Our Merit Retention Decisions (Part 2)

As I wrote last time, The Florida Bar’s member poll supported retention of the three Second District Court of Appeal (DCA) judges who will be on Collier voters’ ballots in November. Specifically, they support retention of:

  • Chris W. Altenbernd by 95 percent.
  • Morris Silberman by 94 percent.
  • Daniel H. Sleet by 91 percent.
While Googling Judges Silberman and Sleet turned up nothing of note, I learned that Judge Altenbernd wrote the minority dissenting opinion when the majority of the Second DCA asked the Florida Supreme Court last month to rule on the constitutionality of Florida’s same-sex marriage ban. I wanted to know more about this so I could decide if it was relevant to my voting decision.
Here’s what I learned from “Gay Marriage Case Sent to Florida Supreme Court,” by Dara Kam, News Service of Florida, 8/28/14:
The [Second DCA’s] request … puts the Florida Supreme Court in the position of deciding whether to take up the issue after five recent state and federal court decisions found that the voter-approved prohibition against same-sex marriage is unconstitutional.
The appeals court made the request in a 10-3 ruling in a case involving the divorce of Mariama Monique Changamire Shaw and Keiba Lynn Shaw, a lesbian couple married in Massachusetts in 2010. Hillsborough County Circuit Judge Laurel Lee refused to grant the couple a divorce because state law bans same-sex marriages.
The couple appealed Lee’s ruling and asked the 2nd District Court of Appeal to “pass through” the case to the Supreme Court. A panel of the appellate court originally refused but, in an unusual twist, the full court revisited the case, resulting in Wednesday’s ruling….
In it’s opinion, the majority of the Second DCA judges decided to “pass through” the matter to the Florida Supreme Court because “the issues pending are of great public importance and will have a great effect on the proper administration of justice throughout the state.”
Judge Altenbernd, joined by two other judges, neither of whom is up for merit retention this year, dissented, writing that:
Under article V, section 3(b)(5) of the Florida Constitution, the supreme court’s jurisdiction to accept cases passed through from the district courts without a disposition is restricted to a very limited group of cases. The judges of this court must certify that such a case requires “immediate” resolution and that the “order” on appeal presents issues of “great public importance” or is an order that will have “a great effect on the proper administration of justice throughout the state…. Although this case is of importance to these parties, I cannot agree that this case is a proper subject for pass through….
It is important to understand that the issue in this case is not whether Florida is constitutionally compelled to marry same-sex couples…. [T]he narrow, dispositive issue in this case is whether Florida … must give credit to these lawful out-of-state marriages for the purpose of dissolution. Given that same-sex marriages are a recent development in other states, I am not convinced that Florida’s courts will be clogged in the next three years with out-of-state same-sex couples seeking dissolution. I cannot certify that this order will have “a great effect on the proper administration of justice throughout the state” requiring immediate review in the supreme court.
In addition, Altenbernd argued:
… this issue does not seem to me to be one that this court cannot handle on appeal or that we should present to the supreme court as a matter ready for immediate resolution…. I am confident that this court can ably consider this appeal and reach a proper resolution. Our decision will resolve the issue for all trial courts in Florida unless another district court disagrees with us…. This issue, unlike the constitutionality of the ban on same sex marriage, may never require the attention of the supreme court….
The Supreme Court subsequently refused to hear the case, siding with Altenbernd and his minority and no doubt disappointing gay right advocates, who (according to the Kam article) hoped the Supreme Court would take up the case and “send a signal to other appellate courts to also expedite their cases.”
Should Altenbernd’s dissent in this case affect my vote on his merit retention, given that I’m a supporter of same-sex marriage and would have perferred the Supreme Court to have taken the case? After discussion at length with a close friend whose opinion I value greatly, I’ve concluded that it should not.
For one thing, said my friend, all Altenbernd was saying was that as a practical matter the case did not meet the Consitutional requirements for the “pass through” as it was not a matter of “great public importance” or one that will have “a great effect on the proper administration of justice throughout the state.”
Further, as Altenbernd pointed out in his dissent, no court had yet considered the constitutional arguments or made an express constitutional ruling about the legality of a Florida divorce for an out-of-state, same-sex marriage. A lower court (“This court”) should first hear those arguments and rule on the case.
And importantly, my friend said, judicial elections are nonpartisan for a reason: voters should be looking for people who will impartially interpret the law. Their personal views on social issues are beside the point.
I’ve decided my friend is right … although to his last point, I don’t think that’s how the world works anymore.
I’m not a lawyer, but after reading the majority opinion and Altenbernd’s dissent, I think Altenbernd made a good case. So did all seven members of the Supreme Court, who unanimously declined to hear the case “for the reasons set forth in Judge Altenbernd’s dissent” and sent the case back to the Second DCA “for further proceedings.”
So after all that, I’ve concluded that Judge Altenbernd’s dissenting opinion in the case is NOT relevant to my decision on his merit retention.
I will vote FOR the retention of Judges Altenbernd, Silberman and Sleet on November 4.

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