Motion for Leave to File Brief and Brief of Amici Curiae Florida Conference of Circuit Judges

    Nos. 90-813 and 90-974 
  
  

In The 

Supreme Court of the United States 
October Term, 1990 

HOUSTON LAWYERS ASSOCIATION, et al. 
Petitioners, 

  

VS. 

ATTORNEY GENERAL OF TEXAS, et al. 

Respondents. 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al. 

Petitioners, 

  

VS. 

ATTORNEY GENERAL OF TEXAS, et al. 

Respondents. 
é 
v 

On Writ Of Certiorari To The United States Court Of 
Appeals For The Fifth Circuit 

VN 
v 

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF 
OF AMICI CURIAE FLORIDA CONFERENCE OF 
CIRCUIT JUDGES, CONFERENCE OF COUNTY 

JUDGES OF FLORIDA, AND THE FLORIDA BAR 
IN SUPPORT OF RESPONDENTS 

b- 
> 4 

  

  

  

RonaLb A. LaBasky JouNn FE. HARkNESS, JR. 

(Counsel of Record) Executive Director 
JENNIFER PARKER LAVIA The Florida Bar 
PARKER, SKELDING, LABAsky 650 Apalachee Parkway 

& CORRY Tallahassee, Florida 32399 
Post Office Box 669 (904) 561-5600 
Tallahassee, Florida 32302 Ww FB 

(904) 222-3730 ILLIAM FEF. BLEwWS 

Florida Bar Legislation 
Post Office Box 417 
St. Petersburg, Florida 33731 
(813) 822-8322 

Counsel for Amici Curiae 
Florida Conference of 
Circuit Judges and Conference 
of County Court Judges 

of Florida 

(Additional Counsel Listed On Inside Cover) 

  

  

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831  



  

James Fox MILLER, President 
The Florida Bar 
Post Office Box 7259 
Hollywood, Florida 33081-1259 
(305) 962-2000 

Benjamin H. Ho III 

President-Elect, Florida Bar 
Post Office Box 2231 
Tampa, Florida 33601 
(813) 221-3900 

  

Paul F. Hui 
General Counsel, 
The Florida Bar 
650 Apalachee Parkway 
Tallahassee, Florida 32399 

(904) 561-5600 

BARRY S. RICHARD 
Of Counsel, Florida Bar 
Post Office Drawer 1838 
Tallahassee, Florida 32301 
(904) 222-6891 

 



Nos. 90-813 and 90-974 

é 
v 

In The 

Supreme Court of the United States 
October Term, 1990 

y's 
h 4 

  

  

HOUSTON LAWYERS ASSOCIATION, et al. 

Petitioners, 

VS. 

ATTORNEY GENERAL OF TEXAS, et al. 

Respondents. 
  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al. 

Petitioners, 

VS. 

ATTORNEY GENERAL OF TEXAS, et al. 

Respondents. 
a 

bh, 

On Writ Of Certiorari To The United States Court 

Of Appeals For The Fifth Circuit 

VN 
>, 4 

MOTION FOR LEAVE TO FILE BRIEF OF 
AMICI CURIAE FLORIDA CONFERENCE OF 

CIRCUIT JUDGES, CONFERENCE OF COUNTY 
JUDGES OF FLORIDA, AND THE FLORIDA BAR 

IN SUPPORT OF RESPONDENTS 

o 
> 4 

  

  

  

The Florida Conference of Circuit Judges, the Confer- 

ence of County Judges of Florida, and The Florida Bar, by  



  

undersigned counsel, move the Court for leave to file a 

brief of amici curiae in support of Respondents and as 

grounds therefor would show: 

1. The Florida Conference of Circuit Judges is an 

association of all active and retired circuit judges of Flor- 

ida which is responsible for making recommendations to 

the state supreme court to improve the state judicial 

system. 

2. The Conference of County Judges of Florida was 
created for the purpose of the improvement of the state 

judicial system. 

3. The Florida Bar is an official arm of the Supreme 

Court of Florida. The Bar consists of all attorneys licensed 

to practice law in the state. One of the purposes of the Bar 
is the improvement of the administration of justice. 

4. The Conferences and the Bar support the position 

of Respondents that section 2 of the Voting Rights Act 

does not apply to elections of trial judges. 

5. The Conferences and the Bar request leave to file 
a brief of amici curiae to bring to this Court’s attention the 

detrimental impact which would result in the State of 

Florida if section 2 of the Voting Rights Act is interpreted 

to require single-member districts in elections of trial 

judges, and do not believe that such impact will be pre- 
sented to the Court by any of the parties currently per- 

mitted to file briefs in this action. 

6. The Conferences and the Bar have made a good 

faith effort to obtain the permission of the parties to file a 
brief, but such permission has been denied by League of 

United Latin American Citizens. Permission has been 

   



granted by Houston Lawyers’ Association, Jesse Oliver, 

Judge FE. Harold Entz, Tom Rickhoff, Susan D. Reed, John 

J. Specia, Jr., Sid L. Harle, Sharon Macrae, and Michael P. 

Peden, Bexar County Texas State District Judges, Judge 

Sharolyn Wood, and the Attorney General of Texas as per 

accompanying letters. 

WHEREFORE, The Florida Conference of Circuit 

Judges, The Conference of County Judges of Florida, and 

The Florida Bar respectfully request leave to file a brief of 

amici curige in support of Respondents. 

Respectfully submitted, 

RoNnaLD A. LABAsky 
(Counsel of Record) 
JENNIFER PARKER LAVIA 
PARKER, SKELDING, LABAskY 

& CORRY 
Post Office Box 669 
Tallahassee, Florida 32302 
(904) 222-3730 
Counsel for amici curiae 
Florida Conference of Circuit 

Judges and Conference of 
County Judges of Florida 

 



  

JouN F. HARkNESs, JR. 
Executive Director 
The Florida Bar 
650 Apalachee Parkway 
Tallahassee, Florida 32399 
(904) 561-5600 

James Fox MILLER, President 
The Florida Bar 
Post Office Box 7259 
Hollywood, Florida 

33081-1259 
(305) 962-2000 

Benjamin H. Hip III 
President-Elect, Florida Bar 
Post Office Box 2231 
Tampa, Florida 33601 

(813) 221-3900 

  

WiLLiaM EF. BLEws 

Florida Bar Legislation 
Post Office Box 417 
St. Petersburg, Florida 33731 
(813) 822-8322 

Paul F Hn 

General Counsel 
The Florida Bar 
650 Apalachee Parkway 
Tallahassee, Florida 32399 

(904) 561-5600 

BARRY S. RICHARD 
Of Counsel, Florida Bar 
Post Office Drawer 1838 
Tallahassee, Florida 32301 
(904) 222-6891 

 



Nos. 90-813 and 90-974 

FN 
v 

In The 

Supreme Court of the United States 
October Term, 1990 

  

  

HOUSTON LAWYERS ASSOCIATION, et al. 

Petitioners, 

VS. 

ATTORNEY GENERAL OF TEXAS, et al 

Respondents. 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al. 

Petitioners, 

VS. 

ATTORNEY GENERAL OF TEXAS, et al. 

Respondents. 

  

é& 
>) 4 

On Writ Of Certiorari To The United States Court Of 
Appeals For The Fifth Circuit 

  

o 
v 

BRIEF OF AMICI CURIAE FLORIDA CONFERENCE 
OF CIRCUIT JUDGES, CONFERENCE OF COUNTY 
COURT JUDGES OF FLORIDA, AND THE FLORIDA 

BAR IN SUPPORT OF RESPONDENTS 

  
o- 
v  



   
 

  



TABLE OF CONTENTS 
Page 

TABLE OFCONTENTS ic. thi vii reinn 5 i 

TABLEOF AUTHORITIES... ee ees ii 

INTEREST OF THE AMICI CURIAE............... 1 

SUMMARY OF THE ARGUMENT ............. 0." 2 

ARGUMENT. f, . i tprnae ss soso sos haninns ihn 3 

1. THE PLAIN LANGUAGE OF 42 U.S.C. §1973 
EXCLUDES WDGES.......0cconsiecrinnce. 3 

nN. VOTE DILUTION CLAIMS DO. NOT :APPLY 
TO JUDGES WHO HOLD SINGLE-MEMBER 
OFERICES or nis vss io nsisrsnsaieinnsisssiwe os 15 

CONCLUSION: Ee se ce 18 

 



  

ii 

TABLE OF AUTHORITIES 
Page 

Cases 

Buchanan v. Gilligan, 349 ESupp. 569 (N.D. Ohio 
Lyssa ioeReY HE anal Le le Sl ane a 6, 7 

Butts v. City of New York, 779 F.2d 141 (QQd Cir. 
BEE SE Th Bbc hn rr lees 3, 16 

Concerned Citizens v. Pine Creek Conservancy Dis- 
trict, 473 F.Supp. 334 (8.D. Ohio 1977) ........... 6, 7 

Concerned Democrats v. Reno, 458 ESupp. 60 (S.D. 
Fla. 1978), rev'd on other grounds, 601 F.2d 891 
ATU Le Sl LT el i an el Sg ei 11 

Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) ..... 6 

Holshouser v. Scott, 335 F.Supp. 928 (IM.D.N.C. 
1971), aff'd mem., 409 U.S. 807 (1972)............-- 6 

In re The Florida Bar — Code of Judicial Conduct, 281 
So. 2d 21 (1973), modified on other grounds, 348 
So. 2A 891 (Fla. 1977). suri ver cnviiviasnsinrnnvss 8 

LULAC v. Clements, 914 F.2d 620 (5th Cir. 1990) (en 
tye) STE Ee RE SE ae a 6 8 12 17 

Mobile v. Bolden, 446. 11.5. 35 (1980). . ......... cc... 2. 4 

Sagan v. Commonwealth of Pennsylvania, 542 F.Supp. 
S30 CWND. Pa. 108), iain 6, 7 

Stokes v. Fortson, 234 F.Supp. 575 (N.D. Ga. 1964) ..... 7 

Thornburg v. Ginoles, 473 U.S. 30 (1986) ............ 3 4 

United States v. Dallas County Commission, 850 F.2d 
1433 LI Cir 1988)... ie ih iii sive vias in ians 18 

   



iii 

TABLE OF AUTHORITIES - Continued 
Page 

Wells v. Edwards, 347 ESupp. 453 (M.D. La. 1972), 
aff'd-mem., 409 11.8: 1095 (1973) .. .uiosssters ition shies 8,7 

White v.-Regester, 412 U.S. 755 (1973)... 5 0 bc ais 3,5 

CONSTITUTIONS 

Bla. -Consk- att, § or BB eee, 15 

Fla. cConstiart IN eS 7 0. css is ass tars ss 13 

Fla. Const. art. ¥, § 11.0... 0. .... oie. dv. Jian 14 

Fla. Const. art. V, 8 11(d).......... 8... 288000), 14 

HFla.. Const. art. V, 8. 12(a). .... Hid. asst l i von 12 

Fla. Const. art. :V, S120) 0. 8 7 00 un. 00000 13 

Fla, Const. art. V. 8 120). ...co. cies ici versngs anny 13 

FlasConst. arte VV, Sed20d). . 0a sone oidnsinm®e vais ase on 13 

Fla. Const-art. V, 891200) ....o...... 00 BS 13, 14 

Fla, Const. art. VS 15. i. cisies esr: ivarssssnastns 1 

STATUTES 

Federal 

2:18.C. 8.7973 (A978)... 0 sa Bm 6 4 

AUS C. S107)... i i iii is entrees 2,5 

State 

Fa R Ind. Admin. 2.020. ...... 0.5 cicivneicrssinh: 1 

Pla. Stat 8 20.50, . ve sitive inant cn int anit tren 1 

Bla Slat S340%2 0. aE 16  



  

iv 

TABLE OF AUTHORITIES - Continued 

Fla: StatS 103.0112)» i. i. .qucii of. sumnii. 

Fla. Stat. § 105.0033)... ..... vi... cess adil 

Fla Stal S 10B.071. ... cs eisai es enivonns 

Flas Sia, 8105.09... ise arvers rns snares 

Rules Regulating The Florida Bar 1-2 .....0 vc. 

Rules Regulating The Florida Bar — General Intro- 
AUCHION. .. fo. rar cr Sera es 

SECONDARY MATERIALS 

Little, An Overview of the Historical Development of 
the Judicial Article of the Florida Constitution, 19 
Stel. I.. Rev. 1, 40 (Fall 1989) .............. 20 

   



INTEREST OF THE AMICI CURIAE 

The Florida Conference of Circuit Judges is an entity 

created by Florida law. Fla. Stat. § 26.55. Its members are 

all 421 active and all retired circuit judges of the state. Id. 

§ 26.55(1). The Conference is responsible for making rec- 
ommendations to the state supreme court to improve the 

state judicial system. Id. § 26.55(3). The Conference of 
County Judges of Florida was created by rule of the 

Supreme Court of Florida with the stated purpose of the 
“betterment of the judicial system of the State.” Fla. R. 

Jud. Admin. 2.120. Its members are the 242 county judges 

of Florida. Together the Conferences of Circuit and 

County Judges constitute the trial judges of Florida. The 

Florida Bar is an official arm of the Supreme Court of 

Florida charged with the discipline of all attorneys 

licensed to practice law in the State of Florida. Fla. Const. 

art. V, § 15; Rules Regulating The Florida Bar — General 

Introduction. Among the Bar’s chartered purposes is the 

improvement of the administration of justice. Rules Regu- 

lating The Florida Bar 1-2. The issue raised in this case 

directly impacts upon the quality of legal services that 

may be accorded the people of Florida and is considered 

an especially appropriate matter for commentary from 

The Florida Bar. The Conferences and The Florida Bar 

have a vital interest in preventing the inevitable harm to 

the Florida judicial system if 42 U.S.C. § 1973 is inter- 

preted to require subdistricting in the elections of trial 

judges. 

  KY  



  

SUMMARY OF THE ARGUMENT 

In response to this Court’s holding in Mobile v. 

Bolden, 446 U.S. 55 (1980), Congress amended section 2 of 

the Voting Rights Act to provide that a violation may be 

shown by proving a discriminatory effect alone. Congress 

did not intend that section 2 of the Voting Rights Act as 

amended apply to trial court judges. The plain meaning 

of the amendment to the statute controls, thereby obviat- 

ing the need for resort to the legislative history. 

The specified statute provides that a violation is 

shown if, based on the totality of the circumstances, it is 
shown that a protected class of citizens has less oppor- 

tunity than other electors “to participate in the political 

process” and “to elect representatives of their choice.” 42 

U.S.C. § 1973(b) (emphasis added). At the time of the 
amendment numerous federal courts had stated that 

judges are not representatives. Congress is presumed to 

know of the judicial construction of existing law. There- 

fore, it must be presumed that Congress was aware when 

it chose the word “representative” rather than another, 

broader term, that it was specifying that judges were not 

to be within the scope of that section of the Act. As will 

be shown by a review of the relevant case law and 

specific reference to provisions governing judges in Flor- 

ida, judges are not “representatives” and are, therefore, 

not included within the ambit of the Act. 

Even if the Act is construed to include judges within 
its reach, vote dilution claims do not apply to trial judges 

because such judges hold single-member offices. Since 
the office of a judge is indivisible, capable of being held 
by only one person, the electorate cannot be divided into 

   



subdistricts. Therefore, the en banc decision of the Fifth 

Circuit Court of Appeals should be affirmed. 

  

VN 
v 

ARGUMENT 

I. THE PLAIN LANGUAGE OF 42 U.S.C. § 1973 
EXCLUDES JUDGES 

The issue before this Court is whether section 2 of the 

Voting Rights Act applies to elections of trial judges. For 

reasons which follow, amici curiae respectfully request 

this Court to affirm the en banc decision of the court 

below that section 2 does not apply to trial judges. 

The Voting Rights Act “is directed at procedures that 

deny racial minorities a fair opportunity to participate in 

the electoral process, and not at those that may have the 

result of reducing the likelihood that a minority will elect 

its preferred candidate to a single-member office.” Butts 

v. City of New York, 779 F.2d 141, 151 (2d Cir. 1985). “The 

essence of a § 2 claim is that a certain electoral law, 

practice, or structure interacts with social and historical 

conditions to cause an inequality in the opportunities 

enjoyed by black and white voters to elect their preferred 

representatives.” Thornburg v. Gingles, 478 U.S. 30, 47 
(1986). This Court and numerous commentators agree 

that multi-member districts and at-large voting schemes 

may prevent minorities from electing the representatives 

of their choice. Id. at 47-48. However, “multimember dis- 

tricts are not per se unconstitutional.” White v. Regester, 

412 U.S. 755, 765 (1973). In the case of judges, multi- 

member districts are not unconstitutional because judges 

are not “representatives” and because judges hold single-  



  

member offices. The majority in the lower court accepted 

the former contention and, therefore, did not reach the 

latter, which was relied on by the concurrence. 

The Voting Rights Act, prior to the 1982 amendments, 
read as follows: 

No voting qualification or prerequisite to vot- 
ing, or standard, practice, or procedure shall be 
imposed or applied by any State or political 
subdivision to deny or abridge the right of any 
citizen of the United States to vote on account of 
race or color or in contravention of the guaran- 
tees set forth in section 1973b(f)(2) of this title. 

42 U.S.C. § 1973 (1975). This Court held that to prove a 

violation of the Act, minority voters must prove that the 

challenged voting practice was adopted intentionally for 

a discriminatory purpose. Mobile v. Bolden, 446 U.S. 55 

(1980). In response, Congress amended the statute in 1982 

to “make clear that a violation could be proved by show- 

ing discriminatory effect alone.” Thornburg, 478 U.S. at 35. 
The statute as amended reads as follows: 

(a) No voting qualification or prerequisite 
to voting or standard, practice, or procedure 
shall be imposed or applied by any State or 
political subdivision in a manner which results 
in a denial or abridgement of the right of any 
citizen of the United States to vote on account of 
race or color, or in contravention of the guaran- 
tees set forth in section 1973b(f)(2) of this title, 
as provided in subsection (b) of this section. 

(b) A violation of subsection (a) of this 
section is established if, based on the totality of 
circumstances, it is shown that the political pro- 
cesses leading to nomination or election in the 
State or political subdivision are not equally 
open to participation by members of a class of 

   



citizens protected by subsection (a) of this sec- 
tion in that its members have less opportunity than 
other members of the electorate to participate in the 
political process and to elect representatives of their 
choice. The extent to which members of a pro- 
tected class have been elected to office in the 
State or political subdivision is one circumstance 
which may be considered: Provided, That noth- 
ing in this section establishes a right to have 
members of a protected class elected in numbers 
equal to their proportion in the population. 

42 U.S.C. § 1973 (emphasis added). The italicized lan- 

guage of subsection (b) is substantially identical, with 

one glaring exception, to the following italicized lan- 

guage in Justice White's opinion in White v. Regester, 412 

U.S. at 766: 

The plaintiff's burden is to produce evidence to 
support findings that the political processes 
leading to nomination and election were not 
equally open to participation by the group in 
question — that its members had less opportunity 
than did other residents in the district to participate 
in the political processes and to elect legislators of 
their choice. 

Id. (emphasis added). A comparison of the italicized por- 

tions of the statute and the opinion reveals that the only 

significant change is that instead of saying “to elect legis- 

lators of their choice,” Congress said, “to elect representa- 

tives of their choice.” It is hard to believe that Congress 

carelessly chose a word to replace “legislators.” The fact 

that Congress chose the word “representatives” instead 

of some broader term such as “candidates” or “public 

officials” leads to the inescapable conclusion that Con- 

gress did not intend to include judges within the mandate  



  

of the statute. The well-established judicial construction 

of the term “representatives,” at the time of the amend- 

ment, did not include judges. See, e.g., Sagan v. Common- 

wealth of Pennsylvania, 542 ESupp. 880 (W.D. Pa. 1982); 

Concerned Citizens v. Pine Creek Conservancy District, 473 

ESupp. 334 (S.D. Ohio 1977; Buchanan v. Gilligan, 349 

ESupp. 569 (N.D. Ohio 1972); Wells v. Edwards, 347 

ESupp. 453 (M.D. La. 1972), aff'd mem., 409 U.S. 1095 

(1973); Holshouser v. Scott, 335 ESupp. 928 (M.D.N.C. 

1971), aff'd mem., 409 U.S. 807 (1972). Congress is gener- 

ally presumed to be “knowledgeable about existing law 

pertinent to the legislation it enacts.” Goodyear Atomic 

Corp. v. Miller, 486 U.S. 174 (1988). Therefore, presumably 

Congress knew when using the word “representatives,” it 

would not include judges within the reach of the statute. 

One cannot assume that Congress made such a choice 

lightly. Thus, the majority in the court below found it “all 

but impossible to avoid the conclusion that Congress 

intended to apply its newly imposed results test to elec- 

tion for representative, political offices but not to vote 

dilution claims in judicial contests. . . . ” LULAC v. Clem- 

ents, 914 F.2d 620, 628 (5th Cir. 1990) (en banc). 

The lower court herein concluded that “to suggest 

that Congress chose ‘representative’ with the intent of 

including judges is roughly on a par with suggesting that 

the term night may, in a given circumstance, properly be 

read to include day.” Id. at 629. Given the clarity of the 

statute, the majority stated, “In the words of Justice 

Frankfurter, writing for a unanimous court in Greenwood 

v. United States, it appears to us that ‘this is a case for 

applying the canon of construction of the wag who said, 

   



  

when the legislative history is doubtful, go to the statute.’ 

350 11.8. 366,374 (1955).” Id. at 630. 

The unremarkable notion that judges are not repre- 

sentatives accords with traditional notions of the role of 

judges in American government. This is reflected in the 
cases decided before the 1982 amendment which con- 

clude that judges are not representatives. In holding that 

the one-man, one-vote rule does not apply to judges, a 

Louisiana district court, in a decision affirmed by this 

Court, cited the purpose of the rule as being “to make 

sure that each official member of an elected body speaks 
for approximately the same number of constituents.” 

Wells v. Edwards, 347 E.Supp. at 455; see also Concerned 

Citizens v. Pine Creek Conservancy District, 473 F. Supp. 

334, 337 (S.D. Ohio 1977) (quoting Wells). The court con- 

cluded that since judges do not speak for constituents, 

the one-man, one-vote rule does not apply to the judici- 

ary. Wells, 347 ESupp. at 455. “The state judiciary is not 
responsible for achieving representative government.” 

Buchanan v. Gilligan, 349 F.Supp. 569 (N.D. Ohio 1972). 
“Manifestly, judges and prosecutors are not representa- 

tives in the same sense as are legislators or the executive. 

Their function is to administer the law, not to espouse the 

cause of a particular constituency.” Stokes v. Fortson, 234 

ESupp. 575, 577 (N.D. Ga. 1964); see also Sagan v. Common- 

wealth of Pennsylvania, 542 F. Supp. 880, 882 (W.D. Pa. 

1982) (quoting Stokes). 

An examination of Florida provisions governing 

judges illustrates that judges are not intended to be “rep- 

resentatives.” The Code of Judicial Conduct governing 
Florida judges recognizes the appropriate role of judges. 

The Code, based on the American Bar Association Code  



  

of Judicial Conduct, adopted by the Supreme Court of 

Florida in 1973, is replete with admonitions against par- 

tiality on the part of judges. In re The Florida Bar — Code of 

Judicial Conduct, 281 So. 2d 21 (Fla. 1973). Canon 1 pro- 

vides: 

An independent and honorable judiciary is indis- 
pensable to justice in our society. A judge 
should participate in establishing, maintaining, 
and enforcing, and should himself observe, high 
standards of conduct so that the integrity and 
independence of the judiciary may be preserved. 
The provisions of this Code should be construed 
and applied to further that objective. 

Id. at 23 (emphasis added). Canon 3 sets forth more 

explicitly the requirement that judges not be responsive to 

constituents: “A judge should be faithful to the law and 

maintain professional competence in it. He should be 

unswayed by partisan interests, public clamor, or fear of criti- 

cism.” Id. at 24 (emphasis added). Thus, partisan politics 

must play no role in the decision making process of a 

judge. This ideal prompted the lower court herein to note: 

“To describe the judge’s office merely as ‘not a represen- 

tative one’ is a gross understatement; in truth, it is rather 

the precise antithesis of such an office. Just insofar as a 

judge does represent anyone, he is not a judge but a 

partisan.” LULAC, 914 F.2d at 628. Additionally, the per- 

missible campaign conduct of judicial candidates is cir- 

cumscribed by the Code: 

A candidate, including an incumbent judge, for 
a judicial office that is filled either by public 
election between competing candidates or on 
the basis of a merit system election: 

   



* * * 

should not make pledges or promises of conduct 
in office other than the faithful and impartial 
performance of the duties of the office; 
announce his views on disputed legal or politi- 
cal issues; or misrepresent his identity, qualifica- 
tions, present position, or other fact. 

281 So. 2d at 32 (emphasis added). Thus, a judicial candi- 

date may not properly campaign based on a promise to 

represent any particular constituency or viewpoint. A 

judge makes only one campaign promise and that is that 

he will remain impartial at all times. Therefore, he cannot 

possibly be said to “represent” any group of people, 
minority or otherwise. No group is entitled to be “repre- 

sented” by a judge; therefore, no group has the right to 
elect a judge of its choice. 

In Florida, supreme court justices and district court 

of appeal judges are appointed. Circuit and county judges 

are currently elected, pursuant to the Florida Constitu- 
tion. Circuit judges have been elected since 1942. County 

judges were elected as early as 1885. Even though some 

Florida judges are elected, Florida has taken steps to 

reduce the political aspects of judicial elections. Florida 

law provides that such elections must be nonpartisan. 

Fla. Stat. § 105.011(2). Reference to political party affilia- 

tion is prohibited on the ballot for judicial office. Fla. Stat. 

§ 105.043(3). Candidates for judicial office may not: 

 



  

10 

(1) Participate in any partisan political party 
activities, except that such candidate may regis- 
ter to vote as a member of any political party 
and may vote in any party primary for candi- 
dates for nomination of the party in which he is 
registered to vote. 

(2) Campaign as a member of any political 
party. 

(3) Publicly represent or advertise himself as a 
member of any political party. 

(4) Endorse any candidate. 

(5) Make political speeches other than in his 
own behalf. 

(6) Make contributions to political party funds. 

(7) Accept contributions from any political 
party. 

(8) Solicit contributions for any political party. 

(9) Accept or retain a place on any political 
party committee. 

(10) Make any contribution to any person, 
group, or organization for its endorsement to 
judicial office. 

(11) Agree to pay all or any part of any adver- 
tisement sponsored by any person, group, or 
organization wherein the candidate may be 
endorsed for judicial office by any such person, 
group, or organization. 

Fla. Stat. § 105.071. Violation of the statute is a first 

degree misdemeanor. Id. It is also a second degree misde- 

meanor for any political party or partisan political orga- 

nization to “endorse support, or assist any candidate in a 

campaign for election to judicial office.” Fla. Stat. 

§ 105.09. A federal district court has held Fla. Stat. 

   



  

11 

§ 105.09 unconstitutional. Concerned Democrats v. Reno, 

458 F.Supp. 60 (S.D. Fla. 1978), rev'd on other grounds, 601 
F.2d 891 (5th Cir. 1979). Although the district court held 

that Florida had a compelling interest “in maintaining the 

non-partisan qualities of its [judicial] elections,” the court 

held that the state had failed to use the least intrusive 

means to achieve that goal. The court’s comments on the 

state’s interest in nonpartisan judicial elections are 

enlightening. The Florida Attorney General's office had 

argued that “the State’s interest was in maintaining the 

integrity and impartiality of the state judiciary.” Id. at 64. 

The district court agreed, stating: 

There can be no question that the state has a 
vital interest in assuring that its judges are free 
from direct political pressure; that they can ren- 
der decisions independent of political ramifica- 
tions; and that they can discharge their duties 
free from the pressure, sometimes subtle and 
sometimes otherwise, that can be applied by 
political groups. 

The court further noted the existence of “an obvious 

interest to both the public and the Legislature in having 

judicial candidates free of the appearance of impropri- 

ety,” and concluded that the “appearance of partisanship 

will hardly foster public confidence in the courts.” Id. at 

65. 

That Florida and other states have provided for elec- 

tion of some judicial officials does not signify that such 

elected officials must, therefore, be representatives. The 

interests of all groups participating in elections of judges 

are the same; the electorate seeks judges who will comply 

with traditional requirements of honesty, integrity, and 

impartiality. Judicial elections are not held to give any  



  

12 

group the opportunity to have its partisan views repre- 

sented. Rather, judicial elections “assure the public that 

the judicial function will be kept accountable to the com- 

mon sense of the electorate.” LULAC, 914 F2d at 632, 

(Clark, C.J., concurring specially). In judicial elections, 

“[i]t is expected that candidates who lack training or a 

reputation for honesty or sound intellect will not be 

elected. In like manner, those who are indolent, will not 

decide cases, or decide erratically will not be re-elected.” 

Id. Thus, the needs of all voters are identical. The goal of 

judicial elections is the attainment of a qualified and 

impartial judiciary. Requiring subdistricting in judicial 

elections does nothing to further that goal; in fact, sub- 

districting has exactly the opposite effect and creates 

judges who are partisans, chosen not for their qualifica- 

tions or integrity, but for their willingness, as perceived 

by the electorate, to represent a particular point of view 

or a particular geographical region. 

In addition, the Florida judicial elections have been 

made less political by the creation of judicial nominating 

commissions and judicial qualifications commissions. 

The judicial qualifications commission is: 

vested with jurisdiction to investigate and rec- 
ommend to the Supreme Court of Florida the 
removal from office of any justice or judge 
whose conduct . . . demonstrates a present unfit- 
ness to hold office, and to investigate and rec- 
ommend the reprimand of a justice or judge 
whose conduct . . . warrants such a reprimand. 

Fla. Const. art. V, § 12(a). The judicial qualifications com- 
mission is composed of six judges (two district court of 

appeal judges, two circuit judges, and two county 

   



  

13 

judges), two electors who are attorneys, and five electors 

who are not attorneys. The judges are chosen by their 

respective courts; the attorneys are chosen by the govern- 

ing board of the Florida Bar and the lay people are 

appointed by the governor! Id. All members of the com- 
mission who are not subject to impeachment may be 

suspended by the governor and removed by the senate. 

Fla. Const. art. V, § 12(c), art.’ IV, § 7. 

The commission is empowered to adopt its own 
rules, which “may be repealed by general law enacted by 
a majority vote of the membership of each house of the 

legislature.” Fla. Const. art. V, § 12(d). The commission's 

proceedings are confidential until the filing of formal 

charges with the clerk of the supreme court. Id. Once a 

formal charge is filed all proceedings are public. Id. With 

seven members concurring, the commission may “recom- 

mend to the supreme court the temporary suspension of 

any justice or judge against whom formal charges are 

pending.” Id. Such suspension may be with or without 

compensation. Id. § 12(f). The supreme court may, upon 

recommendation of two-thirds of the commission mem- 

bers, reprimand, remove, or involuntarily retire a justice 

  

1 The constitution further provides that the members of 
the commission serve staggered terms not to exceed 6 years 
and that no member of the commission except a justice or 
judge is eligible for state judicial office while a member of the 
commission and for 2 years thereafter. Nor may members of 
the commission “hold office in a political party or participate 
in any campaign for judicial office or hold public office.” Fla. 
Const. art. V, § 12(b). As an exception to the last rule, “a judge 
may participate in his own campaign for judicial office and 
hold that office.” Id. The commission elects one of its members 
as chairman. Id.  



  

14 

or judge. Fla. Const. art. V, § 12(f). The constitution 

provides that “Malafides, scienter or moral turpitude on 

the part of a justice or judge shall not be required for 

removal from office of a justice or judge whose conduct 

demonstrates a present unfitness for office.” Id. 

Another effort to reduce the political aspects of Flor- 

ida judicial elections has been the creation of the judicial 

nominating commissions which are responsible for nomi- 
nating candidates to fill vacancies on the supreme court, 

district courts of appeal, circuit courts and county courts. 
Fla. Const. art. V., § 11. A separate judicial nominating 

commission exists “for the supreme court, each district 

court of appeal, and each judicial circuit for all trial 

courts within the circuit.” Fla. Const. art. V, § 11(d). The 

judicial nominating commission at each level of the court 

system is responsible for establishing its rules, which 

“may be repealed by general law enacted by a majority 

vote of the membership of each house of the legislature, 

or by the supreme court, five justices concurring.” Id. The 

commission’s proceedings, except for deliberations, are 
public. Id. 

The historical development of the judiciary in Florida 

has “been accompanied by a steady diminution in politi- 

cal influence of the general population and the elective 

legislative and executive branches of government in judi- 

cial matters and a steady rise in the influence of the 

judiciary. . . . ” Little, An Overview of the Historical Devel- 

opment of the Judicial Article of the Florida Constitution, 19 

Stetson L. Rev. 1, 40 (Fall 1989). Little concludes that 
“accountability of the judicial branch of state government 
has gradually been transferred away from the electorate 

   



  

15 

and its elected representatives to the supreme court and 

the Florida Bar.” Id. at 41. 

The state of Florida has a substantial interest in main- 
taining circuit-wide and county-wide election of judges. 

“The history of the judicial article [of the Florida Consti- 

tution] suggests that at least from immediate post-civil 

war times onward, the judiciary has frequently been 

strained to cope with demands for access to courts.” 

Little, supra, at 37.2 Multi-judge circuits have been autho- 
rized in Florida since 1933, which “increased the flex- 
ibility of the legislature to adjust the numbers of circuit 

judges as required by changed demands on the court.” Id. 

at 22, 

The Florida experience, therefore, reflects a trend, 

presumably not unique among the states, toward reduc- 

ing political aspects of the judiciary. The creation of sin- 

gle-member districts in judicial elections would be 

anathema to the ideal of a nonpartisan, impartial, and 

independent judiciary. 

II. VOTE DILUTION CLAIMS DO NOT APPLY TO 
JUDGES WHO HOLD SINGLE-MEMBER OFFICES 

The use of at-large elections rather than single-mem- 

ber districts “may have the effect of denying areas with 
large concentrations of minority voters the opportunity to 

pool their strength and elect members of their class from 

  

2 The Florida Constitution provides: “The courts shall be 
open to every person for redress of any injury, and justice shall 
be administered without sale, denial or delay.” Fla. Const. art. 
L521.  



  

16 

such areas.” Butts v. City of New York, 779 F.2d at 148. 

Even if judges are included within the reach of section 2 

of the Voting Rights Act, vote dilution claims do not 
apply to trial judges because such judges hold single- 

member offices. The remedy of subdistricting is, there- 

fore, inappropriate. The purpose of subdistricting is to 

ensure that the minority vote is not diluted; that is that 
minorities have a voice in the decision making process 

because they are able to elect a representative of their 

choice to speak for their views to an elected body. How- 

ever, as noted by the Second Circuit Court of Appeals: 

There can be no equal opportunity for represen- 
tation within an office filled by one person. 
Whereas, in an election to a multi-member body, 
a minority class has an opportunity to secure a 
share of representation equal to that of other 
classes by electing its members from districts in 
which it is dominant, there is no such thing as a 
“share” of a single-member office. 

Id. Thirty-seven of Florida’s sixty-seven counties have 

only one county judge. Fla. Stat. § 34.022. The fact that in 

some counties and circuits several individuals hold office 

with the same title, “circuit judge” or “county judge,” 

does not convert that office into a multimember office. 

Trial judges do not act together. Each judge has sole 
responsibility for the cases on his docket. Even in cases in 

which another judge is brought in to hear a portion of a 
case, for example pretrial motions, each judge makes the 

decisions on his portion of the case independently. Flor- 

ida, like Texas, “has structured its government such that 

it wields judicial power at the trial level through trial 
judges acting separately, with a coterminous or linked 

electoral and jurisdictional base, each exercising the sum 

   



17 

of judicial power at that level.” LULAC, 914 F.2d at 646 

(Higginbotham, J., concurring). 

The concurring opinion of Judge Higginbotham con- 

tained the argument that if judicial districts are divided 

into subdistricts minority litigants stand little chance of 

appearing before a judge who is responsive to their spe- 

cial concerns. Id. at 650. The dissent vehemently rejected 

the suggestion, implicit in the concurrence, that judges 

must be accountable to potential litigants. Id. at 667. 

However, subdistricting would not only diminish a 

minority voter’s likelihood of appearing as a litigant 

before a judge in whose election the voter had some 

influence, subdistricting would greatly diminish the 

minority voter’s influence over the judges who decide all 

cases. Minority voters will have influence over only a 

minute percentage of all cases decided. The vast majority 

of all cases will be decided by judges over whom a 

minority subdistrict voter holds absolutely no sway. This 

situation differs greatly from that of a true multimember 

office, such as a legislature, in which the candidate repre- 

senting a minority has a voice in all decisions. Sub- 

districting in the elections of true multimember bodies 

ensures that the minority viewpoint will be represented 

in all decision making. Subdistricting in judicial elections, 

however, would operate to deprive the minority of a 

voice in most decisions because of the independence of 

each judge. As stated by one Eleventh Circuit Judge 

apparently opposed to subdistricting in all elections, sub- 

districting “serves those who would be candidates well, 

but it disserves the voters, who lose the opportunity to 

have a political impact upon and obtain political respon- 

siveness from all candidates and elected officeholders.”  



    

18 

United States v. Dallas County Commission, 850 F.2d 1433, 

1444 (11th Cir. 1988) (Hill, J., concurring specially). There- 

fore, subdistricting in judicial elections is inappropriate 

and is not required by 42 US.C. § 1973. 

rN 
v 
  

CONCLUSION 

Based on the foregoing, this Court should affirm the 

en banc decision of the Fifth Circuit Court of Appeals 

that section 2 of the Voting Rights Act does not apply to 

the election of trial judges. 

Respectfully submitted, 

RoNnaLp A. LaBasky 

(Counsel of Record) 
JENNIFER PARKER LAViIA 
PARKER, SKELDING, LABAsSKY 

& CORRY 
Post Office Box 669 
Tallahassee, Florida 32302 

(904) 222-3730 
Counsel for amici curiae 
Florida Conference of Circuit 
Judges and Conference of County 
Judges of Florida 

 



  

Joun EF. HARKNESS, JR. 
Executive Director 
The Florida Bar 
650 Apalachee Parkway 
Tallahassee, Florida 32399 
(904) 561-5600 

James Fox MILLER, President 
The Florida Bar 
Post Office Box 7259 
Hollywood, Florida 

33081-1259 
(305) 962-2000 

Benjamin H. Ho III 

President-Elect, Florida Bar 
Post Office Box 2231 
Tampa, Florida 33601 
(813) 221-3900 

19 

WiLLiaM E BLEws 
Florida Bar Legislation 
Post Office Box 417 
St. Petersburg, Florida 33731 
(813) 822-8322 

Paul F. Huo 
General Counsel 
The Florida Bar 
650 Apalachee Parkway 
Tallahassee, Florida 32399 

(904) 561-5600 

BARRY S. RICHARD 
Of Counsel, Florida Bar 
Post Office Drawer 1838 
Tallahassee, Florida 32301 
(904) 222-6891