The Florida Bar
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Merit Retention Polls

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Eligibility of Voters
Procedures
Publication of Poll Results
Resolution of Disputes Concerning Conduct of Poll
Ethical Issues Applicable to Judicial Polls
Letter to Members of The Florida Bar Merit Retention Preference Poll For Appellate Judges


The statewide merit retention judicial poll for appellate court offices is conducted by The Florida Bar and includes form letters of instruction to voters and ballots to be used. A suitable caveat is provided in the letters of instruction and in the ballot regarding incumbents and candidates concerning whom the voter does not possess sufficient information to cast a vote. All statewide merit retention preference polls for appellate judges will be conducted by the Judicial Administration & Evaluation Committee of The Florida Bar.

Eligibility of Voters

All members of The Florida Bar in good standing shall be eligible to vote in merit retention preference polls for District Courts of Appeal judges and Florida Supreme Court justices. Forms of instructions are provided for merit retention preference polls for appellate judges to place emphasis on the different criteria or attributes to be considered in an appellate court preference poll which would not be applicable in a trial court poll.

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Procedures

The Florida Bar headquarters will mail the poll instructions and ballots with a ballot envelope, a separate return envelope on which will be printed the address of The Florida Bar headquarters and a signature line which must be signed by the voter in order to validate the ballot. Return postage will be paid by the voter. Ballots which are not marked in accordance with ballot instructions will not be counted. Poll results will be tabulated by a computer service under contract with The Florida Bar. The headquarters staff will deliver eligible ballot envelopes to the computer service for tabulation. For statewide merit retention preference polls, the ballots and envelopes shall be retained for 90 days after the date of certification of the general election results. Judicial poll ballots and results shall be open for inspection by the public until destroyed.
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Publication of Poll Results

The Florida Bar, in the case of merit retention preference polls for appellate judges, shall receive poll tabulations and disseminate the results to the incumbents, candidates and to the public through a press release which is supplied simultaneously to the media, the incumbents, the candidates and public who are present at the time of release.
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Resolution of Disputes Concerning Conduct of Poll

(a) In the event of a challenge to the conduct of a merit retention preference poll for appellate court judges (District Court of Appeal and Supreme Court), the matter shall be referred to The Florida Bar Board of Governors for investigation by the Judicial Administration & Evaluation Committee.

(b) The Judicial Administration & Evaluation Committee may withhold use of the facilities of The Florida Bar for the conduct of any poll which is deemed to be in conflict with the procedure, subject to review of the Board of Governors of The Florida Bar on request.
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Ethical Issues Applicable to Judicial Polls

Rule 4-8.2(a) of the Rules of Professional Conduct and its accompanying commentary highlight the Bar's responsibility to appraise accurately the qualifications of candidates for judicial office, and to make such appraisal known to the public in a proper and dignified manner. The rule commentary provides in part:

Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

As individuals, attorneys have traditionally taken an active part in the political aspects of judicial selection and their right to do so within the bounds of ethical conduct and the political system should be preserved. Local judicial poll committees are admonished, however, to exert every effort to avoid partiality or any semblance of political consideration. The basis for this admonition is found in the Rules of Professional Conduct which bear directly upon campaign practices. Rule 4-8.2(a) provides:

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer, or public legal officer or of a candidate for election or appointment to judicial or legal office.

That provision is complemented by Rule 4-8.4(c) which states:

[A lawyer shall not:] (e)ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation...

Criticism of judicial polls and poll procedures is found in two cases resulting from local polls conducted prior to the 1972 general election.

In Faiks v. Broward County Bar Assn., Inc., et al, the plaintiff claimed that he was defamed by the poll finding that he was "unqualified" to hold judicial office. The Circuit Court for Broward County rendered a judgment on the pleadings in favor of the defendants and the District Court of Appeal, Fourth District, affirmed, 282 So.2d 647 (Fla. App. 1973).

The second action was Schwartz v. The Florida Bar and the Board of Governors of The Florida Bar (opinion not published, Fla. 1973). It was an original proceeding in the Supreme Court of Florida wherein the relator sought to investigate alleged violations by members of The Florida Bar of Disciplinary Rules 1-102(A)(4), 1-103(A) and 8-102(A) all now embodied in Rule 4-8 of the Rules of Professional Conduct. The relator claimed that the Board refused to investigate the alleged violations which arose from the conduct of the Broward County Judicial Poll in 1972. As a result he claimed to have been denied substantial rights guaranteed to him by the Constitution of the United States and by the Constitution of Florida.

The underlying facts in Schwartz were that the relator was a candidate for judicial office who was found by a substantial number of poll voters to have been unqualified on the basis of their personal knowledge of his ability, integrity and judicial temperament. The relator complained that the majority of Broward County attorneys did not know him and, therefore, could not respond on the basis of personal knowledge to a questionnaire concerning his ability. It appears that the relator was a relatively recent resident and practitioner in Broward County who had practiced in St. Louis, Missouri.

It is not intended that local judicial poll committees become involved in the resolution of unfair campaign practices. It is expected that properly conducted judicial polls which meet the test of responsibility described in the applicable provisions of the Rules of Professional Conduct, will eliminate the criticism implicit in the two mentioned cases. All merit retention preference polls for appellate court judges will be conducted exclusively by The Florida Bar.
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Letter to Members of The Florida Bar Merit Retention Preference Poll For Appellate Judges

To the members of The Florida Bar:

The Florida Bar has a vital interest in attracting to and retaining on the bench judges of the highest possible qualifications so that our courts may have the confidence and respect of the public and the Bar. As lawyers, we have the duty and responsibility to express our opinion as to whether incumbent judicial officers are qualified for the offices they hold. Our duty in this regard is no less great as concerns incumbent appellate court judges under the merit retention procedure than that which we must discharge in the process of selecting trial court judges. The duty and responsibility of the Bar in this regard is implied by the provisions of Rule 4-8.2 of our Rules of Professional Conduct.

With these purposes in mind, the Board of Governors requests that you give serious consideration to the qualifications of the incumbent appellate court judges whose names appear on the poll ballot. Please grade each incumbent on whom you have an opinion by uniform standards. The poll is intended to reflect the composite opinion of the Bar concerning the judicial qualifications of each individual listed considered on his or her own merits. You must disregard political considerations and vote your own conscience and opinions. No effort should be made (or condoned) to exert influence upon members of the Bar as to how to vote on the qualifications of the incumbents.

The enclosed general preference ballot, setting forth no specific criteria, will be utilized for all election years as to those incumbent appellate court judges being considered by the general public for merit retention in those years. Although not separately listed, the attributes which should be considered in rating each incumbent before marking the ballot include:

1. QUALITY AND CLARITY OF JUDICIAL OPINIONS. Are the opinions written with clarity? Are they logical? Do they dispose of the issues addressed? Can they be readily used to advise clients?

2. KNOWLEDGE OF THE LAW. Familiarity and working knowledge of the rules of procedure and the statutory and case law of the State of Florida as well as possessing an adequate foundation in legal methods and principles.

3. INTEGRITY. Intellectual and moral honesty; absolute reliability; sincerity.

4. JUDICIAL TEMPERAMENT. The capacity for such exercise of the qualities of patience, tolerance and forbearance as will ensure self control while searching for truth in the presence of distractions.

5. IMPARTIALITY. The ability to conduct official duties without regard to personal knowledge of or feeling toward counsel or litigants.

6. FREEDOM FROM BIAS-PREJUDICE. Having no mental leaning or inclination for or against persons by reason of race, religion, sex or sexual preferences, handicap, creed or geographical origin; or for or against an expressed ideology.

7. DEMEANOR. Conduct that reflects an appreciation of the great prestige of judicial office.

8. COURTESY. The exhibition of an attitude of respect for people.

With regard to the attribute of "quality and clarity of judicial opinions," you should consider the criteria (see 1. above):

(a) is based upon the premise that the voter has read enough opinions in the past year of the judge who is the subject of the poll to be competent on the subject;

(b) does not contemplate whether the voter agrees or disagrees with the written opinions of the judge, but rather whether the opinions meet the stated criterion;

(c) does not contemplate or require that the voter has appeared before the judge or the court of which the judge is a member.

On the ballot itself, two groups of responses are provided. The first group is designed to qualify your preference vote by indicating your personal knowledge of the incumbent's performance as an appellate judge. This is necessarily a subjective decision and should be your first consideration. If you mark, "Have No Knowledge of Performance as Appellate Judge," your preference vote for that incumbent will automatically be counted as "No Opinion." If your response indicates limited knowledge or considerable knowledge of performance as an appellate judge then mark the appropriate preference response in the second group after you have given careful consideration to each of the specific attributes mentioned above.

Please return your ballot after you have marked it in the envelopes which are enclosed for that purpose. Follow carefully instructions numbered 4 and 5 on the ballot materials concerning the return of the completed ballot and two transmittal envelopes. Completed ballots must be enclosed and sealed in the "Ballot Envelope," which is then placed in the preaddressed reply envelope. You must sign the reply envelope in order to validate the ballot. Please mark and return your ballot no later than THE DEADLINE INDICATED ON THE ENCLOSED POLL BALLOT. A ballot which is received after that date cannot be considered.

The results of this poll are intended to assist the Bar and the public in retaining a qualified judiciary, and in improving the quality of justice and the administration of our courts. The poll statistics will be disseminated to the mass media of communication in the form of a press release without any editorial comment by The Florida Bar.

Thank you for your cooperation in this important project.

Sincerely yours,

__________________________________

President of The Florida Bar

__________________________________

Chairperson, Judicial Administration & Evaluation
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[Revised: 01-04-2013]