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The Justice Who Cleaned up our Tainted Top Court | Martin Dyckman

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The Justice Who Cleaned up our Tainted Top Court | Martin Dyckman

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The Justice Who Cleaned up our Tainted Top Court
Tuesday, January 08, 2013 — Martin Dyckman

Ben F. Overton, the retired jurist who died this month, wasn't the most famous of the four Supreme Court justices appointed by former Gov. Reubin O'D. Askew.  That distinction belongs to Joseph W. Hatchett, Florida's first black justice, and Askew has often said that selecting him was the most gratifying experience of his eight years in office.

But it was Overton's appointment, the first of the four, which was the most significant. He was the right man to turn around a court that had gone wrong.

Askew knew there were problems there. The court's reputation among lawyers had long been poor, its ethics suspect, and the vacancy at hand was that of a justice whose resignation had closed an investigation of a high-roller junket to Las Vegas.

The situation was even worse than the governor suspected, which made Overton a uniquely appropriate choice. As a lawyer and as a circuit judge from Pinellas County, he was already esteemed for expecting the highest standards of ethics from himself and others -- and for being a superb administrator.

As chairman of the Conference of Circuit Judges, he had helped the Bar sell those judges and the Supreme Court, which had the last word, on a strengthened code of judicial conduct. A year later, the leader of the Bar's campaign was chair of the nominating commission that recommended Overton and two others for the Supreme Court vacancy.

They were the first Supreme Court nominees under a merit selection system Askew had established so that governors could no longer populate Florida's judiciary with personal friends and political allies.

Overton had just been appointed when he was warned by two close friends, "Just don't get obligated to anybody" in Tallahassee.

They likely had in mind B. K. Roberts, the senior justice, who ran the court on most days regardless of who happened to hold the rotating chief justice's chair at the time. One of the warnings came from Richard T. Earle Jr., who would soon become chair of the Judicial Qualifications Commission (JQC), which polices the courts. The other source was a former law partner who had attended law school with Roberts.
On Overton's arrival in Tallahassee, another old friend, Justice Richard Ervin, advised him, "Just be careful."

When Roberts offered Overton rent-free use of a cottage he owned, Overton declined, choosing to live temporarily at a trailer park in his own motor home.

And then the scandals began erupting. They involved outrageous attempts by two justices to fix cases in lower courts, improper lobbying by a lawyer involved in a major case, a draft opinion two justices secretly accepted from him, and a concerted cover-up. The court failed to notify the Bar and the JQC of the unethical conduct, as the court's own rules required.

The court also seized on an extremely technical pretext to overturn several political corruption indictments. Overton wrote a strong dissent. And it tried to make sure that its errant members would not be removed for their misconduct.

But those were the last gasps of the old order. The resignations of two justices in the face of possible impeachment enabled Askew to appoint replacements -- Hatchett and Alan C. Sundberg of St. Petersburg -- where they joined Overton and newly elected Justice Arthur England in a reform-minded majority.

Barely two years after joining the court, Overton became chief justice. It normally would have been Justice Joe Boyd's turn, but he had narrowly escaped impeachment. Roberts was eager to be chief again -- for a fourth time -- but stepped aside in Overton's favor after England threatened to demand a vote in public. It's doubtful that Roberts would have yielded to any of the others.

In short order, the new court ended the practice of holding arguments before panels of five justices rather than all seven and supported a vital constitutional amendment to curb its discretion, routinely abused by the old majority, over which cases to accept on appeal.

There hasn't been a scandal since.

Martin Dyckman, a retired editor of the newspaper formerly known as the St. Petersburg Times, is author of A Most Disorderly Court: Scandal and Reform in the Florida Judiciary, published by the University Press of Florida.

 

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