The "announce clause" and the First Amendment: in large part because of the removal of restrictions on a judicial candidate's ability to announce how he or she might rule on an issue that might come before the court, we have witnessed the emergence of special interest questionnaires to judicial candidates.
But I'm looking at these judicial candidate questionnaires, trying to decide, for example, how I would answer (hypothetically) questions nine and 10 from the Christian Coalition, which asks how I would have voted (secretly) on two issues in November 2004. (1)
Just as difficult are questions seven, eight, nine, and 10 from the Florida Family Policy Council asking opinions on parental consent for abortion, assisted suicide, same-sex marriage, and homosexual adoption. (2)
It is called the "announce clause." Adopted by Minnesota in 1974 from the American Bar Association's Model Code of Judicial Conduct, the rule forbade a candidate for judicial office, including an incumbent judge, from "announcing his or her views on disputed legal or political issues." Twenty-eight years later, five U.S. Supreme Court justices declared this nationally accepted principle to be trumped by the First Amendment to the U.S. Constitution. When this column is published, Florida will have decided most of its judicial elections, which is unfortunate. If everyone in this profession were aware of the fallout of Minnesota v. White, 536 U.S. 762 (2002), we would all have qualified to seek judicial office and had the time of our lives answering these questions from special interest groups.
The National Conference of Chief Justices in August 2006 condemned what has occurred in judicial elections since the White decision. In large part because of the removal of restrictions on a judicial candidate's ability to announce how he or she might rule on an issue that might come before the court, we have witnessed the emergence of special interest questionnaires to judicial candidates. Sadly, this has highlighted our worst fears that a candidate may no longer simply commit to follow the law but pander to special interest groups in an effort to improve the opportunity to be elected.
In her concurring opinion in White, Justice O'Connor stated, "If the state has a problem with judicial impartiality, it is largely one the state brought upon itself by continuing the practice of popularly electing judges."
Not to be outdone, the 11th Circuit Court of Appeals, in Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002), speaking through Judge Tjoflat, placed us precisely where we are now: "[The] ... distinction between judicial elections and other types of elections have been greatly exaggerated, and we do not believe that the distinction, if there truly is one, justifies greater restriction of speech during judicial campaigns than during other types of campaigns." The three-judge panel of the 11th Circuit is legally correct but the result was wrong for Florida. Judicial elections are different than other political elections. Judges are beholden to nothing other than the law.
Are Florida's judicial elections now on a par with a contest for county property appraiser? Only, in my opinion, if a judicial candidate is so desperate to win that he or she can read a new meaning into the First Amendment, which is that one now must state one's views. I applaud every candidate for judicial election or retention who steadfastly resists replying to any question which could be interpreted as suggesting how the candidate might rule on an issue coming before the court. The person who declined to respond to any special interest question is, in my judgment, superbly more qualified to assume the enormous responsibility as a jurist than one incapable of resisting. (3)
I likewise applaud every member of this profession who reminds judicial candidates, when the opportunity arises, of one of those principles for which our Founding Fathers were willing to lay down their lives--a judiciary answerable only to the law.
(1) The magnificence of the American secret ballot needs no elaboration. Furthermore, regardless of how I voted regarding the placement of slot machines at dog tracks in Dade and Broward counties, I did not realize that I would be asked to remember, much less reveal it to strangers.
(2) The Florida Family Policy Council questionnaire also asks which current U.S. Supreme Court justice most reflects your judicial philosophy. Of the 44 judicial candidates who responded to this question voluntarily as of August 30, 2006, 37 identified Chief Justice Roberts or Justice Scalia. Of the remaining seven who answered, it would be difficult to vote for two who named someone who does not even sit on the U.S. Supreme Court.
(3) All should read the letter response to the Florida Family Policy Council's questionnaire of Judge Peter Webster of the First District Court of Appeal, which perfectly captures all the reasons a candidate for election or retention should not respond. It is published in the September 15, 2006, issue of The Florida Bar News on page 4.