• TABLE OF CONTENTS
HIDE
 Front Cover
 Recent publications
 Title Page
 Preface
 Table of Contents
 List of Figures
 Introduction
 Florida: social, political and...
 Procedures for selecting justices...
 Supreme Court campaigns
 Organizations and factors influencing...
 Justices and candidates for justice...
 Proposals to change the method...
 Concluding comments






Group Title: Studies in government - Florida State University ; 24
Title: Florida Supreme Court : a study in judicial selection
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Title: Florida Supreme Court : a study in judicial selection
Series Title: Studies in government - Florida State University ; 24
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Language: English
Creator: Bashful, Emmett Wilfort
Affiliation: Florida State University
Publisher: Bureau of Governmental Research and Service, School of Public Administration, Florida State University
Publication Date: 1958
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Table of Contents
    Front Cover
        Front cover
    Recent publications
        Section
    Title Page
        Page i
    Preface
        Page ii
    Table of Contents
        Page iii
    List of Figures
        Page iv
        Page v
    Introduction
        Page 1
        Page 2
        Page 3
    Florida: social, political and economic setting
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
    Procedures for selecting justices of the Florida Supreme Court
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
        Page 34
        Page 35
        Page 36
        Page 37
    Supreme Court campaigns
        Page 38
        Page 39
        Page 40
        Page 41
        Page 42
        Page 43
        Page 44
        Page 45
    Organizations and factors influencing the selection of justices of the Florida Supreme Court
        Page 46
        Page 47
        Page 48
        Page 49
        Page 50
        Page 51
        Page 52
        Page 53
        Page 54
        Page 55
        Page 56
        Page 57
        Page 58
        Page 59
        Page 60
        Page 61
        Page 62
        Page 63
        Page 64
        Page 65
        Page 66
        Page 67
        Page 68
        Page 69
        Page 70
        Page 71
        Page 72
        Page 73
        Page 74
        Page 75
        Page 76
        Page 77
        Page 78
        Page 79
    Justices and candidates for justice of the Florida Supreme Court: background and experience
        Page 80
        Page 81
        Page 82
        Page 83
        Page 84
        Page 85
        Page 86
        Page 87
        Page 88
        Page 89
        Page 90
        Page 91
        Page 92
        Page 93
        Page 94
        Page 95
        Page 96
        Page 97
    Proposals to change the method of judicial selection in Florida
        Page 98
        Page 99
        Page 100
        Page 101
        Page 102
        Page 103
        Page 104
        Page 105
    Concluding comments
        Page 106
        Page 107
        Page 108
        Page 109
        Page 110
        Page 111
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Studies in Government
No. 24


The Florida Supreme-


Court: A Study In



Judicial Selectio,


by
EMMETT WILFORT BASHFUL
Florida A & M University


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Bureau of Governmental Research & Service,
School of Public Administration
Florida State University
Tallahassee
1958


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SCHOOL OF PUBLIC ADMINISTRATION
Wilson K. Doyle, Dean


BUREAU OF GOVERNMENTAL RESEARCH AND SERVICE

Penrose B. Jackson, Acting Director
L. Franklin Blitz, Jr., Training Officer
Ernest E. Means, Research Associate
John C. Buechner, Research Assistant
Annie Mary Hartsfield, Research Assistant
Yvina Fernandez, Secretary


RECENT PUBLICATIONS



Number
13. Planning a Municipal Auditorium, by Ernest E. Means. 1955.

14. The Problem of Government in Leon County, by.Penrose B. Jackson, Fred Bair, Jr.,
and James J. Flannery. 1955.

15. The-Annual City Report, by Murdock Martin, 1955.

16. Taxation of Intangible Personal Property in Florida, by William P. Dillingham and
William M. Griffin. 1956.

17. Collection of Florida State Taxes, by Penrose B. Jackson. 1956.

18. State Supervision of Local Assessments, by William M. Griffin. 1957.

19. Taxation of Railroad and Other State-Assessed Companies in Florida,
by Merrill J. Roberts. 1957.

S20. County Property Tax Assessment in Florida, by Ernest E. Means and Murdock Martin. 1957.

21. The Defeat of the Tallahassee Civic Center Proposal, by Malcolm B. Parsons and
H. Odell Waldby. 1957.

22. Summary of Studies ofthe Florida Citizens Tax Council, 1956-1957, by Wylie Kilpatrick and staff. 1958.

23. The Proposed Florida Constitution of 1958 and the Constitution of 1885: A Comparison,
by Richard E. Bain. 1958.

24. The Florida Supreme Court: A Study in Judicial Selection, by Emmett Wilfort Bashful. 1958.








Studies in Government No. 24





THE FLORIDA SUPREME COURT:
A STUDY IN JUDICIAL SELECTION

by

Enmett Wilfort Bashful
Florida A & M University


Bureau of Governmental Research and Service
School of Public Administration
Tallahassee: Florida State University: 1958


f I


W/3^f





PREFACE


This study is a condensation of a larger one prepared by Dr.
Bashful as a dissertation. Because of space limitations it was neces-
sary to omit large sections of the original study, particularly the
parts analyzing the election campaigns of individual Justices of the
Supreme Court.

The Bureau of Governmental Research and Service has as one of its
functions the publication of studies of Florida state and local govern-
ments. The resolution of the Florida Supreme Court, which follows, is
indicative of the interest shown in Dr. Bashful's study.

RESOLUTION

Emnett W. Bashful, a member of the faculty of Florida Agricultural
and Mechanical University, an alumnus of University of Illinois, has
lately been awarded the degree of Doctor of Philosophy by his Alma Mater.
He chose as a subject for his dissertation for this Degree "The Florida
Supreme Court: A Study in Judicial Selection." The Justices of the
Court have been privileged to examine a copy of this dissertation with
much interest and profit. It evidences much exhaustive and capable re-
search on a subject not before undertaken and is a most valuable contri-
bution to the political history of our State, so valuable, in fact, and
so expertly done, that a copy of it should be made and deposited in the
court library as a permanent reference work.

Therefore, be it

Resolved, that the Justices of the Court warmly congratulate Doctor
Bashful on the completion of a task expertly done; and be it

Resolved, further, that a request be made to Doctor Bashful for a
volume copy of this dissertation, if available, for the court library and
that if a copy is not available that one be made by the court staff for
such use; and be it

Resolved, further, that a copy of this resolution be forwarded by
the clerk of this court to Dr. Emmett W. Bashful as a token of the court's
appreciation for the fine service he has done for the State of Florida,
and that a copy be spread upon the minutes of the court.

The above resolution unanimously adopted
by the Justices of the Court
October 17, 1955
(Seal)
A True Copy

TEST:

/s/ Guyte P. McCord
Clerk Supreme Court






Table of Contents


Page
Introduction ....................................... .. 1


Chapter I.


Chapter II.


Chapter III.

Chapter IV.



Chapter V.



Chapter VI.


Chapter VII.


Florida: Social, Political and
Economic Setting......................... 4

Procedures for Selecting Justices
of the Florida Supreme Court............. 20

Supreme Court Campaigns ................. 38

Organizations and Factors Influencing
the Selection of Justices of the
Florida Supreme Court...................46

Justices and Candidates for Justice
of the Florida Supreme Court: Background
and Experience ...........................80

Proposals to Change the Method of
Judicial Selection in Florida ...........98

Concluding Comments .................... 101







List of Figures and Tables


Figure 1.

Table 1.


Table 2.


Table

Table


Table 5.



Table 6.


Table 7.


Page
Florida's Four Sections ............... 8

Method by Which Justices Came on
the Florida Supreme Court .............. 31

Tenure of Judges of Florida Supreme
Court .................................. 34

Results of Primary Campaigns............ 45

Vote in Primaries for Justices of
Florida Supreme Court .................. 71

Vote in Primaries for Justices of
Florida Supreme Court (comparison
with other state offices) .............. 72

Experience and Background of Florida
Supreme Court Justices.................. 84

Experience and Background of Ten
Unsuccessful Candidates for the
Florida Supreme Court ................. 92







List cf Figures and Tables


Figure 1.

Table 1.


Table 2.


Table

Table


Table 5.



Table 6.


Table 7.


Page
Florida's Four Sections ................ 8

Method by Which Justices Came on
the Florida Supreme Court .............. 31

Tenure of Judges of Florida Supreme
Court .... .................... ......... 34

Results of Primary Campaigns........... 45

Vote in Primaries for Justices of
Florida Supreme Court .................. 71

Vote in Primaries for Justices of
Florida Supreme Court (comparison
with other state offices) .............. 72

Experience and Background of Florida
Supreme Court Justices.................. 84

Experience and Background of Ten
Unsuccessful Candidates for the
Florida Supreme Court ................ 92





INTRODUCTION


The Constitution of Florida provides that the seven justices of the

Florida Supreme Court are to be elected by the qualified voters for six

year terms. This formal provision does not tell the full story of the

selection of judges of that tribunal. To give the details and tell how,

in fact, justices of the Supreme Court are selected is the purpose of this

study. Florida, as a political entity, has many peculiar features in its

political practices. These unique features of the state's political life

exert some influence on all elections in the state including those for the

selection of judges. An attempt will be made here to ascertain to what

extent the activities and events of judicial elections fit into the main

streams of Florida politics.

This study is concerned with the justices who were on the court from

January, 1943 to December, 1954. In order to examine fully the selection
2
process which resulted in placing these twelve men on the bench, it is

necessary to go back to 1923. In May, 1923, one of these justices re-

ceived an interim appointment to the court and the others came on the

bench by various means since that time. Since 1926 there have been eight


"On April 30, 1955 Chief Justice John E. Mathews of the Florida
Supreme Court died and Attorney Campbell Thornal of Orlando was appointed
to succeed him. On September 15, 1955 Justice Harold L. Sebring retired
from the court to accept the deanship of the Stetson University Law
School. Attorney Stephen O'Connell was appointed as his successor. This
study does not include these appointments in the materials which follow.

There have been fifty-one justices on the Florida Supreme Court
since its creation. This study therefore covers almost one-fourth of that
number. Only forty-six justices have served since the Supreme Ccurt was
organized as a court separate from the circuit courts.


- -Q o -0




1 2

contests in which candidates have campaigned in a primary for nomination

for a place on the court. Three of these campaigns were in 1938, one each

in the years 1942, 19i6 and 1948, and two in 1952. During this twenty-

nine year period only eight contests have been waged according to the for-

mal method of selection although more than thirty-three could have been

held if there had been opposition to the incumbent in the primaries. This

seems to suggest that, in most instances, Justices of the Florida Supreme

Court are not opposed for renomination or reelection. This matter will

be further examined in an attempt to determine the factors contributing

to opposition in some primaries and a lack of opposition to the incumbent

in other primaries. The relation of this problem to tenure on the court

will also be observed.

The eight instances in which there was opposition to the Supreme

Court candidates since 1926 resulted in eight campaigns among the persons

aspiring to Judicial office. This study proposes to examine these cam-

paigns and note the type of campaigns waged for judicial office, the

issues presented and the extent of voter participation, and to compare

these data with campaigns for other state offices. In analyzing these

campaigns attention will be given to factors which may determine the out-

come of the elections. To this end, the activities of organizations and

agencies, which endorse or support candidates for the court and by so

doing sway a considerable segment of the voters, will be noted. The acti-

vities of bar associations, labor unions and newspapers, among others,

will, therefore, be considered.

Some persons in Florida have expressed dissatisfaction with the pre-

sent method of selecting Justices and have made certain proposals for a

different procedure for selecting Justices of the Supreme Court. After





3

observing the present practices, these proposals will be considered. In

addition, an examination of the background of justices and candidates for

the high court will be made to indicate the type of men who aspire to

positions on that tribunal.









CHAPTER I

FLORIDA: SOCIAL, POLITICAL AND ECONOMIC SETTING


The selection of Justices of the Florida Supreme Court is influenced,

to some degree, by the social, political and economic conditions existing

in the state. For these conditions, sometimes, determine the type of

political campaigns waged, the scope and direction of such campaigns and

the political climate in which persons are selected for public office.

Therefore, an inquiry into these conditions will give a better understanding

of the process by which judges are selected for the Supreme Court of

Florida.

Florida is one of the states of the solid South, but in many respects

it is different from its sister states south of the Mason-Dixon line.

This difference has been the result of a combination of circumstances.

These circumstances give to Florida politics a distinctive and unique

quality, which has its principal manifestation in a mutable political

structure without clearly defined factions and without political factions

of any permanence. In his study of the politics of the region Professor

V. 0. Key calls Florida politics the "Every man for himself" variety and

suggests some contributing causes as follows:


3In its politics there is every candidate for himself with little
collaboration among candidates for various offices.





5

(1) The state's huge area coupled with its uneven distribution

of population.

(2) Rapid increase in population.

(3) Urbanization.

(4) Highly diversified economy.4


Area and Uneven Distribution of Population

The state of Florida has a total area of 58,666 square miles of

which 54,861 constitute land area and 3,805 water. It extends north and

south for a distance of four hundred and fifty miles. The peninsula be-

gins fifty miles down from the northern boundary and extends for a dis-

tance of one hundred and fifty miles in width at its widest point. The

northern border extends east and west three hundred and fifty miles.5

This huge area is not the most conducive to the formation of state-wide

political organizations. There is presented the physical inconvenience

of persons meeting from all parts of the state for purposes of collabora-

tion and planning. The distance from Pensacola to Miami is about the

same as that from Atlanta to Washington. Add to this distance the uneven

distribution of population over the state and the problem of political

organization takes on greater significance. More than 47 per cent of the

1950 population of the state lived in the counties with the five largest

cities. These are scattered about the extensive land area of the state.

They are Duval, in the northeast corner of the state; Pinellas and Hills-

borough on the west central coast; Orange in the central region; and


V. 0. Key, Southern Politics in State and Nation (New York:
Alfred A. Knopf, 1949), pp. 3-37. Great weight should not be assigned
to the first cause, but it should be considered.

Wilson K. Doyle, Angus M. Laird and S. Sherman Weiss, The Govern-
ment and Administration of Florida (New York: Thomas Y. Crowell, 1954),
p. 4.





6

Dade in the southeast.6 This dispersion of population occasioned by geo-

graphy makes for political localism in contrast to a state-wide political

organization. Professor Cortez Ewing of the University of Oklahoma sees

the state of Florida as possessing certain geographical tendencies which

tend to Balkanize it politically as, for instance, the state is more or

less divided into four principal political units, each with the hinter-

land attached to a principal urban center. These units are Tallahassee,

Jacksonville, Tampa and Miami with the political battles fought along sec-

tional rather than state-wide conflicts.8

It is very expensive to wage a campaign over such a large area.

Because of this, many candidates, lacking the financial resources, are

not able to wage a campaign in all areas of the state. This has been

true of some campaigns to nominate Justices of the Florida Suprere Court.

In some of these court primaries, the candidates have had neither. the

money nor time to travel to all sections of the state in f:rtheri-ng their

candidacies. They have thus concentrated their campaigning' in one or two

sections of the state. In other instances, they have ce-fnigned only in

the larger cities of the state. The l'ge area of the state an~d the dis-

tribaution of the population make camp' ijgng for all state offices, the

Supreme Court posts included, a time-consuming and expensive experience.


These counties now contain more than haJf of the state's popula-
tion.

V. 0. Key, cD. cit., pp. 83-84.

Cortez A. M. Ewing, Primary Elections in the South (Norman: Uni-
versity of Oklahoma Prass, 19~37, p. 20.






Rapid Increase in Population

The increase in population of the state since 1900 has been almost

phenomenal. In 1900 Florida had 528,542 inhabitants. By 1920 the popu-

lation was 968,470. From 1920 to 1940 the population of the state almost

doubled. In 1950 the population was 2,771,305.9

In order to fully understand the importance of the state's growth in

relation to political trends, one must observe the growth in population in

the various sections. Prior to 1900 the area between the Apalachicola

and the Suwannee Rivers was the most thickly settled in the state. The

other regions--Central and South Florida--were very sparsely populated.

After the turn of the century there was a very marked growth in the popu-
10
nation in the southern part of the state.0 The large increase during the

1940-1950 period was not evenly distributed throughout the state. Eighteen

of the counties showed no gain in population. Instead they reflected

population losses. Moreover, nineteen counties showed an increase of less

than 25 per cent. The population trend during this decade was a shift

to the southern part of the state. South Florida showed a rate of increase

of 75 per cent while Central Florida had approximately 45 per cent and

West and North Florida about 30 per cent. Of the eighteen counties which

lost population one was in South Florida and one in Central Florida. The

other sixteen were in North and West Florida. Of the five counties which

doubled their population during this period, two were in West Florida,

one in North Florida and two in South Florida. The sum total of this


9Current estimate of the Bureau of Economic and Business Research,
University of Florida, is 4,238,200.

1Doyle, op. cit., pp. 6-7.

1~. Stanton Dietrich, Statistical Atlas, Florida's Population:
1940-1950 (Tallahassee: Florida State University, 1954), p. 9. For
division of the state into sections see map, Figure 1.
















Fiure I


Florida's ~~ r Seotions


WST


CENTRAL


SOUT


rrr


V^








population shift from North to South was to give to Central and South

Florida a stronger position in the politics of the state. This growth

in population also meant an increase in the number of voters in these

regions. Thus they are increasingly exerting greater influence in the

selection of justices of the Florida Supreme Court and other officers of

the state.

An important characteristic of the population of Florida is that

about half of the people were born in other states. This has created

what Key calls an "uncrystallized social structure" in which definite

loyalties have not been built up in politics and traditional habits con-

cerned with parties, leaders and political factions have not been formed.

This has led to a situation conducive to many shifts and changes in the

political picture. Many of the diverse, recently transplanted elements

of the population have contributed, in no small way, to a mutable politi-

cal structure.12


Urbanization

Florida is the most highly urbanized of the southern states. Its

urban areas in 1950 contained 1,813,890 or 65.5 per cent of its popula-

tion.13 Evidence of the gradual movement of the rural population to the

cities is afforded by the fact that in 1950 about fifty-eight counties

had smaller populations than in 1940 and sixty-two counties had a smaller

percentage of population living on farms than in 1940.14 The shift in


12V. 0. Key, op. cit., p. 86.

13United States Bureau of the Census, Statistical Abstract of the
United States, 75 ed. (Washington: United States Government Printing
Office, 1954), pp. 30-31. This percentage is based on the new defini-
tion of an urban area adopted by the Census Bureau in 1950.

T. Stanton Dietrich, Statistical Atlas, Florida's Population:
1940-1950, p. 21.





10

the population from the rural to the urban areas has serious implications

for government, creating social and economic problems and requiring changes

in the approach to representation and taxation.

Because Florida is principally an urban state, political campaigns

must be geared to appeal to the city dwellers. The "wool hat" appeal to

farmers and rural citizens so characteristic of some southern states is

a rarity in campaigns--gubernatorial as well as those for the state Supreme

Court. To the extent that this urban trend continues, political campaigns

will be modified accordingly.

Another consequence of urbanization is that the degree of interest

in voting in the cities is less than that in rural areas. The proportion

of the people who vote in cities is about half as great as that in the

rural counties of the South. For instance, in the 1940 gubernatorial

election in Florida, the proportion of eligibles taking part in several

urban counties was as follows: Hillsborough 28.3 per cent, Dade 30.6 per

cent and Duval 31.6 per cent. In three rural counties, the percentages

were: Charlotte 64.6, Okeechobee 67.8 and Citrus 62.8. This low voting

trend is most marked in cities of over 100,000 people.5

Urbanization has been a factor in causing candidates for justice of

the Florida Supreme Court to spend more time during campaigns in the cities

where the bulk of the people reside. Since a majority vote is required

for nomination, candidates sometimes confine their campaigning to the lar-

ger cities or at least do most of their campaigning in the cities. For a

candidate who can carry the larger cities in the state with a few smaller

counties can, perhaps, win any election. Urbanization has, therefore,


15Key, op. cit., pp. 510-511.





11

played a large part in determining the method of campaigning as well as

the type of campaign waged.


Highly Diversified Economy

Prior to the settlement and development of South and Central Florida,

the state was engaged primarily in agricultural pursuits. With the

greatest strides in population and other developments being made in these

regions, this condition has changed. The older counties in the western

and northern sections of the state still retain their basic agricultural

background. This area is dominated by a staple crop system dependent

largely upon cotton and tobacco.6 It is this region which most nearly

resembles the "old South' in many of its patterns of conduct and it is

here that the state of Florida is similar, to some degree, to the other

basically rural southern states.

But Florida is not a state with a one-crop economy. Cotton is defin-

itely not king. In the central and southern part of the state there is

a definite diversification of the economy. The tourist industry with all

its branches is the largest single source of revenue, accounting for

almost one-third of the state's income. Add to this the citrus industry,

phosphate mining, fishing, cattle raising, lumbering and truck farming

and the industrial-agricultural economy becomes evident. About 115,000

people were engaged in manufacturing in 1952. More than half of these

were to be found in industries connected with the processing of food, mak-

ing of paper, lumber and other products and in the manufacture of cigars.

Other new innovations in agriculture, manufacturing and mineral develop-

ment foreshadow a greater diversification of the state's economy.17


16Ienry S. Doherty, Jr., "Liberal and Conservative Voting Patterns
in Florida," Journal of Politics, XIV (August, 1952), p. 407.

17Doyle, o. cit., pp. 11-13.





12

The trend from a basically agricultural economy to one with diverse

industries has been accompanied by many changes. One of these, in parti-

cular, has been the increase in the number of person within the ranks of

organized labor. With this numerical strength, labor has begun to look

to the political arena and has attempted to secure the election of persons

favorable to its cause. In this connection, it has endorsed and actively

campaigned for candidates who sought seats on the Florida Supreme Court.


The Democratic Party

Besides these conditions which contribute to Florida's peculiar poli-

tical complexion, the place of one-partyism in the state is also important.

Florida is traditionally Democratic in its politics. Only three times

since 1880 has it been deflected from its long-time adherence to that

party--in the 1928, 1952 and 1956 presidential elections. This adherence

to the Democratic Party is a product of the Civil War and its aftermath.18

Despite this one party element of its politics in Florida and the so-called

solid South, there are various factions within the party. Virginia, with

its dual factionalism of the Byrd organization and the opposition, is one

variety of this uni-party system. The situation in Florida is described

thusly:

In sharp contrast, at the end of the factional spectrum
stands Florida, where in recent years as many as eleven and
fourteen candidates have run in the same race for the guber-
natorial nomination. In such a state each race begins afresh.
The confusion of alliances, the mness of the bedfellows,
becomes hilarious.T


lany students of southern politics see the negro issue as the
basis of the region's support of the Democratic Party and note that
insofar as the Party fails to adopt the South's position on the race
problem, it will alienate that section of the country.

19Alexander Heard, A Two Party South? (Chapel Hill: University
of North Carolina Press, 1952) p. 15.




13

The political structure in the state, especially as it relates to

the race for governor, lends itself to extreme factionalism. For the

most part, there is no fundamental cleavage within the state among the

various political groups. There are no permanent factions. There is a

continuous alignment and realignment of factions and candidates. More-

over, there is no political boss or political machine which can claim the

allegiance of a majority of the voters for any considerable period.20

Appeals to voters are made along personal lines with the personality and

skill of the candidate on the stump being a most important factor in

determining the outcome of the election.

These then are the characteristics of the Florida political struc-

ture as Key sees them: (1) multiplicity of factions (2) dispersion of

leadership and (3) mutability of factions.2


Multiplicity of Factions

This characteristic of Florida politics had its most striking mani-

festation in 1936 when fourteen candidates announced for the gubernatorial

nomination in the first primary. The leading candidate, W. Raleigh Pette-

way, polled only 15.7 per cent of the votes cast and Fred P. Cone, the

second highest candidate in the voting, received 14.2 per cent. The

other 69.1 per cent of the votes were scattered among the twelve candi-

dates who were eliminated in the first primary. Therefore, the two

leading candidates did not receive one-third of the total votes cast. In

1940 there were eleven candidates in the first primary for governor with

the two highest candidates Holland and Whitehair receiving 24.7 and 19.8

20
Key, op. cit., pp. 82-83. This resembles a situation in a multi-
party system except that the programs here are not too well defined.

2Ibid., pp. 88-105.







per cent of the votes respectively. In 1944 there were only six candi-

dates and the three leading candidates polled almost 80 per cent of the

total vote. The same percentage of votes were cast for the three leaders

in 1948 in a field of nine.22 In the last five gubernatorial contests in

Florida, there was an average of 9.6 candidates in the first Democratic

primary. This was the highest average for the southern states, with the

exception of Oklahoma, revealing the large number of factions rallying
23
around the various candidates.2

In many one-party states--as for instance, Virginia and Tennessee--

there are usually only two factions and two candidates who seek office

in the primary. One explanation of the large number in Florida may be

given in connection with the "friends and neighbors" theory whereby a

strong local candidate enters the race and carries his home county as

well as adjacent ones. Only through a fortuitous chain of circumstances

does he hope to win the election. But candidates from a large urban area

who demonstrate a large friends and neighbors support may eventually,

after several attempts, be elected to office. Thus Fuller Warren, al-

though he carried his home county of Duval by a large margin in 1940,

was eliminated in the first primary in his first attempt to win nomination


22Ibid., p. 88.

23Cortez Ewing, op. cit., p. 20. The average number of candidates
for nomination to the Florida Supreme Court was much lower. In twenty-
two contests only twenty-nine candidates appeared for an average per
contest of 1.32 candidates. This low average was doubtlessly due to
the large number of unopposed contests in which the incumbent wins the
nomination in the primary because there is no opposition to his candi-
dacy.
Although Florida is a state of mercurial politics and numerous can-
didates in the primary, several of the elected members of the governor's
cabinet have enjoyed unusually long tenure. Robert A. Gray, the secre-
tary of state has filled that office since 1930 and during that time has
faced opposition only in his first primary contest. Nathan Mayo has
been secretary of agriculture since 1923.





15

to the governorship. But in 1948, when he ran again, he was elected to

the state's highest executive post. The experience of Dan McCarty of

Fort Pierce in the 1948 and 1952 gubernatorial campaign is similar.


Dispersion of Leadership

Florida's political structure reflects a dispersion of political

leadership in contrast to that found in a few southern states and in the
24
two-party system where there is a concentration of leadership.24 There

is no "king maker." He who heads a political faction today may not have

a following tomorrow. Moreover, it is the exception rather than the rule

when candidates for the legislature, sheriff or other county offices

support each other on a county ticket and jointly announce their support

of one of the candidates for governor thus lending their local political

influence to the state candidate and conversely receiving the prestige

and influence associated with endorsement by the gubernatorial candidate.

The Florida brand of politics is every man for himself rather than the

machine type.

A peculiar reflection of Florida's political individualism was shown

in the 1944 race for United States Senator and that of attorney general

of the state. Both Claude Pepper, senatorial candidate, who had a

national reputation as a progressive and friend of labor, and J. Tom Wat-

son, attorney, who had a local reputation for his anti-labor views were

elected on the same day--each carrying thirty-seven counties.25


Mutability of Factions

Because there is little permanence in the organization of political

factions in Florida, there is not a well organized political group to


2Key, p. cit., p. 96.

25Ibid., p. 98.





16

support any candidate over a long period of time. There is no organiza-

tion candidate. Constant attachment to any faction over a long period

of time is an exceptional pattern of behavior for any substantial seg-

ment of the voters. Even same of the political leaders change from one

faction to the other in campaign after campaign. The keynote of Florida

politics is change. To the extent that one understands this, to that ex-

tent will he be able to interpret many of the events in the political life

of the state.


The Republican Party in Florida

Another issue to be explored in understanding the Florida political

picture is the role of the Republican party. Florida has more than twice

as many of its citizens who were born outside the state as any other

southern state. Many of these are natives of the Democratic states of

the south. Others came from the Republican areas of the East and Middle

West and brought their political leanings with them. Decreased emphasis

on fixed political traditions in Florida makes it easier for outsiders to

hold on to their political affiliations than in other part of the south.

These persons, therefore, constitute Republicn enclaves in a D2mo:ratic

state.

Most of the Republicans of the state res: ter as Democrats in order

to participate in the local primaries. But in the general election they

usually support the Republican presidential candidate. Professor Heard,

therefore, calls them presidential Republicans.26

It was in 1950 that a trend toward a center of Republican strength

was started in Pinellas County. The Republicans swept a complete

26exander heard, ci, 139
Alexander Heard, op. cit., p. 139.





17

legislative and county commission slate into office.27 In 1952 the num-

ber of Republicans in the state legislature jumped to six when Pinellas

County elected three representatives and one senator. In addition, Sara-

sota County elected two Republicans to the House of Representatives.28

In 1954 the two counties above elected six members to the state legisla-

ture and Orange County elected one member making a total of seven Republi-

cans. Even more phenomenal, however, was the election during this year

of William C. Cramer of St. Petersburg as the first Republican Congress-

man since Reconstruction days. He was elected from the Florida First

Congressional district composed of Hernando, Hillsborough, Pasco and Pin-

ellas County.9

The 1954 election ushered in further Republican gains. In Pinellas

County the GOP won thirteen local races from school board to state legis-

lature. The same pattern of voting success prevailed in Sarasota County.

Even in counties in which they did not win any election contests, the

Republicans showed strength. In Dade County Republicans polled about a

third of the total votes.30

This trend toward an effective Republican Party has raised the hopes

of many persons who desire a two-party system in the state. Cramer com-

mented after his election as follows: "I believe this is the real birth

of a permanent two-party system in the state, which I believe will be to


27The legislative delegation consisted of three state representa-
tives.

28Doyle, op. cit., p. 30.

2%ew York Times, November 7, 1954. The Democrats made a determined
bid to return the incumbent, Courtney W. Campbell to Congress. Senators
Richard B. Russell of Georgia, Estes Kefauver of Tennessee, Spessard
Holland and George Smathers of Florida, and Governor-elect Lefoy Collins
spoke in the district in the interest of Campbell's candidacy but they
could not stem the Republican tide.

30Ibid.






the advantage of the people of Florida because it provides competitive

government" 3
The success of Cramer and other local Republican candidates raises

the question as to whether there is a definite trend toward a two-party

system in Florida. Certainly there is ample potential for greater Repub-

lican strength in the thousands of new residents who have ucme to Florida

from Republican areas. If there is an upsurge of Republican strength in

the state it will reflect itself in contests for the state Supreme Court.

Such a situation would cause Justices of the Court to wage a campaign

before the general election after they have been nominated in the prim-

ries. There is no doubt that the growth of the Republican Party in

Florida to a position of strength on a state-wide level will affect all

areas of Florida's politics and government including the Supreme Court

of the state.

Not since 1926 have Republican candidates opposed Democrats for a

Supreme Court Justiceship in the general election. In that election two

slates of Republicans--one from the regular Republican Party and one from

the Republican Delegate Convention--opposed the Democratic candidates for

the court, Justices Rivers Buford, Armstead Brown, William Ellis and

Louie W. Strum. In the 1952 special primary to nominate a Democratic

candidate for the court, Republican officials of the state led by J. Tom

Watson--who had changed his party affiliation-ch-arged that Governor Fuller

Warren erred in not calling a Republican special primary. The Florida

Supreme Court, however, upheld the governor in his exclusion of Republicans

31bid. Cramer polled 10,000 more votes than there were Republicans
registere. in the district.

32teport of the Secretary of State of Florida, 1925-26, p. 11.






from the primary.3 In spite of this, if the present trend toward

growth of the Republican Party in the state continues, it may furnish

effective opposition in Supreme Court elections in the future.

The various factors contributing to the unique social, economic and

political situation in Florida have their implications for the Supreme

Court for they determine the milieu in which candidates for that tribunal

must campaign and be elected to office. The lack of political machines

in the state, for example, makes for a situation conducive to candidates

for the court who have no strong political ties to any political faction.

Factors such as the migration of people from other states cause more than

a larger number of voters. Persons coming into the state bring various

political and social ideas with them. These ideas take root and develop

in the flexible political climate in Florida. The growth of the Republi-

can Party has been, in part, due to some of the ideas. Other factors

which directly concern Supreme Court elections such as urbanization, an

economic system conducive to the formation of labor and management organ-

izations with strong political potential and the direction of political

control in the state, are important in a consideration of electoral

behavior. An attempt has been made above to show the relationship of

these factors to the selection of judges in Florida.


3Florida Times-Union (Jacksonville), August 23, 1952.






CHAPTER II

PROCEDURES FOR SELECTINt JUSTICES OF
THE FLORIDA SUPREME COURT


Historical Resume'of Judicial Selection
In the United States

During the colonial period, judges in the American colonies were

appointed by the crown except in Rhode Island and Connecticut, where the

legislature elected them.4 After the Revolutionary War, the states pro-

vided in their constitutions for appointment of the judges, either by

the legislature or by the governor. Only in Georgia were judges selected

by popular election. Tenure, as a rule, was for life during good behav-

ior.35 This situation persisted until the early part of the nineteenth

century when, under the impact of the Jacksonian influence, a change

took place in many of the states. Some people saw in the appointive

judiciary a negation of the democratic principles which Andrew Jackson

had popularized. Therefore, many of the states took from the governor

and the legislature the power to appoint judges and gave it to the voters.

This also became the practice among the new states as they were admitted
36
to the union. The old system of life tenure in these states was swept

away and judges were appointed or elected for a definite term.


34James Bryce, The American Commonwealth, 3d ed.; (New York:
MacMillan and Co., 1895) I, p. 505.

35Ibid. See also Jack W. Peltason, The Missouri Plan for the
Selection of Judges ("University of Missouri Studies," XX, Columbia:
University of Missouri, 1945), pp. 11-12.
36
James Bryce, op. cit., p. 505. See also A. T. Vanderbilt, ed.,
Minimum Standards of Judiclal Administration (New York University Law
Center, 1949), p. xxiii.







At the present time all judges are elected by the people in about

twenty-one states, and in fourteen or fifteen other states all are

elected except some inferior court judges. In the others the following

methods are employed: In Connecticut, most judges are appointed by the

governor with the consent of the general assembly. In Delaware and New

Jersey nearly all are appointed by the governor with the consent of the

Senate. In Maine, Massachusetts and New Hampshire, most of them are

appointed by the governor with the consent of the governor's council. In

four states--Rhode Island, South Carolina, Vermont and Virginia--virtu-

ally all are elected by the two houses of the legislature in joint

meeting.37 California and Missouri have a combination of an elective and

an appointive system.

The three methods of judicial selection mentioned above--executive

appointment, legislative appointment and popular election--are the prin-

cipal ones, with minor modifications, used in the various states. Each

has its partisans and its opponents. It is argued, on the one hand,

that legislative appointment is an indirect method of selection by the

people, and, on the other hand, that it does violence to the separation

of powers by having one branch of the government dependent on another

branch for the selection of its personnel. The Jacksonian period ushered

in the principal objection to executive appointment when men began to

assert that the plan was not democratic enough. The fear of the appoin-

tive judiciary was also strengthened when the courts began to declare


37Vanderbilt, o. cit., pp. 6-10. See also Book of the States,
1954-55 (Chicago: Council of State Governments, 1954), p. 436.

38eltason, op. cit., pp. 38, 42.




22
39
acts of the legislature unconstitutional. It is argued that popular

election of judges tends to allow political influence to outweigh merit

in the selection of judicial candidates and that voters cannot possibly

estimate the qualifications of candidates for judicial office in state-

wide elections and in the local elections in large urban centers.

Because some groups, especially bar groups, are dissatisfied with

the prevailing system in the states, various reform movements have begun.

These movements have led to many proposals to improve the judiciary.l

Few of these proposals have been accepted in the states, but efforts to

secure their adoption continue. The American Bar Association Plan has

the prestige of a large national organization of lawyers and judges behind

it. Moreover, it has been put into practice in one of the states--Mis-

souri--and has made an admirable record.


Judicial Tenure

Closely allied with the problem of judicial selection is that of

judicial tenure--the length of the judge's service on the bench. Most

states today use term tenure--election for a definite period.2 Only in

Massachusetts, New Hampshire, New Jersey and Rhode Island do judges hold

office in most courts for life during good behavior, with some limiting


3W F. Willoughby, Principles of Judicial Administration (Washing-
ton: The Brookings Institution, 1929), pp. 361-362.
40Ella Graubart, "Selection Can We Find a Better Way to Elect
Our Judges?" Pennsylvania Bar Association Quarterly, XVIII (October,
1946), pp. 85-86.

4The Cleveland Plan, The California Plan of 1934, The American
Bar Association Plan of 1937, The Model State Constitution Plan and
several others.

42Book of the States, 1954-55, p. 435.




23

provisions. In these states, judicial officers are either appointed or

elected by the state legislature. 4

Judges in other states are elected to office for definite terms

ranging from twenty-one years for the Supreme Court of Pennsylvania to

six years for the Supreme Court of eighteen states. It should be noted

that almost invariably judges in the highest courts hold office for

longer terms than Judges of lower courts. One other factor that should

be kept in mind in considering judicial tenure is that in forty-five

states judges are customarily reappointed or reelected to office.45


Judicial Selection in Florida: Constitutional
and Statutory Provisions

The Supreme Court of Florida now consists of seven Justices elected

by the qualified electors for terms of six years.46 But the judges have

not always been elected by popular vote. The Constitution of 183847

after vesting the judicial powers of the state in the Supreme Court,

Courts of Chancery, Circuit Courts and Justices of the Peace provided

that:

For the term of five years from the election of judges cf
the circuit courts and thereafter, until the General Assembly
shall otherwise provide, the powers of the Supreme Court shall
be vested in, and its duties performed by the judges of the


4Vanderbilt, op. cit., pp. 17-20.

Book of the States, 1954-55, p. 435.

45Vanderbilt, e. cit., p. 21.

Constitution of Florida (1885), Article V, sec. 2.

47This Constitution was drawn up when the territory of Florida
sought admission to the union. It was not until March 3, 1845, how-
ever, that it was admitted as a state.






several circuit courts within the state, and they, or a major-
ity of them, shall hold such sessions of the supreme Court,
and at such time, as may be directed by law.

The circuit judges were elected by a concurrent vote of a majority
49
of both houses of the General Assembly for a term of five years. At

the expiration of the five year period, the justices of the Supreme Court

and the judges of the circuit courts were to be elected for life during

good behavior.50 Pursuant to a constitutional amendment, the legisla-

ture in 1851 passed an act organizing the Supreme Court independent of

the circuit courts and elected Walter Anderson as Chief Justice and

Leslie A. Thompson and Albert G. Semnes as Associate Justices.5

The Constitution was later amended to provide that justices of the

Supreme Court would be elected by the qualified electors of the state for

a term of eight years.52 This provision remained in effect until the

Constitution of 1861 changed the method of selection to that of appoint-

ment by the governor with the consent of two-thirds of the Senate for six

year terms.53 Four years later the Constitution of 1865 provided that

circuit judges should be elected by popular vote for terms of six years

but did not change the provision for the appointment of Supreme Court

Justices except that the requirement for a 2/3 Senate vote was dropped.

The Constitution of 1868 retained the method of selecting justices of


constitution of Florida (1838) Article V, sec. 3.

49Ibid., sec. 11.

Ibid., sec. 12.

Armstead Brown, "The Bench and Bar of Florida," Florida Law
Journal, XIX (June, 1945), p. 185-186.

52Francis N. Thorpe, State Constitutions, Colonial Charts and Other
Organic Laws, 1492-1908 (Washington: Government Printing Office, 1909)
II, p. 684.

53Armstead Brown, op. cLt., p. 186.




25

the Supreme Court but changed the term of office to that of life dr dur-

ing good behavior.54 This provision became inoperative with the adop-

tion of the Constitution in 1885.

Thus, at various times since Florida became a state, the Constitu-

tion has provided for the selection of Supreme Court Justices by (1) vote

of a majority of the two houses of the General Assembly (2) election by

the qualified voters and (3) appointment by the governor with confirma-

tion by the Senate. The tenure of office has varied from six years to

life or during good behavior. The change in the method of selection which

took place about the middle of the nineteenth century was in keeping with

the trend throughout the country to elect public officers as a result of

Jacksonian democracy.


Democratic Party Primaries and Their Importance

Candidates for state offices in Florida are nominated in the direct

primary of the party. This is an election in which only members of the

party may participate. Persons nominated in such primaries encounter no

effective opposition in the general election, as a rule. Thus nomination

in the primary is tantamount to election to office.

Since the real choice in the election of public officials in Florida

is made in the primary, it might be well to determine whether or not there

is any formal means of selecting candidates to run in the primaries. In

other words, is there any organized effort to select candidates prior to

the primary? There is no organization in Florida of any continuity from

one election to the next which puts forth candidates in such a fashion.

The various transitory factions so characteristic of the Florida


Constitution of Florida (1868), Article VII, sec. 3.





26

political structure may form around a candidate or may urge a candidate

to run for office. Usually, however, the person announces for office and

the factions supporting him take definite shape after such announcement.

Candidacies are therefore self-inspired rather than the results of con-

sultation and deliberation among groups.55

In the double primary system the runner-up in the first primary often

is nominated to office in the second primary. The candidate who received

a plurality in the first primary may lose in the runoff for a number of

reasons. The Florida electorate, composed as it is of voters without

strong loyalties to a faction or a candidate, may support the top candi-

date in the first primary and switch to his opponent in the second pri-

mary. Another factor, and this is especially true of elections for the

judiciary, is that the number of persons voting in the runoff may be sub-

stantially lower than in the first primary. In some situations a strong

candidate may announce for an office and win in the first primary before

his divided opposition can do anything about it. After that, however,

when the alternatives are reduced to two candidates, the field combines
56
against the favorite and defeats him in the second primary.

In the three double-primary elections for Justices of the Florida

Supreme Court, which we shall consider in this study, the runner-up won

in the runoff in two of them and lost in the other. In 1938 the leader

in the first primary, Elwyn Thomas, was victorious in the second primary.

But in 1946 W. Raleigh Petteway, who was high man in the first primary,

lost in the runoff. Similarly, J. Tom Watson was defeated in the second


55v. o. Key, Southern Politics in State and Nation (New York:
Alfred A. Knopf, 1949), p. 412.

56bid., p. 422.





27

primary in 1948. All other primaries in which there were contests for

a seat on the court were settled in the first primary. This fact indi-

cates that the extreme factionalism which dominates the atmosphere of

Florida politics is not so strong in primaries to nominate candidates for

the Supreme Court. If it were, there would be more candidates in the

first primary and the necessity for a runoff in most cases in order for

one candidate to secure a majority of the votes.

Another important factor with respect to the primary in a one-party

state is the role of the party organization in securing votes for a parti-

cular candidate. In the one-party system in Florida the party is neutral

in both primaries. This neutrality stems from the fact that the party

is not principally a vote-getting agency. Since it has no effective oppo-

sition, it does not have to lend its efforts to the task of rallying the

voters to support its nominee. Moreover, the lack of opposition does not

create any external pressure for internal unity and discipline. All this

tends to produce a political climate conducive to the greatest flexibility

in the selection of candidates for Justice of the Florida Supreme Court

and other state offices.

The primary, therefore, in the state of Florida is the principal

device for the selection of persons for office. The general election is

a formality, yet a necessary formality especially during the years that

the President of the United States is elected or when some issue is sub-

mitted to the people in a referendum, and does not provide the excitement

or color to be found in the primary. In a consideration of the machinery

for selecting justices of the Supreme Court, one must place chief empha-

sis on the Democratic primary in which the actual selection of the candi-

date is made.






Special Primaries

In addition to the regular party primary, special primary elections,

usually called by the governor, may be held to nominate candidates for

Justice of the Supreme Court and other offices, when such candidates for

some reason have not been nominated in the regular primary. The party

must nominate its candidate before the general election which is usually

held in November. Since public officers must be nominated by primaries

and not by action of a party committee, a failure to nominate in the May

primaries will result in a special election for achieving this result.57

Both Justice T. Frank Hobson in 1948 and Justice E. Harris Drew in 1952

received their party's nomination in a special primary. This action was

necessary in the latter case when the incumbent, Justice R. H. Chapman,

died shortly after being nominated in the regular May primary.


Interim Appointments

Besides providing for the election of Justices of the Supreme Court,

it was necessary to establish a procedure to fill vacancies on that tri-

bunal caused by the death, resignation or removal of one of the members.

The legislature anticipated this contingency by the following provision:

In all such cases and in all other cases in which a vacancy
may occur, if the office be a state, district or county office
(other than a member or officer of the legislature), the gover-
nor shall fill such office by appointment, and the person so
appointed shall be entitled to take and hold such office until
the same shall be filled by an election as provided by law. 5

The statutes further provide that "appointments to fill such vacan-

cies shall extend only to the election and qualification of a successor

57
57Wilson K. Doyle, Angus M. Laird and S. Sherman Weiss, The Govern-
ment and Administration of Florida (New York: Thomas Y. Crowell Com-
pany, 1954), pp. 34-37.

5Florida Statutes, 1953, Title X, chap. 114.04.




29

at the next ensuing general election. Elections to fill vacancies shall

be for the unexpired terms."59 These provisions are concomitants of the

constitutional directive that:

When any office, from any cause shall become vacant, and
no mode is provided by this constitution or by the laws of
the state for filling such vacancy, the governor shall have
the power to fill s ch vacancy by granting a commission for
the unexpired term.w

It seems reasonable to assume that the intention of the framers of

the constitution and the lawmakers in setting up a procedure for appoint-

ment of judges by the governor was to take care of those infrequent con-

tingencies in which a judge could not or did not finish his term on the

bench. They fully expected that the principal means by which the jus-

tices of the Supreme Court would be selected would follow the provisions

of the constitution and such justices would be elected by the qualified

voters. Few responsible government officials, it is safe to conjecture,

expected that there would be other than an occasional or infrequent use

of the device of interim appointments. Certainly few persons would have

predicted that, within a given period, more Justices of the Supreme Court

would have been appointed to the court--on their original entry on that

tribunal--than elected by the people at the polls. But that is precisely

what has happened.

Despite the requirement that Justices of the Supreme Court are to

be selected by the qualified electors, most of the persons who served on

the bench during the period covered by this study did not enter the court

because of election by the people. Of the twelve Justices who served on


59Ibid., Title V, chap. 25.01.

60Constitution of Florida, Article IV, sec. 7.




30

the bench since January, 1943,61 nine of them entered the court by guber-

natorial appointment. In addition Justices Barns and Thomas were appointed

to the court after they had been elected for a full term. Their appoint-

ments were to fill out the unexpired terms of the men whom they had already

been elected to succeed. Justice Barns' full term began January 7, 1947

but because Justice Brown, the man whom he had been elected to succeed,

resigned from the bench December 1, 1946, Governor Millard Caldwell

appointed Barns to the court December 3, 1946. Similarly Justice Thomas

was appointed to the court November 1, 1938 to serve out the unexpired

term of Justice W. H. Ellis who resigned in October, 1938 although Thomas'

full term did not begin until January 3, 1939. The appointment of the

governor in both of these instances was in keeping with the mandate which

the candidates received at the polls when they were elected to the court

for full terms. The only other justice among the twelve considered here

who was elected to the Supreme Court on original entry thereon was Justice

H. L. Sebring. Thus, as shown in Table 1, nine of the Justices entered

the court by appointment rather than popular election.62 This reveals

the extensive use of interim appointments in the actual selection of

judges in spite of the provision for popular election. Moreover, persons

appointed to the court have been habitually elected and reelected to the

court after such appointment. In most instances, incumbents have been

nominated without opposition in the party primary and of course faced no

opposition in the general election.


61Justices Buford, Brown, Terrell, Thomas, Adams, Sebring, Hobson,
Chapman, Roberts, Mathews, Barns and Drew. Since this study was com-
pleted Justices 0 'Connell and Thornal were appointed by the Governor to
fill vacancies on the court.

62Eleven including Justices 0'Connell and Thornal.








TABLE 1

Method by Which Justices Came on the Florida Supreme Court

(Including those Justices who have served on the Court
since January, 1943)


Glenn Terrell

Rivers H. Buford

Armstead Brown

Roy Chapman

Elwyn Thomas

Alto Adams

Harold Sebring

Paul Barns

J. Frank Hobson

B. K. Roberts

John E. Mathews

E. Harris Drew

Campbell Thornal

Stephen O'Connell


Appointed by Gov. C. A. Hardee

Appointed by Gov. John W. Martin

Appointed by Gov. John W. Martin

Appointed by Gov. F. P. Cone

Appointed by Gov. F. P. Cone

Appointed by Gov. F. P. Cone

Elected for full term

Appointed by Gov. M. Caldwell

Appointed by Gov. M. Caldwell

Appointed by Gov. Fuller Warren

Appointed by Gov. Fuller Warren

Appointed by Gov. Fuller Warren

Appointed by Gov. LeRoy Collins

Appointed by Gov. LeRoy Collins


1Already elected to Court for term.
Already elected to Court for full term.


unexpired term of Justices whom they were to succeed.


(1923)

(1925)

(1925)

(1937

(1938)1

(1940)

(1943)

(1946)1

(1948)

(1949)

(1951)

(1952)

(1955)

(1955)


Appointed to fill out


The vacancies on the Court which made the above appointments
possible were due to the death, resignation or retirement of a jus-
tice or to an increase in the size of the court.


_ ____






Tenure of Supreme Court Justices

Since some Justices of the Florida Supreme Court are selected by

popular vote and, as has been indicated earlier, the political climate in

the state is one which produces a large number of candidates for the vari-

ous offices, especially for the office of governor, it would appear that

there would be many persons seeking places on the high court bench. But

such is not the case. There are few contests for court positions. The

pattern has been that once a Justice is elected or appointed to the bench,

he enjoys long tenure because he encounters little or no opposition in

the primary or general election.

There are many reasons given for these unopposed nominations. Some

of them are as follows:

(1) They are usually proof of the good favor with which the can-
didate is held by the party, the electorate and the bar.

(2) A lack of public interest in a campaign.

(3) Lack of available candidates with the qualifications for
the office. 3

The Ocala Star-Banner observed in this connection that:

....It is seldom that a justice of the Supreme Court, who has
served in an acceptable capacity for one or more terms, has oppo-
sition. There are several reasons for this. First, of course,
there is certain prestige that goes with holding a seat on the
state's highest tribunal. A Justice who is known for his fair-
ness in reaching decisions, and who earns a reputation for con-
scientious devotion to duty, has the advantage of an unknown
seeking to displace him from the bench. Lawyers of prominence,
and only outstanding men in the legal profession should ask to
be elevated to the Supreme Court bench, are reluctant to oppose
the election of a sitting justice. While a Justice is supposed
to be above partisan feeling, some day his primary opponent would
have litigation coming before the supreme Court, and primary cam-
paign bitterness might rankle....

63Cortez A. M. Ewing, Pr 'ary Elections in the South, (Norman:
University of Oklahoma Press, 1953), p. 41.

Ocala Star-Banner, December 17, 1951.





33

Whatever the reasons for the unopposed nomination in Florida, it is

evident that it has contributed to the length of the tenure enjoyed by

justices of the states highest court. Justice Terrell, for instance, has

been nominated without opposition for each of the six full terms that he

has been a member of the court. Justice Thomas was elected for his first

full term but since that time he has been nominated twice without opposi-

tion. Justice Sebring has likewise been nominated twice without opposi-

tion after facing an opponent initially to gain a seat on the court.

The record for longest tenure on the court is held by Justice J. B.

Whitfield who served for almost thirty-nine years and retired from the

court at the expiration of his term in January, 1943. Next to him in

point of service in the history of the court was Justice R. F. Taylor who

retired in 1925 after about thirty-five years of service. Table 2 shows

the approximate years of service of the Justices considered in this study.

It shows that Justices Brown and Buford both had more than twenty years

of service before they retired and Justice Adams served more than ten

years before resigning to run for the office of governor of the state.

Justice Barns, although staying on the court only three years, retired on

his own initiative, being eligible for retirement after more than twenty

years on the bench of the lower courts before coming on the highest court

bench. Justice Chapman died in office after fifteen years of service.

The dean of the present court is Justice Glenn Terrell, who has been

on that tribunal for more than thirty-five years. Next come Justice Elwyn

Thomas with seventeen years of service and Justice H. L. Sebring with

twelve years. The other Justices and their years on the court are Hob-

son 7, Roberts 6, Mathews 4 and Drew 3.65 The significant feature of the

6&thbews and Sebring were replaced by Thornal and O'Connell in 1955.









TABLE 2

TENURE OF JUDGES OF FLORIDA

SUPREME COURT*


Justices

Glenn Terrell

Rivers H. Buford

Armstead Brown

Roy Chapman

Elwyn Thomas

Alto Adams

Harold Sebring

Paul Barns

J. Frank Hobson

B. K. Roberts

John E. Mathews

E. Harris Drew

Campbell Thornal

Stephen O'Connell


Years on
Court

1923-

1925-1948

1925-1946

1937-1952

1938-

1940-1951

1943-1955

1946-1949

1948-

1949-

1951-1955

1952-

1955-

1955-


Approximate
Years of Servic
to 1958

35

23

21

15

20

11

12

3

10

9

4

6

3

3


Retired

Retired

Died in Office


Designed to run


Designed to run
for Governor

Retired

Retired


II-


*Includes only justices who were on the court
January, 1943.


on or after


'I


Died in Office





35

data given here is that the only persons who left the court were those who

retired, resigned or died in office. No justice was defeated in a contest

in the primary. This seems to suggest that Justices of the Florida Supreme

Court remain in office as long as they desire and only leave office on

their own volition or through death. There is every indication from the

evidence presented that a person possessing the necessary qualifications

who succeeds in winning a place on the Supreme Court can look forward to a

long period of service. Notwithstanding some of the disadvantages sup-

posedly connected with membership on that tribunal, the members have been

given a mandate from the people again and again by being returned to office

when they sought reelection.

In only one instance since the present constitution was adopted has

a justice of the Supreme Court been defeated for reelection. This occurred

in 1916 when Justice Robert S. Cockrell lost to Jefferson B. Browne.

There is some evidence that this election was influenced by the guberna-

torial election of that year. The two principals seeking the nomination

for governor were Sidney J. Catts, a Baptist minister of DeFuniak Springs,

and W. V. Knott, state comptroller for many years. Capitalizing on the

rising tide of anti-catholicism stirred up by Tom Watson of Georgia through

his paper, the Jeffersonian, Catts raised the religious issue in the cam-

paign with favorable political results. Although Knott was favored to win

the nomination in the June 2 primary, Catts defeated him by almost 500

votes. Knott's supporters, however, secured a recount through court action

and the canvassing board, after checking the amended returns, declared

Knott the Democratic nominee. Catts, meanwhile, got his name on the






general election ballot as the nominee of the Prohibition Party and
66
defeated Knott.

Justice Cockrell did not wage an active campaign for reelection to

the Supreme Court. Browne, his opponent, was an excellent speaker and

campaigner and because of this became very popular in areas which he vis-

ited. In addition to this, he appeared in several places in the state on

the same platform with Catts. This seems to have resulted in the voters

associating the two of them together. This operated to give Browne addi-

tional support from persons who backed Catts' gubernatorial aspirations.

There is no evidence, however, that Browne accepted the anti-catholic

sentiments expounded by Catts. Notwithstanding this, the religious issue

apparently influenced the election.


Campaign Finances

In many of the campaigns in Florida, enormous sums of money were

spent. The newspaper, radio and other types of publicity necessary to

wage an effective campaign together with other expenses which a candidate

must incur demand a substantial financial outlay. Lacking the backing of

a party organization ready to throw its financial resources behind him,

the candidate in Florida must depend upon contributions of individuals

and groups interested for one reason or another in his candidacy. Of

great concern to the people of the state was the disclosure that a large

part of these contributions came from sources such as liquor and racing

interests. Although there were legal requirements for reporting such con-

tributions and expenditures to the appropriate state office, there was


6William T. Cash, History of the Democratic Party in Florida
(Tallahassee: Florida Historical Foundation, 1936), p. 129.






67
only token obedience of the law. After disclosures of contributions

in the 1948 gubernatorial contest and the heavy expenses of the 1950 sen-

atorial contest, the legislature in 1951 passed a campaign expense law

in an effort to control effectively the financing of campaigns. The essen-

tial features of the law are as follows:

(1) No limit was set on campaign expenditures but individual con-
tributions were limited to $1000.00.

(2) All monies received or spent in behalf of a certain candidate
must go through a designated treasurer and bank depository.
Adequate publicity regarding names of contributors, and amount
of contributions and expenditures is afforded through periodic
reports made to the proper state office before the primary.

(3) Contributions to a political party, or candidate for nominal'
tion or election to any political office in the state from
certain economic groups, such as racing and liquor interests
or public utilities subject to grant of franchise or regula-
tion, are prohibited.

(4) Penalties for violation of the law include loss of commission
to office, conviction for commission of a felony or misde-
meanor,6gitation for contempt, and revocation of charter or
permit.

Primaries for the Florida Supreme Court both before and after the

present law show expenditures ranging all the way from the filing fee of

$675.00 in an unopposed nomination to more than $18,000.00 in a primary in
69
which there was an active campaign.







67Elston E. Roady, "Florida's New Campaign Expense Law and the 1952
Democratic Gubernatorial Primaries," American Political Science Review,
XLVIII (June, 1954), p. 465.

6Ibid., pp. 466-67.
69The filing fee is 5 per cent of the present annual salary of
$13,500 for Supreme Court Justices. Three per cent of this is assessed
by the state and 2 per cent by the executive committee of the party.







CHAPTER III

SUPREME COURT CAMPAIGNS


Campaigns for election to the Florida Supreme Court have not been

distinguished by great vigor and fervor, except in one or two instances.

There are appearances of the candidates before lawyer groups and civic

clubs, and radio addresses are given from time to time. Candidates

visit the various cities meeting and conferring with key people whom they

feel will be helpful in conducting the campaign. Such visits and con-

ferences afford the campaigners an opportunity to talk to some of the

rank and file voters at the grass roots level of contact. In addition,

candidates appear at the annual convention of many state-wide organiza-

tions and at political rallies.

Incumbents have regarded it as below the dignity of the court to

wage a campaign for office in which bitter attacks were made on the per-

sonal and professional integrity of their opponents. Candidates for

office have spent their time, by and large, pointing out their own qual-

ifications rather than vilifying their opponents. Moreover, the pres-

sure of the large number of cases to be decided reduces to a minimum

the amount of time left for campaigning for justices running for re-

election to the court. In some instances, justices running for reelec-

tion do not wage active campaigns because of their court duties. Another

consideration is that the rules of ethics of the bench and bar place







restrictions on candidates for judicial office that are not placed on

aspirants to other offices.70


The 1938 Campaigns

There were three contests in the 1938 primary for Justices of the

Supreme Court. These contests were especially significant because this

was the first time in Florida history that a runoff or second primary

was held for nomination by either party to a post on the state Supreme

Court. It was also the first election since the poll tax was removed in

1937 as a requirement for voting. Moreover, these were the first con-

tests for a post on the Supreme Court in a party primary since 1926.71

The candidates in one group were Circuit Judge Elwyn Thomas of

Fort Pierce of the ninth Judicial Circuit, Attorney J. Tom Watson of

Tampa and Attorney Truman G. Futch of Leesburg. They sought the vacancy

on the court created when Chief Justice W. H. Ellis announced that he

would retire at the end of his term in January, 1939.

In another group, Incumbent Rivers H. Buford was opposed by state

Senate President D. Stuart Gillis of DeFuniak Springs. The third of


70See Section 30, Rule A, of the Florida Code of Ethics Governing
Judges adopted by the Florida Supreme Court which state s: "A candidate
for judicial position should not make or suffer others to make for him,
promises of conduct in office which appeal to the cupidity or prejudices
of his appointing or electing power; he should not announce in advance
his conclusions of law on disputed issues to secure class support, and
be shall do nothing while a candidate to create the impression that if
chosen, he will administer his office with bias, partiality or improper
discrimination....
"If a judge becomes a candidate for any judicial office, he should
refrain from all conduct which might tend to arouse reasonable suspicion
that he is using the power or prestige of his judicial position to pro-
mote his candidacy or the success of his party.
"He should not permit others to do anything in behalf of his can-
didacy which might reasonably lead to such suspicion." Florida Bar
Journal, XXVIII (Supplement, November, 1954), pp. 191-92.

71In 1938 the Florida Supreme Court was composed of six judges.





40

these contests found Attorney John Melvin Hearns of Like Oak challenging

Justice Roy H. Chapman of Lake City. Chapman was appointed to the tri-

bunal in June, 1937 by his former law partner, Governor Fred P. Cone, to

succeed Justice Fred H. Davis, who died in office. This contest was for

the remaining years of Justice Davis' term.

Campaigning in these three contests followed the accepted method

noted above. Two of them were decided in the first primary with Buford

and Chapman decisively defeating their opponents. The other campaign

required a run-off primary. One of the three candidates, Truman G.

Futch, was eliminated in the first primary. J. Tom Watson and Elwyn

Thomas met in the second primary with Thomas emerging the winner.


The 1942 Campaign

This contest featured Circuit Judge Harold L. Sebring of Gaines-

ville opposing Attorney Theodore T. Turnbull of Monticello, veteran

legislator and chairman of the state Democratic Executive Committee, to

occupy the post which Justice J. B. Whitfield created by retiring at the

expiration of his term. Sebring overwhelmingly defeated his opponent,

carrying fifty-six of Florida's sixty-seven counties.73


The 1946 Campaign

When Justice Armstead Brown of the State Supreme Court announced

that he would retire at the end of his term, four men sought the nomina-

tion to that office in the May, 1946 primary. They were Circuit Judge

Paul D. Barns of the Eleventh Judicial Circuit of Mliami, Attorneys


72ee Table 3.

73See Table 3.






W. Raleigh Petteway of Miami, James Henry Taylor and J. L. Lee of Jack-

sonville.

This was an off-year election since the governor and other princi-

pal officers were not being elected and the candidates experienced diffi-

culty in arousing interest in the campaign. Nevertheless, a run-off

election was necessary after Lee and Taylor were eliminated in the first

primary. Barns defeated Petteway in the second primary in a close

race, although Petteway had polled the most votes in the first primary.7


The 1948 Contest

Circuit Judge T. Frank Hobson of St. Petersburg was appointed on

March 30, 1948 by Governor lMillard Caldwell to the state Supreme Court

to fill the vacancy caused by the retirement of Justice Rivers H. Buford.

The Governor's appointment extended until January, 1949. A special pri-

mary was necessary to nominate a Democratic candidate to serve the re-

maining two years of Justice Buford's unexpired term. The three candi-

dates in this primary were Justice Hobson, Attorney J. Tom Watson of

Tampa, attorney general of the state since 1940, and Circuit Judge

W. May Walker of the Second Judicial Circuit of Tallahassee.

Judge Walker was eliminated in the first primary, in which J. Tom

Watson was high man. In the run-off election organized labor girded

itself to defeat Watson, because of his sponsorship of Florida's "right

to work" amendment to the state's Constitution adopted in 1944. This

amendment states, in effect, that no person will be denied the right to

work by reason of membership or non-membership in any union or other

organization. It was the first state "right to work" law. Labor


7See Table 3.







regarded it as an attempt to provide an open shop and to destroy its

power and influence in collective bargaining.75 Thus it regarded Wat-

son, the sponsor of the anti-closed shop amendment, as labor's number

one enemy in the state.

Hobson defeated Watson in the second primary by a majority of 21,597

votes although he had trailed him in the first primary by more than

84,000 votes. Doubtlessly, labor, together with newspapers, bar groups

and other organizations, played a large part in reversing this situation

in favor of the St. Petersburg jurist.6


The 1952 Roberts-Lewis Campaign

On July 7, 1949, Governor Fuller Warren appointed B. K. Roberts of

Tallahassee to the Supreme Court to succeed Justice Paul Barns who

retired from the state judiciary after serving almost twenty years on

the lower courts and more than three years on the highest state court.

Then in 1950 Justice Roberts was nominated without opposition to serve

the unexpired term of Justice Barns. He sought a full term on the court

in the 1952 primary. His opponent was Halley B. Lewis of Arcadia.

Justice Roberts, who received considerable labor and newspaper sup-

port, won the nomination decisively.77


The Drew-Giblin Campaign of 1952

Attorney E. Harris Drew of West Palm Beach was appointed to the

Supreme Court by Governor Fuller Warren on August 12, 1952 to succeed


75iami Herald, May 30, 1948.

-6See Table 3.

77See Table 3.







Justice Roy H. Chapman, who died in office on August 9. Justice Chap-

man had been nominated for a full term in the May, 1952 primary and

would have been elected in the general election in November. Therefore,

Drew's interim appointment extended only until January, 1953. Warren

called a special court primary--after an advisory opinion from the

Supreme Court informed him he had the authority to do so--for October 14

to nominate a Democratic candidate before the November general election.

The winning candidate in this primary would take office for a full term

in January, 1953. The persons seeking the nomination were Justice Drew

and Circuit Judge Vincent C. Giblin of the Eleventh Judicial Circuit of

Dade County.

The two principal issues raised in the campaign were the case load

of the Florida Supreme Court and the proposed constitutional amendment

to increase the number of Justices of the court from seven to ten. Vari-

ous subsidiary issues stem from these two principal ones.

The Florida Supreme Court has been called the busiest appellate

court in the nation because of its large case load. The court disposed

of 927 cases in 1950 and 940 in 19518 compared to a national average

of about 300 cases a year handled by the other state Supreme Courts. In

spite of this output, the number of cases remaining on the docket at

the end of the year continued to increase. Thus in 1951 there were 357

cases on the docket at the beginning of the year and 385 at the end of

the year. This load comes about, in part, through the fact that the

Judicial system has not been modernized to keep pace with the tremendous

growth of the state since the Constitution was adopted in 1885. Another


7The court handled 996 cases in 1952 and 1,172 in 1953.







contributing cause is the ease by which a case may be appealed to the

court. Appeals are almost a matter of right for the parties in the

controversy in a lower court.79

The proposed constitutional amendment, which sought to add three

new Justices to the seven-man court, was suggested as one way to handle

the business of the court without undue delay. The ten-man court

created by the amendment would sit in three divisions instead of the

present two divisions. Each division--consisting of not less than three

members--would hear and decide cases. It was felt that this would enable

the court to more adequately handle the cases coming before it. The

amendnemt was sponsored by the Florida Bar.

Justice Drew won the primary in one of the closest state-wide elec-

tions in Florida history. The vote was Drew 63,791 to 62,261 for Giblin,

or a majority of 1,530 for the winning candidate.81














79Florida Times-Union, January 13, 1954.
0"Address by Governor Fuller Warren at the Florida Bar Convention,"
Florida Law Journal, XXVI (June, 1952), p. 240. The 1956 amendment to
the Florida Constitution, setting up three district Courts of Appeal,
ended the practice of the Supreme Court sitting in divisions. Moreover,
the three appeals courts will materially decrease the case load of the
high court.
Since July, 1957 appeals to the Supreme Court are no longer a
matter of right in most cases.

86ee Table 3.






TABLE 3


RESULTS OF PRIMARY CAMPAIGNS -- FLORIDA SUPREME COURT


1938


I II III

Elwyn Thomas----109,875 Rivers H. Buford--170,135 Roy H. Chapman--191,479
J. Tom Watson--- 96,064 D. Stuart Gillis--112,455 John M. Hearn--- 58,491
Truman G. Futch- 79,074

Second Primary

Elwyn Thomas---156,591
J. Tom Watson--108,687




1942

Harold L. Sebring----147,129
Theodore T. Turnbull-- 64,824




1946 1948

Paul D. Barns-------- 82,186 T. Frank Hobcon--l4l,888
W. Raleigh Petteway--102,150 J. Tom Watson----128,539
James Henry Taylor--- 34,845 W. May Walker----226,498
J. L. Lee------------ 51,964
Second Primary
Second Primary
T. Frank Hobson--92,512
Paul D. Barns--------93,152 J. Tom Watson----70,915
W. Raleigh Petteway--86,769



1952
I II


B. K. Roberts----307,225
Halley B. Lewis--153,174


E. Harris Drew-----63,791
Vincont C. Giblin--62,261









CHAPTER IV

ORGANIZATIONS AND FACTORS INFLUENCING THE SELECTION

OF JUSTICES OF THE FLORIDA SUPREME COURT


There are many factors exerting some influence on the selection of

Justices of the Florida Supreme Court. Some of these are:

(1) The State Bar Association
(2) The Local Bar Association
(3) Newspapers
4) Labor Organizations
5) Gubernatorial Support
6) Sectionalism
7) Voter Participation
8) Campaign Issues


The State Bar Association

Of all the groups interested in the selection of judges, perhaps

none has worked more than the organized bar. The scope and direction

of its efforts have varied from place to place. In some instances, it

has endorsed candidates and campaigned for their election. In other

cases, it has restricted its activities to indirect action through move-

ments to improve the machinery for selecting judges and to provide con-

ditions which will attract and keep able men on the bench. Generally,

the state bar of Florida has fallen in the latter category. The local

bar associations have played a more active role in the selection process

than has the state association.







The Florida State Bar Association,82 since 1950 known as the

Florida Bar, at its 1951 convention adopted and sponsored in the legis-

lature of that year a constitutional amendment to increase the number

of justices of the state Supreme Court to ten and allow the court to

sit in three divisions83 instead of two as at present. This proposed

amendment was adopted by'the legislature in 1951 and submitted to the

voters at the general election in November, 1952.8

Governor Fuller Warren then requested the Florida Bar to make

recommendations for appointments to the Supreme Court in the event of

favorable action at the polls.85 The Governor indicated that he would

appoint the three justices from the list which the state Bar recommended.

Pursuant to this request, the members of the Florida Bar were polled on

a state-wide basis to determine the men they thought best qualified to


82prior to 1950 the Florida State Bar Association was a voluntary
organization composed of those lawyers who desired to become members.
On June 7, 1949 the Bar was integrated by order of the Supreme Court
of Florida. On March 4, 1950 the court adopted an Integration Rule
which is the basic law or constitution of the Florida Bar. Under this
rule all persons entitled to practice law in the state must be members
of the Florida Bar.

83The Court may hear and consider cases as a single body or in
divisions. Each division consists of not more than three members of
the court exclusive of the Chief Justice. The judgment of a division
concurred in by the Chief Justice becomes the judgment of the court
except in capital cases, cases involving constitutional questions, and
those in which there is a dissent from the judgment of a division by a
member thereof or the Chief Justice. See Florida Constitution, Article V,
sec. 4. Since the adoption of the 1956 amendment to Article V of the
Florida Constitution setting up the district courts of appeal, the
Supreme Court no longer sits in divisions.

4"Judiciary Article Amendment," Florida Law Journal, XXV (April,
1951), PP. 108-109. Many members of the Bar opposed this amendment.

85he Constitution of Florida (Article XVII, sec. 1) provides
that amendments may be adopted "If a majority of the electors voting
on the amendment" approve it.







serve on the bench. This poll was inconclusive since only about six

hundred of Florida's more than five thousand lawyers returned the
86
ballots.

The Board of Governors of the Florida Bar then set up a new plan

for a secret poll of members since it thought the results under the

other'plan were not representative. Each person was allowed to nominate

five persons within his congressional district. The five persons re-

~eiving the most votes in each of Florida's eight districts were certi-

fied and recommended to the governor. This resulted in getting forty

names from which the chief executive could appoint the three persons

if the amendment passed. The amendment, however, was defeated by the
87
voters at the polls.

After this experience with bar polls, President John M. Allison

of the Florida Bar recommended that the Bar continue the policy of

making recommendations to fill vacancies on the Florida Supreme Court
88
and extend the policy, if possible, to the circuit courts. This

recommendation evidently referred to the filling of vacancies by appoint-

ment because the state Bar, as an organization, has not endorsed


8"President's Message," Florida Law Journal, XXVI (April, 1952),
p. 129 and "Address by Governor Fuller Warren at the Florida Bar Con-
vention," Florida Law Journal (June, 1952), p. 242. This was not a
secret poll because the ballot printed in the Law Journal required the
signature of the lawyer casting the vote.

8"Bar Nominations for the Supreme Court," Florida Law Journal,
XXVI (June, 1952), p. 243. See also "Annual Address of Honorable
Horner C. Fisher,' Florida Bar Journal, XXVIII (June, 1954), p. 224.
About sixteen hundred lawyers voted in this second poll. Among the
men recommended to the governor were Judges Vincent C. Giblin,
W. May Walker and T. G. Futch and Attorney E. Harris Drew. Drew was
appointed to the Supreme Court in August, 1952.

8"Annual Address of John M. Allison," Florida Law Journal, XXVI
(June, 1952), p. 236.







candidates for the Supreme Court in the primaries. As individuals,

members of the state Bar and also officials of the state organization

have supported judicial candidates. An example of active support

being given a candidate by an official of the Florida State Bar Associa-

tion is noted in the 1948 special primary to nominate a Justice of the

Supreme Court. Robert J. Pleus of Orlando, president of the state

association, not only lent his endorsement to the candidacy of Justice

T. Frank Hobson but made radio addresses urging his election.

The principal contribution of the state Bar has been not in the

endorsing and supporting of candidates but in taking action to facili-

tate the work of the court and to provide conditions to attract able

men to seek service on that tribunal. At its 1953 annual convention it

went on record as approving the employment of seven research clerks--

one for each justice--for the Supreme Court. The bill carrying out

this project was favorably considered by the 1953 legislature and the

salary of $7500.00 was sufficient to attract experienced lawyers rather

than recent law school graduates. The state Bar, from time to time,

has been successful in having the salary of the Justices of the Supreme

Court increased. It has also secured the passage of an act by the 1953

legislature to set up a judicial council to study the judicial system

of the state and make recommendations for changes and improvements.

The state Bar--as an organization--has not actively supported or

endorsed candidates for the state's highest court in the primaries.

Its role has been a passive one in this respect. Thus, somewhat like

the political party in the state, it has not regarded itself as a


89Laws of Florida, 1953, Chapter 28062.







vote-getting agency and has, therefore, been neutral in primaries and

elections. The leaders of the state Bar acting officially seem to have

carefully avoided any action which might give the impression that the

organization was committed to the election of any particular candidate.

It has regarded itself as a professional organization principally

interested in the maintenance of certain standards of bench and bar and

less as an organization capable of effective political action. This

position of the Florida Bar is in keeping with the practices of other

state-wide professional organizations which rarely take official action

favorable to any candidate. There may be a consensus among members

for supporting a particular candidate for office but action comes from

the individual members, not from the organization or its leaders acting

in their official capacities.

The Florida Bar has not habitually conducted bar polls to determine

what candidate or person was favored by the members for election or

appointment to the Supreme Court when a vacancy existed. The 1952 bar

poll conducted at the request of the governor was an unusual procedure

for the state organization. The level of participation in that poll

indicated that a majority of the lawyers of the state were not too

enthusiastic about it. Only about sixteen hundred of Florida's more

than five thousand attorneys cast ballots. This seems to suggest

either that the members of the state Bar were not in agreement with the

idea of a bar poll or that the same lethargy found in the electorate as

a whole in voting for candidates for public offices can also be found

among lawyers in voting in their professional organizations, or maybe

a combination of these two produced the low level of voting in the

poll.





51

Despite the reluctance of the Florida Bar to take official action

in matters influencing the election of justices of the state's highest

court, unofficial action has been taken by individuals and groups

within the bar. In the primaries, individual lawyers and bar groups

have supported and worked for various candidates. Moreover, the gover-

nor confers with leaders of the Bar before filling vacancies on the

court by appointment. Through such conferences, the state Bar is able

to exert considerable influence on the selection process as it relates

to the method by which most justices have entered the court.


Local Bar Associations

Section 2, Rule B of the Florida Code of Ethics Governing Attorneys

places upon the local bar associations and the lawyers as individuals

an obligation to help select able men for the bench in the following

provision:

It is the duty of the Bar to endeavor to prevent political
consideration from outweighing judicial fitness in the selec-
tion of judges. It should protest earnestly and actively
against the appointment or election of those who are unsuit-
able for the Bench.... The aspiration of lawyers for judicial
position should be governed by an impartial estimate of their
ability to add honor to the office and not by a desire for the
distinction the position may bring to themselves.90

The decision as to just what will be done by the local association to

effectuate the above provision is of course made by each such associa-

tion. A look at the action taken by these associations concerning the

selection of judicial personnel reveals various patterns from one group

to the other. For purposes of comparison, the action of the local bar

organizations in their influence on the selection of circuit judges

will also be observed briefly.

90"Rules of Ethics Governing Judges and Attorneys," Florida Bar
Journal, XXVIII (Supplement, November, 1954), p. 193.





52
While some of the local bar associations do not endorse candidates

for judicial office, others do make such endorsements.91 These endorse-

ments are made by a vote of the members of the local association at a

regular meeting, the adoption of a resolution indicating endorsement

of a candidate, or a secret poll of the members of the local organiza-

tion. This is official action of the bar association. After such en-

dorsement they have informed the public of their action by (1) sending

copies of the resolution of endorsement to other local bar associations

(2) sending a copy of the resolution or endorsement to the candidate

endorsed and (3) radio and newspaper announcements. When a vacancy

occurs on the Circuit or Supreme Court which will be filled by appoint-

ment, the local association, sometimes, will recommend persons to the

appointing authority to fill the vacancy. Occasionally, newspapers con-

duct secret polls of the bar members regarding their choice of judicial

candidates and publish their findings. This is not construed, however,

as official action of the bar association. From time to time, the

members of the association act individually and in groups and endorse

a judicial candidate in a group advertisement appearing in the news-

papers or in some other manner. This enables the public to find out

the choice of the attorneys without any official action by the local

association.


910pinion 189 of the American Bar Association's Committee on Pro-
fessional Ethics and Grievances states in part that "Lawyers are better
able than laymen to appraise accurately the qualifications of candi-
dates for judicial offices. It is proper that they should make that
appraisal known to the voters in a proper and dignified manner. A
lawyer may with propriety endorse a candidate for judicial office and
seek like endorsement from other lawyers." See American Bar Associa-
tion, Opinions of the Committee on Professional Ethics and Grievances,
1936, p. 372.






Volusia Bar Poll

The Volusia County Bar Association conducted a judicial poll

which should be noted as an example of local bar action although it

concerned only four county and circuit judges. The poll attempted to

secure from the attorneys of the county a rating of qualities and quali-

fications of the judges rather than a simple "for" or "against" answer.

The ballot listed seven items for rating with the judge being rated
92
excellent, good, fair and poor on each one. These were:

(1) Attentiveness, patience, and diligence in ascertaining
facts and law.
(2) Industry and promptess in performance of judicial duties.
(3) Courtesy to counsel and others appearing before him.
(4) Impartiality and independence.
(5) Avoidance of unnecessary interruption or interference with
conduct of trial or hearing.
(6) Knowledge, understanding and application of law and legal
principles.
(7) Absence of idiosyncrasies that interfere with his deci-
sions.

There was a debate among members as to whether the bar association

should express itself on this matter. Some members opposed the judicial

poll on the grounds that it might influence the people in the selection

of judges, but the majority approved the idea. The ballots were sent

to the members of the association and secrecy was preserved by having

the clerk of the circuit court receive and tabulate the completed ballot

forms.93


Results of Questionnaire Sent to Local Associations

A questionnaire which attempted to determine the role of the local

bar associations in endorsing or rating candidates for judicial office


92"Volusia Bar Conducts Judicial Poll," Florida Bar Journal
XXVIII (April, 1954), pp. 165-166.

93Ibid.




54

since 1938 was sent to the thirty-nine local bar groups in Florida. Of

that number, twenty replies were received. Thus, about half of the bar

groups did not answer the questionnaire. Nine associations indicated

that they have officially endorsed candidates for the circuit court and

eleven noted that they had not endorsed circuit judges. Several of the

number which indicated no endorsements pointed out that there had been

no contest for the judgeship because the incumbent was unopposed. In

other cases, although the association may have taken action, there was

no official record of such action. But in most of these instances,

whereas the bar association took no official action, its members did take

action unofficially and backed candidates.

The Broward County Bar Association observed that in 1954 there were

five candidates to fill one vacancy on the circuit bench. The associa-

tion took no official action either to induce a man to run or to endorse

any one of the five. A meeting of the association was devoted to the

race and the membership was reminded of Section 2, Rule B, of the

Florida Code Governing Attorneys and each lawyer was urged to do his

duty in that respect. The local newspapers conducted a poll of the

bar association and published its findings. The top man on the poll was

elected.

Four of the associations replied that they had officially endorsed

Supreme Court candidates. Sixteen reported that they had not made such

endorsements. However, many of the nineteen associations which did not

reply to the questionnaire habitually endorsed candidates for the high

court. It should be pointed out also that, just as in the case of the

circuit courts, when the bar association did not take any official ac-

tion, members of the association acting individually did endorse






candidates for the Supreme Court. Several of the local bar groups

observed that they would recommend to the governor persons to appoint

to a vacancy but that they did not lend their endorsement to a candi-

date in a primary.

The Jacksonville Bar Association first endorsed candidates for

judicial office in 1952 under a complete set of rules and regulations.

These rules permitted the endorsement of candidates for the Supreme

Court of the state as well as the courts sitting in Duval County. Later

the rules were amended to eliminate the provision permitting endorse-

ment of candidates for the state Supreme Court. In endorsing candidates

for local courts, a poll is conducted by mail of attorneys in Duval

County, even of those lawyers who are not members of the local associa-

tion.9

It is clear from the data given here that most of the local bar

associations are quite reluctant to endorse candidates for judicial

office. Among those which did endorse candidates, there was a greater

tendency to approve candidates for the circuit courts than for the

Supreme Court. Thie general hesitancy in endorsing candidates by offi-

cial bar action gave way, however, to individual and group endo-rements

outside the framework of the local association. This seems to suggest

either that there is seldom a consensus in the local association as

to what candidate to endorse or that, as a matter of policy, endorse-

ment of candidates by the local association is not favored.


94The local bar association, unlike the state integrated Bcr,
is a voluntary association. In Duval County, it includes three hundred
and fifty of the approximately five hundred lawyers of the county.






Local Bar Association in Supreme Court Campaigns

In the eight campaigns in which there were contests for seats on

the Supreme Court, some of the local associations actively backed candi-

dates. In other cases, groups of lawyers endorsed candidates and

recommended them to the electorate. In the three campaigns in 1938,

these local associations were active in some areas. In the Thomas-

Watson-Futch Campaign, Thomas received official support from the bar

associations of Martin, Okeechobee and Indian River Counties and the

Fort Pierce Bar Association. All of these were in the judicial circuit

of which he was circuit judge. A group of lawyers of Lake County--

Futch's home--through a resolution tendered an endorsement of his can-

didacy and recommended him to the bar and the public.95

In the 1942 Sebring-Turnbull Campaign, both candidates were sup-

ported by groups of lawyers. Sebring, who was judge of the Eighth Judi-

cial Circuit, was endorsed by a group of lawyers of that circuit in a

resolution. A group of students in the College of Law of the Univer-

sity of Florida also adopted a resolution supporting his candidacy.

Turnbull received the support of a group of lawyers of West Palm Beach
96
who adopted a resolution commending him to the voters. In other

parts of the state, many lawyers, in action outside the local associa-

tions, announced endorsement of both candidates. Paul D. Barns received

the backing of many lawyers in his 1946 campaign. This support was

given principally by members of the bar associations acting as indivi-

duals.


95Florida Times-Union (Jacksonville), April 15, 1938.

9bid., April 11, 14 and 27, 1942.







Bar associations and groups of lawyers were very active in the

1948 Hobson-Watson-Walker contest. In the first primary, W. May Walker,

who was endorsed by the Tallahassee Bar Association, was eliminated

leaving J. Tom Watson and T. Frank Hobson in the second primary. Wat-

son, attorney general of the state, was well known to the voters because

of the many political campaigns which he had waged and his penchant for

getting publicity. In the first primary he had polled 226,498 of the

496,925 votes cast. Because he was better known than Hobson there was

every reason to expect him to win easily in the runoff. But Hobson, who

received the bulk of the support given to candidates in this contest,

was victorious in the second primary.

Hobson's support from bar groups was given, for the most part, in

the larger counties of the state. The following groups endorsed his

candidacy: The St. Petersburg, Clearwater and Pasco Bar Association,

nearly two hundred lawyers of Hillsborough County in a large advertise-

ment in the newspapers, three hundred members of the Dade County Bar,

forty-eight lawyers of Orange County and the directors of the Dade
97
County Bar Association. A group of Miami attorneys wrote letters,

made telephone calls and conducted a person-to-person campaign urging

Hobson's election. A group of Jacksonville lawyers endorsed Watson in a

newspaper advertisement but, in the main, he did not receive the general

support of bar groups. This campaign attracted, perhaps, more bar

association attention and support than any other in recent Supreme

Court history. It seems safe to assume that this support contributed

immeasurably to Hobson's election to the court.


97Miami Herald, June 1, 1948.





58

Among bar groups which endorsed Roberts in the 1952 Roberts-Lewis

Campaign were the Tallahassee Bar Association, and groups of lawyers

in Palm Beach, Putnam and Volusia Counties. A group of Floridians,

most of whom were members of the Florida Bar, jointly made a statewide

appeal urging reelection of Roberts to the Supreme Court Bench. This

group included the attorney general of the state, a past president of

the American Bar Association, a retired justice of the state Supreme

Court, a retired congressman, a state representative, a past president

of the United Press Association and the Dean of lawyers of the Third

Congressional District.98 The Highland News noted that Roberts had

"the backing of the legal fraternity."99

In the Drew-Giblin Campaign of the same year, many lawyers outside

the lower east coast--Giblin's stronghold--supported Drew, a former

president of the Florida Bar Association. Many bar groups in various

sections of the state, especially in North and West Florida, endorsed

Drew by resolutions and newspaper advertisements. Giblin was strongly

supported by lawyers on the east coast.100 In the state bar poll con-

ducted in 1952 both Drew and Giblin were favorably considered by the
101
members of the bar of their respective congressional districts.0

In the eight campaigns which we have noted in this study, the

local bar associations and individual lawyers and groups asserted

themselves most in those in which the vote was close or there was a


See p. 130 supra.

99Highland News (Sebring), April 25, 1952.

100See p. 151 supra.

101Florida Bar Journal, XXVI (June, 1952), p. 243.





59

strong possibility that the candidate which they desired to see elected

would be defeated without support from these groups. The three cam-

paigns in which the influence of bar groups was strongest in behalf of

the winning candidate were the Barns-Petteway Campaign of 1946 (second

primary), the Hobson-Watson runoff of 1948 and the Drew-Giblin Campaign

of 1952. It was in these campaigns also that the members of the bar

were most active. This is especially true in the Hobson-Watson Cam-

paign. In all the other campaigns except the three noted above, sub-

stantial segments of the bar supported the winning candidate but with

less direct political activity. The logical assumption growing out

of these campaigns in this connection is that a great number of bar

groups can be aroused to take direct political action in certain excep-

tional cases but that as a general rule such activity is engaged in by

only a few bar associations or groups of lawyers.


Newspapers

Newspapers are generally thought of as being able to exert some

influence on the thinking of their readers. This is done through the

method of presenting the news and by their editorial expressions. In

political campaigns newspapers help the candidate to get his message to

the voters. This is especially true in campaigns for the Supreme Court

in which the candidates do not personally reach a great number of people

because of the method of campaigning. Editorial support and favorable

presentation of the news by a newspaper with respect to a particular

candidate serve as important adjuncts in a campaign. Therefore, a pre-

ponderance of newspaper support in a close election may mean the differ-

ence between victory and defeat. This is not to suggest that support of




60

newspapers necessarily brings victory but it is an important element in

shaping attitudes favorable to a candidate.

In 1948 Hobson, who trailed his opponent, J. Tom Watson in the

first primary, was endorsed editorially by the following newspapers:

The St. Petersburg Times, Tampa Times, Daytona Beach Evening News,. Miami

Daily News, Miami Herald, Tampa Tribune, Miami Citizen, Sanford Herald,

Florida Edition of the Pittsburg Courier and the Redland District
102
News. Watson received the support of a few of the smaller papers but

did not receive that of his home town newspapers, the Tampa Tribune and

the Tampa Times. Hobson defeated Watson in the runoff primary and won the

election.

In the 1952 Roberts-Lewis contest, Roberts, a native of Wakulla

County, was endorsed for reelection to the court by the Wakulla County

News. Other publications which tendered him support were the Caital

Labor News, St. Petersburg Times, Fort Myers News Press, Miami Herald,

Riviera Times of Coral Gables and a group of other papers. Joe K. Malpas,

editor of the Wakulla County News wrote the editors of the other news-

papers of the state urging support of Roberts in the primary. Lewis

did not receive any particular newspaper endorsement. The election was

not a very close one. Roberts was victorious 307,225 to 153,174.

Another contest in which the press played an important role was the

Drew-Giblin Campaign of 1952. Newspapers in the Miami area and along

the lower east coast supported Judge Giblin who was a Miami Circuit

Judge. In most other parts of the state those newspapers which endorsed
103
one of the candidates supported Drew. Despite this almost solid


102See pp. 113-14, 121 supra.

1030cala Star-Banner, October 19, 1952.





61

phalanx of press support given to Drew, this was a very close race with

the winner only having a 1,530 vote majority. Although Drew won the

election by a very small majority, he carried sixty-three of the state's

sixty-seven counties.

In the other campaigns there was not an expression of support from

the various newspapers as was true in the contests already cited.

J. Tom Watson, the losing candidate in one of the 1938 contests, was

strongly endorsed in both primaries by the Tampa Tribune.0 In the

second primary of the 1946 campaign the Tribune supported the candidacy

of Paul Barns.105 It is evident from the data given here that in those

contests in which a candidate received wide newspaper support, he won

the election. This was true even when he faced a very formidable oppo-

nent. This would suggest that newspaper support is desirable for a court

candidate in a primary.


Labor Organizations

Organized labor in the state of Florida embraces three major groups.

These are the Florida Federation of Labor, an AFL affiliate, the CIO and

the Railway Brotherhoods. Together these three organizations would make

a formidable political group, but their inability to unite has dimin-
106
ished the influence of labor in state politics.6 While the largest of

these groups, the Florida Federation of Labor, has been fairly successful

in local races, it has not reflected the discipline in state-wide


l4ampa Tribune, April 7 and May 17, 1938.

1051bid., May 19, 1946.

106Wilson K. Doyle, Angus M. Laird and S. Sherman Weiss, The
Government and Administration of Florida, (New York: Thomas Y. Crowell,
1954), p. 43.






political contests that has characterized its efforts on the economic

front. Thus in 1940 the executive board of the AFL tendered the support

of the organization to Francis P. Whitehair in his race for governor.

The rank and file of the union membership, however, supported the winner,

Spessard Holland. In other cases, champions of labor's cause, such as

former United States Senator Claude Pepper, received solid backing from

labor's major groups.107 On a local level, the United Labor Political

Committee of Dade County, composed of groups of the AFL, CIO and inde-

pendent unions, has been very active and very potent in the political

arena.

In only one instance in contests for the state Supreme Court has

organized labor vigorously exerted itself to help defeat a candidate

whose record it regarded as anti-labor. The candidate was J. Tom Watson

in the 1948 primary. Watson, then Attorney General of Florida, had

sponsored a "right to work" amendment to the Florida Constitution. Labor

leaders regarded this amendment as an attempt to destroy its influence

in collective bargaining. Thus it turned its wrath on the individual

who was the principal proponent of the amendment. It first opposed

Watson's bid for the Democratic nomination for governor in the May, 1948

primary. After being eliminated in this contest, Watson sought the

nomination for Justice of the Supreme Court in a special primary three

weeks later. He led the field of three candidates in the first primary.

In the second primary, however, labor rose to oppose his candidacy.


107V. 0. Key, Southern Politics in State and Nation (New York:
Alfred A. Knopf, 1949), pp. 100, 413.

108Miami Citizen, May 1, 1952. See the Miami Herald, May 30, 1948.





63

The Miami Citizen, organ of the Florida Federation of Labor, sounded

the call for organized labor to rally to defeat Watson in an editorial.09

Dade County's United Labor Political Committee sent out 50,000 postcards

urging voters to cast their ballots for Watson's opponent, T. Frank Hob-

son. In Watson's home county of Hillsborough, through the concerted

efforts of organized labor in the cigar industry, Hobson was high man by

a vote of 8,654 to 6,060. Labor's influence here was shown by the fact

that in those precincts in which organized labor was strong, Hobson won

overwhelmingly.110 He won in Dade County 14,614 votes to 5,693 and

carried all but two of the county's precincts.

Elwyn Thomas was endorsed in 1938 both by the Standard Railroad

Labor Legislative Association of Pensacola, representing all standard

branches of railroad labor in Northwest Florida, and by the Miami Cen-

tral Labor Council. Active efforts among the rank and file or organ-

ized labor in behalf of Judge Thomas was also carried on.12 J. Tom

Watson was Thomas' opponent in the runoff election, but he had not

acquired at this time the anti-labor reputation which he took into the

1948 contest. NeverthelessWatson's defeat in the 1948 primary was by

a smaller number of votes than in the 1938 contest. In the earlier cam-

paign, the vote was 156,591 to 108,687, a 47,904 majority for Thomas,13

and in 1948 Hobson won by a 21,597 majority--92,512 to 70,915--despite


109Miami Citizen, May 27, 1948.

110Tampa Tribune, June 5, 1948.

111Florida Times-Union, May 15, 19, 1938.
112bid., May 18, 1938.

1138ee p. 77 supra.







the fact that labor was more active than before. One factor contri-

buting to these results was that in the first primary in 1938, Thomas,

the winner in the second primary, led the three-man field while in the

1948 first primary Hobson, the winner in the runoff, trailed Watson

141,888 to 226,498 votes.114 The role of labor and other groups in Hob-

son's victory is clearly revealed by these figures for the first primary.

The drop in the number of votes cast in the two primaries in 1948 sug-

gests a decrease in interest in the second primary as far as the elec-

torate was concerned. This lack of interest in the electorate as a

whole was accompanied by an intensification of interest on the part of

labor in the second primary. This factor also aided the Hobson victory.

B. K. Roberts in his successful bid for reelection in 1952 also

enjoyed the support of organized labor. Referring to his decision in

Hunter V. Flowers in which he held constitutional a statute requiring

employers to pay attorney fees of a laborer who brings a suit to collect

wages rightfully due him under a valid contract, the Capital Labor News

of Tallahassee urged working men to support Roberts for reelection to
115
the court. He also received support from the Dade County Central

Labor Union. This contest, however, did not present a situation in

which one of the candidates was purportedly strongly anti-labor. There-

fore, there was no necessity for an all-out effort to defeat an enemy of

organized labor. In this campaign, expressions of support of Justice

Roberts' candidacy came from the various officials and organs of the

labor unions.


114See p. 114 supra.

115Capital Labor News, (Tallahassee) April 3, 1952.







Organized labor is not the effective force that it could be in

Florida politics because of a lack of unity among the principal labor

organizations. Even within the ranks of a particular union, division

among members sometimes diminishes its power in dealing with candidates

for public office. Labor's greatest display of strength in the contests

for the Supreme Court was recorded when one of the candidates was con-

sidered an enemy of the labor movement. It was somewhat less active in

supporting court candidates whom it considered friendly to its cause.

In other words, organized labor in Florida, in these contests, was more

active in punishing its enemies than rewarding its friends. The same

observation, perhaps, could be made of other organizations under the

same circumstances. At any rate, it seems rather evident that there is

no constant state-wide attempt by labor to make its influence felt in

all elections. Even in primaries to select candidates for the Supreme

Court, labor did not express itself except in a few cases.


Gubernatorial Support

The pattern of Florida politics is such that the top state offi-

cials of the executive departments seldom openly announce their support

of candidates for state offices either in the executive or in one of the

other branches of the government. The governors of the state, there-

fore, have not been among persons actively and openly supporting candi-

dates for Supreme Court posts in the Democratic primaries. The role of

the governor in the selection process is, however, an important one

because of the power to fill vacancies on the court through appointment.

Since a majority of the justices of the court reach that tribunal through

executive appointments, the influence of the governor in selecting


116See p. 50 supra.





66

such judicial officers is considerable. It is reasonable to assume that,

in most cases, when these appointees to the court run for these posts

during the incumbency of the governor who appointed them, he supports

their bid for election to office. The fact that a governor appointed

a lawyer to a vacancy on the court indicates that he approved of and

would support him in an election.

A defeat for an appointee would be a repudiation of the governor

who appointed him. Therefore, the governor has a personal stake in the

election of one of his appointees to the court. The fact that all such

appointees, save one,117 in the court's history have been reelected

again and again to office, augurs well for the influence of the governor

in the selection process. It might be said that in making an interim

appointment, the governor makes a selection to be ratified by the people

at the next state-wide primary.ll8 An unopposed nomination may mean

more or less general agreement with the appointment. Opposition in the

primary often indicates token resistance to the appointment. Neverthe-

less, the governor is desirous of having his appointments ratified by

the electorate. To that degree, he definitely lends his support and

influence although making no public expression of such support.


Sectionalism

Sectionalism has expressed itself in Florida politics but not to

the extent that it has become a major issue in most state-wide elections.

Only occasionally do candidates for office advance propositions designed


117Justice Robert Cockrell in 1916.

liMalcolm B. Parsons, "The Selection and Tenure of Florida Supreme
Court Judges,' Miami Law Quarterly (Spring, 1955), p. 274.





67
to arouse sectional feelings among the voters. The perennial problems

of rural-urban conflicts, reapportionment, and a disproportionate shar-

ing of tax loads and benefits present themselves but not in such a man-

ner as to generate bitter feelings as is done in some states. There are

four principal geographical units of the state: West Florida, North

Florida, Central Florida and South Florida.119 The first two sections

tend to act together politically and the last two share a community of

interests but not to the same degree as the former. North and West

Florida made up the most heavily inhabited parts of the state before
120
the migration to the other areas. The people of these older areas

have formed strong attachments to these sections and are somewhat reluc-

tant to see the newer areas becoming more and more important in the

state government as the center of the state's population moves further

to the south. On the other band, one may hear the cry from Central or

South Florida that they are not receiving a fair proportion of the repre-

sentation in the various state agencies.

In the 1948 gubernatorial election, the sectional issue was raised

to the detriment of one of the candidates. One newspaper columnist,

Allen Morris, observed in that connection that:

An incalculable amount of harm was done McCarty along the
Northern tier of counties by public endorsement of McCarty in
Miami as 'the candidate of the southeast coast,' an espousal
widely advertised in North Florida newspapers by Warrenites
during the last days of the campaign. North Florida is an
area where even the children know the practical meaning of the
work sectionalism, and its use elsewhere for McCarty served to
unite factions in North Florida which otherwise could split
Warren's vote in his own bailiwick.121

119See T. Stanton Dietrich, Statistical Atlas, Florida's Popula-
tion 1940 and 1950 (Tallahassee: Florida State University, 1954), p. 6.

120Doyle, o. cit., p. 6.

121Jacksonville Journal, May 29, 1948. Dan McCarty and Fuller
Warren were the candidates.







Sectionalism has not been presented as a definite issue in any

primary to select a justice of the Florida Supreme Court. Newspapers

in the Miami area have frequently bewailed the absence of a Dade County

man on the Supreme Court. In 1951 after Justice Alto Adams resigned

from the court, the Miami Herald, making a plea for the appointment of

someone from the Miami area, observed editorially:

This section of Florida is not represented on the state
Supreme Court. Yet it produces the bulk of all the litiga-
tion coming before that tribunal. The Miami area alone
accounts for 42 per cent of the total.
The absence of men familiar with this section, its back-
ground, its substance and its controlling influences frequently
has been apparent in decisions handed down by the court. They
have failed to dispose of litigation finally and decisively as
the circumstances sometimes merit.122

Later during the 1952 Drew-Giblin Campaign, in an editorial endorsing

Giblin, the Herald stated:

His residence here, too, is a strong argument for his elec-
tion. The court has no Dade County member. Yet 42 per cent
of the total work comes from this district.123

In one of the 1938 campaigns, the Tampa Tribune in endorsing

J. Tom Watson for the Supreme Court noted that "It has been many years

since Tampa or, in fact this part of the state, enjoyed the distinction

of a place on the Supreme Court."124 Again in 1948 this sentiment was

repeated by the Tampa Times in its endorsement of Justice Hobson with

the statement that "The Tampa Bay area has not had representation on the

Supreme Court in many years. The election of Justice Hobson would end

that condition."125


12Miami Herald, October 17, 1951.

123Ibid., October 13, 1952.

12Tampa Tribune, April 7, 1938.

125Tampa Times, May 20, 1948.





69

It can be seen from the above that, insofar as sectional arguments

have been advanced in the contests for justices of the Supreme Court

since 1937, they have been of the mild variety devoid of extreme bitter-

ness. In none of these instances did the candidates themselves raise

the issue of sectionalism. There was a feeling, however, that it would

have been raised in the 1952 special court primary if Drew or some other

South Florida man had not been appointed to succeed Justice Chapman. In

any event, there seems to be no instance in which this issue was a seri-

ous one or that it was decisive in any judicial election. It may have

been, and probably was, taken into consideration in the process of

appointing judges to the Supreme Court.

The twelve justices covered by this study come from all sections

of the state. Two resided in West Florida, three in North Florida, four

in Central Florida and three in South Florida. Central Florida, which

has the largest population of any of the sections, sent the largest num-

ber and West Florida, which is smallest in population, was the residence

of the smallest number of justices. This distribution of residences of

the justices in the various sections follows the population trend. Seven

of the twelve justices come from Central and South Florida.


Voter Participation

The rapid increase in the population of Florida in recent years by

migration has brought to the state a large number of potential voters.126

This, added to the persons who were already in the state, has resulted

in a marked increase in the number of persons eligible to cast their

ballots for candidates for justice of the Supreme Court and other offices.


126ee p. 12 supra.





70
But in many instances in Florida persons qualified to vote do not become

eligible to cast their ballots by reason of their failure to register

and meet other requirements. Furthermore, of those who register, many

stay away from the polls on election day.

More votes are cast in the primaries in Florida to nominate the

state's chief executive than for any other office. The campaign leading

up to a primary to select a gubernatorial candidate is usually a very

dramatic one which attracts the interest of a large number of voters.

This type of campaign and voter interest is seldom seen in primaries for

other offices except, perhaps, those for United States Senator. In

spite of this interest, in 1948 and 1952 only about 65 per cent of the

eligible Democratic voters of the state cast ballots to nominate the

governor. The participation rate for all offices in the primary in 1948

was about 188.7 per thousand inhabitants.127

To what extent do eligible voters of Florida cast their ballots in

the primaries to nominate Justices of the Supreme Court? Are the votes

cast in the primaries for this office less than the number for some of

the other state offices? Table 4 shows the number of voters who took

part in the primaries to select Supreme Court Justices and the number of

Democratic voters eligible to participate. Table 5 compares the vote

in court primaries with that for some of the other state offices in

which the balloting took place on the same day.

In 1938 there was not a primary to nominate a governor, but besides

the three Supreme Court contests, a United States Senator and two rail-

road commissioners were being selected. The vote in the latter cases


127Ewing, op. cit., p. 100.





TABLE 4

VOTE IN PRIMARIES FOR JUSTICES OF

FLORIDA SUPREME COURT


1938

Thomas2-Watson-Futch1

Buford2-Gillis

Chapman2-Hearn


1st Primary

285,013

282,590

249,988


2nd Primary

265,288


Eligible
Democratic
Voters

593,048


1942

4. Sebring2 -Turnbull



1946

5. Barns2-Leel-Petteway-Taylorl



1948

6. Hobson2-Watson-Walkerl


1952

Roberts -Lewis

Drew2-Giblin


460,399

126,052


1,119,000


1Eliminated in first primary.

2Winner in primary.


211,953


271,145




496,925


179,921




163,427


696,592




875,791





TABLE 5


VOTES IN PRIMARIES FOR JUSTICES OF

FLORIDA SUPREME COURT
(Comparison with other state offices in same election)


Supreme Court


Congressman-
At-Large


Governor


United States
Senator


Railroad
Commissioner


1938


415,292


282,5903
285,013
249,988


287,7953
313,202


1942


211,953


258,668


203,8093
231,013


1946


336,545


271,145
179,9211


496,9254


1948

576,0662


1952

738,4974


460,399


229,4663
262,3951
164,032


576,526


1Second primary.

2Second primary for governor's race held on the same day as first
primary in Supreme Court race.

More than one contest for this office.

4Record vote for this office.


__ ~


497,402







was considerably larger than that for court candidates. The highest

total for one of the court posts was less than the lowest for one of
128
the other three candidates for other offices.128 The 1942 primaries

reveal results that are slightly different. Although the 211,953 votes

cast for Sebring and Turnbull were less than that for a congressman-at-

large, it was more than one of the candidates for railroad commissioner

received.129 The voting results in 1946 as far as they relate to the

court are even more favorable in comparison with other offices. While

the vote for United States Senator was appreciably larger than that for

candidates for the court, that for two railroad commissioners was smaller.

The vote in the second primary also showed court candidates with a lar-

ger total than railroad commissioners.130

The Hobson-Walker-Watson special primary on May 25, 1948 saw a

record 496,925 votes polled by these aspirants to the Supreme Court.

One contributing cause for the heavy vote was that this primary was held

on the same day as the runoff primary in the state's gubernatorial elec-

tions in which 576,066 votes were cast for the candidates for chief exe-

cutive. The second special primary for the court post on June 4 had only

163,427 votes cast.131 No other state-wide offices were being filled at

this time. The first primary vote for the court post was 57 per cent of

the eligible Democratic voters and 86.3 per cent of the total cast for

governor. The second primary vote for the office of Justice of the


128R. A. Gray, Tabulation of Official Votes, Florida Primary Elec-
tions, 1938, p. 4. The Governor and other executive offices were not
selected in these primaries.

129Ibid., 1942, pp. 3-4.

130Ibid., 1946, pp. 2-6.

131Ibid., 1948, pp. 40-45.





74

Supreme Court was only 32.9 per cent of the vote cast for the same office

in the first primary.

The Roberts-Lewis court contest of 1952 was decided on the same day

that the first primary for the governorship was held. In the latter

race 738,497 votes were polled by the candidates for governor to set a

record for that office. The 460,399132 votes in the judicial race were

less than the number cast for the offices of railroad commissioner and

United States Senator. The vote for the court justices was 41 per cent

of the eligible voters and 63 per cent of the vote case for the candi-

dates for the office of governor. During the same year in a special

court primary only 126,052 votes were cast for Judge Giblin and Justice
133
Drew. This was about 11.3 per cent of the eligible voters. The vote

in the 1942 court primary was 35 per cent of the eligible voters; that

in the first primary in 1946 was 39 per cent and 26 per cent in the run-

off election.

An analysis of the voting returns in the eight campaigns considered

here reveals the conditions making for a heavy or light vote. The

heaviest vote was cast for candidates for the court when the primary was

held on the same day as the primary for other state offices, especially

for governor. The lowest vote was cast in those court primaries in

which no other state officers were being chosen. The lowest number of

votes was polled in the Drew-Giblin contest of 1952 and in the second

primary of the Hobson-Watson contest of 1943. Both of these were special

court primaries in which no other state offices were being filled. The

Drew-Giblin vote of 126,052 was a record low for the eight contests

noted here.

132Ibid., 1952, pp. 4-5.

133Ibid., 1952, p. 19.







Generally, the vote for the candidates for governor and United

States Senator was uniformly higher than that for court candidates. But

no conclusive result could be obtained from a comparison of the vote for

the court candidates with that for railroad commissioners. In four cases

the vote for the railroad commissioners was larger than that for court

candidates and in four instances it was smaller. In the only primary in

which a congressman-at-large was nominated, the vote was larger than the

vote for the court post.

The facts relating to the extent of the participation of the elec-

torate in the selection of Justices of the Florida Supreme Court may be

viewed as an index of the popular interest in the judiciary or they may

reflect the same pattern of lethargy on the part of the voters that has

been apparent in most elections--but to a greater degree. For it is

evident from the voting returns, that many of the voters who cast ballots

for the governor, for instance, voluntarily disfranchised themselves as

far as the Supreme Court contests are concerned. No other state office

has as many votes cast for candidates as the office of governor. How-

ever, the returns for 1952 as shown in Table 5 reveal that the lowest

level of voter participation of any of the offices listed was in the

Supreme Court race. This, despite the fact that the vote cast in the

court race in that primary was considered unusually high in the total

picture. This low level of participation in judicial elections, which

established a record in the 1952 special primary, raises serious questions

as to the functioning of democratic government. For it establishes a

condition which leads to the conclusion that a small minority of the

eligible voters of the state select the persons for one of the state's

most important agencies of government. This is government by the minority.

This is also government by default.







Campaign Issues

Generally, in contests for seats for the state Supreme Court, there

are few issues on which the candidates take different position for pur-

poses of debate and expression of their points of view during the campaign.

The emphasis is not on raising concrete issues which may be debated by

the candidates, but on pointing out the candidates' qualifications for the

court. Each candidate desires to show the voters that he possesses the

best qualifications and should be elected to office. In most instances,

when issues are raised by a candidate, he uses them to advance his can-

didacy and not to stimulate debate. There does not seem to be any

instance in which any issue debated by the candidates was the deciding

factor in the outcome of a court primary.

In the 1952 special primary, Giblin raised two issues--the case

load of the Supreme Court and the proposed amendment to increase the

number of justices on the court. His opponent, Justice Drew, refused

to debate these issues with him because he thought that they would not

be influenced by the outcome of the judicial election and they did not

have any relationship to the qualifications of either candidate for the

Supreme Court. W. Raleigh Petteway, a candidate for the court in 1946

felt that candidates for judicial office should not discuss specific

issues but rather should only pledge to uphold and defend the constitu-

tion and laws of the state and nation. In the other contests the candi-

dates did not raise any issues as a basis for their campaigns outside of

those relating to their own training and experience for the court. By

and large, campaigns for the highest state court are centered more around

personalities than specific issues.





77

All the factors discussed above exert some influence on the process

by which justices of the Florida Supreme Court are selected. They may

differ, of course, in the degree to which they help to determine the out-

come of an election or the person who will be appointed to office. In

most instances the results are due to a combination of forces. Thus

the 1948 Hobson-Watson runoff was affected by action of bar groups, news-

papers, organized labor and other forces. In some of the other judicial

contests, such support was not so easily discernible. This was due, in

some cases, to the fact that the election of the incumbent or the princi-

pal candidate was not too strongly contested. There was, therefore, no

necessity for expressions and support from the various groups in favor

of the candidate. In close elections, there seems to be a ground swell

of support for the candidates by various organizations and interest groups.

To the extent that the majority of the voters stay away from the

polls, these groups, if they can discipline their members in getting

them to follow their political decisions, will exert more and more influ-

ence in the selection process. There is not, however, any conclusive

evidence that there is such discipline in these organizations. But

there is usually a pattern of interest which sometimes takes the place

of this discipline and leads, generally, to the same results.


Financing Supreme Court Campaigns

Because of the method of campaigning in contests for places on the

Supreme Court, it has not been necessary for candidates to spend large

sums of money during a campaign as was the case in contests for many other

state offices. Moneysto finance these campaigns have come from the candi-

dates' own resources and individual and group contributions. Since the





78
passage of Florida's campaign expense law in 1951, detailed reports of

contributions and expenditures in political campaigns have been made to

the secretary of state. These reports show that in one of the 1952 court

primaries more than eighteen thousand dollars were spent by one of the

candidates for, perhaps, a record for campaigns for that office. Gener-

ally, the reports of the candidates show expenditures of less than ten

thousand dollars.

Although the candidates for supreme Court posts receive contribu-

tions from various sources, substantial amounts come from their own

resources. In 1952 in one of the contests, the personal contributions

of the two candidates totaled almost half of their campaign expenditures.

The candidates made similar contributions in the other court primary in

1952. It cannot be accurately determined whether this pattern was the

same for elections prior to 1951 because of the fragmentary system of

reporting contributions and expenditures.

Generally, large amounts of money totaling more than ten times the

salary received in the office have not been spent in Supreme Court cam-

paigns as was true, for instance, in the governor's race. There is no

evidence to indicate that particular interests contributed to a justice's

campaign with a view to influencing his conduct on the bench. To the

contrary, it appears that most contributions come from individuals and

friends who, perhaps, believed in the professional integrity of the candi-

date.

There are various miscellaneous factors which are part and parcel

of the economic, political and social structure of Florida which have

their effect on the selection of judges. These factors were discussed,

to some degree, in Chapter I. One of these--urbanization--has been an







element in each campaign for the Supreme Court. Therefore, the candi-

date who could carry the principal urban areas of the state could assure

himself of a place on the court. Since there are no permanent political

machines or factions, a candidate for the court must build an organization

in these areas and beam his campaign to the city dwellers. For the

greater his majority in the larger cities, the better his chances of being

elected to office.

Other factors such as the rapid growth in population, a diversified

economy, factionalism and the dispersion of leadership, conservative-

liberal alignment of voters, growth of the Republican Party in Florida

and direction of political control have been discussed at various times

in this study. Suffice it to say here that in spite of the fact that

some of these elements were not too easily discernible in Supreme Court

primaries, their influence was present. As a general rule, the factors

that influence most other elections also influence contests for the

Supreme Court. The method of campaigning for seats on the court is

different from some of the campaigns for other offices but, by and large,

the voters are the same. And the voters act in and are influenced by

the same political factors despite the particular office for which they

are voting.







CHAPTER V

JUSTICES AND CANDIDATES FOR JUSTICE OF THE FLORIDA

SUPREME COURT: BACKGROUND AND EXPERIENCE


The Constitution of Florida states that no person shall be appointed

or elected a judge of the Supreme Court who is not a citizen of the state

and who has not been a member of the Florida Bar for at least ten years.13

Therefore, in Florida, insofar as qualifications exist for judicial

office other than that concerning age, they are found in the requirements

for admission to the bar of the state. Prior to 1925, attorneys were

admitted by the courts without a written examination. Since June, 1925,

persons so desiring could qualify to practice law in the state by passing

an examination administered by the State Board of Law Examiners. Anyone

who was a graduate of a law school within the state whose courses of

study were approved by the Supreme Court could be admitted without examin-

ation by presenting his diploma from such a law school to the law exam-

iners.35 This so-called 'diploma privilege" was expressly repealed by

the 1951 session of the legislature. To be admitted to the bar at the

present time, an applicant must pass an examination on legal attain-

ments.136


13Constitution of Florida (1885), Article V, Sec. 13. The Consti-
tution of the United States does not require Federal judges to be law-

yers.

135Laws of Florida, 1925, Chap. 10175, secs. 2 and 3.

136Florida Statutes, 1951, Chap. 454.031 and Laws of Florida, 1951,
Chap. 26655. In each case the applicant must present satisfactory evi-
dence of good moral character and that he or she is over the age of 21
years.
80







Men Who Seek Supreme Court Poets

What type of men run for judicial office and especially for posts

on the highest court of the state of Florida? What kind of background

do they possess? Are most of them former lover court judges, practicing

attorneys, law professors or attorneys for state agencies? Are all seg-

ments of the population represented, especially with respect to religious

and ethnic groups? Have all sections of the state been represented on

the court? These question can be answered, to some extent, by observing

the background and qualifications of the men who have sat on the court

from January, 19143, to the present. This classification covers twelve

men.137 An examination of several unsuccessful candidates for a seat on

the court will be made later.

These men present varied backgrounds with respect to training,

experience and public service. Justice B. K. Roberts was younger than

any of the others when he came to the court at the age of forty-two years,

while Justice John Mathews was older than any of the others when appointed

at the age of fifty-nine. Most of them tended to be in their forties.

Four of them were above the age of fifty and seven were below fifty. The

average age of the group at the time they entered the court was forty-

eight years.138

An examination of the county of residence of the Justices at the

time they were elevated to the court shows that six of them came from

counties south of a line cutting the state at the southern boundary of


137Justices Terrell, Brown, Buford, Chapman, Barns, Thomas, Sebring,
Hobson, Adams, Roberts, Mathews and Drew.

138This does not include Justice Terrell for whom no date of birth
can be found in the standard biographical listings.






82

Pasco County and six came from counties north of that line.139 Two of

the Justices resided in West Florida, three in North Florida, four in

Central Florida and three in South Florida. These twelve Justices came

from nine of the state's sixty-seven counties. Of the present seven Jus-

tices on the court, only three came from south of Pasco County and four

north of that point.

Nine of the twelve Justices are graduates of law colleges. Eight

of these attended law schools within the state. Four are graduates of

the school of law at Stetson University and four of the College of Law

of the University of Florida.10 One holds a law degree from a school

outside the state--Cumberland University.

Six of the Justices had previous judicial experience on the bench

of the lower courts.141 Five of these served on the circuit courts of

the state.1 In addition, two of these five saw service on courts

below that of the circuit level.13 One Justice served on the lower
144
court of a county outside the state.1 Four of the Justices who served

on the circuit bench had periods of service thereon extending from nine


139Justices Buford and Roberts came from Leon County, Brown and
Barns from Dade, Hobson from Pinellas, Adams and Thomas from St. Lucie,
Mathews from Duval, Drew from Palm Beach, Sebring from Alachua, Terrell
from Sumter and Chapman from Columbia.

140Justices Drew, Hobson, Chapman and Thomas took their degrees
at Stetson and Justices Adams, Sebring, Roberts and Barns at the Univer-
sity of Florida, and Terrell at Cumberland University.

141justices Brown, Adams, Sebring, Thomas, Hobson, and Barns.

142Justices Adams, Sebring, Thomas, Hobson and Barns.

143Justices Hobson and Barns.

144Justice Brown in an Alabama Court which corresponds to the Cir-
cuit Court.





83

to twenty years, indicating that they were experienced judges of the lower

court when they came to the high court bench.145

Some of the Justices who had no previous experience on the bench had

been members of the state legislature. One served only in the House but
l46
the other two had extended service in both Houses.46 Another Justice

had been elected to the legislature but did not serve because he was

appointed as a circuit judge before beginning his term in the House of
l47
Representatives.7 Justice Mathews, who served most recently in the

law-making body, was Governor Fuller Warren's active floor leader in the

Senate in the 1949 session and secured the passage of many of the Gover-

nor's proposals.148

Six of the men whom we are considering had held public office as

prosecuting attorney or as attorney for a city or county. R. H. Buford

served as prosecuting and states attorney for several areas for eleven

years and more than four years as Attorney General of the state before

being elevated to the high court bench. From 1915 to 1923 Terrell was

general counsel for the Board of Commissioners of the Everglades Drainage

District of Florida and the Internal Improvement Fund. R. H. Chapman had

been city attorney of Lake City and also attorney for Columbia County.

Mathews was attorney of the town of Palm Beach for about twenty-nine years.

Sever,._ of the Justices had been members of the various boards and

commisrion:r before coming to the court. Chapman and Hobson were members


145justices Sebring, Thomas and Hobson.

146justices Mathews and Terrell.

147Justice Sebring.

148Jacksonville Journal, October 16, 1951. Mathews failed to win
nomination for the State Senate to succeed himself in 1950. He was
eliminated in the first primary.




TABLE 6


EXPERIENCE AND BACKGROUND OF FLORIDA SUPREME COURT JUSTICES
(1943 to present)


Service on
Lower Courts


Other Experience


Age
At Time
of
Ascending
Bernch


Extended
Law
Practice
(Years)


Miscellaneous


Adams Circuit Judge, 1938-40. 41 17 Candidate for Gover-
nor, 1952.

Barns Civil Court of Record, 52
192.-27; Circuit Judge,


Brown City Judge, 1909-15. County Solicitor (Ala.), 50
1898-1902; President of
Local and State Bar Associa-
tion.

Buford House of Representatives, 47 25
1901; Prosecuting and
States Attorney, 1909-21;
States Attorney General,
_1921-25.

Chapman State Board of Law Examin- 51 27 Par+ty Chbzrrmn of
ers, 19W.-31, County AtTor- I Co-:-; 'r-f'icaal Dis-
ney; C'.''y A-.to-rney__ -- ..-. __

Drew GE'ii and Fresh Water Fish 4i 9
Comnission; City Att~~ru..
1923-52; President of State
and County Bar Associa+icos_


County Judge, 1927-28;
Circuit Judge, 1928-48.


State Board of Law Exam-
iners.


Justices


Hobson







Service on
Lower Courts


Other Experience


Age
At Time
of
Ascending
Bench


Extended
Law
Practice
(Years)


Miscellaneous


Mathews House of Representatives, 59 35
1929-33; Senate, 1943-49;
County Attorney, 1922-30;
President of Local Bar.

Roberts State Improvement Commies 42 21 Suggested for appoin-
sion; Vice President of ment to U.S. Supreme
State Bar; President of Court, 1954.
Local Bar.

Sebring Circuit Judge, 1934-43. Elected to House but did 44 Judge, U.S. Military
not serve, 1934. Tribunal in Germany,
1946-47.


Circuit Judge, 1925-38.


HIuso of Reprresentatives,
19('?-13; Senate. .;;i'-18;
jGeei- ; .in l lIternal


Chairmsa.. Froria JuTdicial
Council; C-.;ty Att bcrney,
19.16-25; Pr:-e uting Attor-
ney, 1917- 19-


Declined appointment
as U.S. District
Judge in 1931.


Justices


Terrell


Thomas







of the State Board of Law Examiners 9 while Roberts served a brief

period on the State Improvement Commission resigning on being appointed

to the court. Drew was a member of both the Game and Fresh Water Fish

Commission and the Board of Commissioners of the Port of Palm Beach.150

In the various professional associations, offices were held by

various Justices. Jvsticec Drew and Brown had been president of the

State Bar Association ayd eEch had beaen -esident of his local bar associ-

ation. Roberts had selvad as vice-president of the state bar and presi-

dent of his local bar association and Mathews was a past president of

his local association. Justice Drew had served on many of the committees

of the Florida Bar. He was a member of the committee whose work resulted

in the continuous statutory revision system which became effective in

1941, and was chairman of the Integrated Bar's Committee on Judicial

Administration. Subsequent to ascending the bench of the high court,

some of the members held offices in National legal circles. Thus, Jus-

tice Thomas was chairman of the Committee on Cooperation with Laymen of

the American Bar Association and Justice Sebring served as a member of

the Committee on Habeas Corpus of the Conference of Chief Justices of the

United States.

In 1931, Terrell declined appointment as a United States District

Court judge preferring to remain on the state court and in 1946, Justice

Sebring accepted a presidential appointment as a judge of the United


14gChapman had been a member of the State Board of Law Examiners
since its establishment in 1925 and its chairman for many years. He
was also chairman of his congressional district committee of the Demo-
cratic Party and at one time was a delegate to the Democratic National
Convention.

15OIn addition, he was very active in the Florida State League of
Municipalities.





87

States Military Tribunal in Germany for the trial of the Nazi War Crimi-

nals. Acting Governor Charley E. Johns in 1954 recommended B. K. Roberts,

then Chief Justicel51 of the Florida Supreme Court, to the President of

the United States for appointment to the United States Supreme Court as

a successor to Justice Robert H. Jackson, who died in office.152 Also

Adams was a candidate for Governor in 1952 after his resignation from the

court and was eliminated in the first primary.

None of the twelve members of the court was a member of the Catholic

or Jewish religious faith.153 There were three Methodists, four Baptists,

two Presbyterians and three Episcopalians. None of them had been a law

professor prior to his service as a justice. Barns, however, became a

professor of law at the University of Miami after he left the bench. Four

of the Justices were residents of rural areas when they were elected or

appointed and eight resided in urban areas.

Seven of the twelve justices were born in other states--three in

Georgia, one in each of the states of Alabama, Mississippi, Kansas and

Tennessee. The five who were born in Florida came from the following


151The Chief Justice is chosen by the members of the Court from
among their number for a two year term. The person chosen is usually
the senior member among those who have not been Chief Justice. Thus,
there is a tendency to rotate the post among the members of the court.

152pensacola Journal, October 13, 1954. The Journal editorially
pointed out that Robert's qualifications and experience plus the politi-
cal fact that Florida supported President Eisenhower in the 1952 elec-
tion were factors in favor of the appointment rather than the sectional
argument advanced by the acting governor that "It would appear to be
extremely fitting that at least one member of the highest tribunal be
cognizant of an understanding toward the tremendous upheaval occasioned
by the segregation decision." There were already three Southerns on the
court.

153Justice Stephen O'Connell, who was appointed to the court in
1955, is a Catholic.





88

sections: Thomas, Ankona on the east coast; Roberts, Sopchoppy in West

Florida; Adams, Walton County in West Florida; Barns, Plant City on the

west coast; and Chapman, Lake Butler in North Florida.15

From 1937 to 1949, six men were appointed or elected to the court.

Five of these came from the circuit bench and one--Justice Chapman in

1937--was a practicing attorney. During this period there was a definite

trend to place on the Supreme Court men who had previous judicial experi-

ence. In 1949 this trend ended with the appointment of B. K. Roberts,

an attorney for more than twenty years. Allen Morris, columnist for

several newspapers, in discussing this appointment makes this observation

regarding the background of the members of the Court:

Prior to Roberts appointment, the court had been heavily
weighted with former circuit judges. Excellent jurists in a
technical sense, these men nevertheless tended to view every
case solely in the light of judicial precedent.... But Judge
Roberts has brought about a startling change. A lawyer-busi-
nessmanl55 before he was appointed, the Wakulla County native
took with him to the court the perspective of a man who has
both worked with his hands and faced the stern realities of
meeting a payroll.
That is why Roberts' broad practical experience, salting
the vast technical legal knowledge of the other judges, has
helped bring what many lawyers consider a better balance to
the court than it has had for many years.l15

Subsequent to the Roberts appointment in 1948, the next two appointees

were practicing attorneys who had held no judicial office. J. E. Mathews,

who was elevated to the bench in 1951, had practiced in Jacksonville for

about thirty-five years and E. Harris Drew, the next appointee, was for


154None of these men was born in South Florida.

155Roberts had been a business executive for a long period. Among
other business positions, he was president of an automobile agency,
director of a bank, and director-secretary of a radio station.

156Bradenton Herald, January 1, 1950.








twenty-nine years a practicing attorney in West Palm Beach. Roberts,

Mathews and Drew were appointed to the court by Fuller Warren, who became

Governor of Florida in January, 1949. Warren was a schoolmate and close

friend of Roberts. Warren and Mathews both practiced law in Jacksonville

before the former became Governor. Moreover, Mathews was administration

spokesman in the Senate in the 1949 session of the legislature. Drew's

selection was said to be suggested by a poll of lawyers of the state.157

Prior to 1937, Justice Rivers Buford came to the bench from the Attorney

General's office and Justice Brown and Terrell were practicing attorneys,

the latter an attorney for one of the state agencies. Thus, of the

twelve Justices whom we have considered, five came to the court from

the circuit bench, six were practicing attorneys and one was attorney

general.


Unsuccessful Candidates for the Court

In an attempt to determine what type of men seek service on the

Supreme Court of the state, it is necessary to examine the background of

unsuccessful candidates as well as the successful ones. The ten men158

whom we shall consider here took part in each contest for a court post

from 1938 to 1952. That they were worthy opponents may be seen from the

fact that there were three second or runoff primaries required to nominate


157For information concerning this bar poll, see p. 47 supra. Three
of the six justices who came to the court just prior to the Roberts
appointment received their appointments from Governos Cone a&i CalAdwll.
Thomas, Sebring and Barns were elected by the people. Thomas and Barns
were appointed a few months before their elective term began because of
a desire of the men whom they were to succeed to leave the bench before
the expiration of their term.

158 alley B. Lewis, Vincent C. Giblin, Truman G. Futch, Donald Stuart
Gillis, John M. Hearn, John H. Taylor, T. T. Turnbull, J. Tom Watson,
W. May Walker and W. Raleigh Petteway.






the successful candidate during this period whereas before this time

there had never been a two-primary election for a court post in the state.

In two of these instances, 1938 and 1948, the unsuccessful candidate who

was defeated in the second primary was J. Tom Watson of Tampa.159 In the

other case, 1946, it was W. Raleigh Petteway of Miami.

These ten candidates present backgrounds and experiences as varied

as those of the twelve Justices whom we considered earlier. At the time

of the campaign in which they took part, the counties in which they

resided showed five of them living in north and west Florida and five

living in counties south of a line cutting the state at the northern

boundary of Lake County.160 This is a considerable distance north of the

line dividing the county of residence of the twelve justices.1

Six of the ten candidates have served as judges on some level of the

judicial system. Lewis was judge of a Small Claims Court. Watson was a

municipal judge in Tampa, and Gillis and Petteway were criminal court

judges. Petteway also served as a juvenile court judge. Walker was a

county and circuit judge while Giblin was a circuit judge in two differ-

ent circuits. Since they ran for a place on the Supreme Court, two of

the candidates have become circuit judges and one has become a county


159Allen Morris says in the Jacksonville Journal of September 6,
1952 in speaking of the 1948 campaign that Watson was "one of the most
controversial figures in Florida political life" and that he "possessed--
and probably always will have--a fanatical following. He also had, and
probably always will have, a fanatical opposition headed by union labor.'

16Petteway and Giblin resided in Dade, Lewis in Desoto, Futch in
Lake, Gillis in Walton, Hearn in Suwannee, Taylor in Duval, Turnbull in
Jefferson, Watson in Hillsborough and Walker in Leon. J. L. Lee of Duval
County is not included in the data considered here.

161For information regarding residence of Justices see p. 81 sugra.






91

Judge.162 Petteway and Walker had the longest tenure on the bench at the

time of their campaigns having served seventeen and fifteen years respec-

tively. Several of the other candidates had been on the bench less than

five years.

Five of the ten lawyers had been members of the legislature. Lewis

and Watson were members of the House of Representatives, the former serv-

ing two terms and the latter one term. The other three--Futch, Gillis and

Turnbull--served for a considerable period in both Houses. That these

three men exerted some leadership in the legislature was evidenced by the

fact that each was chosen as President of the State Senate during his

period of service in the Upper House.163

Watson was the state's chief legal officer for eight years--1940-48.

During this period, he was elected as president of the National Associa-

tion of Attorneys General. Taylor's role as a legal officer of the govern-

ment was very varied. He was county and prosecuting attorney of Alachua

County, assistant states attorney for the eighteenth judicial circuit,

first assistant County Solicitor of Duval County and referee in bankruptcy

for the United States District Court for the Northern District of Florida.

Besides serving as counsel for the Florida Railroad Commission,

Turnbull was President of the Monticello Town Council. He was for a long

period a member of the State Democratic Executive Committee and served as

chairman for part of that time. Gillis, former assistant Attorney General


162Futch and Gillis are judges of the Fifth and First Judicial Cir-
cuits respectively and Hearns is County Judge of Suwannee County. Taylor
is a Judge of the Small Claims Court of Duval County.

16The President of the Florida Senate succeeds to the Governorship
on the death or disability of the governor.




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