Oct. 1, 2020 by David Silverberg

Five judges are on the ballot in this year’s general election ballot in Lee and Collier counties.

These are judicial “retention” questions, asking voters whether a judge should be kept in his or her current position. If voted out, the governor—in this case Gov. Ron DeSantis (R) —nominates a new judge to fill the position from a list of between three and six qualified people recommended by the Judicial Nominating Commission. There is no Senate confirmation in Florida, so the person selected becomes a Justice after taking the proper oath. When the judge’s term expires, his or her name is placed on the general election ballot for a merit retention vote, unless the judge chooses to leave.

Judicial retention questions are non-partisan and are not really political races in the sense that there are not candidates contending against each other.

Since there’s no campaigning or competition and very little media coverage, it’s difficult for voters to evaluate judges.

One stinging critique of the Florida judiciary comes from attorney Adam Tebrugge, a criminal defense attorney with 35 years of experience at the Florida bar, who argues in his blog that all of this year’s judicial nominees should be refused.

“My primary argument for voting NO on all Florida judges is that they are simply not doing their job,” he argues, stating that the appellate judges usually rubberstamp lower court rulings, especially in criminal cases, without serious consideration of the issues. “The problem is institutional and systemic, that is, the system is designed to fail, not to vindicate the constitutional rights of litigants.”

Further, Trebugge states, the judiciary has been politicized. “Every judge up for retention in 2020 was appointed by a Republican governor,” he writes. “Without a doubt, Florida judges have been politicized over the past 20 years. These days, membership in the Federalist Society seems like a prerequisite to being named judge.” The Federalist Society is an organization promoting a conservative and libertarian view of the law. Federalist Society judges, he alleges, “are chosen because they will vote a certain way, not for their fealty to the law.”  

Tebrugge’s recommended solution is to send a message to Tallahassee and Gov. DeSantis by rejecting all judges on the ballot—even if it’s DeSantis who will appoint their replacements.

Whether Trebugge is right or not, voters require deeper knowledge of the judges on the ballot in Southwest Florida than they have been provided to date.

One judge on the ballot sits on the Supreme Court for all of Florida and is subject to statewide election.

Supreme Court Judge Carlos Muñiz

According to his official biography, Carlos Muñiz was appointed to the Supreme Court on Jan. 22, 2019 by DeSantis.

Prior to his appointment, Muñiz was the general counsel to the Department of Education and served on the staff of Secretary Betsy DeVos. He was confirmed to the department position by the US Senate.

Prior to his federal appointment he worked in both private practice and the federal government.

He also had an extensive career in Florida: he was deputy attorney general and chief of staff to Attorney General Pam Bondi, deputy chief of staff and counsel to the Speaker of the Florida House of Representatives, general counsel to the Department of Financial Services and deputy general counsel to Gov. Jeb Bush (R). In 2010 he contributed $78.70 to the election campaign of Republican Marco Rubio for US Senate, according to the Federal Election Commission (FEC).

He’s a graduate of the University of Virginia and Yale Law School and grew up in the Northern Virginia suburbs of Washington, DC, where he attended St. James Catholic School and Bishop Ireton High School.

Members of the Florida Bar Association who had considerable knowledge of Muñiz recommended his retention by 63 percent. Those with limited knowledge of him voted for his retention by 76 percent.

Muñiz has consistently voted with the conservative majority of the Florida Supreme Court.

For example, in June 2020 Muñiz voted with a four-judge majority to keep a constitutional amendment banning ownership of assault weapons off the Florida ballot.

The proposed amendment followed the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla. According to the website Voting for Justice, which tracks judicial candidates, the organization Ban Assault Weapons NOW sponsored a petition to add the amendment to the 2022 ballot. However, the majority, including Muñiz, ruled that the amendment’s language was “misleading” because it stated that “If a person had lawful possession of an assault weapon prior to the effective date …, the person’s possession of that assault weapon is not unlawful.” They ruled that the terms “assault rifle” and “person’s possession” were “misleading.”

In an advisory opinion this past January on Amendment 4 of the Florida Constitution restoring felons’ voting rights, Muñiz also voted with the majority to argue that felons who have served their sentences must pay all fines and fees before being allowed to vote.

Analysis: Muñiz is a highly educated, well-credentialed judge with a record of conservative activism. In particular, his stint as Betsy DeVos’ counsel and his own unfamiliarity with public schools would seem to indicate that he is unlikely to be a friend of public education should any cases related to it come before the Florida Supreme Court. His vote on banning assault weapons indicates he would not favor measures restraining gun violence. He has also been criticized by Trebugge for ignoring “binding United States Supreme Court precedent in death penalty cases.”

The Second Court of Appeals

Four of the judges sit on the Second District Court of Appeal, which covers 14 counties in west-central Florida from Pasco to Collier and is headquartered in Lakeland. The court takes appeals from five circuit courts. There are 16 judges on the court who annually hear between 5,500 and 6,300 cases. These judges are being submitted to a vote in the 2nd District, which includes Lee and Collier counties.

Second Court of Appeals Judge Drew Atkinson

Judge Drew Atkinson, 46, is a native of Gainesville, Fla., and was raised in Bradenton where he attended high school. He is a US Army Ranger veteran and received his Bachelor of Arts degree from Florida State University and a juris doctor degree with honors from Nova Southeastern University.

He began his career in the Criminal Appeals Division of the Florida Attorney General’s office in 2005. After clerking for an Appeals Court judge he served as assistant general counsel to the governor, worked at the firm Broad and Cassel, LLP for a year and four months and then served as general counsel for both the Florida Department of State and Department of Management Services starting in 2013. He was appointed to the Second District court in 2018 by Gov. Rick Scott (R).

He’s a member of the Federalist Society. In the 2018 election cycle he contributed $250 to the congressional campaign of Mary Thomas in the 2nd Congressional District, according to the FEC. Initially calling herself a “true conservative” and winning an endorsement from the Tea Party-related Liberty Caucus in Congress, Thomas withdrew before the primary.

Of the Florida Bar Association members who had considerable knowledge of Atkinson, 69 percent recommended that he be retained.

Analysis: Drew Atkinson is a Federalist Society conservative judge with significant legal and governmental experience. Ideologically and politically, he sits on the hard right of conservative legal thought.

Second Court of Appeals Judge Morris Silberman

Judge Morris Silberman stands out for the very high ratings he received from Florida Bar Association members. Of the members with considerable knowledge of him, 92 percent recommended his retention as did 88 percent with limited knowledge of him. This gave him an overall 90 percent retention recommendation, the highest of all the Second Court judges on the ballot.

According to his official biography, Silberman received his undergraduate degree from Tulane University, majoring in philosophy and political science. He received his juris doctor degree from the University of Florida College of Law in 1982.

After law school and clerking, he worked in private firms in Sarasota and Clearwater and in 1988 formed his own firm in Clearwater, concentrating on business and contract disputes in civil litigation and appellate issues.

He was appointed to the Second District in 2001 by Gov. Jeb Bush (R) and served as chief justice from 2011 to 2013.

Silberman has an extensive record of professional involvement, serving on a wide variety of councils, professional associations and institutes in addition to official bodies like the Florida Judicial Qualifications Commission and the Florida Bar Board of Governors. He’s done extensive teaching, lecturing and writing on legal matters.

Analysis: Silberman is a highly respected and experienced jurist who is active, engaged and community-oriented.

Second Court of Appeals Judge Daniel Sleet

Daniel Sleet attended Furman University in South Carolina on a full football scholarship and earned his Bachelor of Arts degree in 1984, according to his official biography. He received his juris doctor degree from Cumberland School of Law in 1987 where he was awarded a scholarship his third year as Director of Trial Advocacy.  During his last two years of law school, he served as a magistrate for the City of Birmingham, Alabama.

After law school he served as assistant state attorney for Hillsborough County, Florida from 1987 to 1991 before joining the Tampa law firm of Barr, Murman, & Tonelli as an associate attorney, specializing in personal injury defense. He made partner in 1998.

After practicing law for 19 years he was appointed to the Florida 13th Judicial Circuit Court in 2005 by Gov. Jeb Bush, winning re-election in 2008. In 2012 he was appointed to the appellate bench by Gov. Rick Scott.

By far the most controversial and high profile case over which Sleet presided was that of Kenneth Young.

In 2000 at the age of 15, Young, an African American, was sentenced to four consecutive life terms without parole for his role in four armed robberies of Tampa-area hotels in June of that year.

In Young’s telling, he’d been forced to participate in the robberies by his crack-addicted mother’s drug dealer. The dealer, owed money, threatened to kill the mother unless Young helped in the robberies, which he did. At one point, according to Young, he talked the dealer out of raping a robbery victim. Although the dealer threatened victims with a pistol during the robberies, no one was injured.

When Young was caught he was tried as an adult and sentenced to four life sentences.

There the matter might have remained except that in 2010 the US Supreme Court ruled that juveniles cannot be given life sentences without parole unless they commit murder.

That gave Young another chance at sentencing and in 2012 he appeared before Second District Appellate Court.

Now 26 years old, Young and his advocates argued that in his years in prison he’d studied, made an effort to rehabilitate himself and stayed out of trouble except for one instance when he failed to make his bed.

“I have lived with regret every day,” Young told the court. “I’ve been incarcerated for 11 years and I have taken advantage of every opportunity available for me in prison to better myself. I’m no longer the same person I used to be. First Corinthians, Chapter 13, Verse 11 says, ‘When I was a child, I thought as a child. … When I became a man, I put away all childish things.’ I want to turn around and apologize to my victim for what I did.”

At the same time, Young’s victims testified to the harm and trauma they’d endured. “As much as I know [Young] wants to be released, I’m not ready to have him walking around my neighborhood,” said one woman.

Sleet was the judge hearing the case. He congratulated Young on his diploma and rehabilitation efforts and said his imprisonment was “appropriate and effective.”

But Sleet didn’t buy Young’s version that the crimes were the dealer’s fault. Releasing him, said Sleet, “would be an award, a gift that you will not get from this court.” Then he brought down the gavel: “You will not get it, sir, because you do not deserve it. I heard your statement. I believe that you have some remorse. I believe that you’ve been rehabilitated. But I’m listening to these victims, sir, and I do not believe that this court should rely on your prison conduct thus far. Sir, this is about personal responsibility and accountability.”

Sleet did end the life sentences but sentenced Young to 30 years in prison, with credit for time served, and 10 years of probation.

The sentence sparked outrage and astonishment, not least on the part of Young: “I had showed from the time I’m 14 years old all the way to the time I’m 26 I have matured and everything,” he said. “I thought that that would mean something. He just basically told me that don’t mean nothing”—and after enduring the worst that prisons had to offer, “I survived through all that, and he like, ‘That don’t mean nothing. You showed that you rehabilitated, but I’m still gonna send you to this.’”

Sleet’s sentence set off a barrage of criticism, which can still be found online, mostly denouncing him for a lack of compassion. The Young case and Sleet’s sentence prompted a 1-hour Public Broadcasting Service documentary called 15 to Life, about the case.

In another August 2020 case that was the subject of public attention, Sleet wrote the decision rejecting the arguments of a pregnant teenaged girl, identified as Jane Doe, with Guatemalan parents, who sought an exemption from the Florida law requiring minors to inform parents of plans to have an abortion.

The judgment in August 2020 was the first after the law was passed. The girl was 14 when she became pregnant by her 17-year-old boyfriend. A district court in Hillsborough County ruled that she was not entitled to an exemption and Sleet and the appellate court agreed.

“Although she made decent grades in school, her answers to the questioning of counsel and the trial court were vague, and our review of her testimony supports the trial court’s finding that she was unable to articulate her understanding of the procedure, the medical risks involved, and the long- and short-term consequences of her decision,” said the decision, written by Sleet and joined by two other judges. “Furthermore, there is nothing in the record to refute the trial court’s assessment of her demeanor as ‘present(ing) as a very young, immature woman,’ and we must take that assessment into consideration. … Based on this record, Doe did not meet her burden of establishing by clear and convincing evidence that she possesses sufficient maturity to make the decision to terminate her pregnancy without parental consent.”

Analysis: Sleet is an accomplished jurist who does not seem to temper justice with mercy.

Second Court of Appeals Judge Andrea Teves Smith

Born in New Brunswick, Canada, in 1969, Andrea Teves Smith grew up in Bradenton, Fla.

She received her Bachelor of Science degree in business administration from the University of Florida in 1991. In 1994, she earned her juris doctor from Stetson University College of Law, according to her official biography.

After law school she joined the private practice of Peterson & Myers, PA in Lakeland and worked for 19 years, chiefly dealing with business law. In June 2013 she was appointed to the Tenth Judicial Circuit Court by Gov. Rick Scott and then retained in the election of 2014. She served over five years in the felony, family and civil divisions.

On January 7, 2019, Scott appointed her to the Second District Court of Appeal.

Smith drew attention in 2018 when, despite little criminal law experience, she was assigned to oversee the second-degree murder trial of Michael Dunn, a former Lakeland city commissioner who shot and killed an alleged shoplifter. However, she went to the Second District before the trial. Nonetheless, circuit court Chief Judge Donald Jacobsen characterized her as “a very good courtroom manager and a good judge” before she changed courts.

Among the members of the Florida Bar Association, 80 percent of those with considerable knowledge of her work recommended her retention along with 84 percent of those with limited familiarity with her.

Analysis: There are no public indications of ideological or political partisanship by Judge Andrea Teves Smith and her reviews are favorable.

Liberty lives in light

© 2020 by David Silverberg