Odor in the Court

By state law, judges get elected just like politicians -- a system so idiotic it's criminal. Will somebody please reproach the bench?

Over the years, as it has dawned on lawmakers that judges should be responsible ultimately to the law, and not the public, a number of states have reverted to a system of appointments. Most use a plan called merit selection and retention, which requires potential judges to be screened by a nominating committee, then appointed by the governor. After a judge's first term (four years for county judges, six for circuit in Florida), the public gets the opportunity to boot him or her out of office via a direct yes/no vote.

Not one of the 30 states that has abandoned elections in favor of merit appointments has ever gone back.

In Florida, such a move would require a constitutional amendment approved by a majority of voters. In 1976 the public okayed appointment for appellate judges. Two years later we were given the opportunity to eliminate county and circuit court elections. But the measure was listed on the same ballot as a slate of unpopular proposals, and it lost by 37,000 votes in statewide balloting of 2.15 million.

Every imaginable advocate -- from the American Bar Association to the Florida Bar to the League of Women Voters to Gov. Lawton Chiles -- endorses merit selection. The legislature has commissioned a handful of studies on the subject, all of which concur. The plan, however, has never gained momentum in Tallahassee. Since 1978, of the dozen bills introduced to eliminate elections, not one has passed both houses.

The reasons are various. Many believe there is not sufficient money, or political capital, at stake. "Legislatures look at it as a nonissue in terms of votes," says consultant Levy, who lobbies in Tallahassee.

"Legislators from rural districts and the condo areas actually favor elections," says John Cosgrove (D-South Dade), state representative and a strident advocate of merit selection. "Their constituents like judges to come beg for votes."

Virtually no one, though, still defends elections on their merits. History has hollowed the old arguments:

Voters should have the right to elect judges. How can they when only 17 of this season's 47 races are contested, and when less than 10 percent of Dade's population vote in these?

Elections produce good judges. Wrong. Judicial records indicate that 90 percent of the judges disciplined in Florida in the past three decades were originally elected. Every single judge kicked out of office since 1966 was originally elected. Actually, because appointments are made when a seat opens between elections, the strongest candidates generally apply for these positions to avoid the nightmare of elections. The appointment process, as a result, draws from a larger and more talented pool of hopefuls who are judged on their merits. They are more respected by lawyers than their elected brethren, and score higher in the bar poll.

Elections weed out poor judges. The all-time doozy. Consider Judge S. Peter Capua. His allies are fond of pointing out what a nice guy Capua is. They also sigh frequently and note how difficult this election season has been for him, what with his wife in the hospital and all. They are less eager to point out why Capua should be re-elected.

His bar-poll ratings are consistently abysmal. Though he was appointed seven years ago, he was reprimanded the following year by the Judicial Qualifications Commission, the agency that oversees judges' ethical conduct. He allegedly ordered a shift commander at the Dade County Jail to release his son -- who had been arrested for breaking into his girlfriend's apartment and striking her -- without a bond hearing. The JQC also cited Capua for numerous financial improprieties relating to his practice as a lawyer.

Capua concedes these issues might account for the two opponents he has drawn. But he remains confident he will prevail. He has, like other challenged incumbents, taken his entire month of paid vacation to campaign. He has rented a campaign office on Coral Way. And he has been holding fundraisers since October. Some 600 attorneys have coughed up the lion's share of his $85,000.

Other points in his favor, as enumerated by Capua in an interview for this story:

He has been working since he was nine years old.
He was raised in the Bronx.
He has an excellent record on appeals of his rulings.
He has sentenced a man to the death penalty.

"I want to conclude by saying one more thing, because this is important," he stresses. The judge pauses. "Um, I seem to have forgotten what I was going to say."

Wedged into a tan suit, hair combed over his skull in spaghetti strands, candidate Ron Smith does not look happy.

Running for circuit court against Judge Michael Chavies (one of Dade's six incumbent black judges), Smith has just mounted the platform to speak at a B'Nai B'rith Bench and Bar Unit candidate's forum at the downtown Marriott. The dinner, considered a cut above the standard condo cameos, has attracted a gaggle of sitting judges, plus other dignitaries from the world of judicial politics, a world whose Jewish population figures prominently.

Smith wraps the microphone in a meaty fist. The beginning of his speech consists primarily of mumbles and coughs. Presently, he pauses.

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