An appellate judge wants to be shielded from testifying in a Hillsborough election misconduct case

Scales of Justice Law
Scales of Justice. By (CC).

By Jim Saunders ©2024 The News Service of Florida

TALLAHASSEE — An appeals court judge is asking the Florida Supreme Court to shield him from testifying in a battle about alleged misconduct by a Hillsborough County circuit judge in a heated 2022 election campaign.

Jared Smith, a judge on the 6th District Court of Appeal, went to the Supreme Court on Friday after the chairman of a state Judicial Qualifications Commission hearing panel said he can be deposed by attorneys for Circuit Judge Nancy Jacobs.

The commission is pursuing a disciplinary case against Jacobs, who in a 2022 election defeated Smith, who was then a Hillsborough County circuit judge. Gov. Ron DeSantis subsequently appointed Smith to the appeals court.

An investigative panel of the commission in September alleged that Jacobs made “inappropriate and disparaging” remarks about Smith during the election and improperly injected partisan politics into the campaign. But Jacobs has also accused Smith of acting improperly during the campaign and subpoenaed the appeals-court judge for a deposition.

In an 11-page motion filed Friday at the Supreme Court, however, Smith raised a series of arguments to try to be shielded from the deposition, including that Jacobs “should not be allowed to conduct a ‘fishing expedition’ for other statements that she might try to rely on to justify her conduct.”

Also, Smith’s attorneys, including former Supreme Court Justice Alan Lawson, cited concerns about the effects of the judge being questioned in a deposition about personal beliefs.

“Allowing a respondent (Jacobs) to attempt to justify conduct by trying to shift focus back to a divisive political issue would force a judge or judicial candidate to discuss beliefs on political issues in a high-profile deposition that they are precluded from ethically discussing in public settings — with the same result of eroding confidence in the judiciary and the added deleterious effect of discouraging others to run for judicial office,” the motion said.

The Judicial Qualifications Commission has authority to investigate alleged wrongdoing against judges and make recommendations to the Florida Supreme Court, which has ultimate disciplinary power. While such cases happen relatively often, the Jacobs case has been particularly contentious — and more publicly litigated than most.

In what is known as a notice of formal charges, the investigative panel of the Judicial Qualifications Commission in September said Jacobs’ campaign social-media sites included inappropriate statements about Smith’s positions on abortion issues and that she made disparaging remarks such as saying Smith couldn’t be fair and impartial because of his religious beliefs.

Also, the notice said Jacobs inappropriately touted her support from a Planned Parenthood PAC and that her campaign inappropriately advertised an endorsement from the group Indivisible Action Tampa Bay. The notice described Indivisible Action Tampa Bay as an “expressly partisan organization.”

Judicial races are supposed to be non-partisan in Florida.

But in a document filed Jan. 16, attorneys for Jacobs wrote that Smith’s actions during the campaign are “relevant to this proceeding.” They also said a judicial canon allowed Jacobs to respond to campaign attacks.

Among other things, Jacobs’ attorney cited a video of a July 2022 appearance by Smith and his wife at a Baptist church in Lutz. The document said Smith stood by his wife as she made statements attacking Jacobs.

“Thus, in this case, Judge Jacobs could respond to the attacks of Judge Smith and it was reasonable for Judge Jacobs to represent the position of Judge Smith based upon the words and actions that he and his wife took in a widely reported-on video,” Jacobs’ attorneys wrote.

Jacobs also alleged, in part, that Smith’s wife made statements that were anti-Semitic, according to documents in the case. Jacobs is Jewish.

But in the motion Friday, Smith’s attorneys argued that “there is nothing that deposing Judge Smith could add to any defense associated with his wife’s statements, which are recorded and can be considered in full by the JQC (Judicial Qualifications Commission).”

In a Feb. 2 order, Gregory Coleman, chairman of the commission hearing panel, said Smith could be deposed for two hours.

Coleman wrote that the ruling on the deposition is “not a determination that Judge Smith’s testimony is relevant, or will lead to the discovery of admissible evidence.” He also wrote that a review of a document filed by Jacobs in the case suggests “an effort by the respondent (Jacobs) to try her election opponent in these proceedings, rather than defending herself. … However, the respondent should have the opportunity to take Judge Smith’s deposition and attempt to develop relevant and admissible evidence before such determination is made.”

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