By Noreen Marcus, FloridaBulldog.org
In Florida, all judicial campaign trash talk is not treated alike.
If you blast your opponent and lose the election and you’re Jared Smith, abortion foe, Gov. Ron DeSantis rewards you with a higher position on a new appellate court. Then you’re short-listed for the even more powerful Florida Supreme Court.
If you blast your opponent – Jared Smith – and win and you’re pro-choice Hillsborough Circuit Court Judge Nancy Jacobs, you find yourself teed up for discipline.
On Sept. 14 the Judicial Qualifications Commission (JQC) filed charges against Jacobs for making “inappropriate and disparaging remarks” about Smith during their race last year. Jacobs, now a family court judge in the Tampa-area circuit, admitted violating the Code of Judicial Conduct, the charging document says.
Though the inquiry is just beginning and the JQC is nowhere near holding a hearing and possibly recommending punishment, plea talks may be ongoing. Removing Jacobs from the bench is one option; a 2018 Florida Supreme Court ruling in a campaign violations case allows for this toughest possible sanction.
“Looks like the Florida JQC is lending its weight for judicial payback against Judge Nancy Jacobs for daring to unseat Judge Jared Smith,” said a lawyer who closely follows court politics and spoke to Florida Bulldog anonymously for fear of retaliation.
Asked for a response, JQC executive director Blan Teagle wrote that the Jacobs charging document “speaks for itself.” Any further comment while the matter is pending would be “inappropriate.”
Jacobs’ Miami attorney Brian Tannebaum did not respond to an emailed request for comment.
SMITH’S GO-TO GOVERNOR
Jared Smith garnered national headlines in January 2022 when he refused to honor a teenage girl’s abortion choice because in his opinion, her subpar high school grades and other factors proved she couldn’t make good decisions.
“Florida judge under fire for citing ‘poor grades’ as reason to deny 17-year-old an abortion,” Newsweek announced.
Smith’s ruling was reversed on appeal. He wrongly rejected the teen’s petition “for reasons not supported by the record,” Second District Court of Appeal Judge Darryl Casanueva wrote for the 2-1 panel majority.
Then Jacobs, a criminal defense and family lawyer, ruined Smith’s reelection prospects. She beat him with almost 52 percent of the vote, winning roughly 7,900 more votes than Smith in the August 2022 election.
DeSantis has made abortion resistance a cornerstone of his campaign for the Republican presidential nomination. He must have delighted his ultra-conservative base and donors when he signed extreme 15-week and six-week abortion bans.
All the while DeSantis cultivates Smith, who’s associated with the Christian anti-abortion movement. The governor promoted him from county to circuit court in 2019.
Four months after Jacobs defeated Smith, DeSantis tapped him for the new Sixth District Court of Appeal in Lakeland. More recently, Smith was a finalist for a Supreme Court opening; instead of Smith, DeSantis chose 6th DCA Chief Judge Meredith Sasso to replace Justice Ricky Polston.
Justice Sasso is married to Michael Sasso, a Federalist Society leader who has served the DeSantis administration in multiple roles. He’s on the board of the Public Employees Relations Commission; until May, Sasso served on the commission DeSantis created to take control of a special taxing district away from the Walt Disney Company.
CAMPAIGN ‘HITS KEEP COMING’
Neither Smith nor Jacobs ran a spotless campaign, observers noted. “The hits keep coming in Hillsborough County judicial race” was the headline on a Tampa Bay Times story about the candidates’ “unusually fiery” tactics.
Scripted by the Code of Judicial Conduct, these campaigns are supposed to be courteous and nonpartisan. Candidates may not attack each other personally or comment about an issue in a way that signals how they would rule if the issue reached their court.
Apparently Smith was a less outspoken campaigner than Jacobs. But no one called him a model of rectitude.
When Jared Smith and his wife appeared at their evangelical church, Idlewild Baptist, Smith’s wife told the congregation that Jacobs, who is Jewish, “needs Jesus,” according to a leaked video described by the alternative weekly Creative Loafing Tampa Bay.
At the same event, Smith’s wife encouraged the congregants – she called them “prayer warriors” – to rally against Jacobs, Creative Loafing reported.
Also, after Smith paid a digital advertising firm $2,000 for social media exposure, a video attacking Jacobs for her “woke … liberal agenda” showed up on the firm’s Facebook page, according to the Tampa Bay Times.
The video, which disappeared quickly, had no legally required disclaimer, the Times reported. The advertising firm and Smith denied that his campaign authorized the video. The Times endorsed Smith for reelection.
JQC: JACOBS ATTACKED SMITH
The JQC charges include statements Jacobs or her campaign made about Smith that the commission deems “inappropriate and disparaging.” Most of them relate to his controversial teen abortion ruling and his reputation for blurring the line between church and state.
“Send Smith back to private practice where his harsh anti-abortion views can do less harm,” says a post from a Jacobs campaign social media account.
Jacobs said this about Jared Smith at a candidates’ forum: “Religion is important but it seems … it has wrapped up his entire life … Your God and your Bible should not be your moral compass … You need to set those things at the door and do your job as a judge.”
The most disparaging statement in the charges is a two-person text message. Jacobs called Smith “a bigot, an anti-Semite … not a good person …hates me and people like me.”
It looks like either the JQC got the text from what it termed the “citizen” recipient, or the commission went fishing in Jacobs’ private communications.
The JQC also made much of Jacobs’ advertising her endorsement by the Florida Planned Parenthood PAC. Her publicizing that support “appeared to be a commitment to rule a certain way in cases involving abortion.”
Jacobs’ endorsement by Indivisible Action Tampa Bay was objectionable to the JQC because it’s a “partisan organization whose mission is to ‘resist the GOP agenda’ … and … ‘the right-wing takeover of American government.’ “
HOW TO GET REMOVED
Smith’s notable endorsements came from former Tampa police chief Brian Dugan and ex-Florida governor Bob Martinez, plus the Tampa Bay Times editorial board. But Smith also had some trouble with endorsements – he lost a few toward the end of the campaign, according to Creative Loafing.
Tampa City Councilman Joseph Citro told the publication he revoked his Smith endorsement because the race had gotten “a little ugly.” Retired judge E. J. Salcines and Hillsborough County Public Defender Julianne Holt took back their endorsements but wouldn’t explain why, Creative Loafing reported.
If Supreme Court justices want to unseat Jacobs, they have a recent precedent to cite. In 2018 the court decided Palm Beach County Court Judge Dana Santino deserved the toughest punishment for her campaign misconduct.
A probate and guardianship lawyer, Santino ran for an open county court seat in 2016 and won. Due to her incendiary campaign ads and defiant attitude, the Supreme Court ended her judicial career after 18 months.
The Santino campaign portrayed her opponent, criminal defense lawyer Gregg Lerman, in league with his clients – completely ignoring the presumption of innocence.
Santino tried to blame her consultant for creating a Facebook page called “Taxpayers for Public Integrity” with ads that pictured Lerman and resembled most-wanted posters. The words linked him to identity theft, rape, child pornography, drug trafficking and murder through his work as a criminal defense attorney.
A five-justice majority trashed Santino’s defense. She “undeservedly impugned the integrity of the entire judicial system by demeaning the work of private attorneys who represent accused persons,” the unsigned Oct. 19, 2018 opinion states.
‘PRESENT UNFITNESS’ TO JUDGE
When Lerman confronted Santino about the ads, she retorted they were “nobody’s business” and asserted her right of free speech, according to the opinion.
Asked whether she was worried about being expelled for her tactics, Santino said she wasn’t. The opinion quotes her: “It will probably be a fine. It’s not a big deal.”
Allowing Santino to remain on the bench would have sent “the wrong message to future candidates; that is, the end justifies the means and, thus, all is fair so long as the candidate wins,” the court ruled.
Justice Ricky Polston dissented, joined by then-Chief Justice Charles Canady. In previous cases removal was based on more than campaign violations, Polston wrote. Santino’s missteps didn’t satisfy the removal standard of “present unfitness to hold office.”
Polston and Canady wanted Santino to be suspended for 90 days without pay, publicly reprimanded, fined $50,000 and required to pay litigation costs.
The Santino case was decided shortly before DeSantis took office and transformed the court from majority liberal and centrist to supermajority conservative. Only two members of the Santino panel remain: Justice Jorge Labarga, who voted for removal, and Canady.
Because Canady wanted a lighter punishment for Santino, it will be interesting to see where he lands in the Jacobs case. If he didn’t find Santino’s misconduct bad enough to deserve removal, what will he make of Jacobs’ behavior?