Board weighs in on 17th JNC questions.

The Florida Bar Board of Governors wants Bar members--and especially judicial applicants--to know it cares passionately about the integrity of the judicial nominating commission system.

More than a dozen board members commented at their January 30 meeting in a broad discussion on news stories that reported improper questions were asked of some candidates when they were interviewed by the 17th Circuit Judicial Nominating Commission.

Bar President--elect Kelly Overstreet Johnson raised the issue with a report on the controversy and on what the Bar had done That produced a strong reaction from board members who said they didn't know if the media reports were accurate, but that if the questions were asked as reported in the article they were clearly inappropriate.

"We want our members to know we are as concerned as they are about this," said board member Don Horn, a former chair of the 11th Circuit JNC.

The issue arose from news articles in a South Florida paper that judicial applicants had been asked possibly inappropriate questions during interviews by the JNC. Those included whether a female candidate could balance duties as a judge with her responsibilities as a mother and whether other candidates were "God-fearing." The stories also allege 17th Circuit JNC commissioners regularly ask candidates about recent court decisions, such as the courthouse Ten Commandments case in Alabama and the Texas sodomy case, that some think are akin to a political or religious litmus test.

Board members questioned whether the Bar had responded appropriately to reassure potential candidates that the problems, if they happened, would not reoccur. They also pondered whether the Bar should have called for a formal investigation by the Governor's Office. Bar President Miles McGrane also said be had been quoted imprecisely regarding those issues in one article.

Board member Jesse Diner, the senior board member from the 17th Circuit, said inaccurate reporting had inflamed the issue. Diner said he met with the chair of the 17th JNC and determined "there were unfortunately some things taken out of context." But also added, "Some things that were asked clearly should not have been asked.

"The Bar is not whitewashing it; we immediately intervened to make sure this didn't happen again.... It's not really fair to say the Bar didn't do anything. We didn't go out front and beat on our chest because that wasn't the way to deal with it," Diner added.

Johnson noted besides Diner's efforts, she, McGrane, President-elect Alan Bookman, and other Bar leaders attended the Bar's recent Judicial Nominating Procedures Committee meeting and she also discussed the incident with the governor's General Counsel Raquel Rodriquez, who looked into the matter.

Horn said the questions that were allegedly asked likely would have been ruled out of order in the 11th Circuit JNC. Diner replied that the JNCs each have their own practices and the 17th Circuit members have been allowed to ask whatever questions they wanted, although it might be pointed out after a meeting that some questions were improper. The chair now understands she can instantly' rule that questions are improper and will do so in the future, he said.

Johnson noted the issue was fully aired during the Judicial Nominating Procedures Committee meeting at the Bar's Midyear Meeting in January, and recommendations were made to better educate JNC members.

While some board members said the Bar should call on the governor for a formal investigation, board member Hank Coxe said that wasn't justified. He noted no one had filed a complaint over the incidents--which is required by JNC rules before an investigation can be launched.

"We should never act only on a newspaper account," Coxe said. "For us to write a letter now and take a public position because a newspaper report has said X, Y, and Z is not responsible."

Board member David Rothman said the Bar should have a plan for dealing with any future problems.

"How many people will read that article [about JNC problems] and will not apply for a judgeship?" he asked. "We have to go through the back door and educate, but we have to go through the front door and say, 'No, this is not all we can do.' It's going to happen again. You know it's going to happen again. and we've got to be prepared to respond. I don't want those good candidates, who are now thinking about not applying, to go unprotected."

Dinita James, president of the Florida Association for Women Lawyers, noted FAWL has given Gov. Jeb Bush an award honoring his diverse appointments to the bench. She suggested he be approached to write a letter reaffirming that he wants people of diverse backgrounds to apply.

She also noted that JNC interviews are public and suggested Bar members be encouraged to attend and watch the process.

President McGrane recounted how a reporter called him for a comment and asked if the Bar would be appointing an investigative panel, like it did in an earlier case. Prior to 2001, The Florida Bar had the authority to investigate one of its direct appointee commissioners pursuant to JNC Uniform Rules of Procedure. Statutory changes were made in 2001 that removed all other appointing authorities except the governor, who now has sole responsibility for the appointments and misconduct. McGrane said he told the reporter the Bar had no power to appoint such a panel, but it came out in the story as if the Bar bad no influence in the JNC process.

Coxe, Diner, and President-elect Johnson noted there have been positive effects from the incident, including the full discussion of the issue during the procedures committee meeting, a call for more training of JNC members, and a better understanding of the rules. President-elect Designate Bookman said money needs to be found to help pay for commissioners to attend training sessions, noting they have to pay their own expenses and consequently many skip the training meetings. The board could seek such money from the legislature or even consider having the Bar help pay those costs, be said.

Johnson said there was one other thing board members could do. Although the Bar no longer directly appoints JNC members, it does nominate slates of lawyers for four of the nine seats on each JNC. The Bar will be making nominations for one seat on each of the 26 JNCs at its May meeting, and Johnson asked beard members to find good people to apply for the posts. The Bar must nominate at least three people for each seat.

Application, she said, are available from the Bar's Web site at www.flabar.org.

Board will work to ensure integrity of the JNC process

The Florida Bar is working to correct the possibility of inappropriate questions being asked of judicial candidates by members of judicial nominating commissions, according to President-elect Kelly Overstreet Johnson, who chairs the Bar's JNC Screening Committee.

"The Florida Bar believes fully in the integrity of the judicial, nominating process, as well as having the most qualified judges on the bench in Florida, Johnson said.

Prior to 2001, The Florida Bar had the authority to investigate one of its direct appointee commissioners pursuant to JNC Uniform Rules of Procedure. However, statutory changes were made in 2001 that removed all other appointing authorities except the governor, who now has sole responsibility for the appointments and investigating alleged misconduct, Johnson said.

"The Bar has been able to remain involved ha the judicial nominating process by coordinating orientation and educational training sessions for JNC members and by submitting nominating slates of lawyers for four of the nine seats on each of the state's JNCs," Johnson said.

The Bar's Judicial Nominating Procedures Committee met in Miami in January during the Bar's Midyear Meeting to discuss the importance of the Bar's role in training new JNC members about their responsibilities, and will pursue opportunities to expand and enhance the education provided.