Court review of campaign rhetoric: a slippery slope
By HOWARD TROXLER
Published May 30, 2006
There's a famous quote from Potter Stewart, a justice of the U.S. Supreme Court, in a 1964 case about obscenity.
Stewart said he couldn't spell out exactly what was legally obscene -- but he added with a touch of irony, "I know it when I see it."
Last week, the Florida Supreme Court kicked out a circuit judge in Pasco County, John Renke III, for violations in his 2002 campaign.
The court declared itself fed up with campaign misconduct by judicial candidates in Florida. It said it will strip of them their robes for that reason alone.
And yet, even though it confidently pronounced Renke's 2002 campaign to be a "fraud," the court offered no additional standards for future cases.
In the tradition of Potter Stewart, the Florida justices seemed to be saying, we know a dishonest campaign when we see it.
Another famous quote about the law is that "hard cases make bad precedent." But maybe the trouble with Renke was that the case was too easy.
Renke played fast and loose in his 2002 race. He worked at his daddy's law firm and had practically no trial experience. His campaign made him sound more like Perry Mason.
The court said Renke's campaign committed "nothing short of fraud on the electorate." On top of that, his campaign was financed by some conveniently timed "loans" he made to his campaign that happened to match big payments from his father's firm.
On the other hand, some of the individual complaints against Renke were relatively piddly, hardly capital offenses:
- He used the slogan, "A Judge With Our Values," which you could argue made it look like he already was a judge.
- He posed in front of a nameplate saying "John Renke III, Chairman," for a photo citing his service on a water board. Actually, he had been chairman of a smaller committee. Big woop.
- He posed with firefighters for a photograph with a caption saying he was "supported by our area's bravest." But no firefighters union had formally endorsed him. Again, big woop.
Other charges launched the Supreme Court down the slippery slope of judging campaign rhetoric. Renke said he had "real judicial experience" as a hearing officer. He said he had "broad civil trial experience" when he had rarely seen the inside of a courtroom.
The court's opinion of those claims, which is perfectly reasonable, is that Renke's brief stints as a hearing officer and his office work on cases at the law firm, weren't really "judicial" or "broad civil trial" experience.
And yet, at what point does evaluating these kind of claims become an entirely subjective judgment? Plenty of first-rate lawyers rarely step into a courtroom, after all.
How many trials, exactly, makes a lawyer qualified? How many give you "extensive" or "broad" experience? Is it 25 instead of 30? If one lawyer has 100 traffic ticket trials and the other a single case that he won in front of the U.S. Supreme Court, which is better? More to the point - if they claim extensive experience, are they in jeopardy if the Supremes disagree?
If a fellow calls himself "admired" and he is the most hated lawyer in town, is that a violation? If he has the patience of a bratty 2-year-old but claims "judicial temperament," is it a lie?
"I am uncertain what the standards are," wrote state Justice Charles J. Wells, who dissented from the decision to remove Renke, "by which campaign misrepresentations rise to the level of fraud."
That's exactly the problem. Without such standards, every judicial campaign in Florida has the potential to result in an automatic followup round of ethics complaints and second-guessing, with regulators nitpicking campaign brochures and trying to guess how the Supreme Court will react to them.
The Renke decision further muddies an already muddy situation in Florida, where candidates for our more than 900 trial-level judgeships live under a strict set of rules on what they can and can't say.
Renke's case might have been easy for the court. Others won't be. If the court truly intends to get more aggressive, then future cases will need to be decided on something other than the justices' seat-of-the-pants (robes?) opinion.