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Court allows gay adoption amicus.

In a case of first impression, the Florida Supreme Court ruled the Family Law Section, a voluntary group within The Florida Bar, should be allowed to file an amicus brief supporting a trial judge's ruling declaring Florida's gay adoption ban unconstitutional.

In a 5-2 opinion June 4, in Liberty Counsel v. The Florida Bar Board of Governors (case no. SC09363), Justice Barbara Pariente wrote that the Bar's Board of Governors' unanimous decision (with one recusal) is "entitled to deference" when it allowed the section to file a brief in the Third District Court of Appeal supporting 11th Circuit Judge Cindy Lederman's November 25, 2008, decision to allow a homosexual foster parent to adopt two brothers he had nurtured for four years.

"We also conclude that the Court will not interfere with or micromanage the activities of the Bar's sections, or the approval of those activities by the Bar, unless the Bar's actions regarding the scope of the activities of its voluntary sections are clearly outside the Bar's authority," the majority of justices agreed.

Pariente was joined by Chief Justice Peggy Quince, and Justices Fred Lewis, Jorge Labarga, and James Perry in finding that Liberty Counsel--a conservative family values group--"had not established a violation of a clear legal right" and, therefore, denied its request for injunctive relief.

Bypassing the merits of the underlying case about the constitutionality of homosexual adoption, now pending at the Third DCA, or the potential of "divisiveness" within a large group of Bar members, the majority of justices on the Supreme Court stressed: "The narrow issue we are asked to decide in this case is one of first impression for this Court because we have never been asked to rule on the authority of voluntary sections of the Bar to seek to file amicus briefs in pending cases, whether there should be limits on that authority, and, if so, whether this Court should act to constrain that authority."

In a dissenting opinion, in which Justice Charles Canady concurred, Justice Ricky Polston countered Liberty Counsel was entitled to injunctive relief without prejudice because the Bar failed to comply with or waive its Standing Board Policy on "divisive issues" and the Supreme Court has the duty to supervise the Bar.

"It is not too much to ask for the Bar to comply with its own requirements when we expect lawyers to comply with requirements of the Bar," Polston wrote.

Standing Board Policy 8.10(a)(3) provides that sections of the Bar may not submit an amicus brief in pending litigation if the issue "carries the potential of deep philosophical or emotional division among a substantial segment of the membership of the Bar."

"The issue of homosexual adoption is undeniably divisive," Polston wrote in his dissent. "The Florida Bar does not argue otherwise. The majority opinion does not hold otherwise. . . . Even though the issue is divisive, the Board of Governors could have voted to waive the application of its Standing Board Policy 8.10(a)(3) with a two-thirds vote, pursuant to its bylaws. Yet it did not do so ....

"This Court is not micromanaging the affairs of the Bar by requiring it to comply with the bylaws approved by this Court."

But the majority of justices was not bothered that the Board of Governors did not actually take a separate vote to waive the standing policy about divisive issues and rejected Liberty Counsel's "ultra vires" (unauthorized) action argument.

"Implicit in the Board's unanimous vote to approve the filing of the amicus brief is the notion that the Board waived by a two-thirds vote the requirement that it determine the divisiveness of the issue," Pariente wrote.

"Because the requirements of the standing board policies regarding the filing of amicus briefs by sections can be waived by the Board, the unanimous approval by the Board did not constitute an ultra vires action. And because there are no other legal or constitutional prohibitions against the actions of the Family Law Section, we cannot conclude that the actions of the Bar were unauthorized.

"We thus decline to reach a decision whether, under these circumstances, the Board reached the correct or incorrect conclusion on the divisiveness of the subject matter of the amicus brief supporting the trial court's decision on the constitutionality of the legislative prohibition against adoption by homosexuals."

The court also struck down Liberty Counsel's other two arguments: that the Bar violated their First Amendment rights by using mandatory dues to fund activities not germane to regulating the legal profession or quality of legal services; and that the Bar's approval of the filing of the amicus brief places judges who are members of the Family Law Section in the position of violating the canons of judicial ethics.

"We conclude that the Bar's actions in permitting the Family Law Section to file an amicus brief do not violate the First Amendment rights of the petitioners because membership in the Family Law Section is voluntary and any such advocacy is not funded with compulsory dues," wrote Pariente.

She noted the section's brief was written by "non-Bar counsel on a pro bono basis, so it would appear that any expenditure of Bar funds would be de minimis and not amount to the sort of dues-financed activity that raised the First Amendment concerns set forth in Keller."

Her detailed analysis on the First Amendment issue cited Keller v. State Bar of California, 496 U.S. 1 (1990); Florida Bar re Schwarz, 552 So. 2d 1094 (Fla. 1989); and Florida Bar re Frankel, 581 So. 2d 1294 (Fla. 1991).

Lastly, in a footnote, the court debunked the conflict-of-interest argument about judges who are members of the Family Law Section.

"We reject, without detailed discussion, petitioners' claim that the filing of an amicus brief by the Family Law Section will cause judges who are members of the section to be in violation of the Code of Judicial Conduct because the filing of the brief will express a political or ideological view.

"Even assuming the filing of a legal brief discussing the relevant case law on a legal issue is analogous to a political or ideological position, a view with which we do not agree, nothing in this Court's case law or in the Code of Judicial Conduct prohibits judges from belonging to associations because the associations endorse a particular political or ideological position as a result of a decision in which the judge took no part.

"If that were the case, judges would be prohibited from being members of a variety of voluntary professional associations, including the American Bar Association and the National Bar Association, and from participating in the valuable nonpolitical activities of bar sections."

Jan Pudlow

Senior Editor
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Author:Pudlow, Jan
Publication:Florida Bar News
Date:Jun 15, 2009
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