panel, the supreme court may suspend the justice
  237  or judge from office, with or without compensation, pending
  238  final determination of the inquiry.
  239         (2) The supreme court may award costs to the prevailing
  240  party.
  241         (d) REMOVAL POWER.—The power of removal conferred by this
  242  section shall be both alternative and cumulative to the power of
  243  impeachment.
  244         (e) PROCEEDINGS INVOLVING SUPREME COURT JUSTICE.
  245  Notwithstanding any of the foregoing provisions of this section,
  246  if the person who is the subject of proceedings by the judicial
  247  qualifications commission is a justice of the supreme court of
  248  Florida all justices of such court automatically shall be
  249  disqualified to sit as justices of such court with respect to
  250  all proceedings therein concerning such person and the supreme
  251  court for such purposes shall be composed of a panel consisting
  252  of the seven chief judges of the judicial circuits of the state
  253  of Florida most senior in tenure of judicial office as circuit
  254  judge. For purposes of determining seniority of such circuit
  255  judges in the event there be judges of equal tenure in judicial
  256  office as circuit judge the judge or judges from the lower
  257  numbered circuit or circuits shall be deemed senior. In the
  258  event any such chief circuit judge is under investigation by the
  259  judicial qualifications commission or is otherwise disqualified
  260  or unable to serve on the panel, the next most senior chief
  261  circuit judge or judges shall serve in place of such
  262  disqualified or disabled chief circuit judge.
  263         (f) SCHEDULE TO SECTION 12.—
  264         (1) Except to the extent inconsistent with the provisions
  265  of this section, all provisions of law and rules of court in
  266  force on the effective date of this article shall continue in
  267  effect until superseded in the manner authorized by the
  268  constitution.
  269         (2) After this section becomes effective and until adopted
  270  by rule of the commission consistent with it:
  271         a. The commission shall be divided, as determined by the
  272  chairperson, into one investigative panel and one hearing panel
  273  to meet the responsibilities set forth in this section.
  274         b. The investigative panel shall be composed of:
  275         1. Four judges,
  276         2. Two members of the bar of Florida, and
  277         3. Three non-lawyers.
  278         c. The hearing panel shall be composed of:
  279         1. Two judges,
  280         2. Two members of the bar of Florida, and
  281         3. Two non-lawyers.
  282         d. Membership on the panels may rotate in a manner
  283  determined by the rules of the commission provided that no
  284  member shall vote as a member of the investigative and hearing
  285  panel on the same proceeding.
  286         e. The commission shall hire separate staff for each panel.
  287         f. The members of the commission shall serve for staggered
  288  terms of six years.
  289         g. The terms of office of the present members of the
  290  judicial qualifications commission shall expire upon the
  291  effective date of the amendments to this section approved by the
  292  legislature during the regular session of the legislature in
  293  1996 and new members shall be appointed to serve the following
  294  staggered terms:
  295         1. Group I.—The terms of five members, composed of two
  296  electors as set forth in s. 12(a)(1)c. of Article V, one member
  297  of the bar of Florida as set forth in s. 12(a)(1)b. of Article
  298  V, one judge from the district courts of appeal and one circuit
  299  judge as set forth in s. 12(a)(1)a. of Article V, shall expire
  300  on December 31, 1998.
  301         2. Group II.—The terms of five members, composed of one
  302  elector as set forth in s. 12(a)(1)c. of Article V, two members
  303  of the bar of Florida as set forth in s. 12(a)(1)b. of Article
  304  V, one circuit judge and one county judge as set forth in s.
  305  12(a)(1)a. of Article V shall expire on December 31, 2000.
  306         3. Group III.—The terms of five members, composed of two
  307  electors as set forth in s. 12(a)(1)c. of Article V, one member
  308  of the bar of Florida as set forth in s. 12(a)(1)b., one judge
  309  from the district courts of appeal and one county judge as set
  310  forth in s. 12(a)(1)a. of Article V, shall expire on December
  311  31, 2002.
  312         g.h. An appointment to fill a vacancy of the commission
  313  shall be for the remainder of the term.
  314         h.i. Selection of members by district courts of appeal
  315  judges, circuit judges, and county court judges, shall be by no
  316  less than a majority of the members voting at the respective
  317  courts’ conferences. Selection of members by the board of
  318  governors of the bar of Florida shall be by no less than a
  319  majority of the board.
  320         i.j. The commission shall be entitled to recover the costs
  321  of investigation and prosecution, in addition to any penalty
  322  levied by the supreme court.
  323         j.k. The compensation of members and referees shall be the
  324  travel expenses or transportation and per diem allowance as
  325  provided by general law.
  326         BE IT FURTHER RESOLVED that the following statement be
  327  placed on the ballot:
  328                      CONSTITUTIONAL AMENDMENT                     
  329                ARTICLE V, SECTIONS 2, 4, 11, AND 12               
  330         STATE COURTS.—Proposing a revision of Article V of the
  331  State Constitution relating to the judiciary.
  332         Under current law, the Governor appoints a justice from a
  333  list of nominees provided by a judicial nominating commission,
  334  and appointments by the Governor are not subject to
  335  confirmation. This revision requires Senate confirmation of a
  336  justice before the appointee can take office. If the Senate
  337  votes not to confirm the appointment, the judicial nominating
  338  commission must reconvene and may not renominate any person
  339  whose prior appointment to fill the same vacancy was not
  340  confirmed by the Senate. For the purpose of confirmation, the
  341  Senate may meet at any time. If the Senate does not vote against
  342  confirmation within 90 days, the justice will be deemed
  343  confirmed and will take office.
  344         The State Constitution authorizes the Supreme Court to
  345  adopt rules for the practice and procedure in all courts. The
  346  constitution further provides that a rule of court may be
  347  repealed by a general law enacted by a two-thirds vote of the
  348  membership of each house of the Legislature. This proposed
  349  constitutional revision eliminates the requirement that a
  350  general law repealing a court rule pass by a two-thirds vote of
  351  each house. The Legislature could repeal a rule of court by a
  352  general law approved by a majority vote of each house of the
  353  Legislature that expresses the policy behind the repeal. The
  354  court could readopt the rule in conformity with the public
  355  policy expressed by the Legislature, but if the Legislature
  356  repeals the readopted rule, this proposed revision prohibits the
  357  court from readopting the repealed rule without the
  358  Legislature’s prior approval.
  359         The Judicial Qualifications Commission is an independent
  360  commission created by the State Constitution to investigate and
  361  prosecute before the Florida Supreme Court alleged misconduct by
  362  a justice or judge. Currently under the constitution, commission
  363  proceedings are confidential until formal charges are filed by
  364  the investigative panel of the commission. Once formal charges
  365  are filed, the formal charges and all further proceedings of the
  366  commission are public. Currently, the constitution authorizes
  367  the House of Representatives to impeach a justice or judge.
  368  Further, the Speaker of the House of Representatives may
  369  request, and the Judicial Qualifications Commission must make
  370  available, all information in the commission’s possession for
  371  use in deciding whether to impeach a justice or judge. This
  372  proposed revision requires the commission to make all of its
  373  files available to the Speaker of the House of Representatives,
  374  rather than just the file of a justice or judge under
  375  investigation by the House of Representatives. Such files would
  376  maintain their confidentiality unless the House of
  377  Representatives initiates impeachment proceedings against a
  378  justice or judge, in which case the files related to that
  379  justice or judge may be open. This revision deletes a
  380  requirement that a general law repealing a commission rule be
  381  passed by a majority vote of the membership of each house of the
  382  Legislature and revises the number of Supreme Court justices
  383  needed to repeal such a rule.
  384         This revision will take effect January 7, 2013, if approved
  385  by the electors. This revision makes other conforming and
  386  modernizing changes to the State Constitution regarding the
  387  judicial system; removing outdated schedules related to the
  388  Judicial Qualifications Commission; and making conforming and
  389  technical changes in the judicial articles of the constitution.
  390  
  391         BE IT FURTHER RESOLVED that the following statement be
  392  placed on the ballot if a court declares the preceding statement
  393  defective and the decision of the court is not reversed:
  394                      CONSTITUTIONAL AMENDMENT                     
  395                ARTICLE V, SECTIONS 2, 4, 11, AND 12               
  396         JUDICIARY.—Proposing a revision of the Judiciary Article of
  397  the Florida Constitution; requiring Senate confirmation for
  398  appointment of a Supreme Court justice; providing standards and
  399  procedures for legislative repeal of a court rule; allowing
  400  legislative review of confidential files of the Judicial
  401  Qualifications Commission; and making other ancillary
  402  amendments, including, but not limited to, technical and
  403  conforming amendments.
  404  
  405         BE IT FURTHER RESOLVED that the following statement be
  406  placed on the ballot if a court declares the preceding
  407  statements defective and the decision of the court is not
  408  reversed:
  409                      CONSTITUTIONAL AMENDMENT                     
  410                ARTICLE V, SECTIONS 2, 4, 11, AND 12               
  411         STATE COURTS.—Proposing a revision to Article V of the
  412  State Constitution relating to the judiciary; changing the
  413  authority of the Legislature to repeal a court rule by 2/3 vote
  414  of the membership of each house to a simple majority of each
  415  house; limiting the Supreme Court’s ability to readopt a rule
  416  repealed by the Legislature; requiring Senate confirmation
  417  before a justice may take office; providing that if the Senate
  418  does not act within 90 days the nominee is deemed confirmed as a
  419  justice; allowing the Senate to meet outside of regular session
  420  without having the House of Representatives convene at the same
  421  time; deleting outdated references; requiring the Judicial
  422  Qualifications Commission to provide the House of
  423  Representatives access to records; providing for confidentiality
  424  of records.
  425  
  426  ================= T I T L E  A M E N D M E N T ================
  427         And the title is amended as follows:
  428         Delete everything before the resolving clause
  429  and insert:
  430                        A bill to be entitled                      
  431         A joint resolution proposing a revision of Article V
  432         of the State Constitution, relating to the judiciary,
  433         consisting of amendments to Sections 2, 4, 11, and 12
  434         of Article V of the State Constitution; revising
  435         provisions relating to repeal of court rules; limiting
  436         readoption of a repealed court rule; providing for
  437         Senate confirmation of Supreme Court justices;
  438         requiring the Judicial Qualifications Commission to
  439         make all of its files available to the Speaker of the
  440         House of Representatives; revising provisions relating
  441         to repeal of commission rules; making other conforming
  442         and modernizing changes to the State Constitution
  443         regarding the judicial system; providing an effective
  444         date.