Florida School Choice - Release: 9-4-2001

Florida Court of Appeal Disqualifies School Choice Judge

WEB RELEASE: September 4, 2001
CONTACT: John Kramer
(703) 682-9320
[School Choice]


Washington, D.C. - The First District Court of Appeal in Tallahassee has ordered that the trial judge presiding over a legal challenge to Florida’s opportunity scholarship school choice program be disqualified from the case.

The Institute for Justice, which represents Pensacola families receiving opportunity scholarships, had twice moved to disqualify Leon County Circuit Court Judge L. Ralph Smith from the proceedings because he is related to one of the parties in the case. Judge Smith refused those requests. When the Institute appealed his decision, Judge Smith took the unusual step of filing his own opposition brief. Noting that "reasonable persons could find that the content and tenor" of Judge Smith’s brief "create an inappropriate adversarial relationship between the judge and the petitioners," the court granted the Institute’s appeal and directed that a new trial judge be assigned to the case.

On October 9, 2000, Judge Smith’s son married the daughter of Jack Carbone, Deputy Chief of Staff for the Florida Education Association, which filed the legal challenge to the opportunity scholarship program. The Institute provided a copy of the couple’s marriage license with the motion.

The Institute filed a similar motion in March 2000, based on affidavits that the judge’s son and Carbone’s daughter were engaged. In these affidavits, witnesses testified that Carbone’s daughter had repeatedly told them that she was engaged to Smith’s son. The union responded with sworn testimony from Carbone and his daughter that there was no engagement, and the Institute withdrew the motion. A week later, Judge Smith ruled the opportunity scholarship program unconstitutional. His decision was overturned on appeal, and the Florida Supreme Court declined to review that ruling, returning the case to the trial court for additional proceedings.

The Court of Appeal ruling affirms the principle that parties are entitled to have their disputes resolved by a judge who is free both from actual bias and from the appearance of bias.

"When we requested that the trial judge recuse himself from a case in which his own relatives had an interest, our opponents accused us of ‘judge-shopping,’" said Clark Neily, an Institute for Justice attorney who helped brief the issues for the court of appeals. "We are gratified that the court of appeals has corrected that unfortunate slur."

"The rule of law rests on truly impartial justice," declared Clint Bolick, litigation director for the Institute for Justice. "The Court of Appeals made sure the school choice families will have just that."


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