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    Judges' selection in hands of voters

    If approved, a Nov. 7 ballot item will make potential judges face the governor, not voters.

    By ANITA KUMAR

    © St. Petersburg Times, published October 30, 2000


    Matthew McMillan raised an unheard-of $150,000 and beat a longtime Manatee County judge in 1998. Now, he might face disciplinary action by the Florida Supreme Court after suggesting the incumbent was soft on crime.

    Should campaign politics and the judiciary mix?

    Gasper Ficarrotta got his job as a Hillsborough Circuit judge courtesy of an appointment from Gov. Bob Martinez in 1990. Now, he is resigning amid allegations he had an affair with a baliff.

    Was that a good appointment or a bad appointment?

    On Election Day, Florida voters will get a chance to change the way county and circuit judges are chosen. A proposal on ballots across the state will give the governor the sole power to appoint county and circuit judges, replacing a system that has judges face election every six years.

    These are the judges who run some of Florida's busiest courts. They hear divorces and decide which parent gets custody of a couple's children. They decide whether a killer should be executed. And they determine if someone can bring a complaint against their neighbor to court.

    Supporters of having the governor appoint judges say it would get rid of elections that bring judicial candidates into the messy world of politics. Judicial candidates are put in the position of accepting campaign donations from lawyers and special interest groups that might appear before them.

    "What we have now are judicial auctions where judgeships are sold to the highest bidder," said Keith Donner, executive director of Citizens for Judicial Integrity. "Do we want our judges to be politicians?"

    Lawyers and judges who want to keep the system say they don't want voters to lose more rights than they have by switching to a system that gives more power to a small group of politically connected people.

    "To suggest the public is not up to the task is a slap to the democratic process," said Ken Connor, a Tallahassee lawyer who was recently chosen to head the Family Research Council, a conservative advocacy group. "I trust the people. The solution is not to strip people of their rights."

    The choice to appoint or elect judges is before voters because of a constitutional amendment Floridians approved in 1998. The question will be on the ballot in all 67 counties and 20 circuits, virtually ensuring judges will be chosen in different ways across the state.

    Under the current system, voters elect county and circuit judges in non-partisan elections every six years. But contested judicial races are extremely rare, and if no one runs against a judge, his or her name never appears on the ballot.

    In the Pinellas-Pasco Circuit, for example, only about a half-dozen judges have been defeated in the past three decades.

    But if vacancies occur between elections because of illnesses, resignations or retirements, the governor makes appointments based on recommendations by local selection committees -- a process dubbed "merit selection."

    That happens so frequently that more than half the state's 753 trial judges owe their seats to governors. That includes several of the Hillsborough judges involved in recent controversies, including Cynthia Holloway, who was accused last week of interfering in a friend's messy child custody case and lying about her involvement.

    The practice is credited with making the judiciary more diverse because more than 70 percent of black and Hispanic judges were appointed. But the same is not true for women, who have made significant strides in winning elections in recent years and can attribute less than half their seats to appointment.

    Who wants to make a change and why?

    In 1971, Gov. Reubin Askew created a system he hoped would help take the politics out of the governor's judicial appointments. Local committees began to screen candidates and make recommendations to the governor.

    As it stands, various commissions recommend a group of candidates to the governor, who makes selections to fill appeals court judgeships and, when there is a vacancy, judgeships in the trial courts.

    Askew said he always has been in favor of using judicial nominating commissions to choose all Florida's judges, not just appellate judges or those picked between regular elections.

    This year the system of appointed judges is backed by legal heavyweights such as the American Bar Association and the Florida Bar, which has been lobbying around the state. Askew thinks the time for the change might have arrived.

    "I've been advocating this for a long, long time," Askew said last week. "I think it is a continuation of what we started back in the 1970s. I think it's worked pretty well."

    In counties and circuits where the measure is approved next week, the governor will fill openings on the bench, and voters will decide whether to retain sitting judges -- much as they do for appellate and Supreme Court judges.

    The 750 or so judges now on the trial bench would face a yes-or-no question before voters every six years.

    Supporters of the change say judicial elections are flawed and ineffective. Candidates are in races where judicial ethics prevent them from talking about issues, which leaves voters to choose a winner on name recognition alone and, perhaps, on promises they might not be able to fulfill.

    In a recent survey of people around the country sponsored by the National Center for State Courts, 81 percent of those polled said that "raising campaign funds influences elected judges" and that "courts treat corporations and wealthy individuals better than others."

    "To the extent at all possible, it's good to remove this from the political process," said Ben Wilcox of Common Cause, a political advocacy group in favor of the change. "It puts candidates in very awkward positions."

    Of the 158 circuit judgeships statewide up for election this year, 141 incumbents with no opposition were automatically re-elected. Just 17 races had competition.

    "The knee-jerk reaction is "I'm losing my right to vote,' but did they ever have it?" said Herman Russomanno, Florida Bar president.

    He points out that the appointment process would mean that incumbents would have to submit themselves to the voters every six years in a yes-no retention vote. But so far, no appellate judge has lost such a vote.

    Gerald Richman, a South Florida attorney, said he hopes the merit system also would allow other qualified lawyers to serve as judges. "A lot of people who would make very good judges are not going to go through the rigors of a campaign," he said.

    Many of the supporters of the change say that overall, better judges come from appointments -- where candidates are heavily screened by judicial nominating commissions.

    "In the final analysis (Pinellas-Pasco) has never gotten a bad judge from merit selection, but we have through elections," said Pinellas-Pasco Chief Judge Susan Schaeffer, appointed in 1982 by Gov. Bob Graham.

    The latest Bar poll of lawyers in the Pinellas-Pasco Circuit does not give appointed judges higher ratings than elected ones. But the judges who have been under investigation for misconduct in the past decade -- Circuit Judge Bonnie Newton and County judges Mary Jean McAllister and James Berfield -- had been elected.

    That's not the case in Hillsborough County.

    In addition to Holloway and Ficarrotta, two other appointed judges have run into trouble recently. Ed Ward, who was appointed to the county bench and then elected to Circuit Court, resigned in June after allegations that he sexually harassed women. Circuit Judge Robert Bonanno is the subject of a grand jury investigation after being caught in another judge's office after hours.

    Minority attorneys put their stock in elections

    Perhaps the most surprising support for the current system comes from groups representing minority attorneys. While they acknowledge the appointment process has helped bring diversity to the bench, they say they don't want to rely on it.

    The National Bar Association, the Hispanic Bar Association, the Cuban-American Bar Association and the Florida Association for Women Lawyers support the current system -- much to the dismay of the Florida Bar, which counts every lawyer as a member.

    "Why not stay with the current system?" said Oscar Marrero of the Cuban-American Bar Association. "It's been working for years."

    Those organizations have received support from conservative groups, such as the Christian Coalition and Concerned Women for America.

    Terry Kemple, executive director of Christian Coalition of Florida, said appointed judges often cross the line and engage in social activism. He cited the U.S. Supreme Court's ruling against a state law banning certain "partial-birth abortions."

    "This is not what America is all about," said Cathy Boyer of Concerned Women for America. "Judges have to be accountable to the people. I will never give up my right to vote."

    If approved, nominating commissions will provide the governor with three to six names to consider for each opening. The commission is made up of three lawyers appointed by the Florida Bar, three people picked by the governor and three non-lawyers selected by the rest of the committee.

    But Dunedin lawyer Constance Felos said she knows from her years on Hillsborough's commission that the appointment process is a political process and candidates are always ones the governor would favor. "You have a pretty good idea who's going to make it," she said.

    Take Hillsborough County Judge James Dominguez, for example. He was appointed by Gov. Martinez in 1988, but lost his seat during the next election. Martinez appointed him again in 1989.

    Supporters of the current system point out recent problems with the 1st District Court of Appeal's nominating commission in Tallahassee. A commission member is being investigated for asking personal questions of an applicant and distributing selective documents from his divorce file.

    "Just because it goes bad once or twice doesn't mean it's not a better system," said Martha Barnett, a Tallahassee lawyer and president of the American Bar Association.

    In 1999, Gov. Jeb Bush's administration had a plan to build a shadow political network to recruit "ideologically compatible" judges. The plan drew criticisms by those who feared politics would come into play, and Bush abandoned the idea but said he would choose judges who reflect his values.

    "We don't want too much power in one person," said Craig Gibbs, president of the state's chapter of the National Bar Association, a group predominantly made up of black attorneys.

    Gibbs credits Bush for appointing black and Hispanic judges, but said future governors might not be sensitive to diversity.

    Bush has appointed 98 trial and appellate judges since taking office in 1998. That includes 15 blacks, 10 Hispanics and 28 women. The governor's office says he has appointed more women and minorities to the bench than his predecessors.

    "The governor believes that more public participation in the process is better and casting a vote for the candidate of your choice is a fundamental constitutional right," said Bush spokeswoman Katie Baur. "Elections are by their nature political, but so is the process whereby justices are currently chosen."

    -- Times researchers Caryn Baird and Kitty Bennett contributed to this report.

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