Thursday, October 18, 2018

Voting on the judicial merit retentions

Early Voting in Collier County
October 25 - November 3
All Florida voters have the opportunity to vote for or against the retention of one Florida Supreme Court justice, and Collier County voters will vote on the retention of four judges of the 14-county Second District Court of Appeal this year. This type of vote is called a merit retention vote.

In this post, I’ll explain what a merit retention vote is, provide some information about the justice/judges who are on our ballot and how to learn more, and how I plan to vote.

What is a merit retention vote?

In Florida, State Supreme Court and District Courts of Appeal judges are appointed by the governor. But as explained by the Florida Bar:
Newly appointed justices and appeals court judges serve an initial term of at least one year and are then subject to the first merit retention reviews of their performances in the next general election. [Thereafter, they] face the voters in merit retention elections every six years.

Only those judges receiving approval from a majority of the voters in the general election may continue in office for another six-year term. If voters choose not to retain a judge, a vacancy would be created and would be filled through the merit selection process, in which the governor would appoint one from three to six nominees submitted by a judicial nominating commission. Terms are staggered so that not all of the appellate judges face the voters in the same election.

How can we make informed decisions, and who is on the ballot?

Many say that the lawyers who present their clients’ cases to the justices and judges on a daily basis are probably in the best position to know if they should be retained. So every two years, the Florida Bar Association asks its in-state members to rate those up for retention of whom they have direct knowledge. The Florida Bar’s press release announcing the 2018 merit retention poll results is here.

The names of the justice and judges on our ballot, the percent of Florida Bar poll votes in support of their retention, and when and by whom they were appointed to their current position are below. Candidates’ bios are on the Florida Bar website here.

Supreme Court justice:
  • Alan Lawson (87 percent) - appointed by Republican Gov. Rick Scott in 2016
Second District Appeal Court judges
  • Anthony K. Black (90 percent) - appointed by Republican Gov. Charlie Crist in 2010
  • Darryl C. Casanueva (90 percent) - appointed by Democrat Gov. Lawton Chiles in 1998
  • Edward C. LaRose (90 percent) - appointed by Republican Gov. Jeb Bush in 2005
  • Susan H. Rothstein-Youakim (86 percent) - appointed by Republican Gov. Rick Scott in 2016

Based on those results, I see no reason to oppose retention of any of them.

In addition to reviewing the Bar poll results, I did a Google search on each of the candidates. I found only references of note related to Justice Lawson, facing his first merit retention vote, and Judge LaRose, who has been in his current position since 2005. 

Re: Justice Alan Lawson
  • At the time of his appointment, the Miami-Herald wrote that Scott “chose a conservative appellate judge” to leave his “mark on a moderate court that has been responsible for some of the sharpest defeats of his political career.” Lawson replaced a “liberal jurist” who had reached the mandatory retirement age of 70.
  • “Since his appointment," according to Florida Today, "Lawson has become known for his narrow view of the highest court's jurisdiction, meaning it has taken fewer cases. That allowed the rulings of lower courts to stand. He was the only dissenter in a Court of Appeal 2012 decision that allowed a child to have two legally recognized mothers. He wrote that the court's decision was akin to striking down laws prohibiting same-sex marriage, bigamy, polygamy and incest.” See also Ballotpedia and Orlando Weekly.

Re: Judge Edward LaRose

  • “Judge LaRose has been a supporter of collaborative practice as a private, more humane way to go through divorce and other family law matters… In discussions with Judge LaRose, I have learned that he believes most families should try to resolve issues related to divorce outside of court, and that they should only resort to a judge imposed decision as a last resort.” Family Diplomacy: A Collaborative Law Firm, 7/25/17.

Click Here
According to a no-longer-available article in the Palm Beach Post I cited in a 2016 post, “No judge has ever been denied another six-year term since the system was implemented in 1976 after three elected justices were investigated, and two resigned, when an investigation found they allowed political cronies to influence their decision. Occasionally - most recently in 2012 when tea party activists targeted three high court justices - opposition has surfaced.” My research did not reveal any that occurred since then. 

For more information about Florida’s judicial merit retention process, including a Guide for Florida Voters: Answers to Your Questions about Florida Judges, Judicial Elections and Merit Retention and other voter resources, visit The Vote’s In Your Court. 


How I will vote

Despite the controversy and ill-will stirred up by the confirmation hearings of Judge (now Justice) Kavanaugh, merit retention should not be based on partisan ideology or disagreement with particular opinions. In Florida, the Governor appoints appellate justices/judges, and elections matter. Merit retention allows voters to consider whether the justices are ethical, impartial and qualified and should remain on the bench. Tampa Bay Times editorial, 10/11/18

In view of the strong support shown in the Bar’s merit retention poll, I will VOTE YES for the retention of Supreme Court Justice Lawson and the four Second District Appeals Court judges on my ballot.