Florida Legislation Proposal Regarding Public Officers and Judges

By Bob Hurt, Friday, November 27, 2009

Overview

Problem

The people of Florida do not get reliable justice in the courts or when dealing with government in and of Florida. Florida seems to ignore the axiom that "the FOX shall NOT watch the henhouse," The people have no practical way of removing bad jurists, of bringing bad jurists to justice, of making bad jurists pay for injuring the people whose rights they have the responsibility of protecting, or even of knowing the identities of bad jurists

Data

The Supreme Court ruled that by swearing the public officers oath in Article II Section 5(b) ("II.5.b") of the Florida Constitution judges and justices had complied with statute. They ruled wrongly and the legislature must straighten them out. In reality F.S. 105.031 requires judicial candidates to swear the 876.05 candidate's loyalty oath and attest to having read the Judicial Code of Conduct. That constitutes a PREREQUISITE to candidacy for election or appointment, and therefore a qualification for holding office. Unfortunately, because of confusion in expression of the law, no judicial nominees ever swear the candidate's oath - government lawyers believe nominees don't fit the definition of candidates. Furthermore, the II.5.b oath contains the words "and Government" which makes public officers split their loyalties between the Constitution and Government (for they cannot serve both at the same time), and those words do not appear in the US Constitution Article VI oath, or the 4 USC 101&102 oath, or the F.S. 876.05 public employee/candidate loyalty oath. No law punishes violation of the oath by jurists. And, judges escape the requirement to have a bond because the legislature has the option of requiring it. Thus jurists cannot be "bound" to obey the oath as the US Constitution prescribes in Article VI Clause 3.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The people can obtain good and loyal performance of public officers ONLY under ALL of the following requirements by public officers:

1. They swear loyalty only to the constitution, and not to the government, without mental reservation or purpose of evasion, both before candidacy for election or appointment and after election or appointment, and
   
2. The law requires a bond of all public officers, and
   
3. The People can file claims against the bond for injuries suffered by public officers, and
   
4. The People can have a reasonable expectation of obtaining compensation for such injuries without going through virtually impossible impeachment procedures or crooked court proceedings, and
   
5. The law punishes violations of the loyalty oath by public officers.
   

 

Solution

Change the wording of the laws and Constituion of Florida, as show below. Yellow Highlighting shows additions and deletions. Strike-throughs show deletions. Underlines show additions.

Proposed Changes

To Florida Statutes

105.011  Definitions.--

(1)  As used in this chapter, the term "judicial office" includes the office of:

(a)  Justice of the Supreme Court.

(b)  Judge of a district court of appeal.

(c)  Judge of a circuit court.

(d)  County court judge.

(e) Senior judge.

(2)  A judicial office is a nonpartisan office, and a candidate for election or retention thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.

(3) As used throughout the Florida Statutes, the term "candidate," including all forms of the term, means "candidate for election or appointment" and includes "nominee." The term "candidate for election" excludes appointment nominees from its meaning.

(4) The requirements in this chapter for candidates for election do not apply to nominees for appointment.

History.--s. 1, ch. 71-49; s. 1, ch. 72-310; s. 36, ch. 77-175.

 

105.031  Qualification; filing fee; candidate's oath; items required to be filed.--

(1)  TIME OF QUALIFYING.--Except for candidates for judicial office, nonpartisan candidates for multicounty office shall qualify with the Division of Elections of the Department of State and nonpartisan candidates for countywide or less than countywide office shall qualify with the supervisor of elections. Candidates for judicial office other than the office of county court judge shall qualify with the Division of Elections of the Department of State, and candidates for the office of county court judge shall qualify with the supervisor of elections of the county. Candidates for judicial office shall qualify no earlier than noon of the 120th day, and no later than noon of the 116th day, before the primary election. Candidates for the office of school board member shall qualify no earlier than noon of the 71st day, and no later than noon of the 67th day, before the primary election. Filing shall be on forms provided for that purpose by the Division of Elections and furnished by the appropriate qualifying officer. Any person other than a write-in candidate who qualifies within the time prescribed in this subsection shall be entitled to have his or her name printed on the ballot. This subsection shall not apply to judicial appointment nominees.

(2)  FILING IN GROUPS OR DISTRICTS.--Candidates shall qualify in groups or districts where multiple offices are to be filled. This subsection shall not apply to judicial appointment nominees.

(3)  QUALIFYING FEE.--Each candidate qualifying for election to a judicial office or the office of school board member, except write-in judicial or school board candidates, shall, during the time for qualifying, pay to the officer with whom he or she qualifies a qualifying fee, which shall consist of a filing fee and an election assessment, or qualify by the petition process. The amount of the filing fee is 3 percent of the annual salary of the office sought. The amount of the election assessment is 1 percent of the annual salary of the office sought. The Department of State shall forward all filing fees to the Department of Revenue for deposit in the Elections Commission Trust Fund. The supervisor of elections shall forward all filing fees to the Elections Commission Trust Fund. The election assessment shall be deposited into the Elections Commission Trust Fund. The annual salary of the office for purposes of computing the qualifying fee shall be computed by multiplying 12 times the monthly salary authorized for such office as of July 1 immediately preceding the first day of qualifying. This subsection shall not apply to candidates qualifying for retention to judicial office or to judicial appointment nominees.

(4)  CANDIDATE'S OATH.--

(a)  All candidates for the office of school board member shall subscribe to the oath as prescribed in s. 99.021.

(b)  All candidates for election or appointment to judicial office shall subscribe to an oath or affirmation in writing to be filed with the appropriate qualifying officer upon qualifying. A printed copy of the oath or affirmation shall be furnished to the candidate by the qualifying officer and shall be in substantially the following form:


State of Florida 

County of _____

Before me, an officer authorized to administer oaths, personally appeared  (please print name as you wish it to appear on the ballot) , to me well known, who, being sworn, says he or she: is a candidate for the judicial office of _____; that his or her legal residence is _____ County, Florida; that he or she is a qualified elector of the state and of the territorial jurisdiction of the court to which he or she seeks election; that he or she is qualified under the constitution and laws of Florida to hold the judicial office to which he or she desires to be elected or in which he or she desires to be retained; that he or she has taken the oath required by ss. 876.05-876.10, Florida Statutes; that he or she has qualified for no other public office in the state, the term of which office or any part thereof runs concurrent to the office he or she seeks; and that he or she has resigned from any office which he or she is required to resign pursuant to s. 99.012, Florida Statutes. 

 (Signature of candidate) 

 

 (Address) 

Sworn to and subscribed before me this _____ day of _____,  (year) , at _____ County, Florida. 

 (Signature and title of officer administering oath) 

 

(5)  ITEMS REQUIRED TO BE FILED.--

(a)  In order for a candidate for judicial office or the office of school board member to be qualified, the following items must be received by the filing officer by the end of the qualifying period:

1.  Except for candidates for retention or appointment to judicial office, a properly executed check drawn upon the candidate's campaign account in an amount not less than the fee required by subsection (3) or, in lieu thereof, the copy of the notice of obtaining ballot position pursuant to s. 105.035. If a candidate's check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall, the end of qualifying notwithstanding, have 48 hours from the time such notification is received, excluding Saturdays, Sundays, and legal holidays, to pay the fee with a cashier's check purchased from funds of the campaign account. Failure to pay the fee as provided in this subparagraph shall disqualify the candidate.

2.  The candidate's oath required by subsection (4), which must contain the name of the candidate as it is to appear on the ballot; the office sought, including the district or group number if applicable; and the signature of the candidate, duly acknowledged.

3.  The loyalty oath required by s. 876.05, signed by the candidate and duly acknowledged.

4.  For candidates for election, the completed form for the appointment of campaign treasurer and designation of campaign depository, as required by s. 106.021. In addition, each candidate for election or appointment to judicial office, including an incumbent judge, shall file a statement with the qualifying officer, within 10 days after filing the appointment of campaign treasurer and designation of campaign depository or approving appointment nominee status, stating that the candidate has read and understands the requirements of the Florida Code of Judicial Conduct. Such statement shall be in substantially the following form: 

Statement of Candidate for Judicial Office

I,  (name of candidate) , a judicial candidate, have received, read, and understand the requirements of the Florida Code of Judicial Conduct. 

 (Signature of candidate) 

 

 (Date) 

 

5.  The full and public disclosure of financial interests required by s. 8, Art. II of the State Constitution or the statement of financial interests required by s. 112.3145, whichever is applicable. A public officer who has filed the full and public disclosure or statement of financial interests with the Commission on Ethics or, for candidates for election, the supervisor of elections prior to qualifying for office may file a copy of that disclosure at the time of qualifying.

(b)  If the filing officer receives qualifying papers that do not include all items as required by paragraph (a) prior to the last day of qualifying, the filing officer shall make a reasonable effort to notify the candidate of the missing or incomplete items and shall inform the candidate that all required items must be received by the close of qualifying. A candidate's name as it is to appear on the ballot may not be changed after the end of qualifying.

(6)  Notwithstanding the qualifying period prescribed in this section, a filing officer may accept and hold qualifying papers submitted not earlier than 14 days prior to the beginning of the qualifying period, to be processed and filed during the qualifying period.

(7) A certified copy of the Electors Oath and voter registration form.

(8) For judicial officers seeking appointment or election, a certified copy of the Bar Oath, a certified copy of the accredited Law College diploma, and a bar certificate of bar membership in good standing for each of the contiguous years preceeding and including the year of election or appointment required by law, and, for appointment candidates a certified copy of the certification of nomination by the appropriate Judicial Nominating Commission.

History.--s. 3, ch. 71-49; s. 36, ch. 77-175; s. 1, ch. 78-260; s. 5, ch. 79-365; s. 54, ch. 79-400; s. 17, ch. 81-105; s. 10, ch. 83-251; s. 1, ch. 89-152; s. 34, ch. 89-338; s. 5, ch. 91-107; s. 630, ch. 95-147; s. 2, ch. 95-156; s. 13, ch. 97-13; s. 13, ch. 99-6; s. 2, ch. 99-326; s. 2, ch. 99-355; s. 23, ch. 2002-17; s. 65, ch. 2005-277; s. 21, ch. 2005-286; s. 40, ch. 2007-30.

To the Florida Constitution, Article II

Note the text of the oath substantially mirrors the 5 U.S.C. 3331 Oath of Office.

SECTION 5.  Public officers.--

(a)  No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers.

(b)  Each state and county officer, before becoming a candidate for election or a nominee for appointment, and
before entering upon the duties of the office, shall give bond
as required by law, and shall swear or affirm before a person duly authorized under the laws of Florida to administer oaths, who shall make a certificate thereof
: 

"I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; that I am duly qualified to hold office under the Constitution of the state; and that I will well and faithfully perform the duties of  (title of office)  on which I am now about to enter. So help me God.", 


and thereafter shall devote personal attention to the duties of the office, and continue in office until a successor qualifies.

(c)  The powers, duties, compensation and method of payment of all state and county officers, including but not limited to judges and Supreme Court Justices, and penalty for violating the foregoing public officers oath, shall be fixed by law.

(d) Public Officers are charged hereby with the primary duty of enforcing the structure of and restrictions on Government, and of enforcing the rights guaranteed to the People, in and by the Constitutions of the United States of America and the State of Florida. All other duties of public office shall be deemed secondary to this primary duty.

(e) The legislature shall set the amount of the bond for all public officers in the amount of $1,000,000 for which the bonded officer shall pay the fee from personal funds, and define the method by which injured parties may file a complaint against the bond for injuries suffered from or because of the bonded officer and receive speedy and fair administrative adjudication of the bond. Officers who because of excessive complaints against the bond or awards of injury payments against the bond shall be denied bond shall thereupon cease performing the duties of office, and the Governor shall appoint a duly qualified successor or call for a special election of the successor in accordance with law.

(f) The legislature shall establish an independent special grand jury for each county, comprised of members of the jury pool having a 4-year college degree and no bar memberhisp, to review and decide upon all disputed claims against the bonds of public officers. The special grand jury shall without exception investigate and decide all claim disputes submitted to it by the bonding company or an injured party dissatisfied with the bonding company's decision. The special grand jury shall have the power to review all evidence, order revocation of the bond, set the amount of the damage award, and order the impeachment of any public officer removable only by impeachment. From the time of the order to impeach until final resolution by the Legislature, the subject public officer shall remain suspended from pay and performance of duties. Decisions of the special grand jury shall not be subject to judicial review.