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Martin Dyckman: Crist needs to explain position on court appointments

There’s one major issue that Charlie Crist overlooked when he declared his ambition to be governor again. It’s the fate of Florida’s courts, perhaps the most momentous in its long-term effects.

To illustrate the importance, let’s consider a current appeal involving sovereign immunity, the ancient common law doctrine that the king can do no wrong.

You might think we put that behind us on July 4, 1776, but it survived the Revolution and the Constitution and thrives in the legislatures and courtrooms of our republic.

Its impact on people was expressed in a recent decision of Florida’s Fifth District Court of Appeal. It overturned all but $200,000 of a jury’s $10-million award to the parents of Ereck Plancher, a University of Central Florida football player who died after a conditioning drill in 2008.

Witnesses said coaches mocked him as he struggled during the exercises and stopped other players from trying to help him after he collapsed.

“It is difficult to comprehend how one human being can ignore another in obvious distress or prevent someone else from offering aid to one in distress, but, inexplicably, that is what happened here,” wrote Wendy Berger, a judge of the DCA, in a footnote to the case.

Even so, she and two colleagues held that the University Of Central Florida Athletic Association(UCFAA,a private organization to which the school outsourced the program, is protected by the state university’s sovereign immunity law, limiting claims against state and county agencies to $200,000.

Other judges might have read it differently. Other courts have, say the family’s lawyers, who are appealing to the Florida Supreme Court.

The trial court found that the university failed to exercise its supervisory powers over the UCFAA. But the appeal court said it mattered only that the school had the authority, even if it didn’t use it.

The district court also extended sovereign immunity to the UCFAA’s insurance carrier. So the Great American Assurance Company, which had issued a policy with a $21-million limit, is the real winner in the case. It will be that much harder for the parents to get a claims bill through the Legislature, which rarely passes one.

Athletic programs like UCF’s are big businesses. If the Plancher decision is upheld, it invites them to be ruthless businesses, indifferent to the safety of their young athletes.

One way to look at that is as was stated by Charles Dickens’ Mr. Bumble: “If the law supposes that, the law is a ass, a idiot.”

Another is to note that it matters a great deal how judges are appointed and who appoints them.

The judicial careers of each of the three judges who ruled against the Planchers –Berger, Chief Judge Vincent G. Torpy Jr., and Judge C. Alan Lawson — began with gubernatorial appointments. Jeb Bush named all three to circuit judgeships and promoted Torpy and Lawson to the DCA. Berger was Bush’s assistant general counsel when he made her a judge. She was Rick Scott’s appointment to the DCA last year.

Like Bush before him, Scott has not attempted to conceal his preference for conservative, pro-business judges.

Unlike Bush or Crist, Scott wants total ideological control over even the nominating commissions that select candidates for judicial appointment.

Bush and Crist were content to directly select only five of each commission’s nine members. For the other four, they accepted lists submitted by the Florida Bar. Neither exercised his power to reject the Bar’s list and demand another.

As Steve Bousquet reported recently in the Tampa Bay Times and Miami Herald, Scott has demanded new lists from the Bar on 16 occasions, conspicuously spurning anyone who is a registered Democrat, supports liberal causes, or represents plaintiffs.

As staggered terms expire, Scott will soon have 76 more nominating commission seats to fill.

And if he is re-elected, he could appoint as many as four of the seven present Supreme Court justices. He could tell the nominating commissions whom to recommend, and they would obey.

Gov. Reubin Askew intended the nominating commissions to be independent when he created them in 1971, keeping only three appointments to each panel for himself and entitling the Bar to name any three lawyers of its choosing. Those six then selected three members from the public.

But in 2001, the Legislature converted them into political patronage committees. Crist could have done something about that when he succeeded Bush, but apparently liked what he inherited. Now, he needs to say why.

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