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December 1, 2012
All appellate jurists retained

Three justices survive organized campaign to oust them

By Gary Blankenship
Senior Editor

Faced with high-profile opposition from a special interest political action committee and first-ever partisan intervention in their contests, Florida Supreme Court Justices Fred Lewis, Barbara Pariente, and Peggy Quince easily won their merit retention elections on November 6.

In addition, all 15 district court of appeal judges on the ballot — in races that drew no active opposition — won their merit retention votes.

Justice Lewis The justices, who began preparing last year for an expected well-funded and last-minute push against them, won by a more than two-to-one margin. Lewis got a 67.39 percent “yes” vote, Pariente 67.86 percent, and Quince 67.6 percent. All the justices received more than 4.8 million votes.

Interestingly, the “yes” percentages are virtually identical to the margin that Chief Justice Ricky Polston and Justice Charles Canady got in their 2010 retention elections where they faced no opposition. It’s better than the 59 percent and 61.7 percent, respectively, Justices Jorge Labarga and James Perry received. Labarga and Perry, who did not actively campaign, were the targets of a last-minute Internet campaign urging their defeat.

The election marked the first time since the 1990 and 1992 elections that sitting justices had faced an organized, active campaign. In those races, then Chief Justice Leander Shaw in 1990 and then Chief Justice Rosemary Barkett in 1992 won their retention races with about 60 percent of the vote.

Justice Pariente This year, Americans for Prosperity, a political action committee associated with billionaire brothers Charles and David Koch, announced it would put money into opposing the retention of the three justices. The Republican Party of Florida Executive Committee also voted unanimously to oppose their retention. A website, Restore Justice 2012, which led the opposition to Labarga and Perry in 2010, also urged defeat of the three justices this year.

Calls by the News to Americans for Prosperity and the Republican Party were not returned, and it was not immediately clear how much they spent in the campaign against the justices. Jesse Phillips, who created the Restore Justice 2012 website, said he spent around $80,000.

Brian Crowley, a spokesperson for the justices, noted Americans for Prosperity had reserved television and radio advertising time, but it was not immediately clear whether the organization used that time to campaign against the justices or for candidates it had endorsed in partisan races.

“I think we moved fast enough. The other side saw their money would be better invested elsewhere,” Crowley said.

“I don’t think the [Republican] party spent anything. I’m sure they did their own polling on this, and they figured they could better invest their money.”

Justice Quince Crowley said the justices were determined to be ready, unlike Iowa Supreme Court justices in 2010 who were surprised by a well-funded, late-blooming campaign financed largely by out-of-state interests and which led to all three justices on the ballot being defeated in their retention bids.

The opposition to Lewis, Pariente, and Quince spurred the formation of groups that supported their retention and criticized the injection of politics into the state’s judiciary. Support included Defend Justice from Politics, which raised $4 million to campaign for the justices, and Democracy at Stake.

The justices themselves raised about $1.5 million.

The three victorious justices hailed the results as showing that Floridians want to keep an independent judiciary free from politics.

“The very foundation of Florida’s independent judicial system was threatened in this election,” Lewis said.

“I am grateful that Florida voters once again demonstrated their faith in our fair and impartial judicial system, and I extend my thanks and great appreciation to those Floridians who both assisted in the retention effort and those who voted for retention.”

“The judicial branch in Florida is one of the most highly regarded in the nation. Florida voters have made it clear that they are determined to keep it that way,” Pariente said.

“I want to thank the many Floridians who stood up against the attack on the impartiality of our justice system.”

And Quince commented: “Floridians care deeply about ensuring that we have a fair and impartial judiciary untainted by partisan politics. Tonight, I want to thank Florida voters who renewed their faith in our merit selection and retention system.”

Phillips, of Restore Justice 2012, said even if the campaign against the justices wasn’t successful, it served to heighten interest in judicial elections.

He said about 85 percent of the people who went to the polls cast a ballot in the justices’ retention elections, compared to around 81 percent in 2010 and 78 to 79 percent in 2008.

He said he’s uncertain about the future of his organization, saying it was originally intended to be functioning for the 2010 and 2012 elections. (Also, unless there is a change in membership on the court in the next year, there will be no justices on the 2014 ballot.)

“We always kind of viewed this as a two-year project. We haven’t given a whole lot of thought about where we go from here,” Phillips said.

“We did have 2.3 million who voted ‘no’ [in the Supreme Court retention races] and that’s a record number. I think this is an issue that’s not going to go away.”

The Florida Bar, reacting to the added interest in the judicial merit elections, launched The Vote’s In Your Court education program to inform voters about the history and purpose of Florida’s merit selection and retention system. The Bar did not take a position on the justices’ retention.

“Through The Vote’s In Your Court, The Florida Bar set out to increase its public education efforts on merit retention, with the goal of developing more informed voters and increasing participation in the merit retention vote,” said Bar President Gwynne Young. “Through many activities we sponsored, including distribution of voter guides, placing speakers at community meetings and events, and by talking to the media on the need for Floridians to understand the merit system, we reached millions of voters.

“I believe our education efforts on merit selection and retention, the role of judges, and the importance of keeping politics out of the merit retention system contributed to increased voter turnout. I think this demonstrates that the program was very successful.”

Young further noted: “All of the Supreme Court justices and district court of appeal judges up for retention were retained with far more than 50 percent ‘yes’ votes.

“In addition, 85 percent of the voters who voted in the presidential race also voted in the merit retention race, compared to 75 percent in the 2008 presidential race.”

Supporters of the justices praised the outcome and expressed hope the strong showing would discourage future attempts to politicize the courts.

“The people of Florida have a message for the special interests and politicians seeking to tip the scales of justice. Our courts are not for sale,” said Alex Villalobos, a former legislator and president of Democracy at Stake.

“Unfortunately, it is a message we will likely have to deliver over and over again, unless we build a more effective firewall to keep big money and politics away from the judicial branch.”

“The need for a fair and impartial judiciary far outweighs individual disagreements with any specific opinion,” said Sandy D’Alemberte, former ABA president and former president of Florida State University who worked for the justices’ retention.

In the 1990 and 1992 merit retention elections, the campaigns against Shaw and Barkett slightly affected the “yes” votes for DCA judges on the ballot, except in the First District Court of Appeal, where the effect was more dramatic, although no judge came close to losing. (First DCA judges typically get the lowest percentages of “yes” votes among the various DCAs in retention elections.)

In 2010, the campaign against Justices Labarga and Perry and the anti-incumbent tenor of the election appeared to have a more dramatic impact in the First DCA. All the judges were still retained, but the average “yes” vote was around 55 percent — the lowest margin in recent memory.

By contrast, this year’s campaign against the three justices did not appear to bleed over into the DCA retention elections. The First DCA judges averaged around 65 percent “yes” votes, and judges in the other DCAs all easily surpassed 70 percent.

A check of county returns showed that the justices did the worst in largely rural counties in North Florida and the Panhandle, including losing many outright. But they won easily and piled up large margins in bigger counties. They did best in Palm Beach County, averaging about a 76 percent “yes” vote, and doing almost that well in Broward and Leon counties.

First DCA judges also had their worst showing in smaller and rural counties but did better than the justices, losing fewer counties overall and getting a higher vote margin. In the other DCA races, no judge failed to get less than a 60 percent “yes” vote in any county.

Here are the “yes” vote percentages for the DCA judges on the ballot this year:

* First DCA: Simone Marstiller 61.7 percent; Stephanie Ray 66 percent; Ron Swanson 64.9 percent; and Brad Thomas 64.4 percent.

* Second DCA: Anthony K. Black 74 percent; Darryl C. Casanueva 72.7 percent; Charles A. Davis, Jr., 74.4 percent; and Edward C. LaRose 73.9 percent.

* Third DCA: Angel A. Cortiñas 77.1 percent; Kevin Emas 75 percent; Ivan F. Fernandez 77.1 percent; Leslie B. Rothenberg 75.8 percent; and Richard J. Suarez 77.1 percent.

* Fourth DCA: Burton C. Conner 77.7 percent and Carole Y. Taylor 77.6 percent.

[Revised: 04-16-2017]