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FLORIDA'S SUPREME COURT: 
New Poster Child for Judicial Activism 
12-12-00

As I write this Update, the U. S. Supreme Court (for brevity's sake, referred to below as the "USSC") is hearing oral arguments on the second appeal in ten days from a decision of the Florida Supreme Court (referred to below as the "FSC"). Whatever the USSC decides, however, the FSC's two decisions have ripped away the legal elite's carefully constructed mask of "judicial independence" and have exposed Americans to an unprecedented view of raw judicial activism. Judicial activism can occur at any stage in the judiciary's handling of a case, and the FSC provides us with textbook examples of activism at all three stages in its disposition of the Florida presidential election disputes. Just a few examples of judicial activism are cited below.


  1. The "Gatekeeping Stage"--This is the point at which top appellate courts determine whether or not they will hear a case petitioned to them, i.e., whether they will "open their gates" to a particular case. There is a valid question as to whether the FSC has any power to hear presidential election cases. Indeed, Florida Chief Justice Wells in his stinging dissent in the Court's second decision said that at best "there is uncertainty as to whether the Florida Legislature has even given the courts of Florida any power to resolve contests or controversies in respect to presidential elections." And a Legislative grant of such power is necessary because under "common law, there was no right to contest in court any public election, because such a contest is political in nature and therefore outside the judicial power." Chief Justice Wells' contention is reinforced by the fact that Article II of the U. S. Constitution accords state legislatures the power to appoint presidential electors "in such Manner as [the legislatures] may direct." A court which assumes jurisdiction where it has none is, by definition an activist court.


  2. The "Processing Stage"--In this phase of judicial activity, a court hears and deliberates upon cases and issues to which it has "opened its gates." The FSC provides innumerable examples of judicial activism in its processing of the two presidential election cases. For example, as asserted by FSC Justice Harding in his dissent in the second FSC case, "at the trial stage, the [Democratic appellants in the second case] failed to carry their requisite burden of proof and thus are not entitled to relief." FSC should have affirmed this finding.

    The FSC's use of precedents (prior court decisions in similar cases) is highly questionable. For example, in its first decision, the Court quoted from an Indiana case upholding the practice of ballot recounts. But the current Florida situation is fundamentally different from the Indiana situation.

    Furthermore, the Court quoted approvingly from the Illinois Supreme Court case of Pullen v. Mulligan. The Gore legal eagles cited this case and a related affidavit by an Illinois attorney as an Illinois judicial directive to count "dimpled chads" in manual recounts. The attorney retracted the affidavit, but Gore attorneys never forwarded the retraction to the Florida lower courts. The FSC ignored this fact and also the fact that in the Illinois case the dented ballots were not counted. [Note: A complaint about this irregular activity by Gore lawyers David Boies and Mitchell W. Berger has been filed with the Florida Bar.]

    Additionally, in the first FSC opinion, the Court notes the grounds clearly specified by Secretary of State Katharine Harris as justifying her refusal to accept late ballots. Her justifications were based upon, among other factors, five previous decisions of the Florida courts. The FSC, however, failed to explain why her reasons were inadequate to justify her decision.

    The FSC's handling of Florida statutory law is similarly reprehensible. For example, the Court held that two provisions in Florida law concerning the timing of vote challenges were conflicting--despite the fact that there was a reasonable way of interpreting the provisions to be consistent with each other. This violates a centuries-old standard of documentary interpretation. The Court also rewrote Florida statutory law which allows for a countywide manual vote recount when there is an "error in vote tabulation." The Court redefined "vote tabulation" to include "voter carelessness" (i.e., the claim of a number of Democrat voters that they didn't understand how to mark the now infamous "butterfly ballot). And the Court repeatedly referred to the ultimate goal of Florida law as being to determine "the will of the people" when that intent "can be ascertained with reasonable certainty from his ballot." This is precisely a central point in the Florida cases--that the circumstances developing over the weeks since the November 7th election make every subsequent recount even less reliable than the previous one. The increasing impossibility of obtaining reliable recounts is noted by Justice Harding who speaks of the "chaotic conditions" of additional recounts and the elevation of speed over accuracy in such recounts.

    Finally, the FSC did not adequately defend itself against the very persuasive argument that the Florida Fiasco flagrantly violates the U. S. Constitution's guarantees of due process and freedom of [political] expression, the Constitution's Article II provisions cited above, and federal statutory law regarding state appointment of presidential electors (3 U.S.C. § 5). Indeed, the USSC vacated and remanded the Florida Supremes' first decision because it was too "ambiguous and obscure" to be reviewed by the federal High Court.

    Florida Chief Justice Wells in the second FSC decision aptly summed up the problems with the FSC's processing of both its cases when he asserted that the majority's decision "has no foundation in the law of Florida." Such a decision is clearly judicial activism.


  3. The Remedies Stage--At this final point in the judicial process, a court sets forth the remedies for the law violations which it has found to exist. The remedies fashioned by the two FSC decisions are as troubling as its other rulings and reasonings. In its first decision, the FSC's remedy was to extend the deadline for votes to be filed with the state to November 26 (beyond the statutory deadline). Why November 26? Apparently because the seven FSC justices in that case determined for subjective, unexplained reasons that such remedy was appropriate and valid. But in the second case, extension to November 26 is no is no longer an adequate remedy in the FSC's mind because the 4-person majority writing on December 8 ordered manual recounts to continue. The FSC thus first arbitrarily created a remedy and then arbitrarily replaced it with another remedy requested by the Gore campaign.

    Additionally, Chief Justice Wells in the second case asserts that the majority's remedy of Florida judges' creating vote-counting standards lacks authority under the U. S. Constitution and, "creates an overflowing basket of practical problems." Both he and Justice Harding contend that neither existing law nor practical circumstances make possible any adequate judicial remedy for the state's election problems. As Harding says, "Fairness is achieved by following the rules [not creating new ones after the fact] (emphases added). Any court which commits the errors in exercising its remedial powers as has the FSC is clearly engaging in judicial activism.

In summary, the dangers created by the judicial activism that has run rampant through the halls of the Florida Supreme Court are perhaps best summarized by Chief Justice Wells. He worries that "the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. . . . there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this Court as an institution." Advocates of judicial restraint in America may hope and pray that America in the future will heed the Chief Justice's warning and steer both state and federal courts onto the safe path of judicial restraint.


 
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