Sarah Zabel (Aixa Montero)
Conservative groups are asking their supporters to bombard a Miami-Circuit judge with phone calls and e-mails encouraging her to grant a motion this week to stall a lawsuit challenging the state’s ban on gay marriage.
An e-mail flyer by the Christian Family Coalition Florida questioned why Miami-Dade Circuit Judge Sarah Zabel moved a hearing on the motion to abate from April 23 to Tuesday so that it fell after qualifying time for candidates to file to challenge incumbents for judicial seats.
If Zabel grants the motion, the state lawsuit will essentially be put on hold until federal litigation on the matter runs its course.
On Friday, the plaintiffs filed a motion for summary judgment, asking Zabel to find the Florida law as unconstitutional in light of the U.S. Supreme Court’s decision last year striking down the Defense of Marriage Act last summer.
The Florida Association for Women Lawyers and Zabel’s supporters have condemned the tactics of the Christian Family Coalition Florida and other conservative groups, such as the Florida Family Association. Zabel’s supporters have rallied around her, setting up a spur-of-a-moment fundraiser co-sponsored by no less than 20 law firms.
And as soon as a potential challenger to Zabel learned of the growing controversy from the Daily Business Review, she withdrew her candidacy.
Zabel’s supporters said it’s disturbing the conservative groups think they can intimidate and lobby Zabel to grant the motion to abate.
“Judge Zabel will rule upon the law, but what they want is a sure thing. They want to make sure someone is in there that will rule their way,” said Alan J. Kluger, a partner at Kluger, Kaplan, Silverman, Katzen & Levine in Miami who is a supporter of Zabel’s re-election campaign.
“This is a frontal assault on the independence of the judiciary.”
Miami attorney Deborah Baker, the incoming president for the Florida Association for Women Lawyers, said the organization doesn’t endorse any candidate, but views the growing pressure on Zabel as indicative of the growing threat to the judiciary’s independence around the nation.
FAWL is involved with the nonpartisan project of the National Association of Women Judges called Informed Voters Fair Judges, which focuses on “justice free from special interests” in order to preserve a fair and impartial judiciary.
Circling the wagons
“The whole legal community is talking about this and about getting behind Judge Zabel,” she said.
The law firm Kozyak Tropin & Throckmorton will host a campaign fundraiser for Zabel on May 22. The fundraiser was organized as a response to the conservative groups who they fear will target Zabel during the upcoming election.
“The outpouring was very impressive,” said attorney Dyanne E. Feinberg, of counsel for the Kozyak firm and a Zabel supporter.
“The idea of opposing a judge’s reelection or running a specific candidate on a single political issues goes against the grain of a fair and impartial judiciary.”
The deadline for challengers to file with the state Division of Elections was noon Friday. As for deadline, the division had not finalized the list of candidates but Zabel remained unopposed.
One possible challenger to Zabel’s seat was Marianne Salazar, a Palmetto Bay health care attorney. Salazar, though, withdrew her candidacy after she learned that her pending candidacy may unwittingly be used by conservative groups against Zabel.
Salazar insisted Zabel is vulnerable for other reasons than the case in front of her but cited her opponent’s growing war chest—$180,000 as of Friday—as another reason for withdrawing.
“I don’t want to be involved in a super-controversial case,” Salazar said. “I’m not going to be a candidate this time around.”
Salazar denies any stake in the gay marriage issue, but she does have ties to the Christian Family Coalition. A citing on the group’s website said she held a luncheon in June 2011 at her home for the group and guest of honor, former U.S. Sen. George LeMieux.
The lawsuit in front of Zabel, as well as two in federal court in Tallahassee and one in front of Monroe County judge, challenge the constitutionality of the amendment passed by voters in 2008 banning same-sex marriage.
The defendant is Harvey Ruvin, the Miami-Dade Clerk of Court, who denied the six couples suing a marriage license. His office submitted the motion to abate, arguing the issue involves federal and constitutional law and that the state lawsuit should be stayed.
“We’ve always maintained the Harvey is more ministerial, and we can’t advocate either way,” said Luis G. Montaldo, chief counsel for Ruvin.
‘Really a shame’
Attorney Stephen F. Rosenthal, a partner at Podhurst Orseck, is co-counsel with American Civil Liberties Union in one of the federal challenges in Tallahassee. He said a motion has been made for a preliminary injunction to keep the state from enforcing the Florida Marriage Protection Act.
“It’s really a shame any interest group tries to use a judge’s ruling, or in this case not even a ruling but a scheduling issue, against her,” he said. “She is just doing her job.”
The Christian Family Coalition Florida’s electronic flyer was entitled “Fight for voter rights and marriage update” and includes Zabel’s picture, her phone number, the address to her chambers and even the name of her judicial assistant.
When asked if Zabel moved the hearing to avoid garnering opposition in the upcoming judicial election, the Christian Family Coalition Florida responded in an e-mail to the Daily Business Review: “Regardless of what we think, political experts think so.”
When asked who were these political experts, the group cited Miami Beach attorney Elizabeth Schwartz, who is representing the plaintiffs in the state action and gay rights activist Stratton Pollitzer of Equality Florida.
Schwartz said neither she nor Pollitzer made such a statement.
“I can’t dignify any of this with a comment. Almost on a weekly basis I’m in some courtroom where there has to be a rescheduling,” Schwartz said. “There are many moving parts to the justice system.”
The e-mail characterized the lawsuit in front of Zabel as “despicable,” an attack on states’ inalienable rights to regulate marriage and an attempt to usurp the 2008 vote on the issue.
“The courts exist to correct, not create injustices,” the group said. “Regardless of where you stand on marriage or any other public policy issue, violating the dignity, equality and fundamental voter rights of all Floridians through a lawsuit seeking to overturn a historic election, overthrow our state constitution and undermine the rule of law is despicable and un-American.”
Florida Family Association has a ready-made e-mail on its website for supporters to send to Zabel outlining the arguments by Ruvin to allow the federal cases to go ahead of the state litigation.
“It warns that if Zabel does not grant the motion to abate, ‘then in all likelihood she intends to strike down the Florida Marriage Protection Act.’ ”
The Florida Family Association is one of several conservative groups who have filed a motion to intervene in the case in front of Zabel.
Kluger said parties to cases, even intervening parties, have no business putting pressure on judges outside of court. He said when it comes to Zabel, the conservative groups are wasting their time.
“She calls them the way she sees them. She doesn’t care who you or what your category is,” Kluger said. “They are trying to pressure her into ruling in accordance with their philosophy, which has no place in a court system.”