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Attempt to suspend Canon 3 rejected: case involved questionnaires mailed to judicial candidates.

An effort to suspend Canon 3 for this year's state judicial elections as part of an effort to allow judicial candidates to answer issue questionnaires has been dealt a severe blow.

U.S. District Judge Robert Hinkle held an evidentiary hearing October 4 and denied an injunction sought by the Florida Family Policy Council. The judge found that the recusal sections of Canon 3 of the Code of Judicial Conduct do not violate the First Amendment, as claimed by the FFPC.

FFPC President Stemberger said the group plans to seek an emergency appeal of Hinkle's decision to the 11th U.S. Circuit Court of Appeals.

The FFPC, along with the Christian Coalition, sent questionnaires to judicial candidates this year, asking their personal views on a variety of matters, including abortion and gay marriage.

Stemberger said the group was not asking candidates to commit how they would rule on those issues but only their views, which he said would lead to a better informed electorate. The questionnaires were sent to both trial court candidates and appellate judges up for merit retention on the November ballot.

Several candidates asked the Supreme Court's Judicial Ethics Advisory Committee for guidance. The JEAC issued an opinion saying candidates could answer the questions, as long as they specified they would follow the law on the bench, not their own personal opinions. The committee also cautioned that judges might have to recuse themselves if they got a case involving an issue where they had expressed a personal opinion during a campaign.

That prompted the FFPC to go to federal court, saying the part of Canon 3 dealing with recusals violated the First Amendment. It asked that the Judicial Qualifications Commission be prevented from taking any enforcement action on the recusal provision. The FFPC also named the Bar as a defendant, saying--erroneously--it investigated complaints for the JQC.

Judge Hinkle found the canon legal, and said other courts in other states have ruled similarly in recent years since the U.S. Supreme Court's ruling in Republican Party v. White, 536 U.S. 765 (2002). That opinion threw out some restrictions on what Minnesota judicial candidates could say.

"Florida does not prohibit judicial candidates from having or even expressing opinions, including on issues that might come before them. All the canon at issue requires is the disqualification of a judge if a reasonable person might question the judge's ability to keep an open mind. Addressing a specific application of this principle, the canon requires disqualification if the judge in a proceeding, while a candidate or judge, made a public statement that commits or appears to commit the judge on an issue or the controversy in the proceeding. Merely announcing a position is not the same as making a commitment, as all parties to this proceeding seem to agree," Hinkle wrote.

He also found the canon does not violate White, noting that Justice Anthony Kennedy specifically wrote that states could adopt recusal provisions based on what judicial candidates say in campaigns.

"Canon 3(E)(1), including subpart (f), prohibits speech not at all, and burdens speech only a trifle, allowing a judge to keep the same job at the same pay and to perform the same type of work with the same perquisites while giving up only the right to preside over cases (presumably few if any) in which the judge reasonably appears not to have an open mind. A judge has no First Amendment right to sit in such cases, and any right plaintiff has to hear speech of this type clearly does not encompass a right to have judges sit on cases in which they have made commitments. There is no right to a biased judge, nor to a judge with a closed mind," Hinkle wrote.

As for the Bar being named a party, Hinkle said in a footnote the Bar had filed a petition to be dropped as a defendant and he was awaiting a response from the FFPC.

Stemberger said the FFPC, which is represented by Indiana attorney Jim Bopp, who successfully contested the Minnesota regulations in the White case, was filing an emergency appeal with the 11th Circuit.

"I think the judge is very, very smart. He from all appearances seems to be brilliant. I thought he was very fair-minded. He understood the issues. Unfortunately, I think he reached the wrong result," Stemberger said. "An emergency appeal is underway."

Marvin Barkin, the Tampa attorney who represented the JQC, declined to comment other than to note Judge Hinkle had ruled to uphold Canon 3.

Only a few judges and judicial candidates answered its issue-related questions, and the FFPC declined to release those answers unless the injunction is granted. Many judges and lawyers criticized the questionnaire.

First District Court of Appeal Judge Peter Webster, in a letter to the FFPC, wrote that "[S]uch questionnaires create the impression in the minds of voters that judges are no different from politicians--that they decide cases based on their personal biases and prejudices. Of course, nothing could be further from the truth. By virtue of the oath they take, judges are obliged to decide cases based exclusively on the facts and the controlling law, without regard to their personal feelings. This principle forms the very foundation of the concept of a rule of law, rather than of people. If ever our citizens conclude that judges are deciding cases based on their personal predilections rather than the facts and controlling law, our system of justice (which is the envy of the world) will be at an end."
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Author:Blankenship, Gary
Publication:Florida Bar News
Geographic Code:1U5FL
Date:Nov 1, 2006
Words:925
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