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A judicial ethics advisory committee of the Florida Bar concluded last May that judicial candidates may announce their views on disputed issues as long as they stress that, as judges, they will uphold the law. But that opinion, some observers say, provides little protection for candidates who consider it unethical to state their views while campaigning. Among the judicial candidates who announced their opinions in surveys this election season were: Catherine Parks and William Thomas, who are locked in a tough Miami-Dade Circuit Court race to be decided Tuesday; Barbara Areces, who won her Miami-Dade Circuit Court election in August, and Miami-Dade Circuit Judge D. Bruce Levy, whom she defeated; Peter Adrien, who won a Miami-Dade Circuit Court seat in August, and Judge Henry Harnage, whom Adrien defeated; Judy Rubenstein, who won a Miami-Dade County Court seat in August; Miami-Dade County Court Judge Jeffrey Swartz, who lost his seat in August, and Ada Pozo Revilla, who defeated Swartz. In addition, former Miami-Dade Circuit Judge Leslie Rothenberg, who lost the Republican primary contest for Miami-Dade state attorney, offered her views on abortion and other social issues in a survey conducted by the Miami-Dade Christian Family Coalition. On Monday, Rothenberg and Judge Harnage were named finalists for the 3rd District Court of Appeal. “People running for office don’t have a right or hide their views,” said Anthony Verdugo, executive director of the Miami-Dade Christian Family Coalition, whose group surveyed judicial candidates in Miami-Dade on abortion, anti-sodomy laws and homosexuals’ right to privacy. “Would you support someone financially and with your time whom you know nothing about?” But Robert Fiore, president of the Dade County Bar Association, said he opposes asking judicial candidates to state opinions on issues that could come before them as judges. His group has taken no official position on this practice. “I am very concerned that the intent of these surveys is not altogether altruistic,” Fiore said. “Anytime a candidate feels pressure to respond in a certain way — from any group — it threatens the independence of the judiciary.” Bert Brandenburg, acting executive director of Justice At Stake, a partnership of 30 legal groups, including the American Bar Association, that defends judicial independence, also assailed the growing practice of surveying judicial candidates and publicizing their views. “It’s put judges in a real quandary,” Brandenburg said. “We elect legislators to make promises and keep them. We elect judges to make rulings.” He called the situation a “Pandora’s box.” Before the Aug. 31 primary election, the Miami-Dade Christian Family Coalition sent questionnaires to six candidates in two Miami-Dade judicial races. The questionnaire asked candidates whether they agreed with U.S. Supreme Court opinions on abortion and on criminal laws prohibiting sodomy. The Christian Family Coalition published the survey results online and mailed voter guides containing the candidates’ positions to thousands of voters. SAVE Dade, a gay rights group, sent a survey to all Miami-Dade judicial candidates in contested races. It asked them whether they would be willing to work to change Florida Supreme Court rules to prohibit judges from holding membership in groups that discriminate based on sexual orientation. Currently, Florida judges are not allowed to belong to groups that discriminate based on race, sex, religion or national origin. SAVE Dade also asked the candidates whether judges should have domestic partner benefits and inquired whether the candidates would be willing to work toward winning this benefit for judges and their partners. Based on the results, the group made endorsements and sent endorsement cards to 11,000 voters. Another gay rights group, Equality Florida, mailed a survey similar to SAVE Dade’s to all judicial candidates in Florida. About 10 percent responded, according to spokesman Brian Winfield. In the past, such surveys have routinely been sent to legislative candidates but not to judicial candidates. To maintain the appearance of impartiality and to keep judges from declaring their views on issues they may someday have to rule on, judicial branch rules have prohibited judicial candidates from discussing such issues during their campaigns. PIVOTAL COURT RULING But this year, that changed dramatically in South Florida and across the country. The Christian Family Coalition argues that the 2002 U.S. Supreme Court ruling in Republican Party of Minnesota v. White allows judges freedom of speech on the campaign trail. That ruling invalidated a Minnesota law prohibiting candidates for judicial office from announcing their views on disputed legal or political issues. Verdugo said the reason his group conducted the survey and publicized the results is that judges “are not upholding the law. They are not upholding the will of the people. They are taking their own biases and ideologies and inserting them into decisions.” “If justices want to behave as superlegislators, we’ll treat them as superlegislators,” Verdugo said. “If they’re going to engage in this game, we have a right to know their judicial philosophies beforehand.” As examples of judges “usurping the right of the people,” Verdugo cited recent federal court rulings around the country on so-called partial birth abortion, the Pledge of Allegiance and Internet pornography that have infuriated social conservatives. On the other end of the political spectrum, Equality Florida’s Winfield agreed that voters have a right to know judicial candidates’ views. “People are hungry for information on judicial candidates,” he said. “They see in the daily headlines how important justice can be, especially in the gay, lesbian and transgender community.” But Justice At Stake’s Brandenburg said special interest groups are using the 2002 Supreme Court ruling to force judicial candidates to take political positions on controversial issues they may have to rule on, thus undermining confidence in the impartiality of the courts. “The Minnesota ruling gave special interest groups powerful new tools to pressure judges to make practically into making outright promises in advance,” he said. The judicial campaign speech issue is resonating nationally. Basing their arguments on the Supreme Court ruling, conservative interest groups in Kentucky, North Dakota, Indiana and Alaska have filed lawsuits in federal courts to force states to throw out their rules restricting what judicial candidates can say. The lawyer representing these groups is James Bopp Jr., of Bopp Coleson & Bostrum in Terre Haute, Ind., who was the winning lawyer in the Minnesota case. In Georgia, both the State Bar of Georgia and the Atlanta Bar Association opposed a survey sent to judicial candidates by the Christian Family Coalition. The bar groups notified candidates that if they completed the survey and were elected, they would be considered predisposed on certain issues and might have to recuse themselves if cases involving those issues came before them. FLORIDA LAW MURKY In Florida, the situation is murky. Judicial Canon 7E, adopted by the state Supreme Court, says that candidates cannot “make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office” or “make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” But the Florida Bar’s judicial ethics advisory committee stated in May that judicial candidates may announce their views on disputed legal or political issues, provided they stress that as judges they will uphold the law. Many observers say that opinion leaves it unclear what is and isn’t allowed. Jennifer Davis, a Bar spokeswoman, said the existing canon restricting judicial campaign speech remains in effect unless and until it is changed by the Supreme Court. “The Minnesota ruling is only applicable in Minnesota, because that’s where the decision went down,” Davis said. “There are arguments going back and forth on this by candidates, but we tell candidates to go by the canon as written just to be sure.” But Robert Jarvis, a constitutional law professor at Nova Southeastern University, said it’s “absolutely ludicrous” to say that the U.S. Supreme Court ruling does not apply to Florida judicial elections. On the other hand, he said, judicial candidates need to be extremely cautious in participating in such surveys. Jarvis speculated that the reason the Bar is saying the Supreme Court’s Minnesota ruling doesn’t apply here is that Bar leaders don’t want candidates talking about issues. But the Christian Family Coalition’s Verdugo, who’s not a lawyer, contended that Florida judicial candidates are free to publicly state their views under the Supreme Court ruling. “It sounds like they’re running for cover,” he said. “The question’s been answered legally and ethically. The Florida Bar doesn’t have a problem with it. Neither does the Supreme Court of Florida. There’s no controversy.” Brooke Kennerly, a spokeswoman for the state Judicial Qualifications Commission, which investigates and prosecutes judicial campaign misconduct, said no complaints have been filed against candidates for responding to surveys. SECOND THOUGHTS Verdugo said the Christian Family Coalition’s survey for judicial candidates was carefully worded to elicit the candidates’ views without asking them how they would rule if elected. He was pleased that half the candidates surveyed in Miami-Dade responded, and hopes to survey all Florida Circuit Court candidates in 2006. Among those who responded, Miami attorney Catherine Parks, who is facing assistant federal public defender William Thomas in a runoff next week, answered only one of the five questions. She said she agrees with the dissenting opinion of Justice Antonin Scalia in the Supreme Court’s 2003 decision, Lawrence v. Texas. That ruling overturned a Texas law that criminalized sodomy between consenting adults. In an interview last month, Parks said she regretted participating in the survey. “I probably should have chosen not to respond,” she said. “There is nothing wrong with agreeing with a dissenting opinion. But some people might think I’m taking a public stand on a controversial issue.” The only Broward Circuit Court judicial candidate to respond to the Equality Florida survey was Gisele Pollack. In two questions, Pollack answered that judicial canons prohibited her from making statements that appear to commit the candidate regarding cases, controversies or issues likely to appear before the court. Pollack, a Fort Lauderdale lawyer, won her race in August. Both Parks and Thomas participated in the Equality Florida survey, as did Adrien, Rubenstein, Levy, Harnage and Swartz, according to the group’s Internet site. Other candidates who responded were John Schlesinger, who won election to a Miami-Dade Circuit Court seat; his opponent, Teresa Pooler; and unsuccessful Miami-Dade County Court candidate Valerie Manno. In their responses, these candidates said state Supreme Court rules should be changed to prohibit judges from belonging to clubs that discriminate based on sexual orientation. Adrien was more cautious in his answers. On the question of whether he would place a foster child with a gay parent by writing, he wrote: “As a judge, I do not create the law. If the law provides for it, I will follow.” Rothenberg was the only candidate in the Miami-Dade state attorney’s race to participate in the Christian Family Coalition’s survey. Although that race was not a judicial race and she was not bound by judicial campaign rules, her answers raise questions now that she is a finalist for an appellate court seat. According to the Christian Family Coalition, Rothenberg said on the survey that she opposed having the government cover abortion services as part of its health insurance for public employees; opposed zoning laws to restrict church or religious meetings in residential or commercial areas; and supported permitting religious displays on public property. Rothenberg declined to comment for this article. But her Republican opponent, Al Milian, who is running against State Attorney Katherine Fernandez Rundle on Tuesday, said Rothenberg showed unacceptable bias by responding to the survey. If he is elected state attorney and she either becomes an appellate judge or hears cases as a senior circuit court judge, he would ask for her to recuse herself in all criminal cases, Milian said. “I believe you should never as a constitutional officer that has to enforce the laws approved by the Legislature put yourself in the position of prejudicing a law or legislative matter,” he said. “Based on the questions she signed on the questionnaire, I have grave doubts about her fairness as a judge.” PRESSURE TO PARTICIPATE Bob Levy, a judicial campaign consultant who represented a number of Miami-Dade judicial candidates this year, said he urged his candidates not to participate in the surveys. Two of his clients, Parks and Areces, disregarded his advice and responded anyway. “Judges should not be answering on issues that could in fact end up in front of them,” Levy said. “The chief judge in Miami-Dade should be discouraging the practice to the groups.” Chief Miami-Dade Circuit Judge Joseph P. Farina Jr. declined to comment for this article. Despite these widespread concerns, the pressure for candidates in close races to participate in such surveys — and perhaps pick up some crucial votes among special interest voters — is considerable. Judge Harnage responded to the SAVE Dade and Equality Florida surveys but not to the Christian Family Coalition’s survey. In an interview, Harnage, who currently is being considered by Gov. Jeb Bush for a 3rd DCA seat, said he believes the Supreme Court’s ruling in Minnesota gave him more latitude to discuss issues “as long as the case isn’t going to come back to me.” Still, he said, he was cautious in his answers. “I go by the old school,” he said. “People should feel comfortable that I haven’t prejudged things.” In his responses to the Equality Florida survey, Harnage said that he would not have a problem placing a foster child with a gay or lesbian person, that he believes domestic partnership benefits should exist for judges and that he supports gay and lesbian youth issues through his church. The executive director of SAVE Dade, Heddy Pena, said 11 out of 14 candidates surveyed responded to her group’s questionnaire. Based on the responses, the group endorsed six candidates, sending endorsement cards to 11,000 voters. Among the questions asked by SAVE Dade: “In Florida, it is illegal for a gay or lesbian to adopt a child, but it is legal for a gay or lesbian to act as a foster parent. Would you have a problem placing a child in the care of a gay or lesbian person?” Pena, who said she was unaware of the Supreme Court’s Minnesota ruling, explained that the purpose of her group’s survey was “educational — we want to give candidates a basic understanding of the issues affecting the lives of gays and lesbians. Judges are allowed to make improvements to the law. We’re not looking to extract promises.” Equality Florida’s Winfield rejected criticisms that it’s wrong for his group to ask judges to state their opinions. “Judges are elected by a popular vote in this state and people need to have information about a judge,” he said. But the Dade County Bar Association’s Fiore said, “We must at all costs preserve the independence of the judiciary. I would advise that that type of questions smacks of pressure and impropriety and I would strongly urge candidates not to answer it.” Brandenburg agreed. “When judges get these [surveys] in the mail, they know it’s a loaded gun. Implicit in that is if you answer the right question, you have troops and weapons at your disposal. If they answer the question wrong, the weapons will be used against them.”

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