IN THE SUPREME COURT OF FLORIDA IN RE: IMPLEMENTATION OF JUDICIAL BRANCH GOVERNANCE STUDY GROUP RECOMMENDATIONS -- AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION. CASE NO. SC11-1374 COMMENTS OF THE FLORIDA CONFERENCE OF DISTRICT COURT OF APPEAL JUDGES In its February 9, 2012 opinion, this Court adopted sundry amendments to the Florida Rules of Judicial Administration and invited comments on the amendments. The Florida Conference of District Court of Appeal Judges (DCA Conference) respectfully submits the following for the Court's consideration. Restriction On Interactions With The Other Branches Rule 2.205(a)(1)(B) Rule 2.205(a)(1) addresses the supreme court's exercise of its powers. On February 9, the Court amended the rule to include the following new paragraph:
(B) Consistent with the authority of the supreme court to establish policy, including recommending state budget and compensation priorities for the judicial branch, no judge, supreme court created committee, commission, task force, or similar group, and no conference (Conference of District Court of Appeal Judges, Conference of Circuit Court Judges, Conference of County Court Judges) is permitted to recommend state budget priorities, including compensation and benefits, to the legislative or executive branch that have not been approved by the supreme court. This subdivision is not intended to apply to judges expressing their personal views who affirmatively make it explicitly clear that they are not speaking on behalf of the judicial branch. The purpose of the new rule is easily understood by those who have participated in the legislative process on behalf of the judicial branch. Too often, branch initiatives regarding both funding and substantive issues have been diluted, and sometimes undermined, by judges' personal communications to the legislature or individual legislators and by uncoordinated initiatives of various stakeholders within the branch. In recent years, this problem has been addressed by means of political leadership. With the advent of the annual Judicial Branch Leadership Meeting and the Unified Committee on Judicial Compensation, and through the efforts of the supreme court, chief justice, chief judges, and leaders of the conferences and budget commissions, the importance of "speaking with one voice" has been emphasized throughout the branch. Further, owing largely to coordination and support by the Office of the State Courts Administrator, the budget commissions 2
and conferences increasingly have formed ad hoc legislative teams that strategize together and share the legwork involved in presenting branch positions to the legislature and governor's office. The DCA Conference has participated in these undertakings and fully endorses them. However, although these political efforts to unify the many voices within the branch have been largely effective, no such endeavor can be completely successful. "Speaking with one voice" does not mean "only one voice may speak." As the new rule recognizes, individual judges have the right to express their views about budgeting, substantive legislation, or any other matter that affects the branch. And it follows that individual judges may associate into groups to express those views. The aim of the above-described political effort has been to convince them to refrain from doing so. New rule 2.205(a)(1)(B) adopts a fundamentally different approach to this issue. Whereas to date the branch has endeavored with some success to forge a political consensus in favor of presenting unified messages to the other branches and discouraging "rogue" communications, the new rule attempts to impose those ideals by administrative fiat essentially as a matter of law. The DCA Conference questions the effectiveness of this approach and submits that it might prove to be counterproductive. We do not dispute the primacy of the supreme court as policy maker for the branch, nor do we disagree 3
with the proposition that no judge or entity may presume to speak for the branch unless authorized to do so by the supreme court. But prohibiting a conference, as such, to express its members' views on matters affecting the courts and the administration of justice would undermine its efficacy as a forum and conduit for those views. This, in turn, would severely impair the conference's ability to influence and discourage the tendency of its individual members to simply speak out for themselves directly contrary to the purpose of the rule. The rule's deleterious potential is exacerbated by its failure to establish procedural mechanisms by which the branch stakeholders may seek the supreme court's approval of their proposed initiatives or by which the supreme court will approve policy positions and communicate them to the stakeholders. Beyond that, the rule will have a chilling effect on, and therefore will improperly thwart, the free speech rights of individual judges in three ways. First, the rule is vague. What kind of communication constitutes a "recommendation?" Would a judge violate the rule by, say, complaining to an individual legislator that Florida judges have not received even a cost of living adjustment, let alone a meaningful pay increase, since 2005? Would the judge violate the rule by making the same complaint to a media outlet with knowledge that the statement would be seen or heard by legislators or the governor? Would the new rule permit a judge to respond to an inquiry from any of those sources? For that matter, what constitutes 4
the "legislative or executive branch?" An individual legislator? A legislative or governor's office staff member? A candidate for legislative or executive office? Second, although the rule acknowledges the supremacy of a judge's individual right of free speech, it attempts to limit that right by imposing on the judge a responsibility to "make it explicitly clear" that he or she is not speaking for the branch. As formulated by the rule, the difference between permissible and impermissible speech turns not on what is said, but upon the perceptions of those spoken to. This places the speaker in the untenable position of possibly having to answer for the misunderstanding of the listener. The DCA Conference submits that the vice addressed by the new rule is not and has never been that individual judges purport to speak for the branch, or even that they fail to inform their listeners that they are speaking strictly for themselves. Rather, the problem is that members of the legislative and executive branches often fail to appreciate the distinction, or even care about it, even when they have been expressly advised of it. This unfortunate tendency of the other branches to confuse the views of individual judges with the policy positions of the branch properly may be addressed by political leadership, by convincing judges to speak with one voice. It is not proper to impose a regulation that chills a judge's freedom of speech by making the judge responsible for the listener's misperception. 5
This leads to the third reason that the new rule will have a chilling effect on judges' individual rights of speech, i.e., its potential disciplinary ramifications. The Code of Judicial Conduct already restricts certain judicial communications. Canons 4C and 5C(1) prohibit appearances at public hearings or consultations with executive or legislative bodies or officials except on matters concerning the law, the legal system or the administration of justice, or except when the judge is acting pro se. A reasonable judge might fear that rule 2.205(a)(1)(B) has implicitly and vaguely narrowed the scope of permissible judicial speech under the Code, thus placing the judge's career at risk if he or she unintentionally crosses the poorly defined lines set forth or implied in the rule. As mentioned, the DCA Conference recognizes that new rule 2.205(a)(1)(B) is directed to a very real problem. But we submit that the issue is best addressed as it has been in recent years by consensus developed through political leadership. In our view, imposing an obligation to "speak with one voice" by administrative fiat is both unworkable and likely to be counterproductive. We note that one potential remedy mentioned in the November 2010 report of the consultants to the Judicial Branch Governance Study Group is the creation of a branch legislative committee. Consultants' Report, p. 28. Such a committee, consisting of representatives from all branch stakeholders, (1) could serve as a conduit through which the supreme court and stakeholders may propose 6
and communicate branch policy objectives, and (2) could be established simply by formalizing the ad hoc coordination of legislative efforts that the budget commissions and conferences have been practicing in recent years. Term Limit On Service As Chief Judge Rule 2.210(a)(2)(F) Rule 2.210(a)(2) addresses the position of chief judge of a district court of appeal. The February 9 revision moved the previous content of that rule to newly-created paragraph (F) and added the following language: A chief judge may serve for successive terms but in no event shall the total term as chief judge exceed 8 years. An identical limitation has been inserted in rule 2.215(c) with respect to service as a circuit chief judge. These limitations were imposed at the instance of the Court itself; they were not proposed either in the November 2010 final report of the consultants to the Study Group or in the January 2011 final recommendations of the Study Group itself. The DCA Conference opposes the imposition of a term limit on the service of a chief judge for a number of reasons, the first of which is that such a limit would thwart the constitutional prerogative of district court judges to choose their chiefs. The Florida Constitution, Article V, Section 2(c), directs that the chief judge of a district court of appeal "shall be chosen by a majority of the judges thereof or, if there is no majority, by the chief justice." In contrast, the constitution 7
provides that circuit chief judges are to be selected "as provided by supreme court rule." Thus, it appears that the supreme court is empowered to adopt a rule limiting the term of a circuit chief judge, but it may not abridge the constitutional authority of district court of appeal judges to choose as their chief a judge who has already served eight years or more in that position. In any event, the DCA Conference opposes term limiting the service of chief judges in either the district or circuit courts. The aforementioned consultants' report acknowledged "Florida s tradition of allowing Circuits and Districts significant autonomy in the way they operate." See Consultants' Report, pp. 12, 13. Certainly, no practice is more central to the tradition of autonomy than the choice of a court's leader by the members of that court. Term limiting chief judgeships would be a sea change that would serve no purpose identified by the consultants, the Study Group, or this Court's February 9 opinion. To the contrary, term limits would arbitrarily restrict the flexibility of the courts' judges, who are in the best position to select their chiefs based on the unique circumstances of each court and variations in the managerial, administrative and leadership abilities of the potential candidates. The DCA Conference recognizes that, as a practical matter, imposing a term limit on service as a chief judge would have little immediate impact on the five district courts. In recent years, district court chiefs have not served beyond 8
their initial two-year terms. However, for many years one of the district courts reelected its chief to successive terms extending well beyond the eight-year limit imposed by the new rule. The judges of that court were uniquely situated to determine whether doing so was in their court's best interest. There is no good policy reason for restricting a similar determination by the judges of any court in the future. Extended service by chief judges is more common in the circuit courts. For obvious reasons, the district courts have a vital interest in the good governance of the circuits within their respective review jurisdictions. We note that the current circuit chiefs whose tenures have already exceeded eight years have been excellent choices by their constituent judges. They continue to make important leadership contributions to the branch as whole, in large part due to the knowledge and credibility they have gained by virtue of their long service. The DCA Conference would consider it a needless loss to the branch if these chiefs were disqualified from continued service by an arbitrary time limit. With that in mind, the DCA Conference endorses the opposition to this provision expressed in the comments of the Conference of Circuit Judges of Florida and the Circuit Chief Judges of Florida. 9
Removal Of Chief Judge By The Supreme Court Rule 2.210(a)(2)(F) Rule 2.210(a)(2) previously provided that a district court of appeal chief judge could be removed by a two-thirds vote of the active judges on the court. As amended on February 9, rule 2.210(a)(2)(F) provides, as well, that a chief judge may be removed by the supreme court: A chief judge may be removed as chief judge by the supreme court acting as the administrative supervisory body of all courts, or by a two-thirds vote of the active judges. This new language echoes a long-standing provision in the rule applicable to circuit court chief judges. Rule 2.215(c). Again, the DCA Conference notes that the supreme court's removal of a district court of appeal chief judge would run afoul of Article V, Section 2(c), which directs that the chief judge of a district court of appeal "shall be chosen by a majority of the judges thereof or, if there is no majority, by the chief justice." Permitting the supreme court to override the designation of a chief judge by a majority of the district court's judges would impinge on the latter's constitutional authority. (For that matter, it could be argued that restricting the ability of a district court's judges to remove and replace their chief judge by a simple majority vote also violates the constitution.) 10
This contravention of the district judges' authority cannot be justified under the supreme court's general powers as "administrative supervisory body of all the courts." The DCA Conference submits that the Court's general supervisory authority must yield to the more specific constitutional provision that vests in district court judges the power to choose their own chief judges. Authority of Chief Judge; Failure to Comply with Chief Judge's Directive as "Neglect of Duty" Rule 2.210(a)(2)(B), (C), (G) Prior to February 9, rule 2.210(a)(2) described the responsibility and authority of a district court of appeal chief judge as follows: The chief judge shall be the administrative officer of the court, responsible for the dispatch of its business, shall have the power to order consolidation of cases, and shall assign cases to the judges for the preparation of opinions, orders, or judgments. On February 9 this Court amended the rule to substantially expand and more specifically set forth the administrative duties and authority of district court chief judges, primarily in new paragraphs (B) and (C). In addition, new paragraph (G) provides: (G) The failure of any judge to comply with an order or directive of the chief judge shall be considered neglect of duty and may be reported by the chief judge to the chief justice of the supreme court who shall have the authority to take such corrective action as may be appropriate. The chief judge may report the neglect of duty by a judge to the Judicial Qualifications Commission or other appropriate person or body, or take such other corrective action as may be appropriate. 11
The DCA Conference submits that the foregoing is unnecessary, is incompatible with longstanding management practices in the district courts, and is potentially harmful to the collegiality that is necessary to their work. This amendment had its genesis in the consultants' report to the Study Group. The consultants observed that "[a]lthough the Rule assigns Circuit Chief Judges these responsibilities, several Chief Judges commented that the authority to carry out these responsibilities is not clear[.]" Signficantly, no mention was made of any such complaint by a district court chief judge. The reason certainly stems from some fundamental differences between trial and appellate courts. Trial courts are multifaceted, often geographically far-flung, organizations of unilateral decision makers, each possessing the full authority of his or her court. The variety and quantity of their casework require large professional staffs capable of performing many discrete and specialized functions. Moreover, trial courts do not employ their own clerks, and they often share their facilities with other local government entities. Coordinating the work of the entire apparatus and ensuring that it interfaces efficiently with circuit court clerks and other third-party participants demands a strong executive force. In contrast, appellate courts are collegial bodies. With few exceptions, appellate judges cannot rule unilaterally, but must work collectively in panels. The range of case types is small, requiring relatively few different staff 12
functions. Compared to those in the trial courts, appellate caseloads are small. As a result, an appellate court has far fewer judges, usually housed in a single location controlled by the court. Further, appellate courts appoint their own clerks, and otherwise they must coordinate their work with few, if any, third parties. All in all, managing an appellate court is a much simpler undertaking than that facing a circuit court chief. Given this, and given the collegial nature of appellate judges' work, it is not surprising that the management of district courts also tends to be collegial, with policy decisions made by consensus. To be sure, the chief judge performs important administrative functions, seeing to day-to-day issues, communicating on behalf of the court, identifying policy concerns and proposing responses. In practice, however, a district court chief's function is not to declare and impose policy; it is to tend, facilitate, and lead the policy making process of the group. This dichotomy between the strong executive power necessary for managing a complex organization and the less autocratic nature of effective appellate court management is exemplified in the rule setting forth the authority of the chief justice. Prior to its amendment on February 9, rule 2.205(2)(b) described the chief justice's administrative authority within the supreme court simply as follows: (B) The chief justice shall have the following administrative powers and duties. The chief justice shall: 13
(i) be the administrative officer of the court and shall be responsible for the dispatch of its business; (ii) have the power to act on requests for stays during the pendency of proceedings, to order the consolidation of cases, to determine all procedural motions and petitions relating to the time for filing and size of briefs and other papers provided for under the rules of this court, to advance or continue cases, and to rule on other procedural matters relating to any proceeding or process in the court[.] The balance of the rule was devoted to a much more extensive description of the chief justice's administrative authority over the entire branch, surely necessitated by the overwhelming complexity of that responsibility. The new version of rule 2.205 expands the duties and authority of the chief justice vis-à-vis the branch, but not as they relate to the supreme court itself. To the contrary, the amended rule arguably contracts the chief justice's authority over the court, in word if not in practice, by clarifying that he or she has the responsibility to "direct the implementation of policies and priorities as determined by the supreme court for the operation of the court." Rule 2.205(2)(B). This new language makes explicit the existing practice of the Court to devise internal policy as a group. Significantly, new rule 2.205 does not empower the chief justice to enforce directives by taking disciplinary action against his or her colleagues. Certainly, such a provision would be incompatible with the group governance 14
practiced by the Court, and it could undermine the collegial atmosphere that is so critical to the Court's work. The DCA Conference submits that the same is true of district courts of appeal. Moreover, the enforcement rule as written poses a danger to collegiality because it is overbroad and vague. The rule would place at risk a judge who fails to comply with any order or directive of the chief judge. As such, the rule is a prescription for arbitrariness and discord. If this provision is to remain in the rules at all, it should be expressly limited to orders or directives made in accordance with the specific authority conferred by rule 2.210. 15
CONCLUSION For the reasons described above, the DCA Conference respectfully requests this Court to reconsider and rescind the February 9 amendments to the Rules of Judicial Administration that (1) restrict communications with the other branches (Rule 2.205(a)(1)(B)); (2) impose term limits on chief judges (Rules 2.215(a)(2)(F) and 2.215(c)); (3) provide for the removal of a district court of appeal chief judge by the supreme court (Rule 2.210(a)(2)(F)); and (4) expand the authority of a district court of appeal chief judge and provide for enforcement of a chief judge's orders by disciplinary action to punish a "neglect of duty" (Rule 2.210(a)(2)(B), (C), (G)). Respectfully submitted, Stevan T. Northcutt, President Florida Conference of District Court of Appeal Judges 1700 N. Tampa Street, Suite 300 Tampa, Florida 33602 Telephone: (813) 272-8608 E-Mail: northcus@flcourts.org Florida Bar No. 262714 16
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Comment was furnished by electronic mail or U.S. mail to: Executive Committee of the Florida Conference of District Court of Appeal Judges; All District Court of Appeal Chief Judges; John F. Harkness, Jr., Executive Director, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-6584; the Honorable Ronald N. Ficarrotta, Chair, Conference of Circuit Judges of Florida, 401 North Jefferson Street, Room 122, Tampa, Florida 33602; the Honorable Louis Schiff, President, Conference of County Court Judges of Florida, 1600 West Hillsboro Boulevard, Deerfield Beach, Florida 33442; the Honorable Kimberly Carlton Bonner, President-elect, Conference of County Court Judges of Florida, 2002 Ringling Boulevard, Sarasota, Florida 34237; Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401-6161; and to Keith H. Park, Chair, Florida Rules of Judicial Administration Committee, Post Office Box 3563, West Palm Beach, Florida 33402-3563, on April 4, 2012. Stevan T. Northcutt, President Florida Conference of District Court of Appeal Judges 17