Redistricting Among Friends: Should Justice Pariente Have Recused Herself?

Nothing says a Supreme Court justice must abstain from participation in a case because he/she and one of the attorneys involved in the case are "good friends."

But the perception of conflict of interest can be overpowering in a case as big and as bitter as Florida redistricting, played out in the national spotlight and due to affect Florida voting districts and political careers for the next 10 years.

So, I have to ask, does Justice Barbara Pariente's friendship with Ellen Freidin qualify as a conflict of interest? 

It's a valid question.

Barbara Pariente

Freidin was the hard-charging campaign chair of "Fair Districts Florida." She was the heart and soul of the 2010 drive that ended in 63 percent of Florida voters approving Amendments 5 and 6 to the Florida constitution. Recently, Freidin was quoted as saying, what the Legislature did to fix its maps, “was fraud on the citizens of Florida. It was pure power politics at its most vile.” 

And Pariente led the attack against the defendants after the League of Women Voters appealed Circuit Judge Terry Lewis' decision to accept the Legislature's revised maps. It was Pariente who wrote the blistering majority opinion, who said Lewis didn't go far enough with his remedy out of deference to legislators. "[T]here can hardly be a more compelling interest than the public interest in ensuring that the Legislature does not engage in unconstitutional partisan political gerrymandering," Pariente wrote. 

The problem here is, Pariente and Freidin have a close enough friendship that Freidin is identified in an October 2004 Florida Bar Journal feature story about Pariente as the justice's "good friend:"

Ellen Freidin

Author Jan Pudlow wrote, “'No matter what intellectual or legal differences [Pariente] might have with other justices and other branches of government, I can’t imagine anybody who wouldn’t like her,'' said good friend and Miami lawyer Ellen Freidin. “'She is an extremely engaging person, truly interested in other people, and I think that draws people to her.”'

Now, I don't know how good this good friendship is. It certainly sounded pretty good. After all, the story basically was a litany of superlatives from varous friends and admirers of Pariente. But "good friends" is such a subjective term. It leaves so much to the imagination. 

So, let's say the Supreme Court justice and the Fair Districts attorney don't even exchange Christmas cards. Let's say, in reality, Pariente wouldn't cut a break for her own mother if she didn't believe it was the right thing to do. Does it really matter? It's the perception of closeness and all it could mean, that's the problem. Redistricting is explosive and important, and it makes perception reality. The fact is, the friendship is out there, in a Bar Journal story, for all who would Google background in the case to see.

I tried to find out if the Legislature knew about the story or the friendship, or considered asking Pariente to recuse herself in the redistricting case.  They might have, I figured, and dismissed the idea and I was anxious to find out why. But the Senate counsel's office referred me to the House. And when I twice called Matt Carson, attorney for the Florida House on redistricting, I never got a call-back.

That's not good.

In my experience, no call-back on a simple yes-or-no question means "no," or "I don't know what you're talking about" -- which is also a "no." It just seemed to me, if I could find reference to a Freidin-Pariente friendship online, the Legislature's lawyers should be able to find it, too.

And forget relying on the Judicial Ethics Advisory Committee of the Florida Bar to make a call on recusal. That probably wouldn't have worked anyway. In 2009, the JEAC issued an opinion stating a judge (or justice) is not permitted even to be Facebook friends with a lawyer who may appear before him/her -- that was the good news. The bad news is, more than three years after that opinion was released, a Florida Supreme Court justice reminded appellate judges and lawyers that the JEAC is an advisory board, therefore its opinion is not necessarily authoritative.

That means, the Supreme Court of Florida is the ultimate arbiter of legal and judicial ethics in Florida.

So, even if the defendants had sought recusal, they probably couldn't have forced Pariente's hand on conflict of interest. That would have been a call for the Supreme Court. On the other hand, Pariente herself could have concluded under the circumstances recusal was the wise move, but she did not.

Reach Nancy  Smith at nsmith@sunshinestatenews.com or at 228-282-2423. Twitter:  @NancyLBSmith