With just over three weeks until the Nov. 6 elections, one set of races attracting much state and even national attention is the merit-retention contests of three sitting Florida Supreme Court justices: Barbara Pariente, R. Fred Lewis, and Peggy Quince.
The three are accused by the Republican Party of Florida, and the nonprofits Restore Justice 2012 and Americans for Prosperity, of being left-wing activists. The justices and their supporters (the Florida legal establishment and police and fire unions) insist these accusations are baseless, and are rooted in partisan resentment at the fact that these justices have frequently issued rulings that have thwarted the realization of conservative causes.
To better assist readers in making up their own minds, Sunshine State News is today launching an exclusive series, examining these justices most controversial rulings. The News is not in the business of endorsing candidates or ballot measures, so readers can decide for themselves if Pariente, Lewis, and Quince are worth retaining.
(For the last several weeks Sunshine State News has reached out to the three justices [who are traveling around the state to sit down with newspaper editorial boards] to interview for this series. In September, we were notified by a representative of their joint campaign that they are specifically refusing to interview with the News, which is Floridas only center-right news source.)
First, a clarification of terms: It is common for United States and state Supreme Court justices to be characterized as either conservative or activist. Legal scholars usually prefer to refer to the former as originalists.
A conservative or originalist judge is one who rules according to the original public meaning of the relevant constitutional or statutory law that governs the case before him; he does not consider whether he believes that governing law, or the statute whose constitutionality is disputed, is moral or immoral, prudent or imprudent, up to date or in need of amendment. Prudence and morality are for the voters or the Legislature to consider; the duty of a judge is simply to apply the law as it really exists, without imposing on those laws meanings that they were never publicly intended to have.
Activist judges, according to the authoritative Blacks Law Dictionary, are those who allow their personal views about public policy, among other factors, to guide their decisions. An activist judge will seldom come right out and say that he is judging based on the basis of his personal political views, but an activist motive can be inferred from a fair reading of judicial opinions, seeing whether a judge is applying the law according to its original public meaning, or whether he is deriving novel interpretations in order to achieve a desired result.
Are Justices Pariente, Lewis, and Quince activists who legislate according to their personal moral convictions, or are they fair jurists who decide cases according to what the law is, whether the result is liberal or conservative?
One instructive case is Bush v. Holmes, which was decided by the Florida Supreme Court in 2006. This is the famous ruling that abolished the private school voucher system that had been in effect from 1999 through the conclusion of the 2005/2006 school years.
In 1999, the Florida Legislature followed the lead of then-Gov. Jeb Bush in establishing the Florida Opportunity Scholarship Program, which provided K-12 students from low-performing public schools an opportunity to either transfer to a higher-performing school, or to receive a subsidy from the state (called a voucher) to attend a participating private secular or religious school.
A leftist coalition of union members and ideological secularists immediately filed a lawsuit in state district court, claiming that the vouchers violated the religious establishment clauses of the United States and Florida Constitution and the education clause of the Florida Constitution.
In 2002, the U.S. Supreme Court upheld the federal constitutionality of an Ohio voucher program, which took the coalitions federal establishment clause argument off the table. The coalition still insisted that Floridas establishment clause was being violated, at least insofar as vouchers were being given to students to attend religious schools, because the state Constitution explicitly provides that [n]o revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.
The Florida Supreme Court finally took up the case in 2006. In an opinion authored by Justice Pariente, the court decided it was not going to consider the question of whether the vouchers violated the states establishment clause. Instead, the court struck down vouchers for all private schools based on a new interpretation of the education clause of Article IX, Section 1 of the Florida Constitution, which reads, in part:
The education of children is a fundamental value of the people of the state of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.
Four other justices, including Lewis and Quince, joined Pariente in interpreting this section to mean that public schools were the exclusive means the Legislature had at its disposal in order to provide for the education of the states children.
But is that really what the text of the Constitution says? Two justices, Kenneth B. Bell and Raoul G. Cantero, didnt think so. Bell authored a dissent, which Cantero joined.
To understand why these two justices dissented from the courts opinion, it is important to keep in mind the fundamental difference between the U.S. Constitution and each states own constitution. The U.S. Constitution is (at least in theory) a granting of power to the federal government, which means the federal government only has those powers explicitly (or, some would argue, implicitly) enumerated in that document. State constitutions are fundamentally different: In the American constitutional system, state governments have what is called inherent authority to do whatever is necessary to provide for the welfare of their citizens, except to the extent that power is limited by the U.S. Constitution or a states own constitution.
As Justice Bell pointed out in his dissent, citing previous case law, practically speaking this means that [w]hen a legislative enactment is challenged the court should be liberal in its interpretation; every doubt should be resolved in favor of the constitutionality of the law, and the law should not be held invalid unless clearly unconstitutional beyond a reasonable doubt.
In her ruling, Pariente herself conceded this principle; or, as critics might suggest, she gave mere lip-service to it.
In addition to citing what he said was the plain language of the states education clause, which contains no explicit ban on state funding for private schools, Bell devoted a section of his dissent (titled The History of Article IX: Discerning the Voters and Drafters Intent) to citing several pieces of evidence that there is no ... historical support for[the five justices] reading of Article IX, Section 1 as a prohibition on the Legislatures authority to provide any public funds to private schools.
Readers can examine the ruling, and Bells dissent, for themselves, and determine whether Democrat-appointed Justices Pariente, Lewis, and Quince interpreted the law faithfully or whether this ruling was an exercise in left-wing activism.
In the interests of fairness, two more facts are worth nothing about this case: Justice Quince was actually a 1999 joint-appointee of outgoing Democratic governor Lawton Chiles and incoming governor Jeb Bush, the very author of the voucher program she joined in striking down. Second, one of the five justices who found it unconstitutional was also one of the courts most conservative: Chiles-appointee Charles T. Wells.
Reach Eric Giunta at egiunta@sunshinestatenews.com or at 954-235-9116.
