Washington, D.C. – The Tallahassee Democrat today reported that despite a possible conflict of interest, Leon County Circuit Judge Ralph L. Smith, Jr., stated that he will not remove himself from consideration of a challenge deciding the future of Florida’s Opportunity Scholarships program. On October 9, 2000, Cody Smith, the judge’s son, married Carrie Carbone, daughter of Jack Carbone, deputy chief of staff for the Florida Education Association, the state teachers’ union that has filed suit to block Florida’s statewide school choice program. That case is now before Judge Smith. The Institute for Justice has asked the 1st District Court of Appeals to order Judge Smith to step down and appoint a new judge to hear the case.
Today’s Tallahassee Democrat reported that, “Smith and the anti-voucher forces . . . charged the institute’s attorneys with ‘judge shopping.’”
“That accusation couldn’t be more insulting or ridiculous,” said Clint Bolick, the Institute for Justice’s litigation director, which is defending the program in court. “We’re not shopping for a judge, we’re seeking justice.”
Bolick said, “On its face, the close family relationship between Judge Smith and one of the litigants in this case raises serious concerns about how impartial he can be on this issue.”
Earlier in the legal challenge, Judge Terry Lewis disqualified himself from the case after disclosing that his wife was a guidance counselor and member of the teachers’ union. Judges in school choice cases in Wisconsin and Ohio recused themselves for possible conflicts of interests as well—in at least one case at the behest of the union plaintiffs.
In March 2000, the Institute filed a similar motion asking Judge Smith to step down, 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 held the program unconstitutional. His decision was overturned on appeal, and the Florida Supreme Court this past April declined to review that ruling, returning the case to the trial court for additional proceedings.
“It now appears that the papers filed by the union may have been less than completely honest,” Bolick said. “Judge Smith should do the right thing here and step aside, but if he doesn’t it would be very appropriate for the 1st District Court of Appeals to replace Judge Smith with another jurist who isn’t so clearly conflicted.”
Bolick concluded, “In a case of such great public importance, it is essential that the proceedings are free from any taint of bias.