In a sign that Florida’s merit retention fight is becoming increasingly testy, the members of the board that nominates candidates to the Florida Supreme Court adopted a policy Monday banning its members from contributing to or actively participating in any judicial race in the state -- including races the board will have no effect on, such as the merit retention race of the three justices to the Supreme Court.
The decision angered former Attorney General Bob Butterworth, one of the Judicial Nominating Commission members who has been actively involved in a number of local judicial races and is co-chairman of the campaign for Florida Supreme Court Justice Fred Lewis.
Lewis, along with Justices Barbara Pariente and Peggy Quince, are up for merit retention in November. Voters will have a choice of selecting yes or no to allow the justice to continue to serve. Because the justices are already appointed, the JNC has no role in their retention. The commission's role is to select three nominees when there is an opening on the court and send the list to the governor for appointment.
“We’re just going to too far,’’ said Butterworth, a former judge who was the state’s attorney general, during the conference call. “I know my name’s on a number of invitations. I’m not going to be able to take it off.’’
Voting for the proposal to limit all involvement was Rutledge Liles, a Jacksonville lawyer, Martin Garcia a Tampa lawyer, Kathy Ezell, a Miami lawyer, Jeanne Tate, a Tampa lawyer, and Kathleen Shanahan, the JNC chairwoman from Tampa, a Republican, and former transition advisor to Gov. Rick Scott.
“I personally am not going to involve myself in any campaign for the sake of the appearance of impropriety,” Liles said.
He said it was especially important for commission members to refrain from being active in lower court races in the event those judges are eventually nominated to the Supreme Court. “It might have a chilling effect on applicants who thought they didn’t have a chance in the process of interviews,’’ he said.
Unger suggested the ban be limited to prohibiting members of the JNC from using his or her status on the commission to promote or oppose judicial candidates.
“I don’t like the idea of prohibiting people on the commission from free speech,’’ he said. “...Frankly, it’s better to have it out in the public. If one of us widely supported someone it’s better to have that in public record.”
Ezell, who was appointed to the JNC by former Gov. Charlie Crist and whose four-year term expires in June, said she asked the Florida Commission on Ethics and the Florida Bar this year whether there were rules banning participation of JNC members from active campaigns and was surprised to learn there were none.
“I realize the timing is not good,’’ she said.
Friday, April 20, is the deadline for candidates to file for open court and circuit judgeships and for current judges to qualify to file for re-election. Only appellate and Supreme Court judges seek merit retention. The ban will apply only to JNC members from supporting campaigns going forward.
“What’s done is done,’’ Liles said, nothing that Butterworth’s participation thus far “is permissible..because we didn’t have a rule and I think we need a rule going forward.
Shanahan said she agreed.
Butterworth said he agreed with Unger that disclosing support of a candidate was a better alternative to banning participation and will now have to resign from Lewis’ campaign rather than resign from the JNC.
“I feel like my rights were taken away,’’ Butterworth said, after the meeting. “I’m glad they didn’t take away my right to vote.”
Here’s are the policies the JNC adopted on a 5-4 vote:
1) No Commissioner, during his or her term of service on the Commission, shall contribute to or participate actively in any campaign efforts to retain or defeat currently sitting Supreme Court Justices and Appellate Judges. No Commissioner, during his or her term of service on the Commission, shall contribute to or participate actively in any campaign efforts to elect or defeat and candidate for County or Circuit Judge.
2) No Commissioner shall seek to publish or permit anyone else to publish his/her status as a Commissioner with any effort to retain or defeat any sitting Supreme Court Justice or Appellate Judge. No Commissioner shall seek to publish or permit anyone else to publish his/her status as a Commissioner with any effort to elect or defeat any County or Circuit Judge.