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The Florida Bar Journal
September/October, 2018 Volume 92, No. 8

Page 8

JNCs and Defining Diversity
Several articles in the June 2018 special edition of The Florida Bar Journal criticize the judicial selection process in Florida. One, titled “A Look Through the Looking Glass …,” draws from an Ohio judge to advocate for the idea that “[j]ustice demands not only equality, but the appearance thereof.” The authors assert that the Bar Board of Governors has set forth a “mission” of the Judicial Nominating Procedures Committee “to assist the governor and judicial nominating commissions in discharging their statutory and constitutional duties.” It is not clear from the article what this “assistance” mission entails or what authority this committee as an arm of the judicial branch has to “assist” the state’s chief executive in his selection, especially since the legislature seems to have given the governor “authority to appoint all commissioners.”

The article cites Mallory v. Harkness, 895 F. Supp. 1556 (S.D. Fla. 1995), rejecting a statutory change that required strict quotas of one-third of all circuit court JNC seats be occupied by either a woman or member of a racial or ethnic minority as a violation of equal protection, but the writers do not make a compelling argument for the application of an “appearance” standard in the appointment of JNCs or explain a clear Bar plan for “diversity” that would satisfy equal protection requirements.

Another article in the special edition titled “Rx Warning…,” by a former Bar president, argues for continued Bar efforts promoting something described as “representative diversity” in the Florida judiciary. The author says “[d]iversity generally encompasses both demographic characteristics — including [but not limited to] gender, ethnicity, national origin, religion, sexual orientation, socioeconomic background, and physical ability — and professional experience.” The “Looking Glass” article defines diversity somewhat differently as “more than race and gender, but also disability, sexual orientation, economic status, and by [sic] practice area and geography.” The Bar Board of Governors’ website definition is as follows: “The term ‘diversity’ has a dynamic meaning that changes as the demographics of Floridians change. Apart from differences in race, color, gender, national origin, religion, age, sexual orientation, citizenship, and geography, to mention a few, the public and our profession will experience changes in thought, culture, and beliefs. These demographics are constantly in flux. Defining ‘diversity’ based on current differences would limit its application to future changes, and likewise restrict or limit The Florida Bar’s consideration of and response to such changes.” All of which begs the questions: What is this nebulous concept that cannot be clearly defined, but must be reflected in our Bar, bench, and JNCs? How can it be discussed without a clear definition, and how can the Bar implement and maintain a functional model of an indefinable concept?

Are we looking through a looking glass at a prescription for equality or going down a rabbit hole into chaos? I know this subject is sensitive and taboo to some for various reasons, but can’t we at least clearly explain where our organization is taking us and why?

William Drake, St. Pete Beach

Judicial Economics and Demographics
Why do black men make up 19 percent of the U.S. population but only 12 percent of state court judges? Why do white men make up 30 percent of the U.S. population but account for 58 percent of state court trial judges? Why do white women make up 31 percent of the U.S. population but account for only 22 percent of state court trial judges? Why do women of color make up 20 percent of the U.S. population but account for only 8 percent of state court trial judges?

Some answers? After navigating the appointment process and being appointed by the governor, the new trial judge must run for election in the next general election, which may entail substantial expense if facing an opponent still practicing law with little to lose except expenses that can be made up by existing income. The losing judge is off the bench and needs to start over as a lawyer. White female attorneys, male and female black attorneys, compared with white male lawyers, have historically bad luck running for judicial office either as sitting judges or practicing lawyers. In reality, any lawyer, male, female, white, black, or otherwise goes out on an economic limb when becoming a trial judge, because there is no judicial tenure. All the rules will not change economic reality and the fact that white voters make up 61 percent of the electorate.

David P. Carter, Seminole

The June edition of the Bar Journal espouses part of the JNC’s mandate is to, “evaluate a candidate’s community involvement and their actions with the public…as they will have to run for office in order to maintain their judicial seat. If the applicant does not have significant community support and the ability to raise money the appointment will be short-lived because the applicant cannot retain the seat.”

It is not hard to understand a candidate should be part of and be involved with the community in which they serve, but how is it any of the JNC’s business, or concern for that matter, if the judicial appointment can prevail in any future contested elections for the judgeship for which they were appointed. The obligation of the JNC is to vet and recommend candidates, not to assure an appointee’s longevity as a judge based on their ability to raise money related to financing a future contested election. This reeks of the very thing the Bar has stated in the past it loathes, interference in and influencing the electoral process.

S.V. Dedmon, Fleming Island

Privacy Rights
Weaver v. Myers: The Future of Ex Parte Communication in Florida Medical Malpractice by Brian W. Boelens (July/August) was a particularly one-sided article from the defense industry and an insurance company advocate. The article misconstrues both the purpose of ex parte communications and Florida’s pre-suit investigation. I find The Florida Bar generally requires a higher standard of equal contribution from both perspective sides of an argument.

Protecting a person’s right to privacy is not “a new normal,” but is, in fact, a continuation of a time-held tradition of confidentiality between a patient and their doctor. The article takes a distorted view of Weaver, which in effect, upheld Florida’s constitutional right to privacy and did not allow this constitutional right to expire upon the death of a patient. In truth, Weaver is not a win for plaintiffs’ attorneys as suggested in the article, but instead is a “win” for patients and their unfettered right to privacy and confidential communications with their doctors. In addition, the author fails to provide insight as to how he came up with his defense of Florida’s pre-suit requirements. Lastly, the article fails to acknowledge the exaggerated claims of malpractice in Florida and the most recent Florida Supreme Court case, which debunks the alleged medical malpractice crisis in Florida. This important opposing view should have been included in the article.

Jed Kurzban, Miami

In the “Letters” section of the July/August issue, Amrita Singh’s city was misidentified as Orlando. The author is located in Washington, D.C. The Journal regrets the error.

[Revised: 08-23-2018]