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Judges find little appeal to election

Florida voters have never voted to remove a sitting appellate judge from office since adopting the merit retention system in 1976. So you might think the six Tampa judges on the 2nd District Court of Appeal (2nd DCA) would barely care that their names are on the Nov. 6 ballot in 14 counties.

You would be wrong. Especially this year.

"You hate to be the first one" voted out, said Judge Chris Altenbernd, appointed to the 2nd DCA in January 1989.

"It's a very difficult campaign, mainly because you can't campaign," 2nd DCA Chief Judge Herboth Ryder said. The law prohibits any campaign-related activity unless a judge faces organized opposition.

"It's an uneasy feeling, that you can't assert yourself," Ryder said. "It's sort of a phantom out there you can't really address."

Judge James E. Lehan said, "I've not been joyous reading about the numbers of people who intend to vote "no' on anything. There is a greater cause of concern this year, yes."

Some of the concern is borne of the "Shaw factor." Florida Supreme Court Justice Leander Shaw also faces a retention vote this year and has attracted active, organized opposition from anti-abortion groups campaigning for his ouster.

Shaw last year wrote the court's opinion striking down a law requiring minors to get parental or judicial consent before getting an abortion. The ruling said the law violated Florida's right to privacy.

But will those opposed to Shaw extend their disapproval to other appellate judges?

"That's the $64 question," Judge Jerry R. Parker said.

"We don't know if the Shaw opposition is going to bleed down the ballot to us or not," Judge David Patterson said. "Whereas he can respond, we can't. So we're on pins and needles here."

Few Florida officeholders exercise so much power amid so little public recognition. They issue hundreds of important rulings, but always as a court and never as individuals. And these rulings flow from careful legal reasoning, not headline-grabbing testimony.

When the judges venture from their libraries for an occasional batch of oral arguments, spectators and reporters are welcome. But few ever show up.

"We benefit from a benevolent public, or suffer from a malevolent public, who gets that way not because of anything we've done," Patterson said.

But Ryder, who has survived two prior retention votes, downplays the Shaw factor.

"I, like Winston Churchill, say trust the people. I believe the electorate is more sophisticated than that."

Usually, appellate judges keep their seats by an approval rate of about 75 percent, so any feeling against judges, or incumbents in general, would have to be strong enough to erode that 25 percent margin. A judge needs 50 percent plus one vote in his favor to keep his job.

"There's a consistent 25-30 percent "no' vote, just like clockwork," Parker said. "It doesn't seem to matter who the judge is."

The Florida Bar tries to measure appellate judges' performances by polling lawyers who appear before them and read their opinions. This year, 7,300 lawyers responded, and all six 2nd DCA judges won "qualified" ratings ranging from 89 percent to 93 percent.

Florida's district courts of appeal judges operate in relative anonymity, though they make the final decisions in about 90 percent of state court appeals and write legal opinions that become guiding precedent for hundreds of cases.

Even some regulars around the Hillsborough Courthouse Annex don't realize there's an appellate court on the eighth floor.

Altenbernd said his parents told him they would vote absentee in a Hillsborough trial judge's race.

"I said, "Gee, I thought you might want to vote for your son, too,"' Altenbernd said. "They went, "You mean you're on the ballot?"'

"If you went to all the circuit judges (in the 2nd District) you'd find a limited number who could name all 12 of us," Patterson said. "We're that far back."

The secluded, academic discipline of reviewing decisions from trial courts is one of reading, writing and collegial discussion of the law. Three-judge panels, and occasionally all 12 judges, hear oral arguments from lawyers, but even those attract little attention.

"Our courtroom is open," Judge Paul W. Danahy Jr. said. "We just don't have many folks that attend. Sometimes, TV cams have appeared. We're glad to have them."

The 2nd DCA handles about 3,600 appeals a year, said William Haddad, clerk for the court, which has headquarters in Lakeland but maintains a large Tampa branch office. About 55 percent of the appeals involve criminal law _ appeals of convictions, sentences, use of confessions and rulings on evidence during trials.

All death sentence cases go directly to the Florida Supreme Court.

Cases are assigned to changing three-judge panels, who may or may not hear oral argument from lawyers in addition to reviewing the trial court record and legal briefs. Last year, the 2nd DCA issued 904 written opinions. The court also heard 1,300 other cases where it upheld the trial judge's actions without issuing a written opinion.

If an issue before them is "of great public importance," the appellate courts can ask the Florida Supreme Court to rule. So in many high-profile cases, the attention shifts to Tallahassee.

One example is the case of Estelle Browning, the Clearwater nursing home resident whose guardian fought to disconnect Browning's feeding tubes. Altenbernd, Ryder and Parker heard the case and decided Mrs. Browning probably had a right to privacy that would allow the guardian to withdraw the life-sustaining tubes. But that case went on to the Florida Supreme Court because of the importance of the right-to-die question.

None of the six 2nd DCA judges on the ballot ever have received strong reaction from the public criticizing a decision, they said.

"We're pretty much bound by precedent," Danahy said. "We just consider ourselves legal scholars toiling in the vineyards. We don't consider ourselves liberal or conservative."