As part of First DCA JNC investigationBar panel examines JNC interview process December 15, 2000 Senior Editor Regular News As part of First DCA JNC investigation Bar panel examines JNC interview process Gary Blankenship Senior Editor A judicial nominating commission panel of inquiry has held a hearing on whether a JNC member had a conflict of interest and brought discredit on the JNC process when she asked a judicial candidate questions about his health and finances. The panel, headed by former 11th U.S. Circuit Court of Appeals Chief Judge Joseph Hatchett and including former Florida Bar President John Frost and former Florida Association for Women Lawyers President Ava Doppelt, took about three and a half hours of testimony in Tallahassee on November 29. The case arose after Jacksonville attorney Scott Makar, a candidate for two First DCA vacancies, objected to questions he was asked by JNC member Elizabeth White when the panel conducted interviews on September 18 and 19. He claimed she used one-sided information from his divorce case file, which was refuted by other information in the file that wasn’t presented to the commission. Subsequently, the Jacksonville Justice Coalition filed a complaint, asking for an investigation, and a member of the JNC said the complaint was legally sufficient to proceed. Since White was appointed to the JNC by the Bar, Bar President Herman Russomanno was empowered to appoint the three-member panel of inquiry. Its report will go to Russomanno and the Bar Board of Governors. Hatchett noted the panel is trying to determine two issues. The first is whether White had a conflict of interest because her husband, Jacksonville attorney William Sheppard, had written a letter of support for another candidate, Charles Pillans, in 1998 when he was recommended for a previous DCA vacancy. The second was whether White’s actions brought discredit to the JNC and the nominating process. Panel members asked witnesses what recommendations they would make to help JNCs around the state determine what are proper and improper questions to ask of candidates. Hatchett said he expected the final report to make such recommendations. “If we don’t, I don’t see what good we will have done,” he said. “Someone needs to do it.” “Are there questions or a line of questioning that could be inappropriate?” Doppelt asked Ana Christina Martinez, chair of the First DCA JNC. She replied that commissioners should avoid asking applicants about their stands on political issues. In response to another question, Martinez said she encouraged JNC members to ask tough questions and, unlike some other nominating commissions, has a policy of not considering in its confidential deliberations any issues which have not been raised with applicants. Another member of the JNC, Panama City attorney James Fensom, asked the panel for advice on whether commissioners should ask sensitive questions in a friendly manner or as though they were conducting a cross examination. Asked by panel members what he thought of White’s questioning of Makar, Fensom said he had no problems with the subject matter but added that perhaps the way they were asked was too aggressive. “Personally, I do not see the advantage in a difficult cross examination. . . and being confrontational with a difficult situation,” he said. “I do believe Mr. Makar did feel he was in a difficult situation and that he was taken aback.” About half of the session was devoted to testimony by White, who first answered questions from her attorney, James Russ, and then from the panel. White, who was appointed by the Bar Board of Governors last June, said she was assigned to do preliminary investigations of four of the initial 32 applicants for the two DCA vacancies. Those four did not include Makar, but White said when she called for references, those people invariably asked who other applicants were and then offered comments. In that way, White said, she learned Makar had been through “a nasty divorce.” That prompted her to reexamine his application, which acknowledged the divorce, but she felt he was less than forthright about it. White said that unease led her to send an investigator from her law firm to review Makar’s divorce file, and the investigator copied several pages. She said those records caused her concern because financial affidavits in the file apparently differed from those filed with the commission. White was also concerned with health allegations in the file. Makar did not attend the hearing, instead sending a message that he was ill. He did send another member of his firm’s Tallahassee office with a binder which held a letter he had previously sent to the First DCA JNC. In the letter, he said questions raised by White were answered or refuted in other parts of the court file that were not presented to the JNC, and he presented those records in the binder. But White testified that her reading of the court file left those issues unresolved. Hatchett asked White if she thought there was a conflict because her husband had written a letter to the Governor supporting Pillans for a previous First DCA vacancy. White answered that did not constitute a conflict, under the rules of the JNC. She later added: “I may have known at the time [my husband] wrote that letter of recommendation. I certainly never saw it. I did not recall it until I was advised by a reporter that he had written one.” White also said, and Sheppard agreed in his testimony, that they concluded when she was appointed to the JNC that he would not write any letters. Sheppard backed his wife that she did not have a conflict, and said he had forgotten he wrote the letter for Pillans in 1998 until it was reported in a news story. Testifying on his wife’s behalf, Sheppard told the panel, “She’s her own person. If I had gotten to messing around with what she was doing, I would have gotten in trouble with her. “Ms. White threw herself into this far beyond what anyone could have imagined. That’s her style,” Sheppard continued, adding at one point their dining room table was covered with papers, and that she made dozens of phone calls checking out applicants. Sheppard, who served on the Fourth Circuit JNC, including a year as chair, said they did discuss how to handle sensitive questions. “I told her, `This is a tough job. You’ve got to ask hard questions’.. . . I said `You have a constitutional duty here. You have taken an oath,’” he said. “In my experience, I have asked questions that are far more piercing than the ones Ms. White is accused of asking Mr. Makar.” Aside from White and Sheppard, White’s attorney, James Russ, also called on fellow First DCA JNC member Melvin Stith and Bar Board of Governors member Hank Coxe. In addition, JNC members Fensom and Martinez testified voluntarily. Stith, a nonlawyer member, testified that he thought both White’s questions and the way she asked them were appropriate, and that other applicants were asked tough questions, including ones about financial issues. He also said he wasn’t bothered that Sheppard had previously written a letter for Pillans. Coxe, who represents the Fourth Circuit on the board, recounted how he had asked White to apply for the First DCA JNC vacancy as a backup to another attorney who was being asked to apply. When that attorney was appointed by Gov. Bush to the Fourth Circuit JNC, White became the prime candidate. She was reviewed by a board screening committee and rated highly qualified, Coxe said, and the board approved her appointment last June. Coxe said he recruited White because she “is extremely bright and extremely well respected in the legal community. . . and she knows her own mind.” Coxe, who has also served on the Fourth Circuit JNC, said he didn’t see Sheppard’s letter for Pillans as a conflict, and did not view White’s questions as out of line. He added he’s heard tougher questions asked during his JNC service. Asked about the obligation and responsibility of a JNC in screening a candidate, Coxe answered: “The obligation is to identify and ferret out any information that is related to the qualifications and character of the individual. As far as to whom the obligation is owed, I think it’s owed to the people. The Governor has a right to rely that the names he gets have been thoroughly screened.” Coxe noted in 1996 he joined and became a partner in the law firm where Pillans is also a partner, but when the appointment was made he believed that Pillans would not be reapplying for future vacancies. He also told White and others they might never get to screen candidates, because no First DCA judges were near the mandatory retirement age. But then in August, two judges announced they were retiring, triggering the screening process. Martinez told the panel that the commission had informally discussed the handling of negative information and the asking of tough questions. “What I told them was I encouraged them to ask the difficult questions and that I would not be inclined to give any credibility [to information brought up during confidential deliberation] that wasn’t brought up during the interview process,” Martinez said. “Now that this has happened, would you give the same recommendation?” Hatchett asked. “Yes, I would,” Martinez answered. “It is our job to ask the hard questions.” Martinez, who said Makar is a close personal and professional friend, said the situation was difficult. She said she was looking at adopting a local rule that when a member discovers such negative information, it be reported to the chair who can ask a second commission member to check it out. She noted that Jacksonville attorney A. Wellington Barlow had proposed a procedural rule for all JNCs that required that any negative information be presented to an applicant before it could be raised in confidential deliberations. But the assembled JNCs, meeting at their annual institute several years ago, couldn’t agree on a uniform rule. All JNC uniform rules must be approved by a majority of the JNCs, according to Art. V., Sect. 11(d) of the Florida Constitution. Martinez said Barlow acted after negative information was raised in Fourth Circuit JNC deliberations, and the information had not been presented to the candidate during the screening interview. The information prevented the candidate from being nominated to the Governor, and the JNC subsequently discovered the information was false. Doppelt asked Martinez about Makar’s assertion he should have had advance warning that financial and health questions were going to be asked. Martinez replied that the First DCA JNC has historically not done that, but she was surprised to learn at a recent meeting some JNCs do give advance warning of such questions. Like many procedural and other matters, those are left to the individual commissions, she said.