One of the things voters seem to care about is whether Donald Trump or Hillary Clinton will be the President who nominates the next appointees to the U.S. Supreme Court. And with good reason.
But what about judges who serve closer to home?
Maybe you haven’t noticed, but there has been almost no public discussion of the selection of judges who preside over cases in our county and circuit courts, state appellate courts and Florida Supreme Court.
That’s typical, even with two seats on the 19th Judicial Circuit bench up for grabs, six candidates vying for them and the election only days away.
Judicial elections, which are non-partisan, historically draw far less media scrutiny and community attention than other local government races. As a result, voters tend to know very little about the candidates.
Most don’t seem to care.
“Most people don’t have much interaction with the courts, so they don’t really think about it,” said Bruce Colton, our longtime state attorney and a Vero Beach resident. “Unless you’re involved in the legal system, or know someone who is, you probably don’t know very much about the judges or lawyers that are running.
“For people to vote intelligently, they really need to make the effort, and most people aren’t going to work that hard,” he added. “There are public forums, and some candidates do meet-and-greets, but the average person is too busy, doesn’t have the time or has other priorities.
“It’s a shame, too, because what these judges do is important.”
County and circuit court judges preside over local trials and hearings in both criminal and civil cases. Most are elected, but some are appointed by the governor if a new seat is created or when an existing judge resigns, retires or dies.
Florida Supreme Court justices and appellate court judges – our circuit belongs to the Fourth District Court of Appeal in West Palm Beach – are appointed to six-year terms by the governor. However, jurists who want to stay on the bench are subject to merit-retention elections in which they must receive a majority of ballots marked “yes” by voters to earn another term.
Since this system was implemented in 1976, no justice or appellate judge has failed to be retained. That’s not surprising, given that focus-group research conducted in 2012 on behalf of the Florida Bar revealed that 90 percent of the participating voters didn’t understand what “merit retention” meant.
“It’s very difficult to remove an appellate judge through the merit-retention system,” said Dan Vaughn, who spent 10 years as a St. Lucie County judge before being appointed in 2000 to the circuit court bench, where he still sits. “People don’t know them, so they don’t know how to vote.”
On the local level, too, judges often go unchallenged when seeking re-election. Both Indian River County judges have enjoyed long tenures: Joe Wild since 1989; David Morgan since 1997.
Next week, though, two circuit judge seats are up for election: Incumbent Jim McCann is being challenged by Fort Pierce attorney Beth Allen; and four lawyers – Bob Meadows and Kiernan Moylan of Vero Beach, Leonard Villafranco of Port St. Lucie and Michael McNicholas of Stuart – are seeking to replace F. Shields McManus, who is not seeking re-election because he would reach the mandatory retirement age of 70 early in his next term.
“Most of the time – I’d say 90 percent or better – incumbent judges run unopposed,” Vaughn said. “I ran the first time in 1990, and I’ve been on the ballot five times since with no opposition.”
And on those rare occasions when judges are challenged, how do voters decide?
Not all of them do.
A review of election results, dating back to 2008, revealed that judicial elections are prone to a sizable undervote – meaning that county residents who voted in other races on the ballot opted to not choose any of the candidates for judge.
“If you look at the numbers,” county Supervisor of Elections Leslie Swan said, “you’ll see fewer people voted in the judges’ races than most of the others.”
In the 2014 primary, for example, Circuit Judge Michael Heisey’s victory over Fort Pierce attorney Steve Ziskinder included an undervote of 2,404, and Dwight Geiger’s back-from-retirement victory over Fran Ross and Faith Litvack in the 2008 primary produced an undervote of 3,545 – significantly higher than the undervote for other races on the ballot.
It was in the 2008 general election, however, that a massive undervote likely impacted the outcome of a judicial election. Geiger returned to the circuit bench, winning by only 101 votes in a race that produced an undervote of 18,378.
“Judicial elections are different from other elections,” said Deputy County Attorney Bill DeBraal, who also serves as the president of the Indian River County Bar Association. “Candidates have to operate under a different set of rules.
“They can talk about themselves and their qualifications, including their education and professional background,” he added, “but they cannot be critical of another candidate.”
Nor can they make predictions and promises about issues that could arise if they were on the bench, because they’re supposed to be impartial and make decisions based on the law, without regard for personal beliefs or political agendas.
“It’s especially tough to campaign as a sitting judge,” DeBraal said. “You can’t talk about your rulings or sentences as achievements, as you might if you were a candidate for a different office. So, really, you’re running with one hand tied behind your back.”
You won’t find many news stories about judicial candidates – because they can’t say much of what you’ll hear from other politicians.
“I’d imagine,” DeBraal said, “the readers wouldn’t find it very interesting.”
Even less compelling would be stories about appellate judges from somewhere else. Be honest: Can you name ANY of the justices on the Florida Supreme Court?
And just so you know: DeBraal said the county bar association, which has about 160 members, does not endorse judicial candidates or make recommendations regarding appellate and state Supreme Court judges.
So for those of us who don’t have the time to research all six circuit judge candidates on next week’s ballot, how are we supposed to know who to vote for?
Ask people you know in the local legal system – lawyers, clerks, bailiffs, judges, even the candidates themselves – for their opinions, then formulate your own. That was the advice given by everyone interviewed. They all said they’ve already been approached.
“My problem is, I’ve got to work with the people who are running,” Vaughn said, “so when I get asked, I try to change the subject.”
But as a longtime judge who has been both appointed and elected, he doesn’t want to change the system.
Vaughn opposes those who argue that, because the public is too often ill-informed about judicial candidates, judges should be appointed rather than elected.
“There’s no perfect way to do it – there are pros and cons to both – but I still prefer elections,” Vaughn said. “Either way you go, it’s going to be political. The way it works now is, if you’ve got a bad judge, you can vote him out . . . we shouldn’t give away our rights to properly elect our representatives.”
Even when most of the voters are guessing?
