A is Used to Determine Whether to Allow Judges to Continue to Serve
Amendment would allow judges to serve until age 75
CRC proposal mandating 10 years of legal experience to be a circuit judge fails
A constitutional amendment to raise the mandatory retirement age for judges to 75 has taken a giant step forward in the Constitution Revision Commission, but a second proposal to require 10 years of legal experience before becoming a circuit judge was defeated.
The commission last month went through the 36 proposed amendments that had survived committee review and sent 25 of them to its Style and Drafting Committee for further refinement into final amendments and accompanying ballot language. They will then go back to the full CRC for final action.
The judicial retirement and experience amendments were considered March 19, the first day of the full commission's consideration of 36 proposals that survived review by the CRC's various committees. The body met in the Senate Chambers in the Capitol building in Tallahassee.
Proposal 41, submitted by Commissioner and former Bar President Bill Schifino, raises the age of what has been referred to as "constitutional senility" for judges from 70 to 75. But it also makes the jurist's 75th birthday a hard retirement deadline. The current restriction allows judges who have completed more than half their term on reaching the age of 70 to complete those terms.
The Florida Bar supports the amendment.
"What clients want to see, they want judges with experience, with quality, who apply the law, and stay within their lanes. I also want a judge who has been on the bench a while," Schifino said. "We have many, many fine judges who have been forced to resign at the age of 70; many fine judges who could continue to serve our citizens."
He said when the retirement age was set at 70 in 1972, the average life expectancy was 69.2. It's now 80.
"No other branch of government has a mandatory retirement age," Schifino said. "Let's maintain and keep the best and brightest on the bench and make sure we have a quality judiciary."
Commissioner Chris Smith, a former state senator, asked how many judges would be affected by raising the retirement age and whether it would slow diversity efforts.
Schifino replied that only around 70 judges would be affected and noted the Bar's and others entities' efforts to increase judicial diversity.
"I can assure you not only does The Florida Bar work very hard on this, [the Bar also] works very closely with the Governor's Office to make sure we have a diverse bench," he added. "At the end of the day, I don't believe we're going to do anything that would stifle diversity on the bench."
Schifino also said setting the 75th birthday as the "hard" retirement date would avoid the problem facing the Florida Supreme Court next year when three justices are being forced to retire on the same day. (The three retiring justices would not be affected by the amendment, which has an effective date of July 1, 2019.) District courts of appeal have also faced several simultaneous retirements, he noted.
The change earned the endorsement of Commissioner John Stemberger, who said, "Judges, like common law, are like a fine wine. You want to keep it steady and you don't want to shake it up."
The full CRC voted 30-3 to send the proposal to the Style and Drafting Committee, which will prepare final language for the amendment and ballot language summarizing the amendment for voters. Getting 30 votes is significant — after the Style and Drafting Committee review it will take 22 votes on the 37-member commission to send the final product to the November general election ballot.
Years of Experience
Schifino had less luck with Proposal 47. As originally drafted, it required 10 years of legal experience before a lawyer could become a trial court judge. He successfully amended it on the floor to make the 10-year requirement apply only to circuit judges and not county judges. Lawyers could have originally started their career in another state, but they would have had to be members of The Florida Bar for the five years prior to becoming a judge.
Schifino and Commissioner Hank Coxe, also a former Bar president, said since circuit judges sit on death penalty cases, decide custody of children, preside over foreclosures, and other important issues, they should have more experience before going on the bench.
Commissioner Chris Sprowls, a member of the House of Representatives and in line to become speaker if the Republicans hold their majority, noted he's been a member of the Bar for nine years — the same number as Thomas Jefferson when he wrote the Declaration of Independence. He also said former U.S. Supreme Court Justice Thurgood Marshall won his first groundbreaking civil rights case before his 10th year as a lawyer.
"More comes with experience than with age and this proposal by Commissioner Schifino doesn't account for that," he said.
But Commissioner Don Gaetz, a former Senate president, noted he was recently involved in litigation over a construction case.
"My lawyer told me, 'Thank goodness we have judge so and so. He's been a lawyer for a long time and has been a judge for a long time and understands the nuances of construction law," he said. "Not everyone is Thomas Jefferson, not everyone is Commissioner Sprowls. . . but as a general rule experience matters, experience gives depth."
Commissioner Tim Cerio, like several CRC members, served several years on a judicial nominating commission and said sometimes younger attorneys were more impressive than attorneys with more than 10-years' experience.
Coxe disagreed, "To me, the most critical issue is when the citizens of this state see a decision is made that affects them, they believe it was made by someone who has the wisdom to make that decision."
Schifino noted the five-year requirement for circuit judges dated to 1966 and the requirement for county judges (except in counties with a population less than 40,000) was set in 1984.
But in the end, the CRC rejected Proposal 47 by a 12-21 vote.
Source: https://www.floridabar.org/the-florida-bar-news/amendment-would-allow-judges-to-serve-until-age-75/
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