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Tallahassee residency case becomes statewide issue

Tallahassee City Commissioner Scott Maddox lives in the City of Tallahassee. While that should not come as man-bites-dog news, it’s not that simple in Florida’s capital.

The residency of the former Tallahassee Mayor and Florida Democratic Party Chair was challenged in court by Dr. Erwin Jackson, a frequent city government and Maddox critic. Maddox maintains two domiciles; a rented home within the city limits and another larger residence outside the city, which he owns.

The home outside the city limits was put on the market in 2012 while Maddox was a candidate for the Commission and was put on the market again as he sought re-election this year. Jackson points to that and questions other indicators he says makes the case Maddox lives in the home outside the district.

Second Circuit Judge Charles Dodson ruled in Maddox’s favor on three occasions only to be overruled and scolded for “abuse of discretion” by a three-judge panel of the First District Court of Appeal (DCA). After Dodson had recused himself, colleague Karen Gievers drew the short straw and was assigned the case.

In her 28-page ruling, Gievers said Jackson “has offered neither documents or testimony that establish Maddox’s legal residency on August 30, 2016, at the time of the election was somewhere other than the North Adams Street (city) address.”

She further ruled the “overwhelming credible evidence” shows Maddox lives in the city and that he did not try to “game the system.”

Gievers addressed several questions posed by Jackson and his legal team. Among those were the registrations of vehicles registered to Maddox using the county address between 2000 and 2015.

All eight were changed to the downtown address during calendar year 2016. Gievers admitted the registration changes were “not as timely as the statutes provide,” but that fact still does not prove residence on a particular date.

For the record, Maddox is registered to vote in Precinct 1302 according to the Leon County Supervisor of Elections. His rented home in the city is within that precinct, allowing him to answer in the affirmative whether he voted for himself.

The DCA had given a deadline of December 6 for the lower court to make a ruling. Unless they find some procedural error, this should put the Maddox residency matter to rest.

But there is one other matter still percolating within the legal system. The City of Tallahassee has asked the Florida Supreme Court to overrule the DCA hold that local governments should have the final say on residency.

The DCA held the Tallahassee City Charter is subservient to state law, but local governments wish to protect their autonomy to decide who meets the criteria established by their respective charters.

This is a big deal to them. When I published the first article on this topic, I heard from a former Jackson County Commissioner in total agreement with the City’s position.

On Monday, the Florida League of Cities, representing more than 400 communities around the state, turned this into a statewide matter. They, too, are asking for the Florida Supreme Court to weigh in.

“The League’s membership has a significant interest in the question before the Court in this proceeding,” they wrote in their filing document. “The governing documents of many of the League’s members contain provisions that, like the provision at issue here, authorize municipal councils and commissions to be the judges of the election and qualification of their members.”

Jackson and his legal team responded on Friday while Maddox and the City responded to the Supreme Court on Monday.

No matter whose side one takes in Jackson v. Maddox, it is probably a good thing to have some clarification. There are good reasons for the communities to set their own standards. There are also good reasons to be on the lookout for circumstances where the Establishment is protecting its own.

Merry Christmas from Tallahassee or Leon County, whichever applies.

Update: On Wednesday, the Florida Supreme Court issued the following order:

“It appearing that Respondent, Dr. Erwin D. Jackson, has declined to seek review of the circuit court’s ‘Order on Pending Motions and Non-Jury Trial/Final Evidentiary Hearing, and Final Judgment,’ that the district court has lifted its stay, and that Respondent, Scott Maddox, has been sworn in as a city commissioner, Petitioner (the city of Tallahassee) is hereby directed to show cause by 3:00 P.M. on Thursday, December 8, 2016, why the petition for writ of prohibition should not be denied as moot. Respondents may serve a reply by 3:00 P.M. on Friday, December 9, 2016.”

Martin Dyckman: End the ‘shame’ by restoring voting rights to ex-felons

In a pair of Context Florida columns titled, “The Shame of Florida,” Darryl Paulson has documented how Florida infamously leads the nation in the number of people—1.7-million—who are permanently barred from voting as ex-felons regardless of whether they are good citizens now. In Florida, as in Virginia, Alabama, Tennessee and other former Confederate states, these bans were imposed or radically expanded in the aftermath of Reconstruction with the plain intent of suppressing black votes.

More than 10 percent of voting-age Floridians are victimized by this provision of Florida’s Constitution — among blacks, however, 23 percent are.

“Studies have shown that blacks are more likely to be arrested than whites for the same felony issue, and blacks are much more likely to be convicted than whites for the same felony offense,” wrote Paulson, an emeritus professor of government at the University of South Florida Bayboro.

Not until after the Civil War did Florida ban all voters with felony convictions.

The federal courts have been willfully blind to Florida’s massive violation of our must fundamental civil rights.

It’s time to test the courts again.

The racist motive and subsequent effects were argued in a class-action challenge to Florida’s practice in a 2005 case styled Johnson V. Bush. The plaintiffs asserted violation of the Fourteenth Amendment and of the 1965 Voting Rights Act. The Eleventh U.S. Circuit Court of Appeals, sitting en banc, overturned a panel that had ruled against the state. Rosemary Barkett, a former justice of the Florida Supreme Court, dissented from the erroneous 10-2 decision. The U.S. Supreme Court refused to hear an appeal.

The Eleventh Circuit’s rationale was a case of deliberate judicial myopia. It took the absence of recorded racist statements from the 1860 debates as an excuse to ignore the obvious circumstantial evidence that racism was the whole story.

The majority then reasoned that even had that been so, it was laundered clean by constitutional revisions in the Twentieth Century.

That was ivory tower nonsense.

The 1965 revision commission whose work led to Florida’s present Constitution three years later did not have even one minority member. There were none in the Legislature, where the political climate in Tallahassee was still segregationist.

A detailed history posted by the Brennan Center for Justice notes that eight of the thirty-seven members of that revision commission also served on the notorious Johns Committee, a joint legislative panel that was set up to attack civil rights organizations.

One member of the revision commission, Richard A. Pettigrew, tried to modify the constitutional ban to let the Legislature decide what crimes, if any, should disqualify a voter. Pettigrew, a Miami legislator and future House speaker, was defeated in a committee chaired by a Johns Committee member who was a militant segregationist.

There have been two more revision commissions, in 1978 and 1998, but neither took up the subject.

“I am embarrassed to say this was not discussed,” Talbot “Sandy” D’Alemberte, the 1978 chairman, wrote to me recently.

Since those years, circumstances have changed so profoundly as to make the case that Florida is deliberately wielding its historic ban to violate the 1965 Voting Rights Act.

The governors and Cabinet, sitting as the state clemency board, had been regularly considering applications for restoration of civil rights.

Gov. Charlie Crist accelerated the process in 2007, so much so that about 155,000 people regained their voting rights during his four-year term.

But in 2011, his successor Rick Scott and the new attorney general, Pam Bondi, made the rules so regressive—among other things, by imposing a five-year waiting period—that only 2,200 applications were approved during the first five and a half years of his term. The cumbersome process discourages would-be applicants, and that is not likely just coincidence.

What Scott, Bondi, and clemency board members Adam Putnam and Jeff Atwater did to the process makes the new case that belongs in a federal court. The governor and Cabinet are deliberately — deliberately — wielding the Florida Constitution as a blunt weapon of voter suppression, and they’re doing it in a way that had not been done before. The original intent of disenfranchisement no longer matters. It is the present glaring intent that does.

In the same year that they sabotaged the clemency rules, Scott and Bondi approved legislation that removed felony convictions as an automatic bar to licensing in certain regulated professions.

In other words, ex-felons can be trusted with other people’s money and property, but not with the vote.

There’s no sense in such a distinction except for the obvious: ex-felons are disproportionately black, and blacks vote disproportionately Democratic.

This is not an issue that only Democrats care about. Paulson is a Republican; he points out that the Koch Foundation and the International Association of Chiefs of Police also support civil rights restoration, and they are hardly liberal voices.

The Constitutional Revision Commission that will meet next year ought to right the old wrong, but the prospects are poor, since Scott and Republican legislative leaders will be appointing nearly all the members.

An initiative pending Supreme Court approval to be placed on the 2018 ballot would restore voting rights automatically to everyone who completes a prison or probation sentence except in cases of murder and sex crimes. But even if the court says yes, as it should, the sponsors have a long way to go toward enough signatures to get it on the ballot.

Interestingly enough, the court’s deadline for objections to the initiative passed without any being filed. There was, however, a powerful memorandum in support from Ion Sancho, Leon County’s retiring supervisor of elections, and his Broward County counterpart, Dr. Brenda Snipes.

“The scope of felony disenfranchisement laws does not befit our great democracy,” they told the court, adding that no other democracy bares voters for life. “People who have completed their sentences and reentered society are presumably working and paying taxes in communities throughout the state. These individuals, like other Floridians, should be accorded the basic rights of citizenship,” they said.


Martin Dyckman is a retired associate editor of the newspaper now known as the Tampa Bay Times. He lives in North Carolina, where anyone is allowed to register and vote upon completing all terms of a felony sentence.

Broward judge to be publicly reprimanded Feb. 7

The Florida Supreme Court on Monday “commanded” a Broward judge to come to Tallahassee Feb. 7 for a public reprimand.

Circuit Judge John Patrick Contini also must write a letter of apology, undergo judicial mentoring, complete a mental health program, and pay administrative costs, according to a court order.

He was brought up on judicial misconduct charges last year.

Contini was accused of sending a document on how to argue for lesser sentences to an assistant public defender without giving a copy to prosecutors. Contini himself is a former prosecutor and criminal defense attorney.

When prosecutors sought to disqualify him from pending criminal cases because of an appearance of bias, he rejected the request and lashed out against them, making “disparaging, demeaning remarks,” an investigative report says.

They included his wanting to “spank” and “ream out” the lawyers who sought to disqualify him. Contini later admitted he “‘lost it’ in court, ‘overreacted,’ ‘personified incivility,’ and had ‘no excuse’ for his comments.”

A Judicial Qualifications Commission panel noted that “Contini was a new judge, who … made a series of significant missteps.” It also said he “immediately accepted responsibility for his conduct, expressed sincere remorse, and apologized.”

The Supreme Court, however, noted that his “conduct was as improper as it was rude.”

Though he’s practiced law for 31 years, Contini was only elected judge in 2014 and on the bench since January 2015, the report says. He was given a hefty docket of more than 1,000 cases.

Florida Supreme Court rejects shift in insurance claims law

The Florida Supreme Court has overturned a lower-court ruling that would have made it harder for policyholders to collect on insurance policies when there is more than one cause for their losses.

At issue in Sebo v. American Home Assurance Co. was competing doctrines for resolving claims under all-risk policies in those circumstances.

Under the so-called “efficient proximate cause” theory, if the first cause of any damage — say, construction defects — isn’t explicitly covered, nothing else is.

Under the “concurrent law doctrine,” however, a homeowner can collect if any of the damage is covered.

“We conclude that when independent perils converge and no single cause can be considered the sole or proximate cause, it is appropriate to apply the concurring cause doctrine,” Justice James E.C. Perry Thursday wrote for a 5-2 majority.

That’s been the law in Florida for 30 years, said Richard Hugh Lumpkin of Ver Ploeg & Lumpkin in Miami, who filed an amicus brief on behalf of United Policyholders, a consumer group.

Still, the 2nd District Court of Appeal applied the stricter policy in ruling on the case. Other states, including California, use that standard.

“What the Florida Supreme Court is saying is that you apply the policy as written. There’s nothing new or different about that,” Lumpkin said.

“But if the efficient proximate cause doctrine had been made law in Florida, that would have changed things — made it more difficult for folks in Florida to collect their due.”

It also would have injected uncertainty into the insurance industry — both for policyholders and their insurers, he said.

“Let’s just say we breathed a sigh of relief” at the high court’s ruling, Lumpkin said.

The case involved a home in Naples, insured for $8 million, that had to be torn down after design and construction defects led to damage from rainstorms and Hurricane Wilma in 2005, according to court records.

Perry wrote that because the insurer “did not explicitly avoid applying the (concurrent law doctrine), we find that the plain language of the policy does not preclude recovery in this case.”

Commission settles on three finalists for Supreme Court vacancy

Florida Gov. Rick Scott will pick a new state Supreme Court from one of three finalists.

A state nominating panel on Monday interviewed 11 applicants for the job and then whittled down the list before coming up with a list for Scott.

The panel recommended that Scott consider Charles Alan Lawson, the chief judge for the 5th District Court of Appeal, Wendy Berger, a 5th DCA judge, and attorney Daniel Gerber for the high court.

Some high-profile names were passed over for consideration, including State Attorney Brad King, the lead prosecutor for five central Florida counties, and State Rep. Larry Metz.

The spot on the court is coming open because Justice James Perry is stepping down on Dec. 30 because he’s reached the mandatory retirement age.

This Supreme Court candidate steers clear of social media

Count on this if Seminole County Circuit Judge Michael J. Rudisill lands on the Florida Supreme Court: He won’t be tweeting about rulings or anything else.

“I tend to stay away from Twitter,” Rudisill said Monday, during his interview for a high court vacancy. “Twitter’s dangerous. Stay away from it. I don’t use Twitter, and virtually no good can come of it.”

Rudisill and Osceola County Circuit Judge Patricia L. Strowbridge were the final applicants of 11 interviewed by the Supreme Court Judicial Nominating Commission to replace Justice James E.C. Perry, who departs the bench Dec. 30.

The nominating panel will forward six names by Dec. 13 to Gov. Rick Scott, who will then name Perry’s replacement.

Virtually to a person, the applicants described themselves as strict conservatives who would follow the examples of the late U.S. Supreme Court Justice Antonin Scalia or Florida Supreme Court Justice Charles Canady.

Finally, late in the day, somebody asked Redistill whether he could point to any other judge he’d emulate.

“My fantasy football team is actually named The Fighting Scalias,” Rudisill replied.

Then he turned to Justice Clarence Thomas.

“His work ethic and constitutional originalist judicial philosophy, while slightly different from Antonin Scalia’s, probably would be a close second for me,” he said.

The differences between Thomas and Scalia’s textualism “are rather nuanced, I guess,” he said, but he personally tries to read laws according to the plain meaning of their words as generally understood.

“I definitely would not be tempted to breath new life and meaning” into those words, he said.

Rudisill was asked about Chief Justice John Robert’s opinion upholding the Affordable Care Act. Roberts interpreted the law’s financial sanctions against people who don’t buy insurance as a constitutionally permissible tax — to the consternation of movement conservatives.

Rudisill replied that he agrees with Roberts that courts should find laws constitutional when they can.

“Deference is always going to be appropriate,” but not if “you have to torture” statutory language to abide by the constitution, he said. “The law is clear that you err on the side of finding something constitutional. But if it’s clearly not, you have to do your job.”

Rudisill posited his relative youth as an advantage — he was born in 1976. “It’s a form of diversity that I would bring to the bench.” It makes him more at ease with useful technology than are some of his fellow jurists.

“These are things that I’m comfortable with,” he said.

Strowbridge has specialized in family law including adoptions and child dependency as an attorney and judge.

She disavowed any concern for trying to decipher the legislative intent of laws. That stance, she said, was informed by her experience early in her career helping to lobby the Legislature.

She witnessed considerable horse-trading for votes. “A lot of people” who supported her measure “didn’t know what was in the bill,” Strowbridge said.

“I don’t believe there’s anything called legislative intent,” she said. “Words have meaning. … Give those words the meaning that they have.”

If appellate courts increasingly face political pressure, it’s their own fault.

“When judges wander into legislating, that’s when the political pressure ramps up on them,” Strowbridge said.

As for coming to speed on the unfamiliar legal areas she would confront as a justice, “I study. I read,” she said. In fact, she considers The Florida Law Weekly good bedtime reading.

“I believe I am capable of learning what I need to learn,” Strowbridge said.

She was asked about two ethics proceedings against her when she was an attorney, and which she disclosed on her application.

One involved a misdirected fax that she neglected to return to the sender, not realizing that the Florida Bar had recently issued a rule requiring her to do that. She was required to take an ethics class.

The other involved a Bar grievance filed by a birth mother who’d given her child up for adoption and who later wished she’s chosen a more open form of the process. Strowbridge was not the woman’s attorney, but agreed to be more careful in communicating her role to mothers in the future.

During Supreme Court interview, Larry Metz discloses he has Parkinson’s

The third round of interviews of Florida Supreme Court applicants on Monday brought several revelations, including state Rep. Larry Metz’s disclosure that he has Parkinson’s disease.

Metz, a Yalaha Republican, shared his diagnosis with members of the Supreme Court Judicial Nominating Commission at the end of his interview.

“I don’t think it’s an issue,” Metz told the panel, adding he is not on medication for the condition. “But I did not want to not mention it.”

Parkinson’s is a “chronic and progressive movement disorder, meaning that symptoms continue and worsen over time,” according to the Parkinson’s Disease Foundation.

It’s caused when certain nerve cells in the brain die. There is no cure, although the symptoms can be managed through medication.

The disease, which has an unknown cause, often manifests through trembling of the hands, legs and jaw.

The late U.S. Attorney General Janet Reno had the illness, as does actor Michael J. Fox. Nearly 1 million people in the U.S. have Parkinson’s disease, according to the foundation.

The third round included Metz, Chief Judge C. Alan Lawson of the 5th District Court of Appeal and Circuit Judge Michelle T. Morley of Sumter County.

The man Lawson seeks to replace, retiring Justice James E.C. Perry, is the same person who beat him in 2009 for the high court job, itself created by the retirement of Justice Charles T. Wells.

In his interview, Lawson spoke of the need to foster communication between the branches of government. Lawmakers have slammed the high court in recent years for opinions they say veered too much into policymaking.

Lawson used the example of his inviting then-House Speaker Dean Cannon to sit in on a violation of probation hearing. Otherwise, he said. the only interaction judges and legislators have is when they’re asking for money during budget meetings, “which isn’t the best in developing relationships.”

Lawson, as did interviewees before him, said he subscribed to an “originalist and textualist approach” in interpreting laws, favored by conservatives.

“In most cases, you don’t need to go beyond (the statute),” he told the panel.

Lawson’s only stumble may have been when Commissioner Cynthia Angelos, a former trial judge in St. Lucie County, asked him what his weakness was. Lawson couldn’t answer.

After joking he “should have thought of the question,” he said he was “prepared for this position, pretty uniquely and in a lot of different ways … It is my hope and belief to make a difference to the jurisprudence of this state.”

The judge, who has run the Boston Marathon, also said he ran for the Legislature while in law school, coming in third in a field of six for a Tallahassee-area seat. “In retrospect, I’m really glad I did not win,” he said.

Metz faces term limits after his current stint in the House. The former Marine has been one of the House’s stalwart conservative members.

He was the only candidate up to that point to walk around the conference table to shake all the commissioners’ hands.

Metz mentioned his years of public service, including on the Lake County school board, as motivating his application: “There’s a real sense of satisfaction … it’s about being something bigger than yourself.”

He also stressed his belief in judicial restraint: “You have to understand your role and responsibility” as a judge, he said. 

“Judicial power is both concentrated and broad … you have to remind yourself constantly what you are there to do, and not go beyond what you are supposed to do,” Metz said.

One commissioner, Jeanne Tate, shocked Metz by telling him they had gone to high school together. “It’s not that I’m worried I don’t remember you but I hope you don’t remember me,” he joked.

When asked whether there was a need for more “turnover” in the judiciary, Metz said he would keep an “open mind” to judicial term limits. Florida now uses merit retention elections, but no appellate judge in the state has ever lost such an election.

“One has to wonder, if the elections always produce the same result, whether they’re really working or not,” he said.

Morley said her judicial philosophy was not to “put a spin on a statute”: “The law needs to be interpreted according to plain language,” she said.

When asked about her mistakes, she admitted to holding a lawyer in contempt for a disagreement over evidence sharing between sides in a case, which she later realized was the “wrong way to achieve what I wanted to achieve.”

On “original meaning” in the Constitution, she was asked about the phrase “cruel and unusual punishment,” often used in the context of the death penalty.

“Human beings have found more and more egregious ways to treat each other that were never contemplated in 1789,” she said.

Surprises included her once being a member of the Lake County Sheriff’s Mounted Posse and her writing a letter to every Sumter County student who makes the honor roll.

The last of the interviews were scheduled to go through Monday evening. The commission will name six finalists for Gov. Rick Scott to consider.

One Supreme Court applicant cites liberal wing member as exemplar

Sylvia Grunor stood out among the second round of candidates interviewed Monday for a vacancy on the Florida Supreme Court by naming as her judicial role model the man she would replace — Justice James E.C. Perry, a member of the court’s liberal wing.

Dan Gerber, a civil-trial defense attorney with Rumberger, Kirk & Caldwell in Orlando, praised Justice Charles Canady, a member of the court’s conservative minority, as “among the most brilliant attorneys and supreme court justices in the country.”

Brad King, state’s attorney for the 5th Judicial Circuit in Central Florida, praised the late U.S. Supreme Court Justice Antonin Scalia.

In fact, he said, he’d read Scalia’s book, “Reading Law: The Interpretation of Legal Texts.”

“As I read it, clearly that’s the way I think things through,” King said of Scalia’s “originalist” approach to judging.

Still, to Grunor, a trial lawyer and partner with Orlando firm Palmer, Weiss, Grunor & Barclay, “Justice Perry had, to me, a good sense of himself.” He is, she said, “a family-first, law and order guy.”

But she also insisted: “I’m looking to interpret the law as it’s written.”

The Supreme Court Judicial Nominating Commission began interviewing the 11 applicants to replace retiring Perry, who departs the bench Dec. 30.

The nominating panel will forward six names by Dec. 13 to Gov. Rick Scott, who will then name Perry’s replacement.

Scott has said that he wants a justice to follows judicial restraint and is humble.

None within the second round of interviewees has served on the bench before. Grunor said that would “add rather than detract” from her contributions to the high court.

“Being a trial lawyer, you get an idea of what goes on in the courtroom,” she said.

She would approach the work “not with an agenda,” but to apply her education and experience. “I want to make it a better place.”

Grunor ran unsuccessfully for the trial bench in 2000, and once applied to fill a vacancy in the 18th Judicial Circuit. She practices family, personal injury and insurance law.

She cautioned against judges who give overly broad interpretations of the law. “If the Legislature passed it, my job is to interpret it,” she said — and not to try to read too much into a statute.

Asked what changes she would like to see in the court system, Grunor said: “More access to the courts.” As a trial lawyer, she understands “how hard it is to get into the courthouse sometimes, and how long you have to wait.”

“If I had any influence on that, I’d like to see more judges in the courts.

Gerber has more than 28 years’ experience practicing law — mass torts and class actions, commercial litigation, and voting rights cases included, he said.

He would take “a practitioner’s point of view” to the court. He lamented that the average time for an intermediate appellate court in Florida to issue a decision is 190 days.

“Frankly, time is money,” Gerber said.

An advocate for children with autism, he said the courts represent “the last place” in which to “seek help for the helpless.”

Although not well versed in criminal law, he would approach it like “any other area of law in which you might not have experience.”

Specifically: “Read everything you can get your hands on. After a while, you’ll be able to handle those cases in a predictable manner.”

What kind of court ruling make Gerber grimace?

“When I see a judge of an appellate court saying, ‘We know better than the Legislature or an executive department,’ “ he said. “That does frustrate me when I see that.”

He hates to see “judicial hostility to the litigants and the lawyers.”

Gerber noted his long history in the conservative movement, including assignments for Republican clients during his early days at his firm, before the movement’s ascension.

“I didn’t have to do that,” Gerber said. “I took it because I believed in it.”

Asked to write his own epitaph should be win appointment, Gerber said: “He brought a stabilizing conservative presence to the Florida Supreme Court.”

King spent much of his time explaining his role in the investigation of the 2010 death of Michelle O’Connell — according to her family, at the hands of boyfriend St. Johns County Deputy Jeremy Banks.

King was one of two outside state’s attorneys assigned as special prosecutor in the case. Both determined there was insufficient evidence to support a homicide charge. Rather, King said, the evidence pointed to suicide.

“I could not have taken that case to trial” under the circumstances, despite public demands that he do just that, he said. “Fundamentally, it just wouldn’t have been right.”

He would not serve as a pro-police or pro-prosecution justice, he said.

He believes trial judges should establish the fact record in cases and appellate judges are bound to respect that.

And as for respecting legislative intent, “I don’t think (judges) have the discretion to determine that the Legislature’s intention was” beyond the statutory language, King said. They can’t decide “what they really meant.”

Supreme Court candidates are all about conservatism

The first three candidates to be interviewed for state Supreme Court justice burnished their conservative credentials Monday afternoon.

The Supreme Court Judicial Nominating Commission began interviewing the 11 applicants to replace retiring Justice James E.C. Perry, who departs the bench Dec. 30.

The nominating panel will forward six names by Dec. 13 to Gov. Rick Scott, who will then name Perry’s replacement.

This is Scott’s first chance to pick a state Supreme Court justice, and thus the first opportunity to expand the high court’s reliably conservative voting bloc, now only two justices: Charles Canady and Ricky Polston.

“I generally care about two things,” Scott has said about judicial appointees. “Are they going to be humble in the process, and are they going to uphold the law?” The governor, like the conservative GOP House majority, is a believer in judicial restraint.

First up on Monday were Wendy W. Berger, a judge on the 5th District Court of Appeal; Alice L. Blackwell, a circuit judge in Orange County; and Roberta J. Bodnar, an assistant U.S. attorney in Ocala.

The judiciary’s job is to “apply the law, to interpret the law, but not to make it,” Berger told the panel.

She may have the most experience in death penalty cases, which now makes up roughly half of the Supreme Court’s caseload.

As an assistant general counsel, Berger was Gov. Jeb Bush’s point person on death sentences, helping him determine which cases were ripe for death warrants.

A recent U.S. Supreme Court decision, based on a Florida case, requires unanimous jury recommendations before a judge can impose a death sentence.

But Berger told commissioners she doesn’t believe the Hurst ruling should be retroactive: “That would open a large amount of floodgates we don’t need to see.”

Asked about professionalism, she said dissenting from a majority opinion should mean “you can disagree without being disagreeable.”

She quickly added, “You can be open minded to other points of view, but if they’re outside the law, I’m not going to agree for the sake of collegiality.”

Berger also played up her trial court experience as a circuit judge, saying “if you want to call balls and strikes, you need to have played the game.”

Blackwell, a judicial appointee of Democratic Gov. Lawton Chiles, played defense early and often, mentioning her “conservative judicial philosophy” and saying she was “not an activist judge.”

The judge played up her rural South Carolina upbringing – “You can probably hear it in my voice” – and said she worked her way through school as a church organist.

She was 34 when she first applied to be a judge, and said she was the second youngest person to become a judge when appointed in 1991. Blackwell followed the footsteps of her “Uncle Joe,” a judge who held the Bible at her swearing-in.

Blackwell said she follows the late U.S. Supreme Court Justice Antonin Scalia’s concept of ‘originalism’: “What do the words mean that are in the law?”

She distinguished herself from activists who say what the law “ought to be.”

“That’s not a judge’s job,” Blackwell told the panel. “I don’t legislate from the bench.”

But, she was asked, what about when courts, even the Supreme Court, have misinterpreted a law? 

“I hope I would have the intellectual and moral fortitude to say we got it wrong and we need to change it,” she said.

Bodnar, unlike Berger and Blackwell, sat for her interview with no notes. She too espoused restraint in interpreting the law, saying judges should “apply the law” and not “invent it.”

“The law belongs the people,” she said, a theme she revisited later in her interview. “Start with the law, never start with instinct.”

Bodnar, however, bristled at a question on her lack of judicial experience, referring to her analytical skill in a brief she submitted as a writing sample.

“I wrote that brief, and it’s good,” she told commissioners. “I don’t need to have put on a black robe.”

She also was asked about her long-standing “BV” Martindale-Hubbell peer rating, which she’s had for 23 years. “BV” is similar to a silver medal; “AV” is considered the gold standard.

Bodnar smiled, saying the only reason she sought a rating in the first place was to ensure a pay bump from her then-boss, state Attorney General Bob Butterworth. Getting rated or getting published was the only way he’d give a raise, she said.

Finally, when asked about a right to bear arms, Bodnar said she “believe(s) in a personal right to bear arms,” adding that she has a concealed carry permit.

The interviews, which are taking place in Orlando, continue through the afternoon and are being livestreamed by The Florida Channel.

Judge faces misconduct charges over campaign tactics

A judge in Putnam County faces misconduct charges for posting inaccurate information about his campaign opponent.

Circuit Judge Scott DuPont is facing five charges related to his campaign against Malcolm Anthony, a Ponte Vedra Beach attorney.

The Florida Judicial Qualifications Commission notified the state Supreme Court of the charges on Wednesday.

The commission’s investigative panel said DuPont went to a criminal background check website to dig up dirt on Anthony and posted the results without verifying them.

The commission noted the website can’t be entered without clicking a warning that the information might not be accurate.

The information included supposed arrests of Anthony’s wife and daughter even though he didn’t verify their identities.

DuPont also got into hot water for saying he wouldn’t find any law unconstitutional despite his oath to uphold the state and federal constitutions.

Reprinted with permission of The Associated Press

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