There are four judicial elections on the August 24, 2010 ballot. Unlike most law professors I know, I support the idea of judicial elections at the state level as a reasonable democratic check on what I believe should be the expansive power of judges to interpret the state and federal constitutions. Although, if it were up to me, I'd have the executive branch pick judges with legislative confirmation, followed by a California-style retention election every few years in which there would be an up or down vote on the incumbent. If the vote was down, the executive would pick a new judge. It seems to me that the right question is “has this judge done a good (enough) job” — something voters might be able to figure out — rather than asking voters to try to guess from electoral statements which of two or more candidates might be the best judge.
Florida's system, however, pits one or more challengers against the incumbent or else, lacking opposition, the incumbent wins reelection automatically (as happened with most of the judges whose terms expired this year). There are also open seats when the incumbent retires. My personal view is that I will vote for an incumbent judge unless there's reason to believe they're doing a bad job. Fortunately, that only happens occasionally. But, as you will see, it does happen.
Today I'm writing about the two Circuit Judge contests. Next, in Part III, I'll look at the County Court races.
Circuit Judges: Group 45
There are two candidates, Judge Peter Adrien, the incumbent, and Samantha Ruiz Cohen.
Judge Adrien has a bad reputation. He got the lowest rating in the Dade County Bar Association’s judicial poll: 55% of respondents said he was 'unqualified'. That's pretty bad. And he gets reversed on basic issues of fairness to defendants that you'd think anyone would get right. See Foster v. State. Here's his Judicial Candidate Voluntary Self-Disclosure Statement. This is the rare sort of record that makes me think a judge is ready to be replaced.
Fortunately his challenger has a good record, and a fine reputation: 35.5% of respondents in the Dade County Bar Association’s judicial poll rated Samantha Ruiz Cohen as 'exceptionally qualified' for the bench and another 51.3% said she was 'qualified'. The Miami Herald endorsed Samantha Ruiz Cohen. (There doesn't appear to be a Judicial Candidate Voluntary Self-Disclosure Statement, however.) After graduating from Hofstra University School of Law in 1991 (a fact oddly absent from her campaign biography, perhaps because it's not a local law school?), she spent ten years at the Miami-Dade State Attorney’s Office. Then she jumped to civil litigation, and now does products liability cases in private practice. She has taught trial advocacy at the National Institute for Trial Advocacy (NITA) and constitutional law to undergrads at FIU (I'm not sure if teaching law to undergrads is a plus or minus for a judge; maybe a plus in dealing with jurors…).
I'm going to vote for Samantha Ruiz Cohen and you should too. Incidentally, Judge Adrien got on the bench in an ugly election when he defeated an exceptionally fine Judge, his predecessor, Henry Harnage. Karma, I tell you.
Circuit Judges: Group 62
There are two candidates, Monica Gordo and Robert Kuntz. There is no incumbent. Both candidates are rated highly by their fellow lawyers in the Dade County Bar Association poll: 24.7% rate Kuntz as exceptionally qualified and 53% say he is qualified while a nearly-identical 24.5% rate Gordo as exceptionally qualified and 51.3% say she is qualified.
Robert Kuntz, 50, is a former journalist. He graduated from UM law in 1996 summa cum laude (which really meant something back then) and started out at Holland & Knight. Currently he practices commercial litigation at Devine, Goodman, Pallot, Rasco & Wells, with an emphasis on aviation law. The Unity Coalition endorsed him. Local certified sane lawyer Jack Thompson hates him, which may be a good enough reason for me to vote for Kuntz right there. Here's Robert Kuntz's Judicial Candidate Voluntary Self-Disclosure Statement.
Monica Gordo is only 35, which I believe to be about the minimum age for a judge given that I want them to have some experience-based wisdom. She graduated from UM Law in 1999, cum laude (which is good, but not as good as a summa), and has worked as a prosecutor since then. She's served as a Director of the Cuban American Bar Association. I know of no reason to think she'd be anything other than a fine judge, although I don't know that the local bench suffers from a shortage of former prosecutors. The Miami Herald endorsed Gordo because she has more trial experience than Kuntz. She also got the SAVE Dade endorsement. Here's Monica Gordo's Judicial Candidate Voluntary Self-Disclosure Statement.
Based on my personal knowledge of both candidates I'd be happy with either, but I am planning to vote for Robert Kuntz. As you can see from his judicial statement and other statements he's made during the campaign, he's a thoughtful person, the sort of person one wants on the bench. I like the fact he had another career as a journalist before he went to law school as I think it provides a healthy perspective. And he's smart (don't forget that summa). It is true that Mr. Kuntz has substantially less trial experience then Ms. Gordo, but he does have extensive general litigation experience. Lawyers from the civil side frequently see fewer full trials than members of the criminal bar, but it would be wrong to staff the local judiciary wholly with lawyers who are former prosecutors, PDs, or criminal defense lawyers.
Part I: Introduction
Part II: Circuit Judges (today)
Part III: County Judges
Part IV: School Board, District 6
Part V: Miami-Dade County Charter Amendments
I wasn’t sure on the Gordo/Kuntz race. Your post has me leaning Kuntz. Too many prosecutors on the bench already. Kuntz has more civil litigation experience. The whole Jack Thompson thing is also a check in Kuntz’s favor. Of course, some of your reasons for supporting him don’t really matter to me, like the whole summa cum laude thing. Really, who cares how people did in school (especially law school). Law school and the practice of law are so unrelated that it makes one wonder whether law school is purposely designed not to resemble the practice of law.
On the Adrien/Ruiz race, I cannot imagine why, under any circumstances, teaching con law to under grads would be anything but good. At worst, it is not relevant. In any event, I have been before Adrien enough times to know that I never want to be before him again. I will be voting for Ruiz as a pure up or down on Adrien.
I agree 100% with your suggestion on how to deal with judicial elections.
I don’t agree with the lack of trial experience not being an issue. Next time you fly would you rather fly with an experienced pilot or on that’s only flown twice? When you’re laying on that operating table would you prefer the surgeon fresh out of med school or the experienced veteran?
I’m sure Mr. Kuntz is a nice guy but IMO substantial trial experience should be a prerequisite.
I think you would be right if the circuit court only heard criminal cases. But it does a whole lot more. And it is divided into divisions by area of practice (civil, criminal, family, probate, etc.). I don’t see what a criminal trial expert brings to the table that is essential for a foreclosure hearing. The court needs a wide variety of experience. Since criminal cases most often go to trial, to always favor the most trial experience would be to always favor the criminal bar, and to starve the court of the diversity it needs.
No one who becomes a judge has experience in all areas. The court needs some people with experience in each. A total lack of litigation experience might be — often would be — an issue, but civil litigation (which often doesn’t mean a full trial) is valid and useful experience. What Kuntz lacks (in relative not absolute terms) is extensive *trial* experience not litigation experience. A smart chief judge, and we have one, will not put him in a murder trial on day one.
I do think your approach, which mirrors the Herald’s, is a bit overly simplistic given the very varied nature of the court’s work and its separation into subject-area divisions. (Plus, at least for new federal judges there is ‘judges school’ in which they get trained in basic courtroom control and practice; I would bet there is something similar in Florida, although I don’t know if it is so.)
Other views?
I’m not trying to change your mind on Peter Adrien. I’m leaning toward Ruiz Cohen too. With that out of the way, I do want to comment a bit on what I believe to be somewhat of a concerted campaign to smear the guy.
First, I’m not totally impressed with the Dade County Bar Association poll. Not many lawyers voted (of course this is all relative, but few lawyers total (about 1000) filled out the ballots). Of those, fewer voted still on the circuit and county judges. And although Adrien received more “unqualified” votes than others, his “qualified” votes appear very much on par with the others. For example, you say it’s an easy choice to vote for Seff. Well, Adrien received more “qualified” votes than Seff did. That 448 lawyers regard him as “unqualified” may owe more to the fact that he’s clearly unliked among certain lawyers and to a lot of bad press (more on that in a bit) than whether he is, in fact, less qualified than other judges or Ruiz Cohen. I’m further concerned that the poll operated something like a popularity contest. I’m not a pollster and I may be picking the poll apart too much. But again, I’m not terribly impressed.
Second, you cite one case where he was reversed. Apart from that case, Adrien has been reversed badly and conspicuously on a few other occassions (for a serious bench slap, Google, for example, Phoenix Holding, LLC v. Martinez). But all trial judges get reversed (incidentally, there’s a rumor that Judge Lynch who was recently appointed to the Second Circuit by President Obama and who is widely regarded as very smart was never reversed while a district-court judge on the Southern District; if true, that’d be impressive). Rather than the bar poll, I’d like to see the reversal rates of the county and circuit judges in the last, say, four years. It may be that Adrien gets reversed more than others. But it may also be the case that other judges get reversed more than he does. At any rate, picking out a random case where he was reversed offers little into whether he’s qualified or a good judge. Comparing his reversal rates relative to his colleagues, I believe, would.
More troubling, however, is the constant (bad) press Adrien gets in the DBR. If he gets reversed, the DBR covers it. If he refuses to recuse himself in a lawsuit, the DBR covers it. If he doesn’t show up to a CABA event, the DBR covers it. Why? Of course I think the coverage is good; the DBR’s readers, who are mostly lawyers and businesspersons, obviously care about what’s going on in the legal community. But I’ve also gotten the impression that the DBR seems to cover this guy more than others. I have no data to back this claim up. I also don’t want to accuse the DBR of playing unfair or picking sides. It’s just an observation. The DBR’s coverage, I’d also venture a guess, has contributed to his large number of “unqualified” votes in the bar poll.
Again, I’m not trying to convince you that he’s qualified. But I think the information out there on him — and the other candidates and judges — far from tells the full story.
Thank you for your comments. I think your points about the bar poll are particularly well taken as the response rate was down this year.
I think that in most cases what a Judge is reversed about is more important than how often one is reversed (although obviously at some point a very high reversal rate does say something), and that was what I was trying to illustrate with my not utterly random citation.
The point about the DBR is interesting, and new to me, as I only read it occasionally.
A few more comments, since I had to cut my post off short last night because I was leaving.
First, it was not my intention in using the word “random” to critcize your citation of that one case. I do agree with you that what a judge is reversed about, and especially the tone an appellate court takes in reversing him (see the case I cited), may tell more about a judge than reversal rates. I’d nevertheless like to see how often these judges get reversed relative to one another. More generally, I’d like to see other data to better make an informed decision on whom to vote for. At this level I do recognize that compiling more data is costly, time-consuming, and harder to come by, however. So one — I — ought perhaps not to complain too much.
Let me repeat that I have no data backing up my claim that the DBR has a negative thing about Adrien. Adrien is no stranger to controversy, and I think he may therefore have brought a lot of the bad press on himself. I’m not sure whether you know of this, but back in 2004 he ran under the name “Peter Camacho Adrien,” and was sued by then Florida Bar President Frank Angones for “ethnic electioneering.” He was forced to remove the name “Camacho” but he won anyway. It’s my understanding that he still has the name “Camacho” on his name-plate in his courtroom. That of course is going to piss some people off, and in turn, as I mentioned in my previous post, make him clearly unliked among a certain group of attorneys. For better or worse, I do believe that if a judge does something polemic like this and irritates the wrong (politically connected) group, he’s opening himself up to further negative press down the road (like the recent disqualification reversal), and many adverse votes in a poll that doesn’t say much, in my opinion, on whether a judge is qualified.
On a different note, you write that summa cum laude at Miami “really meant something” back in 1996. To me, that really means something today as well. What do you think has changed?
Just to tie up the loose ends: On the ‘Camacho’ thing, I was indeed aware of it, as part of the I thought wrongheaded and opportunistic campaign to unseat Harnage (and I cited to this article which details it). That’s what I meant by ‘karma’.
On the summa thing, there has been some grade inflation. We used to have one or two or maybe in a very rare year three summas, now we have five or eight or even more. That’s all. It still means a lot — it just used to be even more unusual. Where the grade inflation has really set in is in cum laude, which I haven’t counted but feels like half or more of the class…
as a point of reference, summa for 2010 miami law class has 16 people (top 4%); magna is the next 66 people (roughly top 20%), and cum laude goes to #178 in the class (which is roughly top 41%).
I guess we think alike.
I cannot begin to tell you how happy I am to have read your views regarding peter adrian,he has pull a wool over every one’s face with in miami dade court system. Because of adrian my daughter future will for ever destroy by adrian, because of his greed,egotistict, to become judge the poor child now suffer from a mental breakdown. hp h gtd s dy myb h wll cmmt scd, fr ll th chldrn lfs h dstryd , js nly prps n lf s grd, hw mch s h xpctd t gn th 1 blln lw st gnst cstr h sr brkng
[Editor’s note: part of this comment was disemvoweled, pursuant to my comment policy.]