Campaign Conduct

Campaign Conduct

A proposed watchdog committee would put the actions of Hillsborough judicial candidates under closer scrutiny.

By David R. Corder

Associate Editor

Judicial campaign conduct is about to come under closer public scrutiny in Hillsborough County.

The Hillsborough County Bar Association has formed a task force to develop guidelines for a proposed citizens watchdog group that would monitor and issue opinions on disputed judicial campaign conduct.

As an affiliate of the local bar, the proposed Hillsborough Judicial Campaign Practices Committee would act in a capacity similar to a program in place for 16 years in Miami-Dade County. It also would rely heavily on guidelines recommended by the National Ad Hoc Advisory Committee on Judicial Campaign Conduct (www.judicialcampaignconduct.org), an affiliate of the National Center for State Courts.

"The committee would not have any official power to sanction judicial candidates," says association President Marian McCulloch. "But it can make suggestions and could also give information to the media, the Florida Bar and the public about matters that come up during the campaign."

The goal is simple, adds McCulloch, an Allen Dell PA family law attorney. "In order to maintain the integrity of the judicial elections, we need to ensure there is no inappropriate conduct, and we need to maintain the integrity of the judicial election process itself," she says.

McCulloch attributes much of the momentum behind the local effort to Hillsborough Circuit Judge Kevin Carey, a former Carlton Fields PA attorney first elected to office in 2002.

"He's been instrumental in gathering the information, regarding all the other jurisdictions, researching who would be appropriate to sit on these committees and garnering the involvement of the members of the bar who would be willing to sacrifice time to sit on the committee," she says.

Carey says the idea of proposing a local committee came to him in December while attending a judicial conference. Part of the conference focused on the U.S. Supreme Court decision in 2002 to strike a Minnesota Supreme Court canon of judicial conduct that prohibited judges from speaking publicly about legal or political disputes. The high court said such prohibitions violate First Amendment guarantees to the right of free speech.

"The ultimate issue they talked about is: Do you treat a judicial election differently than any other election?" Carey says. "The bar says, 'Yes.' You do treat them differently. They're nonpartisan. That's a major difference.

"But the main point of other races is you want a candidate to make a promise and follow through on the promise," he adds. "That's exactly opposite what you want the judicial candidate to do. Because they're not supposed to make promises as to what they intend to do."

It's not as if Florida judicial candidates campaign without oversight. In fact, Florida and Ohio are cited as the two states that have done the most to preempt inappropriate judicial campaign conduct, according to a white paper published by Barbara Reed, counsel and policy director of The Constitution Project, and Roy A. Schotland, a Georgetown University Law Center professor.

"These two systems, in place since the mid-1990s, are a model for action," they wrote. "Moreover, the Florida experience shows that, whatever one's view of how the First Amendment affects attempts to limit inappropriate judicial campaign conduct, it does not stop effective, aggressive efforts."

Since 1998 the state Judicial Ethics Advisory Committee has offered two services as a judicial campaign conduct watchdog. This committee of 10 judges and one attorney conducts forums in every circuit with a contested judicial election. This gives candidates a quick primer on what they may and may not do in an election. Then the state committee's Election Practices Subcommittee offers quick and public answers to questions from judicial candidates.

Except for offering a forum, the proposed Hillsborough committee would operate much the same way as the state committee, Carey says. Candidates would be required to submit a written complaint to the local judicial committee, which describes any alleged offense by an opposing candidate. The committee would then meet and send a written inquiry to the candidate accused of a misdeed. The accused candidate then would be given an opportunity to respond.

If all goes well, Carey predicts, response and answer should occur within 24 to 48 hours. The committee would only issue an advisory opinion if its members suspect an offending candidate violated some provision of the judicial canons or other campaign laws.

"If there are factual disputes, the committee would not resolve those," Carey says. "They do not view themselves as a finder of fact."

Then the committee would forward a copy of the local advisory opinion to the state Judicial Ethics Advisory Committee, the Florida Bar, the state Judicial Qualifications Commission and the local media. "Clearly it's the intent to put pressure on the conduct," Carey says.

At Carey's request, McCulloch appointed a task force that included Carey; Tampa attorney Tom Scarritt, Carey's former campaign manager; Tom Barber, a Carlton Fields attorney; and solo practitioner Lansing Scriven.

The Hillsborough Bar sent members of the task force earlier this year to a Dallas seminar sponsored by the national ad hoc committee. Just recently, the task force members recommended Scarritt as chairman of the Hillsborough campaign practices committee.

McCulloch expects to officially propose formation of the campaign practices committee on April 13 at the Hillsborough Bar board of directors meeting. The campaign practices committee would then meet May 13, following the April deadline for Hillsborough judicial candidates to qualify for election.

Carey says he and members of the task force currently are recruiting a diverse group of lawyers and citizens to serve on the campaign practices committee. For instance, they anticipate participation from members from the George E. Edgecomb Bar Association, the Hillsborough Association of Women Lawyers and the Hillsborough chapter of the Florida League of Women Voters.

"We're trying to make sure there is a fair enough representation," Carey says. "We don't want it perceived as just a group of active bar lawyers. If it doesn't have credibility it won't do any good."

Because of his role as a judge, Carey also says he will serve only in an advisory capacity following formation of the actual campaign practices committee.

"The point there is to hopefully modify the behavior of candidates," Carey says. "The perception is we want to keep these campaigns at a higher level."

It doesn't appear the proposed committee faces too contentious of an election cycle this year. Of 15 judicial races in Hillsborough, only one is contested so far. Tampa attorneys Henry Gill, Elizabeth Rice and Brad Souders all want to replace retiring Hillsborough Judge Elvin Martinez.

As an attorney, McCulloch likes the idea of publicly disclosing possible campaign infractions. She views this as another positive step toward improving the legal profession's standing within the community.

"This gives candidates an opportunity to learn how to conduct themselves during an election in order not to violate not only the canons of judicial conduct but also the integrity of the entire system," she says.