Florida Judicial Elections Updated 02/23/04

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1 Florida Judicial Elections Updated 02/23/04 1. Columnist Brian Dickerson asserts that the case of Elian Gonzalez, the Cuban boy whose custody is now an object of an international dispute, illustrates the flaws inherent in a system that elects its judges. Dickerson argues, it is the judiciary s job to do what members of the other two branches frequently lack the intestinal fortitude to do - defend the rule of law in the face of the mob s displeasure. In Florida, trial judges must stand for re-election every six years, and Dickerson points to this as the main reason why, in his opinion, state judge Rosa Rodriguez overreached her authority and blocked the boy s return to Cuba. Dickerson alerts Michiganders who defend the merits of this state s judicial election system to take advantage of this opportunity to consider the cost of tethering our judges to the passions of the mob. Brian Dickerson, Elian s Case Shows Flaw in Elected Judges, Det. Free Press, January 12, Editorial calls on the Florida Bar Association to make a strong commitment to bringing more independence to Florida s judiciary by endorsing merit retention in large judicial circuits That will make Judge [Rosa] Rodriguez s role in this saga worth more than a footnote. In a system where judges are elected, the editorial notes it would beg credulity to think that almost any judge facing reelection would have ruled differently in the case of Elian Gonzalez. The case, however, does serve to highlight the worst flaw in Florida s system of electing county and circuit judges -- it makes an independent, impartial judiciary much harder to achieve. Controversy Reveals Flaws of Electing Judges, January 13, Editorial argues that anyone who wants to know what s wrong with electing judges need look no farther than the courtroom tragi-farce enveloping the young life of Elian Gonzalez in Miami. The editorial accuses Florida Family Court Judge Rosa Rodriguez of not acting as a judge at all, but as an elected representative trying to please constituents by ruling that Elian Gonzalez would be subject to imminent harm if he returned to Cuba. The editorial concludes, when the framers of the U.S. Constitution ruled out elections for judges in the federal system, they knew what they were doing. Travesty in Miami Harms A Little Boy, Baltimore Sun, January 14, Op-ed by Miguel Rodez of the Florida Bar s Long Range Planning Committee calls on the Florida electorate to reject the adoption of a judicial merit-retention system - whereby the governor first appoints judges, then voters are asked whether the judge should remain on the bench after the expiration of their appointed term. The op-ed states, if [Floridians] choose merit retention, they will give up their right to vote for trial judges and will empower a group of mostly Florida 1

2 politically connected lawyers to decide who shall preside over Miami-Dade trial courts, a reference to the judicial nominating commissions that advise the governor. The op-ed concludes that the proposed merit-retention system does not improve judicial selections and has little to do with merit. Voters should think hard before surrendering the key to democracy: the right to vote. Miguel Rodez, Uphold the Right to Elect Judges, Miami Herald, January 21, Editorial applauds the Florida Bar Association s Board of Governors endorsement of merit selection and retention for Florida trial judges. Florida voters will decide the issue in the November election. The editorial states, judicial scandals have discredited the current method of electing state and county judges, and warns citizens to think of the potential conflicts of interest when a judge must rely for campaign contributions on lawyers who come before the bench. The editorial concludes, Justice is best served by qualified independent judges -- not politicians with a gavel. The Florida Bar: A Stand for Merit, Miami Herald, February 9, Editorial calls on Florida voters to approve a measure that would replace the election of trial judges with a system whereby trial judges are first appointed by the governor, then submitted to the voters in a retention election. The editorial writes, This amendment is urgently needed to correct a badly flawed election system that gives only an illusion of voter accountability. In Florida, although all trial judges must be elected, vacancies are filled by the governor s appointment, as are new judgeships. The editorial asserts that the handful of judicial elections that do occur often degenerate into name identification and fund-raising contests. The editorial argues that merit selection has advantages over judicial elections, including the selection of better-qualified judges through an emphasis on more relevant professional qualities like knowledge of the law, judicial demeanor, integrity and experience. Appoint, Don t Elect, Trial Judges, Sun- Sentinel (Ft. Lauderdale, Fla.), February 18, Article discusses the increasingly contentious and costly election battles for the state courts. The article reports, Millions of dollars in campaign contributions are flowing into races for top state judgeships this year, while candidates are testing the limits of ethics rules that forbid them to signal how they might vote on cases. The article discusses campaigns in Ohio, Idaho, Illinois, Michigan and Florida, among other states. According to the article, the divisiveness of judicial elections across the country is causing the courts image of impartiality to suffer, as judges [find] themselves full participants in the same kind of ideological warfare that has affected other branches of government. William Glaberson, Fierce Campaigns Signal a New Era for State Courts, N.Y. Times, June 5, Florida 2

3 8. Column by Tom Fiedler refers to the example of Florida County Judge Matthew McMillan in support of the argument that judges should be chosen by merit selection, not popular election. Judge McMillan unseated incumbent Judge George Brown with campaign advertisements alleging that Brown only worked for ten hours during the week and was complacent about crime. The Judicial Qualifications Commission determined the advertisements to be false and found McMillan guilty of eleven counts of misconduct. The Florida Supreme Court subsequently ordered McMillan s suspension. Fiedler argues that the election process encourages such behavior: Because under the codes of judicial ethics... a candidate isn t allowed to say in advance how he or she might rule on any particular issue... [judicial] campaigns must be free of the very discussions that most people care about. That leaves a candidate with few means for winning the backing of voters. As a solution, Fiedler recommends giving the responsibility for screening judicial applicants to experts and to the governor, with voters retaining `veto power. Tom Fiedler, Electing Judges: Fooling the People Some of the Time, Miami Herald, July 16, Editorial cites the lack of candidates for judgeships in Broward County, Florida and calls for the adoption of a merit selection system, rather than the current system of popular election, for Florida state judges. Candidates include incumbent Robert Zack, who has been accused of financial misconduct, and Terri-Ann Miller, who, according to the editorial, moved to Broward to avoid running against a Cuban-American in heavily Hispanic Miami-Dade County. The editorial asserts that the current system rewards undeserving judges, noting that several judges who were rated unqualified in a recent Florida survey of attorneys will not face any challengers. By adopting a merit selection system, the editorial proclaims that the problems of unqualified judges and voter bias will be curbed. Wanted: Choices for Judge, Miami Herald, July 19, Editorial cites the lack of candidates for judgeships in Broward County, Florida and calls for the adoption of a merit selection system, rather than the current system of popular election, for Florida state judges. Candidates include incumbent Robert Zack, who has been accused of financial misconduct, and Terri-Ann Miller, who, according to the editorial, moved to Broward to avoid running against a Cuban-American in heavily Hispanic Miami-Dade County. The editorial asserts that the current system rewards undeserving judges, noting that several judges who were rated unqualified in a recent Florida survey of attorneys will not face any challengers. By adopting a merit selection system, the editorial proclaims that the problems of unqualified judges and voter bias will be curbed. Wanted: Choices for Judge, Miami Herald, July 19, Cover story critically assesses a scandal involving newly elected Florida county judge Matthew McMillan (see Court Pester, July 18). Relying on a well-funded Florida 3

4 campaign strategy that portrayed his opponent as being lax on crime and indolent, Judge McMillan defeated a 16-year incumbent. However, after Judge McMillan was found to have committed ethics violations for false campaign advertisements, the state Supreme Court has ordered him to face trial. Judge McMillan responds that he is being unfairly targeted for rocking the boat by replacing a sitting judge. According to the article, the controversy is timely for Florida because a referendum will be on the ballot in the fall to determine whether to keep the current system of elections or use a merit selection system. In the merit selection system, trial judges would be appointed and then face retention elections. Supporters claim that the merit selection system would prevent controversies like the McMillan affair by e! liminating the improper campaign tactics employed in elections. However, critics warn that retention elections can be used by special interests to punish a judge for an unpopular decision. John Gibeaut, Bench Battle, A. B. A. Journal, July 25, Column advises Florida voters to approve merit selection in the upcoming state referendum on judicial selection. Currently, voters in Florida elect their judges, but candidates often run unopposed. Merit selection is used to appoint judges to posts that become vacant in non-election years. Under merit selection, a prospective trial judge has his financial records and professional background reviewed by a judicial nominating commission. The commission then recommends a slate of candidates to the governor, who then makes the appointment. The columnist praises merit selection as a demanding and thorough system that allows prospective judges to remain above politics and avoid running election campaigns funded by lawyers who might appear before them. According to the column, more than three times as many judges who reach the bench by election are reprimanded or thrown off the bench, compared with those who reach by merit selection. Despite recent a! ttempts by the Legislature and Gov. Bush s deputy counsel to give the governor greater influence in the merit selection process, the columnist maintains merit selection is still the right vote. Randy Schultz, Make Florida Judges Earn Robes, August 27, Editorial laments the high number of uncontested judicial elections in Broward County, Florida. The editorial protests that the recent removal of former Miami- Dade County Judge Terri-Ann Miller from the Broward County ballot forces voters to return Judge Robert Zack, an incumbent with a blunted ethical sense, to the bench. According to the editorial, there is little reason to think that the level of competition in judicial elections will increase: Broward judges simply have lifetime tenure, good, bad, or indifferent, because lawyers simply won t challenge them. The editorial concludes by urging voters to vote for merit selection in the upcoming statewide referendum on judicial selection. Sham Judicial Elections, Miami Herald, September 1, Florida 4

5 14. Editorial decries the transformation of the nation s judicial elections into bruising political battles and urges Florida voters to approve merit selection. According to the editorial, it does our justice system no service to have judicial candidates out on the campaign trail talking about their lock em up views, boasting about how they would have ruled in a given matter and raising money from attorneys who may later appear before them. Noting that the chief justices of the 15 most populous states with judicial elections are convening in December to discuss electoral reform, the editorial warns the problem of rough-and-tumble judicial campaigns isn t going to be fixed at the margins. Merit selection, the editorial contends, would answer many of the criticisms of the electoral process while providing voters with a way to get rid of judges who don t live up to expectations. When Judicial Campaigns Go Bad, St. Petersburg Times, September 10, Column criticizes the ballot language of Florida s November referendum on judicial selection. While a previous draft failed to inform voters that, by choosing merit selection, they would lose the opportunity to elect judges, the current draft incorrectly implies that the governor has no choice in appointing judges. In last week s hearing on the matter, the state Supreme Court denied a petition that effectively asked the Court to supply its own language for the ballot. The columnist concludes by supporting merit selection: The election of judges is nearly a myth anyway. Of 160 circuit judgeships up this year, only 17 were contested.... In the process, lawyers contributed at least $1.4 million to various campaigns. Wealthy candidates loaned at least another $1 million to themselves. That s money talking. Merit selection is by no means apolitical, but it s surely cleaner than that. Martin Dyckman, Judicial Referendums Need Clarity, St. Petersburg Times (Fla.), September 14, Column asserts that Florida voters would enjoy a higher-quality justice system if [they] stopped electing judges outright. The columnist charges that, in both Broward and Miami-Dade Counties, electoral accountability is an illusion. In Broward County, it s an unwritten rule that incumbent judges aren t challenged and, as a result, Broward County judges are chosen, not by the electorate, but by a smug legal community tacitly agreeing, minus the electorate, to who sits on the bench. This selection is far less fair than the Judicial Nominating Commission process... at least the Commission picks candidates based on their qualifications. The columnist claims that, in Miami-Dade County, political consultants coerce vulnerable candidates to hire them or expect opposition: in essence... the judicial races that Miami-Dade s voters decide on are selected by political operatives. She concludes that, correcting th! e flaws of [the state s merit selection process] is far preferable to leaving selection of the majority of our judges in the dubious grips of either legal cliques or political consultants. Kathleen Krog, A Vote for Better Justice, Miami Herald, October 12, Florida 5

6 17. Editorial argues that Florida voters should support the popular election of trial judges over merit selection in November s referendum. According to the editorial, we think it unwise to give up the vote to the elite political interests of the legal profession and so further insulate the judiciary from the public. The appointment process is every bit as political as a popular vote. Considering the Florida Bar s argument that the voting public is not qualified enough to properly assess the merits of judicial candidates, it responds that voters would not be ignorant if judicial candidates could talk about the issues, but the Bar won t allow it.... [Judges] should be allowed to talk about issues and to defend themselves against the attacks of interest groups. The editorial concludes, We recognize that judges must frequently make difficult and unpopular decisions, and therefore must be independent. But judicial independence does not mean that judges should not be accountable to those they serve. There is a Strong Case for Preserving the Popular Election of Trial Judges, Tampa Tribune, October 14, Column laments that the typical Florida judicial race is a name-recognition contest that leaves voters clueless as to which smiling face is or would be the better judge. As examples of the faults in the current system, the columnist points to the elections of a county judge who was later arrested for sexual harassment and a circuit judge reprimanded for her abusive, demeaning, and sarcastic behavior. He asserts that the U. S. is, as best I can tell, the only place in the known universe that routinely elects judges.... It makes no sense. We do not elect football referees or baseball umpires because we would not want them owing their jobs to the home crowd.... [Yet] 70% of all state judges are subject to election. He concludes that if judges must face election, it is best that they do so by retention election in a merit selection system: Elected judges get in ethical trouble a good deal more frequently than those who ha! ve had to get by a nominating commission.... [Moreover,] minority candidates get a better shake with nominating commissions.... Though nearly half of all Florida s trial judges get to the bench by election, 75% of minority Circuit Court judges and 69% of minority county court judges owe their careers to appointment. Martin Dyckman, Judges by Appointment Is Better, St. Petersburg Times (Fla.), October 15, Article reports that the campaign for merit selection in Florida has run into political roadblocks. A referendum on the November ballot would extend merit selection to the state s trial judges. Lawyers critical of the current system still value highly the opportunity to contribute to judicial campaigns. Liberals who have called for appointive systems in previous years have been reluctant to vote for merit selection because they fear that Republican Gov. Jeb Bush would then exercise even greater influence over the judiciary. Several minority groups are opposed to merit selection as well because they feel that calls for merit selection result from, in the words of Victor M. Diaz, Jr., vice-president of the Cuban- Florida 6

7 American Bar Association, the judicial establishment [feeling] threatened by the changing political dynamics and demographics of this community. Seth S. Andersen, director of the Hunter Center for Judicial Selection at the American Judi! cature Society, states that November s referendum will test the continuing viability of merit selection as a political proposition and as an institution of government. William S. Glaberson, Florida Voters to Decide Judicial Selection Ballot, New York Times, October 25, Editorial urges Florida voters to support merit selection in November s referendum on judicial selection. The editorial argues that merit selection has a better track record than judicial elections: three of every four judges disciplined in the past two years were elected; five of six judges who were removed from office or resigned with charges pending were elected. In a Dade County legal poll, 80% of the highest rated 20 judges were appointed and 70% of the lowest rated 20 judges were elected. It asserts that the statistics square with common sense. The prime requisites for a judge are knowledge of the law and an even temperament. A political campaign seldom measures either. Vote Yes to Appoint Judges, St. Petersburg (Fla.) Times, October 25, Article examines reactions to Florida s upcoming referendum on selection of trial and county judges. In support of merit selection, Keith Donner, executive director of Citizens for Judicial Integrity, asserts that what we have now are judicial auctions where judgeships are sold to the highest bidder. Defending judicial elections, Ken Connor, President of the Family Research Council, responds: to suggest the public is not up to the task is a slap to the democratic process. Currently, 753 judges are elected in Florida. At the same time, judicial races are rarely contested and over half of the judges were chosen initially through merit selection to serve as mid-term replacements. The article claims that merit selection has made the judiciary more diverse in terms of ethnicity but not in terms of sex. While most black and Hispanic judges obtained their seats through appointment, most female judges obtained theirs through election. Despite this! difference, both minority and women lawyers groups support judicial elections, fearing that merit selection cannot be trusted to consistently produce a diverse judiciary. They have been joined by conservative organizations, like the Christian Coalition, that fear that appointed judges are more likely to indulge in activism. Judges Selection in Hands of Voters, St. Petersburg Times (Fla.), October 30, Editorial urges voters in Miami-Dade and Broward Counties, Florida to vote for merit selection in today s referendum: Voters... have the chance on Tuesday to rid courtrooms of the stench of political money and divisive politics. The editorial asserts that Broward [County] suffers from a near total lack of challenges and Miami-Dade elections suffer from a subset of highly paid Florida 7

8 political consultants who try to drive the process of selecting candidates and discouraging others from filing. Some elections have appeared to be little more than ethnic targeting. Moreover, nearly 75% of disciplined judges were elected. Yes -- For Judicial Reform, Miami Herald, November 6, Article reports that Florida voters have voted overwhelmingly to continue electing the state s more than 750 trial judges, soundly defeating [the state s merit selection initiative.] The American Bar Association and the Florida Bar together spent over $70,000 in support of merit selection. Oscar Marrero, president of the Cuban-American Bar Association, asserts this is a victory for the entire community and for the administration of justice. Anita Kumar, Floridians Keep Right to Elect Judges, St. Petersburg Times, November 8, Column advises Michigan voters that the debate over Florida s presidential election highlights the importance of judicial impartiality: Whether judges stand resolutely on the sidelines or try to repair defects in Tuesday s balloting, it is ultimately their responsibility to say when the game is over. So it is thus critically important that... the players and spectators have confidence in the timekeepers neutrality. The columnist asserts that, in contrast to Florida, where merit selection has yielded a moderate [Supreme] court whose rulings can seldom be anticipated to fall along party lines, Michigan s Supreme Court Justices are locked in a bitter split along party lines. Asserting that [this year s] candidates abandoned even their traditional lip service to nonpartisanship, he concludes that Michigan s leaders need to take stock of the damage that has been done to our own judiciary. Brian Dickerson, Florida Shows Importance of Neutral Courts, Detroit Free Press, November 13, Editorial considers possible reforms of Florida s election of trial and county judges in light of last week s rejection of merit selection. It supports a proposal by the American Bar Association for the creation of judicial-eligibility commissions. Such commissions would establish standards for good judges and then investigate all candidates on the ballot.... This wouldn t prevent anyone who meets minimum requirements from running for a judgeship, but it would give voters benchmarks. Judicial Elections, Miami Herald, November 14, Column approves of Florida voters decision to retain election of trial and county judges. The columnist asserts that the merit selection system considered in the referendum was a pig in the poke. By calling for merit commissions to deliberate in private over judicial candidates, the proposal failed to provide voters with enough information to make informed decisions when participating in retention elections. The columnist concludes that future proposals for merit selection in Florida should learn from the examples of Alaska and Arizona, both of which mail voters information about the judges facing retention election. Florida 8

9 Howard Troxler, Merit-based Judge Selection Didn t Fly with Voters, St. Petersburg Times, November 20, Op-ed by Victor M. Diaz, Jr., chairman of Citizens for an Open Judiciary, outlines possible reforms for Florida s trial court elections in the wake of voters recent rejection of merit selection. For elections, the columnist suggests: using court fees to help finance judicial campaigns; requiring all judicial candidates to have significant jury-trial experience; and dispelling the myth that judicial candidates are prohibited from addressing issues of substance in their campaigns. Considering mid-term appointments, he suggests adopting rigorous statutory conflict-of-interest and lobbying disclosure requirements to combat inappropriate insider politics. Victor M. Diaz, Jr., Let s Reform Judicial Elections the Right Way, Miami Herald, November 21, Article reports that Republican Palm Beach County Commissioner Mary McCarty has initiated a third effort to defeat Florida Supreme Court Justices who ruled in Vice-President Gore s favor during the recent election controversy. McCarty has formed the Committee to Take Back Our Judiciary, which seeks to raise $4.5 million to defeat Justice Harry Lee Anstead and Chief Justice Charles T. Wells, who both face retention elections in Her fundraising letter, mailed to 350,000 Republican donors, denounces the unanimous decision [the Nov. 21 holding to allow manual recounts in South Florida] against the interests of President-Elect Bush. In addition to the Committee, the Christian Coalition of Florida and Balance to the Bench are also supporting movements to discipline the Court. Both groups have launched websites, and respectively. Shelby Oppel, Official Begins Effort to Oust `Liberal Justices, St. Petersburg Times, December 20, Article reports that two efforts to unseat Florida Supreme Court Justice facing retention elections may have fizzled before [they] started. (See Court Pester, December 21, 2000.) Early this year, Balance to the Bench, formed to oppose Justice Harry Lee Anstead, vowed to raise $1 million for the efforts. However, the organization has still not registered as a P.A.C. The chair of the Committee to Take Back the Judiciary has resigned and the group has been accused of campaign finance improprieties. (See Court Pester, May 29, 2001.) The group sent fund-raising letters to 35,000 individuals through a $150,000 in-kind contribution from a mailing services firm. However, state campaign finance laws cap such contributions at $500. Of a total $69, collected in donations, the Committee has returned $50,000 to the firm. Gary Blankenship, Anti-Retention PACs Off to a Slow Start, Florida Bar News, December 21, Column defends politically motivated efforts to unseat Florida Supreme Court Justices facing retention elections. (See Court Pester, December 12.) The Florida 9

10 columnist notes: The [state] Constitution does not place any conditions or rules on the ability of the citizens to vote `no [in retention elections.]... This power is sacred. So is the power to organize, to campaign and to advocate a `no vote. Thus, according to the columnist, criticism should be targeted not against voters but the Florida Constitution... which provides for election of judges. Howard Troxler, Right or Wrong, It s Their Right, St. Petersburg Times, January 3, Column denounces Florida Republican State Senator Anna Cowin s proposal for having high court judges selected by popular election rather than merit selection. (See Court Pester, January 11.) According to the columnist, merit selection became the preferred method for choosing appellate judges and state Supreme Court Justices because popular election led to a succession of Supreme Court scandals. He asserts that Alabama provides current evidence of the folly of Cowin s proposal and quotes the former chairman of the Florida Republican Party: the trial bar absolutely owns Alabama. However, the columnist agrees with Cowin that the current system is deficient: Cowin has plausible complaints about the secrecy in which judicial nominating commissions debate whom they will recommend for vacant judgeships.... [Also while] critics who complain that Florida voters have too uncritically re-elected all appellate judges up for merit retention conveniently fail to note that several justices had to overcome nasty campaigns against them..., there is a point to be made that voters need an objective source of performance data. Martin Dyckman, When Reform Really Isn t, St. Petersburg Times, January 14, Editorial argues that the Florida Supreme Court s recent decision in a judicial discipline case underscores the need for judicial reform. The Judicial Qualifications Commission found that Dade County Circuit Court Judge Rosa Rodriguez s handling of a $200,000 loan to her election campaign was conduct unbecoming a members of the judiciary but ruled that a public rebuke would be punishment enough. The high court overturned the penalty because, according to the editorial, it found that the penalty was too lenient in light of the Commission s findings. In the editorial s opinion, this episode should remind state lawmakers of the need for judicial reforms, such as tougher conflict-of-interest standards for judges, higher minimum-qualifications requirements for judicial candidates and partial-public funding of judicial races. Moreover, this case... should motivate local reform groups that vowed to fight for judicial reform after last fall s defeat of merit-retent! ion of judges in favor of direct elections. Returned to Sender, Miami Herald, March 28, Op-ed by Michael Lee, Detroit attorney, challenges the recent proposals for eliminating Michigan s judicial elections: we should be most cautious in doing anything that dilutes or removes constitutional rights. Lee observes: there have been no allegations of any illegal activity or professional misconduct by any of Florida 10

11 the candidates in last year s Supreme Court race. So the argument is merely about how distasteful the process is. Yet, voters should recognize that in politics such behavior is simply par for the course and that the alternatives to elections are even worse. Considering merit-selection, Lee notes that Florida Supreme Court Justice Harry Anstead will be the focus of an intense negative campaign during his retention election. Because the only issue in the race will be whether he is qualified to be a Supreme Court justice, the campaign against him will have to be negative. As a result, the two ills that this method was designed to cure -- money and par! tisanship -- will be, if anything, magnified. As for 14-year appointments by the governor, it merely transfers the partisanship from the judicial elections to the gubernatorial election. Michael K. Lee, Save Court Elections, Detroit Free Press, April 12, Column assesses the ongoing battle between Florida Republican legislators and the state judiciary. Mark Kozlowski, associate counsel at the Brennan Center for Justice, asserts that the struggle has become the most substantial conflict between the judiciary and legislative branches in the country. Concerning Republican proposals for reforming the selection of appellate judges, Robert Trohn, former member of two state judicial nominating commissions, opines, I do think the judicial nominating process is bad, but usually the remedies are worse than the ills they re trying to cure. House Speaker Tom Feeney (R.) attributes Republican rancor to the Florida Supreme Court s behavior in the election debacle. Kozlowski responds, It s tremendously unfair to the courts to base a broad-based attack on their power on the basis of a case which I m quite sure they d rather not have been given in the first place. The columnist adds: You could tell who is set to gain most from! Feeney s `reform just by looking at the special interests attending committee hearings on judicial matters -- the Retail Federation, the insurance industry, the Chamber of Commerce, partisans of `tort reform, and opponents of church-state separation. Pierre Tristam, Legislative vs. Judiciary, Lakeland (Fla.) Ledger, April 29, Column castigates Florida s Judicial Nominating Commissions for failing to represent Florida s diverse population in their selections: Affirmative action may be in disuse today, but it s surely justified when racial and ethnic minorities continue to fall prey to the good-old-boy network. The 20th Judicial Circuit Nominating Commission covers a set of counties with a sizeable Hispanic population. Yet, in its recent slate of nominees for two judgeships, the Commission chose no Hispanic attorneys and only one African-American. Noting that the Commission nominated three individuals for each position, even though it could have named up to six, the columnist charges, [h]ad the commission submitted all 12 names, it knew it would have had no other choice but to nominate more than one minority. She contends that the membership of the commission was determined by political considerations: the governor had Florida 11

12 appointed six of the nine members! sitting on the commission, and half were from Collier County... where big campaign money rests. She concludes that such practices render Gov. Bush s call for diversity in the judicial system... a joke. Martha Hill, Judicial Nominations Ignore Diversity, Florida News-Press (Fort Myers, Fla.), October 21, Article reports that the U.S. Supreme Court will review a federal court challenge to a Minnesota rule preventing judicial candidates from stating their views on disputed legal or political issues. Former Minnesota Supreme Court candidate Gregory Wersal had challenged a number of prohibitions on judicial candidate speech, such as the state s requirement that candidates neither seek nor accept political party endorsements. (See Court Pester, March 2.) Hearing Wersal s appeal, the U.S. Court of Appeals for the Eighth Circuit upheld Minnesota s restrictions but interpreted the ban on discussing legal or political issues to apply only to issues likely to appear as court cases. However, in 1993, the U.S. Court of Appeals for the Seventh Circuit found that even such a narrow interpretation violated the First Amendment for there is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal. Additionally, federal co! urts in Arkansas, Florida, and Kentucky have struck down speech restrictions but similar rules have been upheld in Pennsylvania. The case is Republican Party of Minnesota v. Kelly, No Linda Greenhouse, Judicial Candidates Speech to Be Reviewed by Justices, New York Times, December 4, Column charges that Florida judicial elections have allowed too many unethical judges to sit on the bench. For example, in 1992, Judge J. Leonard Fleet reacted to a defendant s threat by offering him his revolver with the warning, If you re going to take a shot, you better score, because I don t miss. In the subsequent election cycle, he ran unopposed in spite of his having received a disciplinary reprimand. In fact, the columnist notes, in the last 27 years, only six incumbent judges in Broward County have faced election challenges. Among those returning to their seats in the 2000 election cycle was Judge Robert Zack, who owed a significant sum of money to a bail bondsmen with business before Zack s court. Noting the recent arrest of Judge Joyce Julian for drunken and disorderly conduct at a judicial conference, the columnist asserts: it is unlikely that she will suffer consequences at the polls. Fred Grimm, No Judgment for Errant Judges, Miami Herald, December 9, Letter to the Editor by Richard Wilcox, President of the Business and Industry Political Education Committee (BIPEC), defends his organization s involvement in Mississippi judicial elections. Wilcox contends that too many judges on the current bench indulge in judicial activism, prompting greedy lawyers... [to] come running to Mississippi courts from Arizona, Alabama, New York or Florida 12

13 Florida. In response, BIPEC offers voter education guides with the purpose of identifying those judges who will practice balance and fairness. He adds that BIPEC does not seek the election of pro-business judges: A judicial candidate should never be asked to be pro-business. That s absolutely unfair Dick Wilcox, Miss. Business Not After One-Sided Courts, Just Fair Ones, (Jackson, Miss.) Clarion Ledger, January 11, Article reports that two Florida state legislators hope to replace retention elections for state Supreme Court and appellate judges with gubernatorial re-appointment. One of the measure s sponsors, state Senator Anna Cowin (R.) points out that since the state instituted merit selection, no judge has lost a retention election: It s a joke.... [I]t s like a life appointment. Cowin and her House colleague, Fred Brummer (R.), also want to limit the time a Justice may spend on the bench to 18 years. Currently, Justices may serve until they reach the age of 70. Bob Poe, chairman of the Florida Democratic Party, describes the proposals as a purely partisan political ploy aimed at weakening the courts. Brummer responds that while he does think the Florida Supreme Court carries a liberal bias, he is not motivated by ideological considerations: The retention-election approach has... detached the judiciary from the people. It s not a matter of a conservative! or liberal court. It s a matter of government by the people. Kevin Connolly, GOP Wants to Tighten Grip on Supreme Court, Orlando Sentinel, January 21, Editorial charges that a proposal in the Florida legislature to substitute gubernatorial appointment for retention elections is as contemptuous of the voters as of the courts. (See Court Pester, January 24.) The editorial denounces the proposal as a malignantly evil scheme and its sponsors, State Senator Anna Cowin (R.) and Rep. Fred Brummer (R.), as the Barbie and Ken of Florida s fanatic fringe, noting that they also sponsored last year s successful effort to allow the Governor to appoint all the members of the state s judicial nominating commissions. It also contends that the proposal is not motivated specifically by the Florida Supreme Court s actions in the 2000 Presidential election, but by a general animosity toward judicial independence. Brummer and Cowin argue that the fact no judge has ever been defeated in retention elections is proof that the current system does not provide accountability. The editorial responds that it proves instead, that the majority of Floridians are...not extremists like Cowin and Brummer. An Insult to Floridians, St. Petersburg Times, January 25, Article focuses on Anthony Gargiulo, the purported judge maker in Broward County, Florida. Circuit Judge Julie Koenig, who had had no political experience prior to her 1994 race, proclaims, Tony introduced me to 100,000 of his personal friends and they were all registered voters. Gargiulo arranges meetings between his candidates and key Broward constituencies, such as local unions or AARP chapters, charging $25,000 per candidate for his services. Over the past 14 years, Florida 13

14 Gargiulo s contestants have won nine of ten contests. This year, he is working for candidates in four of the five races. Alan Schreiber, Broward public defender and a supporter of an opponent to a Gargiulo-backed candidate, worries, It s highly distasteful for someone to try and dominate four judicial seats for money. Buddy Nevins, Aspiring Judges Count on Tony G., Orlando Sun-Sentinel, April 14, Article discusses a recently passed revision of Florida law designed to prevent judicial candidates from challenging incumbents just six weeks before the primary election. Instead of July, judicial candidates would have to file their papers in the second week of May. State Representative Gaston Cantens (R.), the legislation s sponsor, explains that the motivation for the law was the defeat of several wellregarded incumbents who were caught by surprise by late-filing challengers. In response, a number of judges have begun raising campaign funds earlier. According to the article, both challengers and judges applaud the law as a welcome improvement... that prevents candidates from... catching incumbent judges flat-footed. Some however criticize legislators for implementing the law this year rather than next. Says Miami attorney Victor Diaz, It gives potential challengers much less time to file, and the date change has been sort of a closely held secret. Matthew Haggman, No More Surprises, Miami Daily Business Review, April 19, Editorial considers this year s court races in Hillsborough County, Florida and worries about the effects of an unnecessary new provision moving forward the filing date for judicial candidates. Although the county had been plagued by two years of scandal with lawyers... afraid to challenge sitting judges, appointments by Gov. Jeb Bush have brought new blood, and administrative changes by Chief Judge Manuel Menendez have foster[ed] an open and collegial working environment. To solidify these changes, the editorial believes that voters must be presented with more contested races: There are plenty of good incumbents but lawyers who give the voters the benefit of a choice help keep the judiciary grounded and accountable. It worries that with the new deadline incumbents will enjoy a significant advantage over challengers. Although the provision was intended to prevent incumbents from being caught off guard by late-filing candidates, the editorial responds that the worry is misguided: sitting judges have no problem raising campaign contributions; challengers, by contrast, will be forced to leave their law practices earlier. Choice Keeps Judiciary Grounded, St. Petersburg Times, April 25, Column laments that five candidates in this year s judicial races in Broward County, Florida have been accused of violating the state Supreme Court s code of judicial campaign conduct. All five candidates are alleged to have made appearances before various political clubs. In addition, four are alleged to have Florida 14

15 given money to the clubs. Since Florida s judicial elections are nonpartisan, candidates are strictly forbidden from engaging in any activity that would associate them with a particular party. The columnist concludes, We re not talking about a capital crime, but rules are rules. Buddy Nevins, Even Judicial Candidates Are Flouting the Rules, Orlando Sun-Sentinel, April 27, Editorial calls for the abolition of the unwritten 11th Commandment of local politics: Thou shalt not run as a candidate against a sitting judge. No matter what. Decrying the fact that 19 of 20 Florida Circuit Court incumbent judges had no challengers as of the filing deadline on May 17, the editorial asserts that the situation defeats the whole purpose of having judicial elections at all. The editorial suggests that voters revisit the idea of having County Court and Circuit Court judges appointed through a merit selection process, which would mandate that judges face retention elections every six years. The lack of election challengers encourages autocratic, arrogant judges to think they deserve lifetime tenure, own the judicial seat and don t need to be held accountable. Thou Shalt Not Run : Bad Advice, Sun-Sentinel (Ft. Lauderdale, Fla.) at 20A, May 21, Article reports that Miami-Dade County Judge Alan Postman, who is facing criminal defense lawyer Diane Ward in his bid for reelection this fall, admitted that a state judicial panel investigated him for soliciting campaign contributions from attorneys who appear before him, but he said the probe went nowhere. Asserting that I have never done anything wrong, Judge Postman accused Ward of attacking his judicial character by spreading rumors about the probe and his past low Dade Bar poll ratings. Ward said she is challenging Judge Postman because of his low rating and because of a comment he made during his 1996 campaign. Referring to the maximum campaign contribution, he told a newspaper reporter, No one is buying a judge for $500. But it could buy you a continuance down the road. Judge Postman has said that Ward is distorting his statement. Jay Weaver, Judge Says He Knew of State Probe, Miami Herald, June 26, Noting that the U.S. Supreme Court s ruling in Republican Party v. White has caused confusion as Florida judicial elections are getting underway, editorial argues that, as some candidates gingerly test issue campaigning, the implementation of a merit selection system may be revisited if candidates fail to maintain the appearance of impartiality. Florida voters rejected such a system two years ago. Taking Off Judicial Muzzle, Miami Herald, June 30, Article reports on reactions in Florida to the U.S. Supreme Court s recent decision striking down a Minnesota canon restricting the speech of judicial candidates. Legal experts in Florida disagree about the extent to which Florida s judicial conduct code will be affected by the ruling, and many judges believe that the decision will significantly alter the character of judicial elections in the state. Beth Florida 15

16 Reinhard and Lesley Clark, Would-Be Judges Free to State Views, Miami Herald, June 28, Editorial praises the U.S. Supreme Court s recent decision striking down a Minnesota canon restricting the speech of judicial candidates. Judges will no longer be able to hide behind rules that in effect keep the public in the dark in a wrong-headed attempt to differentiate between judicial and legislative campaigns. Because the need for information is not gratuitous, the gag rules of the past only hindered the process. Ungagging Judicial Candidates, Tampa Tribune, July 1, Calling judicial elections a geological curiosity on the political landscape, column calls for Florida to take advantage of the historic opportunity created by the U.S. Supreme Court s decision striking down Minnesota s canon restricting judicial speech to reform judicial elections and ensure a smarter process - one that puts better judges on the bench. Elements of an improved process include a voluntary code limiting electoral discourse, an issues agenda set by the Bar Association, and public questioning of candidates expertise, temperament, and views on judicial administration. Edward Wasserman, Let Informed Public Elect Judges, Miami Herald, July 8, Article reports that Dade County, Florida, Judge Jeffrey D. Swartz, chairman of the Judicial Ethics Committee, has announced that the U.S. Supreme Court s decision striking down Minnesota s canon restricting judicial candidate speech has no impact on the statutory or code provisions which regulate judicial elections in Florida. Because Florida s code limits judicial candidates only from making a pledge or promise on issues likely to come before them, they may state positions in general as long as they do not do it in a partisan setting, according to Judge Swartz. However, Florida State University College of Law visiting Assistant Professor Howard Wasserman said that the decision certainly will inject more politics into judicial elections. Jan Pudlow, What Can Candidates Say?, Florida Bar News, August 1, Article reports that a Florida judicial race is politics lite because of restrictions preventing judicial candidates from making promises about how they will rule and from announcing political affiliations. For instance, David M. Gooding, a candidate for a seat on the Fourth Judicial Circuit, calls himself a commonsense conservative who believes in a strict interpretation of the Constitution, a formulation that produced a few winks and nods among listeners at a recent campaign stop. Campaigns also tend to become personal, as judicial candidates comment more on their opponents than on themselves. Consultants circulate pictures of opponents wives attending political luncheons and quietly allege judicial campaign violations. Or they pick apart candidates statements for Florida 16

17 clandestine efforts to suggest partisan affiliation. Rich Tucker, Judicial Candidate Must Court Voters Subtly, Jacksonville Times-Union, August 13, Article reports on a controversy sparked by an ad run by incumbent Hillsborough County, Fla. Judge Cheryl Thomas. The ad shows a picture of Judge Thomas with the words Let s support our very own on September 10th. Her opponent, lawyer Anthony Arena, says the ad shows that Judge Thomas is campaigning along racial lines. Judge Thomas is black, while Arena is white. Judge Thomas said that the words our own refer to her being a Tampa native, and noted that the ad talked about my family, and my family is from Tampa. Arena s political consultant, Wayne Garcia, argued that the phrase vote for one of our own crosses the line, because it clearly sets up an us-versus-them. If that s not playing the race card in reverse, I don t know what is. Judicial Campaign Ad Sparks Racial Controversy, Daytona Beach News-Journal, August 17, Article discusses a crisis of credibility gripping many of the thirty-nine states that elect appellate judges as judges contend with a flood of money driven by a fierce battle over judicial philosophy that has pitted trial lawyers, consumer advocates and unions against corporations, their attorneys and their trade associations. In recent years, the single greatest wild card in judicial races has been the influx of anonymous spending beyond the direct control of candidates, usually in the form of issue advertising which insulates donors from disclosure, allowing for nastier, more underhanded tactics. One major player, the U.S. Chamber of Commerce, plans to spend as much as $25 million in undisclosed contributions in The result of such spending is likely to be costly and bitter elections in states like Texas, Ohio, Michigan, Florida, Louisiana, Illinois, Mississippi, Alabama and Idaho, where the voters decisions could alter the courts ideological makeup. Georgetown University law professor Roy Schotland said that contribution limits and independent expenditure disclosure requirements, if narrowly tailored for judicial elections, could pass constitutional muster. Michael Scherer, State Judges for Sale, The Nation, September 2, Article reports that accusations of campaign law infractions in the Fifth Judicial Circuit race in Florida are flaring up. Michael Takac is accusing incumbent Judge Carven Angel of breaking the nonpartisan election laws and guidelines by attending partisan events during the campaign. Angel said that he has never knowingly violated any rules in Florida s Canons of Judicial Ethics. Angel has campaigned at various partisan events, but the judge says that hardly constitutes and infraction of the law. I only attended political meetings that were open to the public, said Angel. None of the meetings were fundraisers. Takac replied: Angel did not comply with the rules applicable to judicial candidates- rules, we Florida 17

18 are told, are designed to help preserve the dignity of the judiciary as an independent branch of government, without even partisan bias. Jacob Ogles, Judicial Candidates Swap Barbs, The Daily Commercial (Leesburg, Florida), September 6, Column calls for the end of judicial elections, citing voters ignorance of the system. The problem is not how candidates conduct campaigns but that voters are disinterested in judicial elections. Public opinion is one of detachment. While supporters proclaim that judicial elections are integral to democracy, the columnist disagrees: It would be [democracy] if appointed judges were challenged more often. But there appears to be an unwritten rule that appointed judges go unchallenged when they come up for elections. The writer echoes the sentiments of Supreme Court Justice John Paul Stevens, who compared the policy of letting voters elect state judges to letting football fans select game referees. Joseph H. Brown, Voting Booth is No Place to Pick Judges, Tampa Tribune, September 8, Article reports on the results of the judicial elections in Miami-Dade County, where early results indicate that two incumbents have lost their seats. The possible defeat of two incumbent judges illustrates the role that ethnic politics play in sending candidates to the bench and also shows the high opinion of a judge s peers does not always ensure victory. Both incumbents, County Judge Eric Hendon and Circuit Judge Alan Postman, are black, which may have affected the decision to run of their respective challengers, Jacqueline Schwartz and Diane Ward. Attorney Jason Murray, past president of the local Black Lawyers Association, said, It seems like we just lost a quality African-American judge, and now the ranks that were already too small have gotten even smaller. The article notes that an analysis of the racial and ethnic breakdown of voters shows that Schwartz was able to capture the majority of white and Hispanic voters, while Hendon carried the black vote. David Green, Blocs Determine Judicial Chances, Miami Herald, September 12, Article reports that, although only two of 127 sitting judges in Florida faced a challenger in this fall s elections, the eight candidates for those seats spent more than $415,000 in the Sept. 10 primaries. The remaining four candidates are expected to continue their spending in the month remaining before the runoff election. Prosecutor Ed Nicholas, who will face County Judge Preston DeVilbiss Jr. in the runoff, said, You have to get T-shirts, car magnets, bumper stickers and pins. And everything costs more than you think. Prosecutor Charlie Roberts, who will face Susan Chapman for the other contested judgeship, said that he considered newspaper ads and television spots central to his campaign. I spent quite a bit and think it was well spent. I got the message out, he said. Howard Unger, Verdict: Judge Races Add Up, Sarasota Herald-Tribune, October 6, Florida 18

19 59. Article reports that after publicly vowing earlier this year to raise and spend more than $30 million to help elect business-friendly candidates and push legal reform in the 2002 elections, the U.S. Chamber of Commerce has become more tight-lipped about the effort. Although the Chamber s Institute for Legal Reform has declined to comment on how much was being spent on advertising and getout-the-vote operations in judicial and attorney general races around the country, several sources say that a joint fundraising drive by the Chamber and the Business Roundtable has raised about $20 million so far. That money is being spent to bolster Supreme Court and attorney general candidates in Delaware, Florida, Illinois, Michigan, Mississippi, and Texas. Judicial candidates in Ohio and Wisconsin may also get some help. Peter H. Stone and Louis Jacobson, Chamber Is Coy on Campaign Effort, National Journal, October 12, Article reports that, according to a new study released by the Brennan Center for Justice, tens of millions of dollars are being spent to elect state court judges, with much of that money coming from groups and individuals affected by those judges decisions. Sen. John McCain (R., Ariz.) said, Ordinary Americans believe justice is for sale. American Bar Association president Alfred Carlton Jr. concurred, arguing that interest group spending brings questions of a candidate s allegiance and, with respect to judges, whether or not they can be impartial on the bench. James Bopp Jr., an attorney who has argued that curbs on campaign contributions violate free speech protections, said that he trusts judges not to be swayed by campaign contributions. However, Deborah Goldberg of the Brennan Center s Democracy Program noted, This air time is expensive. We do not want judges making decisions with one eye on the special interest money needed for the next election. Associated Press, Study: Money Counts in Judge Races, Sarasota Herald-Tribune, November 20, Article reports that U.S. District Judge Donald Graham, in overturning the murder conviction of Timothy Brown, concluded that Broward County (Fla.) Circuit Judge John Frusciante was wrong to rule that, despite Brown s IQ of 56, he would not accept any implication that Brown did not understand his rights. Critics say the Brown case illustrates a pattern. Local trial judges, who must stand for reelection, almost never suppress confessions in high-stakes cases - not even when the circumstances suggest a violation of a defendant s rights. Instead, they count on the politically independent appellate courts to make those decisions. As a result, the wrongly convicted sometimes remain behind bars for years. Justin Brooks, director of the California Innocence Project at California Western School of Law, said that elected trial judges face strong political pressure. It s not surprising that [the Brown conviction] was overturned by a federal judge because he s appointed, not elected. Daniel de Vise and Wanda J. DeMarzo, Judges Feel Pressure to Allow Questionable Convictions, Miami Herald, March 30, Florida 19

20 62. Article reports that Florida state legislators want to send voter guides bearing state-sanctioned political messages on why Floridians should either approve or defeat items on the ballot, such as proposed constitutional amendments and whether to retain state judges. Rep. Donna Clarke (R.) said, My constituents are very frustrated that they didn t get enough information about the constitutional amendments and just about no information on the retention of judges. However, critics argue that the plan would use public money to spread political propaganda from the Republican-run Legislature, and that the guides could violate separation of powers because legislators and the governor will be approving the opinions being distributed about elected judges. Withdrawing her sponsorship of the bill, state Rep. Anne Gannon (D.) said, I want my judiciary to be independent, and not impacted or threatened by legislators this way. Mark Hollis, Voter Guide Could Help Electors, Legislators Say, Orlando Sentinel, April 9, Article reports that in a case with national political implications, the Florida Elections Commission has ruled that Palm Beach County Commissioner Mary McCarty violated state campaign finance rules in working to oust three Florida Supreme Court justices. The commission followed the finding of state administrative law judge Harry Hooper that the former Palm Beach County Republican Party chairwoman was little more than a front for a Washington, D.C.-based campaign against the justices, which was organized during the 2000 presidential election recount battle. The commission s lawyer argued that McCarty, working with a Republican lobbyist, established the Committee to Take Back Our Judiciary to pressure the state Supreme Court to rule in favor of then Texas Gov. George W. Bush in his ballot recount battle with Al Gore. The Committee is the subject of an ongoing investigation, as Florida hasn t determined the sources of the $150,000 that paid for the direct mail fund-raising campaign targeting the justices, or the additional $50,000 that was paid by the committee for unexplained reasons. Dan Christensen, Supreme Plot, Daily Business Review, July 9, Article reports that more than two years after voters rejected the idea of doing away with elected judges in Florida, the amount of money flowing into the state s circuit judicial races has increased steadily. Since the rejection of an appointive system in 2000, the average amount of money campaigns of circuit judges and circuit judicial candidates have raised has increased more than 10 percent from $45,604 in 2000 to $50,488 in 2002, while the average amount from sources other than the candidate, such as lawyers and businesses, has increased more than 36 percent, from $18,131 in 2000 to $14,755 last year. Circuit Court Judge David Krathen, who spent the most (more than $423,000) of any judge or candidate last year, said, I don t think judicial races should be politicized, but you are running for an office, and you have to get your message out to the voters Florida 20

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