Judicial Elections
                          Opinions, Not Promises

August 9, 2006
Daily Business Review
By Jordana Mishory

A state judicial ethics panel once again has left judicial candidates more or less on their own in deciding whether to respond to questionnaires from special interest groups that seek to pin down their views on hot-button social, political and legal issues.

In response to requests from candidates for guidance, the Judicial Ethics Advisory Committee reiterated Monday that judicial candidates can respond to such surveys as long as they make it clear that their answers are not promises of future rulings. It previously took a similar position.

The 12-member committee, chaired by 1st District Court of Appeal Judge Robert Benton II, said the state Code of Judicial Conduct does not prevent candidates from making statements on “general judicial philosophy.”

“Judicial opinions on most controversial legal issues will have been the subject of scholarly analysis (e.g., law review articles), from which endeavor judges are not barred,” the committee wrote.

But the committee cautioned candidates that there is a thin line between publicly announcing their opinions and violating the state rule against committing to a particular judicial position. “It must be remembered that, when considering motions for disqualification, the ‘eye of the beholder’ is the primary focus,” the committee wrote.

Four of the committee members took a slightly stronger position, stating that refusing to answer judicial survey questions “might be an ethical imperative.”

John Stemberger, head of the Orlando-based Florida Family Policy Council, a Christian conservative group that is surveying judicial candidates, called the JEAC opinion a victory for “the people of the state of Florida that want to know something about the judges that they are voting for.”

This year there is an unprecedented election-season deluge of questionnaires filling judicial candidates’ mailboxes. The Florida Family Policy Council is asking candidates if they agree with Florida Supreme Court and other courts’ rulings on abortion, assisted suicide and gay marriage. The Christian Coalition of Florida is asking them whether they consider themselves born-again Christians. Gay rights groups, labor unions and women’s rights groups also have mailed issues surveys.

Some of these groups will decide whether to endorse candidates based on the responses they get.

Many candidates have expressed uneasiness about participating in such surveys because state judicial campaign rules prohibit them from saying anything that could give the perception of future bias. Judges who respond to these questions during the election season might have to recuse themselves if similar issues come before their court.

A 2002 U.S. Supreme Court ruling struck down state rules barring judicial candidates from announcing their views on issues as a violation of the First Amendment. But Florida Supreme Court rules still prohibit candidates from making pledges or promises of future conduct in office or making “statements that commit or appear to commit the candidate with respect to matters likely to come before the court.”

Monday’s Judicial Ethics Advisory Committee opinion says, however, that “expressing an opinion does not automatically indicate closed-mindedness.” The opinion does not specifically tell candidates which questions are acceptable to answer and which are not.

The JEAC issued the advisory opinion in response to candidates’ inquiries about two questionnaires sent out by Christian conservative groups. These surveys ask a mixture of personal and political questions — such as whether the candidate has had a life changing experience with Jesus.

The answers to the surveys sent out by the Florida Family Policy Council and the Christian Coalition of Florida will be compiled into campaign guides and distributed before the Sept. 5 primary election and the general election in November. Stemberger, who serves on the 9th Judicial Circuit Judicial Nominating Commission, said the goal of the survey was to provide voters with more information.

The Family Policy Council asked candidates whether they agree or disagree with specific court rulings and gave them an option to decline to comment if they felt the rules of conduct prevented them from answering. This survey was sent to nearly 350 candidates, including judges who did not draw opponents and appellate judges and justices up for merit retention.

Both surveys provided candidates with a refuse to respond option in lieu of leaving the question blank.

Stemberger interpreted the JEAC opinion to mean that candidates are no longer prevented by state ethics rules from answering survey questions. He said his group’s new survey will give candidates an option to decline to answer only if they feel that they will have to recuse themselves from similar issues in the future.

Terri-Ann Miller, a candidate for a Broward County Court seat, said she checked the “decline to comment” option on the Florida Family Policy Council’s survey. Miller, a former Miami-Dade County Court judge, said she wouldn’t want a future litigant to think she prejudged an issue.

“As a trial judge, you want everybody to feel that you are going to be fair and impartial, and if you answer these questions, people will start to doubt your impartiality,” Miller said.

Palm Beach Circuit Judge Arthur Wroble, who has three election challengers, said he sent an inquiry to the advisory committee when he received the survey from the Florida Family Policy Council. Wroble said Tuesday that he had only skimmed the JEAC opinion and would read it more carefully, then respond to the surveys on a question by question basis.

Michael Doddo, a candidate for a Broward County Court seat, said if the JEAC opinion had come out before he returned his Florida Family Policy Council survey, he would have answered differently. Doddo said he checked the “decline to respond” answer. Now, after reading the ethics panel opinion, he would have written short essays in response to the questions.

The Judicial Ethics Advisory Committee opinion stated that candidates who choose to respond to these surveys must “clearly indicate” that they will follow the law and legal precedents regardless of their personal opinions. Trial court judges are required to follow higher court precedents — including the Florida Supreme Court rulings about which the candidates are being asked their opinions.

The JEAC opinion does not, however, specifically comment on the questionnaires. One committee member, who was not identified, felt that the advisory opinion should have been more specific.

Miami attorney Victor M. Diaz, a leading advocate of judicial elections, argued, however, that the ethics committee didn’t need to give candidates overly specific advice about how to respond to such surveys.

“We’re talking about candidates for judicial office who by definition will be asked on a daily basis to exercise judgment and discretion in a wise and judicious manner,” said Diaz, a partner at Podhurst Orseck.

Arthur Wroble photo by Fred Mullane
 

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