Three of Florida’s seven supreme court justices are up for a retention vote in what has become the highest spending judicial election in state history.
The justices, Justices R. Fred Lewis, Barabara Pariente and Peggy Quince, collectively raised $1.5 million for their campaigns, a decision, they said, was provoked when the conservative Americans For Prosperity announced they will oppose their retention.
When the Republican Party of Florida announced it was also opposed to retaining the justices in September, an electioneering and communications organization formed on the justices’ behalf -- named Defend Justice from Politics -- raised another $4 million.
The Herald/Times sat down with the three justices in early October to discuss the effects of the unprecedented political push on their race. Here’s the transcript of our conversation:
Q: Until this year, a retention race in Florida never cost more than $300,000. Why has your race become so expensive?
Lewis: Because a there is an attempt to push it into a partisan political battle.
Quince: And it’s never been that way before. We have always had non-partisan elections here and merit retention has always been non-partisan. This would take us back to what we had 40 years ago when we had the scandals on the Supreme Court.
Pariente: This is unprecedented. It is a complete attack on the system of merit selection and retention in the state and, whether it was the Democratic Party or the Republican Party, it would be equally destructive.
Pariente: Democracy in this country depends on three separate branches of government. The judicial branch being the branch to be fair and impartial and free from politics. That is what is so disconcerting about what’s going on here.
Quince: In addition, this could go to all levels of our court system. Although we have the election of our county court judges and our circuit court judges, they still run on the non-partisan basis. So, if this is allowed to happen at this level, it will certainly go down to the trail court level. You can imagine if we allow our political parties to back one or the other, it will turn our judicial system on its head.
We believe in a system of fair and impartial judges, not beholden to any political party.
Q: What made you decide to take this pro-active decision to develop a campaign even before the Republican Party and Americans for Prosperity announced their opposition to your retention?
Pariente: If you look at 2010 with our fellow justices, Justice Labarga and Justice Perry, and you look at the announcements that were made after that election. The group (Restore 2012) that went after those two justices based on a misleading campaign announced that they did well with almost no money and no planning they would now put their energy together and go after the three of us.
At that point, we had a choice – to stay silent and think that somebody else would advocate what retention is and advocate for the excellent records that the three of us have had in our tenure on the court, or to take a pro-active view of education. We decided that we were not going to sit silently while the judicial branch was threatened.
Lewis: We actually had an obligation to support, defend and uphold the Constitution, not only for the United States, but of Florida. If our judicial officers did not care enough about our system of justice to inform the public as to how it’s structured and why, then I’m not sure we would deserve to be here. If not us, then who?
Quince: It is so easy to forget the past and that past included corruption on the Florida Supreme Court. That past, that brought us to merit selection and retention. It is critical that people understand why we have the system that we have. It is critical that people understand a fair and impartial judiciary is what people had envisioned, even from the Founding Fathers.
Pariente: The group, Justice at Stake, which looks at trends nationally, determined that many times the attacks have been last minute and from out-of-state interests and always based on some type of unfair assault, where the judge then is unable to effectively respond because it’s last minute. When we looked at this, not only did we look at 2010, we looked at what’s going on around the country. As early as March 2011, there was reports in various news outlets that Americans for Prosperity, the Koch Brother, billionaire PAC, was getting engaged in Florida.
We tried to figure out what would motivate an out-of-state group of billionaires from seeking to attack Florida’s judiciary, we have not received any type of explanation that seems plausible to us. We’re concerned that this is part of something wehre people have a lot of money that they can influence elections not only in the other two branches but have now decided they can influence the outcome of the third branch of government.
I don’t know if that’s what’s going on but that’s why, what happens in Florida must stop this.
Q: What is the practical difference in how your campaign is different now from the way it was when you last sought retention in 2006?
Lewis: Do you have 14 hours? On prior occasions, we simply did our own paperwork personally and put the money in the account, because the bank won’t let you open an account without a deposit. People would ask us sometimes to speak and we would do that. It did not become all-invasive to our day-to-day lives.
This time, because what was out there -- we did not want to become politicians – so we even hired a lawyer to file our paperwork, so we wouldn’t get involved in this. Day by day, it just got worse and worse and worse – in the attacks.
We’re judges and that’s what we do and that’s where my mind needs to be and wants to be.
Pariente: Regarding the paperwork (and Gov. Rick Scott’s call for a law enforcement investigation), I would wager if this were any other group of justices, Gov. Scott and the representative that wanted this to be looked into (Rep. Scott Plakon) would not have done it because what they would have seen and understood is that the filing or papers and the use of a notary public is routine.
What was not routine, as Justice Lewis explained, is we were in the middle of redistricting and we had to rely on a lawyer to assure us that all our paperwork had been filed. We obviously thought all our paperwork had been filed.
This, for me and Justice Quince, was the fourth time on the ballot. We were on once as appellate judges. The paperwork that went to the other appellate judges did not come to us, it went to our treasurer because we had done this in January. We’re still responsible but what I’m saying is what started then are groups, making a deal about something and opening up an investigation when there was really no reason to do that.
Quince: The use of a notary is just a ministerial act, saying this person signed this paper. Either I knew that person or that person gave me ID. That’s all a notary is about. So that was just something to talk about at that point until it got to the real meat of what they are going to do. And that is pull out old cases to talk about and to get these groups to run these ads.
That was really just nothing.
Pariente: Some people may say no but I’ve been a lawyer for 39 years, a judge for 19 years, I am part of a system that holds the highest standards of ethics for judges and lawyers. Would I have liked my papers to have been filed two weeks before, of course. Will I look back on my life and say that having had to be faced with taking a brief recess in a case, or to essentially end my career, that’s what we were faced with at that time. But again, it’s a question of how it’s spun.
When you look at how it’s spun, it all amounts to picking on the three of us based on other considerations that are being raised.
Lewis: A notary in the state of Florida has nothing to do with the content of the document. Nothing. A notary is merely a verifying that the person whose name is here appeared before me and I knew them or they had a drivers license for verification.
Pariente: All 15 appellate judges, in their filings, do the same thing not under deadlines. This is just nothing. When I came to the court, the idea that you would use somebody who is a notary to notarize papers, that is what was the practice.
Q: What is it like to be fundraising because you can’t personally do the solicitation?
Quince: We can only do fundraising through a “committee of responsible persons.” I could not ask anyone personally to make a contribution to our efforts to educate the public about our selection and retention.
Lewis: And its’ not different than county court judges or circuit judges.
Q: You’re not politicians but you’ve got to play the same game; you can’t solicit money and talk about your record. What is that like:
Pariente: I’ve said it’s like having your hands tied behind your back and one leg. Here is the situation: a politician is somebody that runs on a platform and promises certain things they’re going to do. We’re justices; we’re not politicians. All we can promise to do is to be fair and impartial.
The idea that still the message must get out, the Florida Bar is restricted from being able to say ‘Vote Yes’ but they have run the polls that show how highly regarded the three of us are.
It’s very different from whatever it must be like to be somebody running for office in the other two branches of government.
Lewis: Politicians are expected to promise and deliver. Politicians are expected to engage in rhetoric and attack. Judges are judges and judges support the democracy and the three branches, all branches of government. That is the approach that we must take – which is not a frontal approach. We have to take an approach to support and protect the structure -- the very structure that keeps and maintains our freedoms and liberties because those constitutional documents, those words on those papers, are worthless until a judicial system breathes life into them.
There are many, many countries that have a constitution just like ours but they’re not free and the people do not have the human liberties that we have. And why? It’s because you don’t have an impartial third branch, judicial branch, that supports all of those – and that’s why it’s important.
Quince: That’s so important – what you just said – the fair and impartial judiciary. And that’s why we don’t talk about issues that may come before the court. We can’t make up our mind before the case actually comes before the court. You don’t want to come into the courtroom knowing that I’ve already decided on that kind of issue. So we have to look at the facts of every case, the law that is applicable to every case and whatever constitutional provision might be applicable to that case. And that’s what we make our decision on. That’s what people expect of us.
Pariente: So I think the challenge is to get through the rhetoric – and you have done a particularly good job of explaining the Nixon case, which was over a decade old and had merit retention after that, Mr. Nixon was never release..
Quince: And he’s not going to be released.
Lewis: And I didn’t even agree with the case. In 2000, they stopped and don’t let you make reference to the flow of those cases and I, by law, had to agree in 2003 in conferring because the majority had ruled how they ruled previously.
Pariente: Either way, disagreement about a decision doesn’t determine competency. Justices Harding and Cantero both agreed with the majority view. Have they been attacked as not competent? So that is illogical and I think you know why the attack based on the health care amendment is a fallacy – because it was misleading. It was conceived to be misleading. It is on the ballot this time in fact without the misleading language.
Not one of the 11 amendments on the ballot has anyone sought review in front of our courts. This issue that the Koch brothers brought up has no application.
Lewis: I just laugh each time Justice Pariente makes the point that two sessions ago the same people that are asserting the lack of quality in the competency in criminal matters were the very same people who wanted to create two courts and have the three of us be the justices who would be the backbone of that criminal court because we had judicial experience. I mean, how can we not look at this and say, this tells us what this is about.
Q: What is the bottom line?
Lewis: The bottom line is this is ideology; the bottom line is power.
Quince: And wanting people to be beholden.
Lewis: It’s happened before in history and we need only look to 20th Century Europe and we can see it’s happened.
Q: How is your education campaign going?
Quince: It’s hard to reach the entire population. We have a population of 19 million and its hard to reach them. But we do have other people who are interested in the preservation of our judicial branch of government who are also out educating – members of the bar. So I believe our message is getting across. Whether we are going to reach as many people as I would like to, that’s a good question.
Pariente: We are doing our best to balance the rigors of speaking, when asked, and the ultimate responsibility of the cases that we have in the administration of justice.
Lewis: Last word: Any thinking and responsible voter, particularly parents and grandparents, owe it to themselves and their children and grandchildren, to become informed, understand what’s happening because the very security of your children and grandchildren depend on what happens in connection with this act.
Quince: You have to go down the ballot! I’m sorry – that was supposed to be the last work but you need to go down the ballot and look for the Supreme Court.