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DECISION 2000 / AMERICA WAITS

Recusal in Seminole Supported

November 26, 2000|SCOTT MARTELLE | TIMES STAFF WRITER

Two legal experts said Saturday that a Seminole County judge should withdraw from hearing a lawsuit challenging 17,000 absentee ballots key to deciding the presidential election in Florida.

At issue are revelations that a worker for Circuit Judge Debra Nelson's election campaign this summer had entered voter identification numbers on absentee ballot applications that the campaign sent to individual voters.

Similar acts by two Republican activists lie at the heart of a lawsuit by Harry Jacobs, a Democrat and local personal injury lawyer, against Seminole County's supervisor of elections, Sandy Goard.

Jacobs is asking that all 17,000 of the county's absentee ballots be thrown out because Goard allowed the Republicans, working out of her office, to correct 4,700 Republican absentee ballot requests she had already rejected. The two Republicans spent 10 days filling in missing voter-identification numbers, and the ballot requests were then accepted.

The lawsuit is set to go to trial in Nelson's courtroom Wednesday.

"She should not sit on the case if her campaign was engaged in similar conduct," said Steven Lubet, director of the Program on Advocacy and Professionalism at Northwestern University School of Law. "She would be ruling on the propriety of efforts she herself had made."

Lawsuit Could Be Key to Victory

The case could be crucial to determining who gets Florida's 25 electoral votes, and thus the presidency.

Of the 17,000 absentee ballots returned, 10,006 went to the Republican candidate, Texas Gov. George W. Bush, and 5,209 to his Democratic rival, Vice President Al Gore. If those ballots are thrown out, Gore could take the lead.

Neither Nelson nor Goard's lawyer could be reached Saturday for comment. Nelson earlier had said that she was unaware of the campaign worker's actions.

However, one legal expert said whether Nelson knew what her campaign worker had done is irrelevant under an ethics system in which public perception of a conflict of interest can matter more than actual conflict.

Monroe H. Freedman, the Howard Lichtenstein distinguished professor of legal ethics at Hofstra University School of Law, said court rulings have established that if someone can reasonably question a judge's impartiality, then the judge should step aside from the case.

"It's a very broad standard," Freedman said.

Freedman said a 1988 Supreme Court decision in Liljeberg vs. Health Services laid the groundwork for judges confronted with possible conflicts.

Before that 1988 ruling, he said, judges had wide discretion over whether to remove themselves under a system that encouraged them to find ways to remain on a case. But the decision flipped that over, directing judges to recuse themselves if their role in a case could erode public confidence in the impartiality of the judiciary.

Concerns Over Possible Conflict of Interest

Since then, federal codes and American Bar Assn. guidelines have required that a judge recuse herself without awaiting a request from others.

"It's self-executing," Freedman said. "A judge is not supposed to wait to be asked. . . . There's no doubt in my mind she should recuse herself."

Gerald Richman, the attorney for Jacobs, said he would decide today whether to push the issue and ask Nelson to withdraw.

"We're not certain what we're going to do," Richman said, adding that the possible conflict of interest worries him. "On the other hand, we have a judge with a good reputation for fairness . . . and a firm trial date. And I'm concerned about losing the trial date."

Richman said he also wondered whether the subtle difference between the cases would be enough to remove doubt over Nelson's impartiality. In the pending lawsuit, Republican activists altered ballot requests already received and rejected. In Nelson's case, the campaign worker filled in the voter identification numbers before the requests were mailed out to the voters, who then returned them to receive ballots.

"Still, nobody is supposed to be filling in anything but the elector," Richman said.

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