Tampabay: State Supreme Court should lower its gavel on Bar

The Florida Bar is a creature of our state government. The state Supreme Court created the Bar to regulate lawyers. You cannot be a lawyer in Florida unless you belong and pay dues.

This year, the Bar is actively campaigning for a measure on our Nov. 7 general election ballot. Florida voters are being asked to stop electing their local judges. All judges would be screened by nominating committees and named by the governor.

Neither could anyone run against a sitting judge at the end of a term. Voters would be allowed to say only "yes" or "no" on whether a judge got another term. If the vote was "no," the governor would name a replacement.

These twin changes -- taking away the voters' right to elect judges, and taking away their right to challenge a sitting judge -- are being billed as "merit selection" and "merit retention."

Of course, the word "merit" is an editorial label. But let's save that debate for later. The immediate issue is whether the Bar should take sides at all.

The Bar's board voted to support these ideas. The Bar has printed brochures and sent out speakers to argue for a "yes" vote, and dedicates part of its Web site (www.flabar.org) to the issue.

Now the Bar is being challenged. Two Florida lawyers, Harvey M. Alper of Altamonte Springs, and Joseph W. Little, a law professor at the University of Florida, have asked the Supreme Court to order the Bar to stop.

Their argument, paraphrased:

(1) The Bar can't do this, legally or constitutionally. The Bar is using the power of the government in an attempt to influence an election.

(2) Even if the Bar can do this, it shouldn't. The rhetoric being used is unprovable, if not downright misleading. As the Bar's boss, the Supreme Court ought to rein in such tawdry stuff.

The written arguments in the case are due in the next few days. I am a mere lay person and therefore not as smart as a lawyer. However, I side with Alper and Little.

Yes, there are cases on the books that give the Bar the power to lobby the Legislature for changes in state law. The general idea is that it should be a topic related to law, or to lawyers' expertise.

The Bar probably will argue that supporting "better judges" would qualify. "We feel that supporting the adoption of merit is a legitimate topic for Bar advocacy," the Bar's president, Herman Russomanno, told me.

But, as Little replies, this is unprecedented -- the Bar is not lobbying for some little change in law. It is trying to influence an election that decides our very structure of government.

How is an election "free" when the government gets to strong-arm the voters in support of a certain outcome?

"Not only that," Little argues, "but the Bar is going with what is pretty tawdry and misleading campaign strategy."

In fact, the Bar's campaign material misstates the language that will appear on the ballot, then makes a series of debatable-at-best claims.

This is not fitting stuff. The Bar is an official arm of the Supreme Court, the judicial branch of the government, not some basement boiler-room operation.

Just last month, the Supreme Court threw out a 1998 ballot measure on wild grounds -- that the Legislature had "misled" the voters to get it passed. Will the court now hold that the judicial branch gets to buffalo the voters?

Listen. If Florida's lawyers have such a "duty" to share their awesome wisdom with the rest of us poor, ignorant rabble -- then let them share it.

Let them share it on the street corners. Let them share it on billboards. Let them band together in private association, using their First Amendment rights. Let them use every breath, every private dollar. Let them do anything -- except use the power of government itself as a club against the voters. That is more than wrong.

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