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Judicial candidate sues opponent over flier

A mailing from Robert "Bo" Michael claims that Jack Day has had tax problems, but fellow lawyers say the "problem" is common in private practice.

By CHRIS TISCH
Published September 2, 2006


ST. PETERSBURG - Voters have received mailings this week from judicial candidate Robert "Bo" Michael that say his opponent, Jack Day, has "tax problems in his past."

Day underestimated his taxes in 1998 and 1999 and paid about $370 in penalties to the IRS.

But it's not uncommon for private lawyers like Day to underestimate their taxes, local lawyers said, because it's hard to predict how much money they will make.

That's why Day sued Michael on Friday for defamation. Day said Michael and his political consultant, the Mallard Group, showed "absolute malice" and "reckless disregard for the truth" by sending the mailing.

Day said the mailing was sent - only a few days before the Tuesday election - to fool people into thinking that Day was a tax cheat so they would vote for Michael.

Phone messages left with Michael on Friday were not returned. Officials with the Mallard Group also could not be reached.

Several lawyers contacted by the St. Petersburg Times on Friday evening blistered Michael for sending the mailing.

"It's a shame that judicial candidates like this have to resort to these tactics to become a judge," said Bruce Bartlett, the chief lawyer in Pinellas-Pasco State Attorney Bernie McCabe's office. "It does not speak very well of the entire system nor the destination that they are attempting to reach. This is nothing more than a calculated effort to smear (Day)."

Ronald Ronz, a Pinellas certified public accountant who does taxes for many lawyers, said the mailing is misleading.

"It's not a tax problem," he said. "Penalties for underestimating your taxes are extremely common."

Self-employed lawyers often pay taxes every three months, based on how much they expect to earn over the course of the year. If their income turns out to be substantially higher when they file their tax return, the IRS can assess them a penalty.

Ronz said that's particularly true for one-person firms such as Day's.

Two local private lawyers called by the Times, John Trevena and Joseph McDermott, both said they have paid tax penalties several times. They criticized Michael for trying to fool voters.

"I thought it was just shameless that a member of the Bar would stoop so low to gain an advantage in a judicial race," Trevena said of the mailing. "It's really beyond shocking. It was the most vicious attack that I've seen in a judicial campaign. It's misleading. It's defamatory. It's just beneath the profession. It just signaled to me that (Michael) is not worthy to hold office - to do something that vile."

Michael's mailing says on one side: "They say there are only two certainties in life ... death and taxes."

On the other side, it states: "That's unless you're Jack Day ... Can we afford a judge with tax problems in his past?"

Voters wouldn't know that the mailing was from Michael unless they noticed a small-print disclaimer on the bottom of the mailing that says Michael paid for the ad.

Michael has lost three previous judicial races. His father is a retired judge.

McDermott said he threw the mailing in the trash.

"It's a cheap shot," he said.

"It's very difficult because you have sporadic income," McDermott said of lawyers estimating their taxes. "You can go a period of time with zero, and then it can spike up if someone comes in with a large retainer."

Trevena and McDermott said Michael should know that.