The case for merit selection and retention of trial judges.

• Author: Richman, Gerald F.
• Position: Florida Constitution Revision Commission

A former Florida Bar president long active in efforts to reform judicial campaigns offers some of the history and practices leading up to the proposed constitutional amendment to allow merit selection of trial judges by local option.

In 1972, Florida amended its constitution and eliminated the direct election of appellate judges in favor of a merit retention and selection system. This occurred against a background causing one of the founders of my law firm, the renowned trial lawyer William Snow Frates, to say that the State of Florida had what may be the most corrupt high court in the nation. Within four years, four out of seven justices on the Florida Supreme Court left office through resignation or retirement after a scandal involving extensive investigations, public exposure, and threats of impeachment. Through merit selection, in a few short years the Florida Supreme Court became one of the finest in the nation.

Dade Campaign Trust Fund

Meanwhile, trial court problems continued. In the late 1960s, a notorious circuit judge required lawyers to walk the gaunt]et past his bailiff and make an appropriate campaign contribution before they could present their arguments at his motion calendar. Members of the Dade County Bar Association, seeing that the problems of direct judicial elections were not being addressed by the constitutional change and wanting, idealistically, to provide support for good judges while eliminating the appearance of impropriety arising from direct campaign contributions by lawyers to judges (or judges' campaign committees), tried a new idea: the Dade Judicial Trust Fund. In essence, the fund was created to "eliminate the one-to-one financial relationship between attorney and candidate; prevent direct solicitation by judges or candidates; prevent direct contribution by attorneys to candidates; afford financial assistance to qualified candidates; and provide the public with a maximum benefit of the practicing attorneys' opinions of the candidates through widespread publication of the bar-conducted judicial poll and biographies of the various candidates."(1) The fund was created to deal with then-existing Ethical Consideration 8-6 of the American Bar Association Code of Ethics that "lawyers are qualified, by personal observation or investigation, to evaluate the qualifications of persons seeking or being considered for such public offices, for this reason they have a special responsibility to aid in the selection of only those who are qualified. It is the duty of lawyers to endeavor to prevent political considerations from outweighing judicial fitness in the selection of judges."

Recognizing that the canon and ethical consideration does not deal with the "appearance of evil" from lawyers contributing to the campaign of a judge or judicial candidate before whom they have, or are likely to have, a pending case, the fund provided an independent group of trustees who would receive campaign contributions from lawyers ranging from $50 to $150, depending on the length of practice. The funds then would be distributed pro rata to all judges or judicial candidates who were voted "qualified" by at least 60 percent of those voting in a secret poll conducted among the members of the Dade County Bar Association. The lawyers contributing were required to pledge that they would only make contributions to judges or judicial candidates through the fund, and all judicial candidates and judges who wanted to receive monies from the fund were required to pledge that they would only accept money from lawyers through the fund. At the same time, some of the funds received would be used to publicize the results of the bar poll and the names of the judges who were voluntarily participating in the poll, thus helping to eliminate the appearance of impropriety. In uncontested races, funds from the trust fund could be used to pay the qualifying fees of the judges who were voted qualified.

Growing Pains

The Judicial Trust Fund underwent a number of growing pains during its early years. Shortly after the fund was established, close to 300 lawyers contributed in excess of $30,000, resulting in distribution of more than $26,000 to 22 candidates. During the next four years, both contributions and credibility increased. The fund was faced with problems such as the discovery that a candidate, in direct violation of the judicial poll rules, had marked a ballot for another attorney, thereby calling into question the integrity of the poll. There were active solicitation violations with regard to the poll. The Trust Fund Committee was faced with expressing opinions on whether an attorney who had signed a pledge could support a particular candidate by sending out letters of endorsement or recommendations at the attorney's expense or whether an attorney who had signed the pledge could attend a cocktail party in support of a particular candidate where attendance involved purchase of a ticket obviously intended to raise additional funds for that candidate. The committee answered the latter two questions in the negative, and over a four-year period, both the poll and the fund gained public credibility and acceptance, to a point where many states were contacting the Dade County Bar for information.(2)

Unfortunately, the fund stumbled on what proved to be an insurmountable obstacle. Florida election law provided that a "political committee" was precluded from contributing more than $1,000 to any political candidate. A disgruntled judicial candidate who had signed the pledge card, but who was not voted qualified by at least 60 percent of the bar poll participants and who therefore did not receive funds from the trust fund, lost an election and complained to the Florida Elections Commission that the fund was a political committee contributing in excess of the $1,000 allowed by law to an individual candidate. This was a critical issue. For the fund to be successful, it was obviously essential that its members through the fund be permitted to contribute in excess of $1,000 in a contested election.

For example, Dade County, having at that time close to 1,000,000 people in population, required substantial expenditures of campaign funds for a countywide election. Indeed, in one election in the late 1970's, a candidate spent in excess of $500,000 of family money to win an election for an open judicial seat.

Responding to the complaint of the unsuccessful judicial candidate, the Florida Elections Commission launched a secret investigation. Upon...