In Florida Family Policy Council v. Freeman, No. 07-14830 (11th Cir. March 6, 2009), the 11th Circuit determined that the Florida Family Policy Council does not have standing to challenge the constitutionality of Canon 3E(1) and 3E(1)(f) of the Florida Code of Judicial Conduct, which “address situations in which a judge must disqualify himself because his “impartiality might reasonably be questioned,” including when he has “made a public statement that commits, or appears to commit, the judge with respect to” a particular party, issue, or controversy” (see below for the statute language).
Florida Family Policy Council distributes questionnaires to judicial candidates in order to gather and publish their views on legal and political issues. The court described the Florida Family Policy Council’s questionnaire:
The questionnaire included thirteen questions on a variety of topics…. Question eight asked the candidate whether he believed that the Florida Constitution recognizes a right to same-sex marriage. The final five questions asked whether the candidate agreed with judicial decisions regarding parental consent for abortions, assisted suicide, homosexual adoption, voucher programs, and the elements of burglary. For questions eight through thirteen, candidates could select from five responses: “Agree,” “Disagree,” “Undecided,” “Decline to respond,” or “Refuse to respond.”
The majority of the judicial candidates “decline[d] to respond” and Florida Family sued, arguing that “Canon 3E(1) and subpart (f) are unconstitutional as applied to its questionnaires because they chill judicial candidates’ speech and thus deny Florida Family “its right to receive and publish information”–and that Canon 3E(1) is unconstitutionally vague. In the district court, the judge ruled that ”Florida Family had standing to raise the First Amendment issues . . . however, Florida Family had not established a likelihood of success on the merits”:
The court reasoned that Canon 3E(1) and subpart (f) survive strict scrutiny analysis because Florida has “a compelling interest in providing suitably impartial, open minded judges who will rule based on the evidence and governing law.”
The 11th Circuit held that Fla. Stat. § 38.10, unmentioned by Florida Family, has the same function as Canon 3E(1) (i.e., “allows a party to have a judge disqualified for the same reasons”).
Florida Family’s complaint did not challenge the constitutionality of, or even mention, Fla. Stat. § 38.10. Section 38.10, along with its procedural Rule of Judicial Administration 2.330, gives parties the right to move for the disqualification of a judge if the party has a reasonable fear that he cannot receive a fair trial in front of that judge. Fla. R. Jud. Admin. 2.330(b) (“Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.”). Florida Family’s complaint challenged only Canon 3E(1) and subpart (f).
Since Florida Family ”sought an injunction against members of the Judicial Qualifications Commission,” it did not implicate the enforcers of § 38.10, who are “parties in future state court litigation and enforced by the state courts when the impartiality issue is raised.”
This means that granting Florida Family the relief it seeks against the enforcement of Canon 3E(1) and subpart (f) will do nothing to lift the chill that prevents Judge Stargel and any other judges from responding to the questionnaire because it does nothing to remove the asserted penalty. The chill wind from that asserted penalty will still blow in from § 38.10. Disqualification is disqualification no matter how it is enforced. If disqualification is the actual injury, as Florida Family argues, the relief it seeks in this lawsuit would not redress that injury. We express no view on the merits of Florida Family’s constitutional argument but decide only that, as the punch line goes, “you can’t get there from here.”
