November 15, 2001 Managing Editor Regular News Preparing for the upcoming session Preparing for the upcoming session Mark D. Killian Managing Editor Florida lawyers must come to terms with what’s motivating the legislative challenges to the legal system in order to preserve the integrity of the profession and the independence of the judiciary, according to Bar President Terry Russell. “We need to understand better what is thought to be so threatening about the third branch of government — why the long-established concept of the separation of powers is no longer, in the minds of many members of the legislature, something to be protected and preserved as one of the cornerstones of our democracy,” Russell told those attending the Bar’s October 23 legislative summit in Tallahassee. A number of lawyer-legislators from both parties also told the assembled Bar leaders that they must work with lawmakers — not against them — and that the interest of the profession is best served by the Bar acting as an information resource to help legislators better understand the issues important to lawyers. The legislators also said the events of September 11 have drastically altered the agendas of both parties, and budget cuts, security issues, and redistricting will be at center stage this year. Rep. Dudley Goodlette, R-Naples, said there are going to be a number of “difficult issues” for lawyers to deal with in the upcoming regular session, including HJR 1, a proposed constitutional amendment that would dramatically limit the authority of Florida’s courts and give the legislature more authority over court procedures. Filed by Rep. Bruce Kyle, R-Ft. Myers, HJR 1 is similar but less drastic than a bill introduced in the 2001 session [HJR 627] that sought to do away with The Florida Bar and give the legislature at least some oversight of the legal profession. But the bill does seek to restrict the jurisdiction of Florida courts, limit the use of habeas corpus and other writs, and give the legislature greater say in court procedural matters. Kyle, a lawyer, said he filed the bill because he’s concerned the courts have stepped beyond deciding legal disputes into the policy-making arena, which is the domain of the legislature. “What I see is a need for The Florida Bar and the sections of the Bar to be proactive and be a resource to the legislative process to help legislators understand some of these sensitive separation of power and independence of the judiciary issues,” Goodlette told the summit attendees. He added that this must be done not in a “pejorative way, but in a thoughtful, careful way of helping people understand — from the Federalist Papers forward –— the need for an independent judiciary.” Rep. Jeff Kottkamp, R-Cape Coral, also warned that the Bar is “never safe,” and it is up to lawyers to help educate legislators on the issues important to the legal system. “There are always going to be efforts out there to wrestle control of the profession away from the [Supreme Court], and that should be at the top of your agenda every single year,” Kottkamp said. “A lot of lawmakers have very little understanding of the profession, and they don’t understand the great job that the Bar does.” Steve Metz, the Bar’s chief legislative counsel, said last year represented an “unprecedented attack” on the independence of the profession, and what is driving the attention on the Supreme Court is a “very strong difference of opinion between the legislature and the Supreme Court over where is that line between legislating and interpreting the law.” While many of the issues the Bar faced last year won’t be on the front burner this year, Metz said, “they are always there as a threat.” “We are not dealing with any strong public sentiment for change in the separation of powers doctrine, the fundamental legal system and the independence of the judiciary or in the unified bar,” Russell said. “What we are dealing with is a special interest fight.” Fred Dudley, a former senator who was at the summit representing the Family Law Section, said he often hears lawyers couch the issues facing the profession as “us versus them” and lawyers too often tell lawmakers what they can and can’t do. “I have never heard a lobbyist say to a legislator, ‘You can’t do that’ and win,” Dudley said. “It is a bad thing to say that to a legislator.” Metz said that’s one of the reasons the Board of Governors has taken a more conciliatory and deliberative approach to HJR 1, saying, “it is almost as important on how you address an issue as the issue itself.” “Last year, HJR 627 had so many barbs aimed right at the Bar that we never got around to. . . sitting cooperatively with the legislators and talking about what their legitimate problems with Article V were,” Metz said. When you can do that, Metz said, often legitimate issues can be addressed and solutions agreed upon. “Unfortunately, last year, because of all the anti-Bar stuff, we never got to that kind of intellectual discussion,” Metz said. “We need to come to the table in a more deliberative, scholarly way.” That’s why this year the Bar is engaging a number of prominent constitutional scholars to research the issues involved in HJR 1, to present constructive information to the legislature. “Hopefully we will have a new tone,” Metz said. Rep. Jack Seiler, D-Ft. Lauderdale, said the Bar must also work to educate its own members on the issues of the day and get them involved in the process. Too often, Seiler said, many of his colleagues at the courthouse are unaware of the issues being addressed in Tallahassee that will directly impact their practices. “The separation of powers, the constitution, the independence of the judiciary are not partisan,” Seiler said. “If anything, they are bi-partisan, and we have got to focus on that. Just get involved in the process” President-elect Tod Aronovitz said it is up to the Board of Governors and the leaders of the state’s voluntary bar associations to mobilize the state lawyers. “If we can’t do that, I am concerned about the future,” Aronovitz said. September 11 Sen. Locke Burt, R-Ormond Beach, told the Bar leaders every session is different, and the upcoming session will be different from all those that have gone before. “The events of September 11 changed a lot of people’s agenda on a lot of things,” said Burt, chair of the Senate Judiciary Committee. “Public safety issues have gone to the top of the stack. It is going to be difficult, if not impossible, I think, to talk about anything else.” Rep. Dan Gelber, D-Miami Beach, agreed and said the security issues the legislature plans to address are critical to lawyers. “What powers are given to the government, what powers are given to law enforcement, those questions are going to be very important for the Bar to watch and, when necessary, talk about what a reasoned response is,” Gelber said. “The enemy to this whole process is an overreaction or an overreaching. And while all this is going on, there are still going to be extraordinary writs and cases in controversy issues that are going on. And, let’s face it, people are not going to go to the streets because someone is taking away their extraordinary writs power.” Jesse Diner, chair-elect of the Bar’s Legislation Committee, said lawyers must be concerned about legislation that may abridge constitutional rights in the name of the war on terrorism. “While we need to be concerned about security in this country, we cannot forget about the fundamental rights upon which this country is founded,” Diner said. “Lawyers in this system are the guardians of that. We need to be cognizant about that and where necessary – even in unpopular situations – we need to stand up and speak about what is right.” Russell said while there will be well-intended legislative efforts to increase police powers to combat the terrorist threat, it is up to lawyers “to make sure those energies are channeled in ways that are consistent with our constitutional rights and our civil liberties and are not compromised to the extent that they are ultimately harmful to the core values of our society.” Senate Judiciary Burt also said only two bills have thus far been referred to the Judiciary Committee, one concerning parental kidnaping and SJR 162. That latter measure would place a constitutional amendment on the ballot that would replace the merit-based judicial nominating commission system of screening appellate judges and Supreme Court applicants with gubernatorial appointments. The bill, filed by Sen. Anna Cowin, R-Leesburg, would also require that JNC deliberations be done in public and abolish the mandatory retirement age for judges and justices. Burt said it would also limit justices and district court of appeal judges to six-year terms, further subject to gubernatorial-Senate reappointment, and with a maximum service of no more than 18 consecutive years. Sen. Buddy Dyer, D-Orlando, said most partisanship has been put aside since September 11, especially concerning issues responding to the terrorist threats and budget cuts. “That being said, I can assure you that as we get into the legislative session and redistricting rears its head, there will probably be much partisanship,” Dyer said. “The understanding, at least among many of us, was when the JNC bill passed last year there was not going to be any further attack on the judiciary or The Florida Bar during the remainder of this two-year cycle,” Dyer said. “So if the folks who made that agreement live up to that agreement, then maybe you will have an easy session, but I would be ever vigilant.” Gelber also implored the Bar to “keep in our faces as much as you can, because we need to understand the issues that have a history well beyond what our term-limited legislature has been following.” Rep. Chris Smith, D-Ft. Lauderdale, also urged lawyers to make personal contacts with their representatives.