October 15, 2000 Jan Pudlow Associate Editor Regular News How far have we come? Associate Editor A decade ago, the report of the Florida Supreme Court Racial and Ethnic Bias Study Commission grabbed headlines, sparked national attention, raised consciousness and prompted landmark legislative action. In poignant human terms, it addressed everything from the impact of the death penalty on minorities to the dearth of black judges to disrespect black lawyers felt in the courtroom to culturally biased questions on the bar exam to the lack of diversity on judicial nominating commissions. It set an example of unprecedented, detailed self-scrutiny that 20 other states have followed. Ten years later, members of that commission and new voices gathered in Tampa September 29 to try to answer these questions: What recommendations made in 1990-91 were not implemented and why not? And are there new recommendations that should be made to ensure greater fairness to all who participate in the justice system? By the end of the day, it was clear there were successes, but there were still many lingering concerns, including how judicial nominating commissions operate. One of the new faces at the table was Raul Arencibia, chair of the new Equal Opportunities Section of The Florida Bar, who said he’s concerned by a lack of unified efforts of voluntary bars that scatter forces toward diversity goals. “Although many recommendations were made in 1990 and 1991 to advance the interests and increase opportunities for minorities in our justice system, I am sure this committee’s study will reveal that much more work still needs to be done,” Arencibia said. “I trust that the committee will help to ensure that the prior recommendations and any new recommendations will be implemented to the fullest extent possible.” That’s the goal. In the first of what will be many meetings, Chief Justice Charles Wells told the group that he is committed that everybody “feels like they are treated with competence, with dignity, with fairness and respect” when they come to court. “I come to the table with the feeling that we must have an assessment of how we are carrying out that type of responsibility for users of the criminal justice system. We had a great effort made by Frank Scruggs (who chaired the 1990 commission) in the last decade. The time has come to assess where we are. There are a number of things recommended that need to be done by the executive branch and the legislative branch.” Working Together This renewed effort, the Chief Justice stressed, cannot succeed without “entering into a dialogue with leaders of those two branches to see how we can move the ball forward.” He added: “I do not subscribe to the notion that there always has to be a lot of tension between the three branches of government. We have a lot of common goals, and we can foster those goals with a joint work effort. I do not think anything we want to do has to be done in any sort of confrontational way.” It was Justice Leander Shaw, who, in collaboration with former Justice Raymond Erhlich, got the original commission rolling. Justice Shaw, who was vice chair of the original commission, said: “When we talk about adding legislators to this commission, we need to give serious thought to the politics of it.. . . And we need to get people who are sympathetic to what we’re doing. If we just get a name and never see them anymore, it’s meaningless.” Chief Justice Wells countered that “the crucial factor is not whether people are sympathetic but whether they’re influential.” Noting there will be “an entirely new legislature in November,” Chief Justice Wells stressed: “One person who has to be at the table is the Governor.” Justice Shaw offered his historical reflections of the court’s leadership role in the enormous undertaking that managed to bring the three branches of government together in a spirit of collaboration a decade ago. “It was a joint effort. The legislature, the judiciary and the executive branch came together at an appropriate time, with a recognition that the criminal-justice system, in particular, needed some tweaking. The justice system was not exactly just,” Justice Shaw said. To document the injustices, the commission reached out to hear what Floridians had to say through statewide public hearings. “As we suspected, there was a perception that the system was not fair to Floridians who were minorities,” Justice Shaw said. After the report was released, he said, “There was almost nationwide recognition that it was a superior product, and immediate results were seen. Legislative action was taken. Executive action was taken. Judicial nominating commissions were integrated as never before. Other states saw that we were in the vanguard in this area and they took it up. Twenty states had like commissions. And it’s not unusual now for me to receive phone calls from other states asking: How have we gone forward? How did we come together?” JNCs The day was spent trying to gauge what progress had been made and what areas remain lacking, with help from attorney Deborah Hardin Wagner, who served as executive director of the commission and is now an editorial writer for the St. Petersburg Times. Proud to be part of the group that informed the debate and helped bring about progress, Hardin Wagner said, “Some of these questions still surface. Just by picking up the paper in the last two weeks, there’s the issue of the diversity among the University of Florida’s law school faculty. And during the death penalty special session last January, our report was cited. Those issues are still at the fore.” Scruggs, a lawyer with Greenberg Traurig, who chaired both the original commission and the new retrospect commission, said his goal is to “contribute to the public debate in a way that’s profound.” He challenged participants to “be stewards to do grand-scheming. This can’t be done casually or inexpensively. We should not aim too low in our scope.” At the same time, Scruggs said, while there are dozens of important issues, the group needs to focus on “four that really matter” in order to have an impact. During the group’s discussion, it became apparent that recent news stories about the controversy surrounding personal questions asked of a candidate for judge by the Judicial Nominating Commission for the First District Court of Appeal sparked renewed interest in how the JNCs operate. Dee Baranek, of the State Courts Administrator’s Office, said she once served on a JNC and agreed, “There was no sense of unification with other JNCs. We saw ourselves as very separate from the courts. We were convened by the Governor, via communication from the Bar. But who we were functioning on behalf of was unclear.” In giving a progress report, Hardin Wagner noted that on the district court level, minority judges have increased from two in 1990 to nine in 2000. “This is noteworthy, but it’s still not reflective of the population, so we’re still not there,” she said. And she noted that Gov. Lawton Chiles appointed blacks and Hispanics to 24 of 26 of his JNC appointments. “There was enormous progress made by Gov. Chiles in his appointments and by Gov. Bush, to some extent, in putting the Bar and the JNCs on the spot to come up with a more diverse list,” Hardin Wagner said. Justice Shaw said: “I think there was a drop-off when the federal court said there couldn’t be certain numbers of minorities. There was a retrenching, of, `Well, we can do what we want.’ We need to be the bully pulpit that this is still aspirational.” Hardin Wagner suggested that while the deliberations of JNCs are confidential, “if we had a mechanism to keep track and inform the public of the level of diversity of JNCs, that would be a sign of progress.” Scruggs recalled a speech two decades ago at the same Tampa meeting room by then Gov. Bob Graham that the JNCs needed to be more diverse. “Roll the clock forward 20 years, and the Governor is still having a problem,” Scruggs said. “Is there an institutional response?” Justice Shaw noted that there is still a perception of politics running through the JNCs, regarding which names are sent up to the Governor. “The politics of it is you’ve got a Republican legislature and a Republican Governor.. . You start getting the perception there is a litmus test applied.. . . The perception is your chances are better if you’re a Republican.” Noting that the local-option issue of merit selection is up for voters in the November election, Hardin Wagner said: “As more counties opt in on the appointment process, the pressure will grow for the process to be more fair.” Listing Top Concerns When it came time to go around the table and name top concerns, Coral Gables lawyer Oscar Marrero was the first to speak up: “The judicial work force, and the JNCs are one element; sentencing policies and prosecutorial discretion; and increasing minority lawyers and doing more to bring them along once they join law firms.” Barbara Newell, former chancellor of Florida’s state university system and an original member of the commission, said she was heartened to see the 1990 recommendations of using drug courts came to pass, but she would like to know more about the innovative diversion programs’ effect on minorities. Her priorities were JNCs, and exploring different tactics than current harsh sentencing policies of minimum-mandatory sentences and direct filing juveniles to adult court. Justice Shaw’s concern was this: “Who’s going to bring the system back to rehabilitation? The legislature won’t bring it up. They get no mileage out of it when they try to get re-elected. If we in the system don’t bring rehabilitation back and make it a popular theme, then who’s going to bring it back?” Eleventh Circuit Family Court Judge Gill Freeman, who chairs another Supreme Court panel, the Commission on Fairness, agreed: “We’re in the `Age of Mean.’ The Dade County schools increased its police force at schools from 50 to about 200. If a kid has a problem in the cafeteria, the kid gets arrested.” Ninth Circuit Judge Belvin Perry, Jr., listed judicial work force, juvenile justice, law enforcement, and minority lawyers as his top concerns. Justice Peggy Quince named the JNCs, the impact of raising the passing standard on the bar exam and juvenile justice issues as her priorities. “The juvenile issue is one of the most important there is,” Justice Quince said. “If we can’t help our children, the rest doesn’t make any difference.” And as Justice Shaw, who helped shepherd the 1990-91 commission to complete its work, summed up the new group’s mission: “Now, after a decade, it’s time to sit back and reflect where we are now and move forward and look at areas that need the same kind of tweaking that we tried to do a decade ago.. . . Since we were in the vanguard then, I think it’s time to get back and try to move Florida forward.” How far have we come?