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Oversight of judges' campaigns heats up

Of the five cases currently before the state's Judicial Qualifications Commission, three deal with the campaign tactics of judges. The JQC, responsible for investigating and trying members of the bench for assorted forms of misbehavior, also recently handed down fines of $50,000 and $40,000, suspensions and reprimands to two other judges for campaign violations of the judicial code of ethics.

The JQC receives 450 to 500 complaints against judges each year, said Brooke Kennerly, the commission's executive director. Roughly 80 percent are dismissed because of lack of jurisdiction. Of the remaining complaints, the JQC will charge judges in five or six cases, she said.

"This was a big year for campaign stuff," Kennerly said. "It's going that way across the country."

Richard McFarlain began representing judges before the JQC in 1976 at the rate of two or three a year. McFarlain, now the commission's chairman, said in that time he never handled a complaint about a judge's campaign practices.

Historically the JQC has charged judges with, among other misdeeds, abuse of power, making lewd sexual advances, getting drunk, dancing sans pants or some combination of acts thereof.

But as a 2002 U.S. Supreme Court ruling has potentially let politics into judicial races, the JQC is responsible for holding the line on keeping partisan politics out of judicial races. Pasco County Circuit Judge John Renke III has pending charges for campaign flyers that the commission's investigative panel says are inaccurate. There are also alleged indulgences in partisan politics.

The JQC also has charges against Marion County Circuit Judge Carven Angell for partisan political activities.

At the JQC's recommendation, the state Supreme Court fined Escambia County Court Judge Patricia Kinsey $50,000 for nine ethical violations during her campaign for the bench. She also received a reprimand for the offenses, which included statements such as "police officers expect judges to take their testimony seriously and to help law enforcement by putting criminals where they belong . . . behind bars!"

The Supreme Court removed Manatee County Judge Matthew McMillan from the bench in 2000 at the JQC's recommendation after it found that he had, among other things, misrepresented his opponents' record and written another judge, saying he "would always have the heart of a prosecutor."

Such rules on campaigning are needed as partisan campaigns can taint the perceived fairness of judges, said Marvin Barkin, a lawyer from Tampa who serves as special counsel to the JQC. He served as the JQC's counsel in the McMillan case.

The stronger, more political the campaign statements, "the more likely they are to have charges brought against them," Barkin said.

David Bogenschutz, an attorney from Fort Lauderdale who has represented judges before the JQC, said that judges "just don't understand that you can't go to partisan functions."

But the U.S. Supreme Court ruled in June 2002 that Minnesota could not stop judicial candidates from speaking about controversial issues. They just couldn't say how they would rule on a case.

The American Bar Association is looking at modifications to state judicial canons to bring them in line with the ruling, Barkin said.

Yet, McFarlain said, Florida's judicial canons are more narrowly defined than "the laws that got slammed" by the Supreme Court. Nor does he believe the Minnesota case has translated into judicial candidates testing the water with questionable campaign statements.

"Maybe we just started getting more complaints," he said of the current campaign-related cases. As word of steep fines and serious punishment reaches the more than 800 state judges, McFarlain said, he expects the number of campaign violations to drop.

But the JQC isn't looking to kick judges off the bench, Bogenschutz said. The panel hears "some fairly hot issues," but the hearings are thoughtful and contemplative, he said. The panel will sometimes go over the charges for days at a time before issuing a recommendation, if at all, to the state Supreme Court for discipline.

That's not to say the hearings don't rattle some nerves. Bogenschutz remembered the first JQC hearing he attended in a conference room at the Tampa International Airport. Only the middle of the room was lit while the hearing panel sat against the walls, their faces shrouded in partial darkness.

McMillan nearly fainted during his hearing, according to news reports, and another judge reportedly left a Tallahassee hearing in tears.

_ Richard Raeke covers courts in west Pasco County. He can be reached in west Pasco at 869-6236, or toll-free at 1-800-333-7505, ext. 6236. His e-mail address is rraekesptimes.com.

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