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Suit seeks to allow judicial candidates to express opinions

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Suit seeks to allow judicial candidates to express opinions

Gary Blankenship
Senior Editor

A conservative, family values group has filed a federal lawsuit seeking declarative and injunctive relief to allow state judicial candidates to give their personal opinions on public issues.

The Florida Family Policy Council filed its case August 28 in the Northern District Court in Tallahassee. It seeks to prevent the Judicial Qualifications Commission from enforcing Canons 3E(1) and 3E(1)(f) of the Code of Judicial Conduct. Those require judges to recuse themselves from cases if they have expressed opinions that likely would make a litigant question their impartiality.

The suit also named as defendants The Florida Bar’s five branch chief disciplinary counsels, apparently in the erroneous belief that Bar grievance staff investigate complaints against judges for the JQC.

Brooke Kennerly, JQC executive director, said the agency usually does not comment on pending litigation until it has been thoroughly reviewed. She said the suit had been forwarded to Tampa attorney Marvin Barkin, the JQC’s interim general counsel.

The suit follows the FFPC sending a questionnaire to this year’s judicial candidates, seeking their opinions on legal rulings affecting gay adoption and marriage, abortion, and school vouchers.

The Judicial Ethics Advisory Committee had already issued an opinion on the survey that said candidates could express opinions on issues, as long as they made it clear they will follow the law and precedent once on the bench. That opinion also noted the answers must not appear, in the eyes of a reasonable person, to bind the judge to rule in a certain way or the judge would be subject to recusal.

John Stemberger, president of the FFPC, said although almost half of the candidates returned the questionnaires, only a handful actually answered the legal issue questions, which the group attributed to a fear of prosecution by the JQC for violating the canons.

“We believe these canons violate the First and 14th Amendments of the U.S. Constitution,” said Stemberger, an Orlando attorney and member of the Ninth Circuit Judicial Nominating Commission.

According to the group’s court filing, “Canon 3E(1) requires a judge to disqualify himself or herself in a proceeding to which the judge’s ‘impartiality might reasonably be questioned.’ Canon 3E(1)(f) specifically requires a judge to disqualify himself or herself when ‘the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to (i) parties or classes of parties in the proceeding, (ii) an issue in the proceeding, or (iii) the controversy in the proceeding.’”

The complaint said that allows the JQC to take action against any judge who had expressed an opinion on an issue. And the canons, combined with the JEAC opinion, “forces judges to choose between speech and their duties, and FFPC is forced to decide between silence and publishing judicial candidates’ responses [to its candidate questionnaire] and potentially subjecting those candidates to discipline — a choice that chills free speech and association — thereby violating the First and 14th Amendments of the United States Constitution.”

In effect, Stemberger said the canons and the JEAC opinion say, “Sure, you can announce your view — wink, wink. The problem is the [JEAC] opinion says if you do announce your views, you may be disciplined if you don’t recuse yourself.”

The FFPC will not endorse judicial candidates but only wants to make their views known to voters on a variety of issues, he said, adding, “Here’s the fiction, that somehow judges are more fair and impartial if their views are hidden from the public rather than with their views known to the public.”

Stemberger argued the Florida canons go beyond the model ABA canons, which require recusal if a judge holds a prejudice about a party, but not about an issue.

The canons appear, he said, to have scared off many judicial candidates from replying to the FFPC’s questionnaire. He said the group mailed out 239 questionnaires and received only 118 replies. Of those, only a relative few provided substantive answers to any of the issue questions. Stemberger said the group decided to withhold those — pending the outcome of the court action — to prevent the candidates from being disciplined.

He also said the group hopes to get at least a temporary injunction so it can send the questionnaire to trial court runoff candidates and appellate judges and Supreme Court justices up for merit retention on the November ballot.

The Florida canons are contrary to the U.S. Supreme Court ruling in Republican Party v. White, 536 U.S. 765 (2002), which held that judicial candidates can express their views on issues, he said.

Asked why Bar disciplinary counsel were included in the suit, Stemberger said the FFPC wanted to include the two agencies — the JQC and the Bar — involved in investigating complaints against judges. He said, in response to a further question, that his understanding was Bar staff investigated complaints against judges for the JQC.

Stemberger said if that is wrong, it will be addressed when the complaint is heard in court.

The Bar does not participate in JQC investigations, which are handled by special JQC investigators and JQC members. If a judge is removed from the bench, the Bar can begin its own grievance investigation for violation of Bar rules, which include the judicial canons. The Bar can also, once an election is over, investigate unsuccessful candidates who may have violated the canons.

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