JURIS IMPURIS

Miami Herald, The (FL)
Date: August 28, 1988
Author: JOEL ACHENBACH Herald Staff Writer

July 22, The State Capitol, Tallahassee, 18th floor

The deadline is 90 minutes away when a fat man in a neon-pink blazer emerges from the elevator and rumbles down the corridor toward the elections office. He must run the gauntlet of judges, lawyers, campaign managers, billboard-makers, consultants, advisers and connivers who have flown up from Dade County for this biannual rite of paper-filing, deal-cutting, opponent-lobbying, competition-scoping and elevator-monitoring. The incumbent judges stare at the new arrival; they dread him and what he represents--an unexpected challenger. Campaigning is hell. Better to win by default. Hang the voters.

The behemoth is Anthony "Buffy Dee" DeSantolo. He is a TV character actor, restaurateur and part-time lawyer, and he intends to file his candidacy against newly appointed County Judge Jack Martin Coe. This same morning Buffy Dee fell asleep at the breakfast table in the lobby of the Tallahassee Hilton, prompting former Judge Arthur Huttoe to say, "Look, Buffy's practicing to be a judge!"

As he wheezes toward the elections office his presence is detected by Coe's campaign manager, the ubiquitous public relations whiz of Miami Beach, Gerald Schwartz. Schwartz--a short, chubby, balding man who tells his candidates that he is the model for what they should not look like--would naturally prefer that there be no campaign to manage. Schwartz wriggles through the crowd.

I can help you! he says to Buffy Dee's back. I'll work for you for free! Just don't file against my client!

But Buffy Dee stays true to his course and reaches the counter. He leans on his elbows, head down, rests. Then he files against Coe.

Schwartz turns away in disgust.

This is the filing deadline for every judicial race in the state, but there is hardly anyone here from Tampa, from Orlando, from Jacksonville, Fort Myers, Pensacola. Judges and lawyers in those places have simply mailed in their applications, and remain at home on this Friday morning--lawyering and adjudicating, presumably. No, the crowd here is strictly South Floridian, mostly from Dade County. Only Dade could generate such manic hustling, such last-second smarm and bluster. Judicial elections are a controversial exercise everywhere, but in Dade they aspire to tragicomedy.

This year the election is Sept. 6, and, as in all years, there are no issues, not even party labels to provide a helpful hint as to ideology. The candidates are prohibited by judicial canons from saying anything of interest, from rendering opinions on the death penalty or abortion or gun control. The press, of course, prefers to cover the more controversial congressional and presidential races. So on Sept. 6, the average voter will look at the ballot and see all the names of people who want to be judge and the voter will make a mental association. That name . . . It was on a sign . . . over near the Jiffy Lube.

And then the average voter will come to a race in which there is not a single name that is even remotely familiar. A total blank. So the average voter starts to pick the names apart. DeSantolo . . . Italian? And Jack Martin Coe . . . probably a cracker, with a pickup truck and gun racks. . . .

Names. Judicial elections are about names.

Gerald Schwartz, master of the Name Game, refuses to represent people with losing names. The ideal name is clearly ethnic, preferably Latin or Jewish, to provide a base of support, and it helps if it's a name that people have already voted for in the past. His client Roy Gelber, for example, is the nephew of retiring Circuit Judge Seymour Gelber, so "this gives us a chance to run a campaign with an unofficial message of keep a Gelber on the circuit bench." And Schwartz knows that his client Roger Silver, an incumbent judge, is invulnerable and will draw no opposition, because the voters would confuse the name with popular state Rep. Ron Silver and with popular former Judge Sam Silver. "And Silver is a Jewish name," Schwartz adds. In 1984 Schwartz commanded Amy Steele, a candidate for judge, to change her name to Amy Steele Donner, her husband's name. Steele had amassed a huge war chest for her campaign against Fran Farina for an open spot on the circuit bench--eventually Steele would spend $300,000 of her own money--but then a third figure stepped into the race, an eccentric attorney named Eugene Steele. Two Steeles in one race. This second Steele had already achieved the Name Game Hall of Fame two years earlier by running under the name E. Shapiro, which he revealed was his name at birth, later changed because he didn't want to fall victim to anti-Semitism. It was also, conveniently, the name of another candidate who had spent a fortune plastering "Shapiro for Judge" billboards all over town. When E. Shapiro reverted to Eugene Steele to challenge Amy Steele, Schwartz feared voters would think of her billboards but accidentally vote for him. She is now known simply as Judge Donner.

The electoral magnetism of the name "Buffy Dee" is anyone's guess. Buffy Dee's signs say, "A Big Man for a Big Job." He gives his weight as 320 pounds, but Schwartz is telling everyone that Buffy Dee is actually 477 pounds and takes acting jobs that specifically call for a "quarter-tonner." Buffy Dee's challenge of Coe is a headache for Schwartz. Schwartz is "campaign manager" for 18 judicial candidates this year (potentially there are 42 judicial races) and the only way he can manage that many campaigns is if most of them don't actually exist. He gets his money either way--$12,500 for circuit judgeships, $8,500 for county. Up front.

What could overworked Gerald Schwartz possibly offer Judge Coe that is so valuable, other than advice about what name to run under? Number one, Schwartz gives Coe the priceless assurance that none of his other 17 clients will run against him. The Schwartz clientele always includes a handful of floaters, who by law can run against any incumbent in the county or for one of the half dozen open seats created by the Legislature--but they wait to see where Schwartz thinks they should go. An incumbent judge knows that to hire Schwartz is the best way to avoid a contest--19 incumbents represented by Schwartz in 1986 won without a battle. Schwartz denies any suggestion that he might extort judges into hiring him by threatening to field an opposing candidate. "Sometimes I am offered what is in effect a legal bribe," Schwartz says. "They'll say, 'If you move so and so out of the race, then I can use you.' " But he says he doesn't accept. He wouldn't sell out a client.

One of Schwartz's clients is County Judge Jack Block, who is pacing the 18th floor of the Capitol. Block is the worst judge in the county court division of the Dade bench, if you believe the annual poll of Dade County lawyers. Three years ago he was investigated by the Judicial Qualifications Commission and reprimanded by the Supreme Court for ethical lapses as a private lawyer, including placing bets with a bookie, listed under "B" in his personal phone book. Block defended his conduct by saying that when he attended the University of Miami Law School, "legal ethics was not taught."

Block, seeking his second term as judge, has done his best to fix matters so no challenger will come forward.

First, he has hired Schwartz as his campaign manager. So he knows that none of Schwartz's floating candidates will file against him.

But Schwartz is not the only PR man with floaters. The Avis of the business is Bob Levy. Levy served two years and nine months in federal prison in the early 1970s for embezzlement, fictitious and fraudulent statements and transportation of forged securities. He represents 15 candidates for judge.

Schwartz hates him. A few days before this Tallahassee trip Schwartz threw Levy out of a fund-raiser for his client, Ted Mastos. Schwartz invariably refers to Levy as a "five-time convicted felon."

"He's such a reprehensible person," Schwartz says. "Levy extorts judges for consulting fees. People who are in campaigns should not let their fate be decided by ex-cons."

Levy cannot match Schwartz's invective. He defends himself as an honorable man who earns his money legitimately. He denies he has extorted money from anyone, and further points out he was convicted once on five counts, not for five separate crimes. In any case, he says, he has been rehabilitated through his incarceration: "I think any judge should be proud to associate with me because I'm an example that the system works."

So that's the second thing Judge Jack Block has done: He has hired Bob Levy. He has paid him $1,000. Levy's floaters will steer clear of Block. Block says he's not trying to avoid opposition, that Levy earned the money by supplying him with a calendar of events.

If it's all fixed, why is Block even here? What would compel him to fly to Tallahassee and attend this bizarre event, as well as the biannual prefiling-deadline party in former Judge Artie Huttoe's room at the Hilton last night? County Judge Marvin Gillman, vice-chairman of the JQC, wonders if the presence of an incumbent might intimidate a potential opponent, one of those floaters. Gillman is up for re-election, too, but didn't come to Tallahassee, saying, "I can't think of any valid reason for a judge being in Room 1801 of the Capitol on the last filing day."

But Block can explain his presence: He's here with extra copies of his filing papers, in case the originals didn't make it in the mail. "The mail is horrendous," he says gravely.

Block is not alone in seeing the wisdom of hiring both Schwartz and Levy, the two biggest players in the judicial PR game. Five other incumbents have done so, Levy says. For instance, there's Juan Ramirez, who didn't come to Tallahassee, but who did strike a deal with Levy a few days prior to the filing deadline. The agreement was that Ramirez would pay Levy $3,000, after the deadline had passed. ("Who told you I hired Bob Levy? Only about five people know that," Ramirez later tells a reporter.) Ramirez says he wasn't trying to avoid opposition, but his own campaign manager, Gerald Schwartz, contradicts him, saying Ramirez hired Levy because he heard that Levy might run someone against him. ("It's not a scandal," Ramirez says.)

By 11 a.m. the hallway outside the elections office is really jamming up. It would be nice to think that the finest legal minds in Florida are here this morning in quest of judgeships, but, with some exceptions, it's an undistinguished lot, mostly lawyers with small private practices, a great many of them having previously applied for a judicial appointment and failed. Very few are the type to have long biographies in the Martindale-Hubbell legal services directory.

It's hard to scare up good people to run for judge. Once upon a time there were only five or six judges on the circuit bench, and their station gave them great stature. Today there are 95 trial judges in Dade. A good lawyer can make $200,000 and up; a circuit judge (felonies and major civil lawsuits) makes $82,000. County court judges (misdemeanors, small claims, uncontested divorces, etc.) make $73,000.

"The fine lawyers can't afford to be judges," says Sam Daniels, one of the top litigators in Miami. So no wonder that there is no one here from Holland & Knight, no one from Steel, Hector & Davis, no one from Greenberg Traurig Askew Hoffman Lipoff Rosen & Quentel, no one from Fine Jacobson Schwartz Nash Block & England. It would be a huge step down in salary, and for some of them, in status. "It seems to me that the overall quality of people who aspire to the bench these days is lower than the quality when I was a young lawyer," says Chesterfield Smith, senior partner of Holland & Knight and former president of the American Bar Association. "It's no longer considered quite as prestigious a position, one that people will sacrifice, financially and otherwise, to attain."

It's almost noon. Walter "Wally" Pesetsky agonizes. Does he stay in the crowded race for one of the new circuit seats created by the Legislature or does he challenge incumbent S. Peter Capua? He figures he would win the first, but only after a runoff. Capua would be tougher, because he has more than $100,000 raised already, has good political connections and has the advantages of incumbency.

There's only one good reason to run against Capua: He is, reputedly, an inept judge.

The Capua stories are all over the courthouse. Lawyers who regularly practice in front of him say Capua is over his head, unaware of certain basic criminal trial procedures--but trying, at least, to learn. One judge recalls, with a wince, how during his investiture, Capua exulted: "Yesterday I had my first trial. We got a conviction!" (Judges are supposed to be totally impartial. They aren't supposed to want convictions any more than acquittals; Capua says he meant nothing by the remark.) Once, concerned about possible negative publicity, Capua balked at granting a $20,000 bond for a murder suspect even though the prosecutor agreed to it and said the evidence in the case was flimsy. Capua, according to one attorney present, said, "What's it going to look like if this guy goes out and kills somebody, and it comes out in the press?"

Pesetsky has to decide quick. What if someone else challenges Capua? Wouldn't someone else want to run against a supposedly terrible judge? Or is Pesetsky the only person who has the guts? And does Pesetsky have the guts?

Meanwhile, Harvey Shenberg, a private lawyer and client of Schwartz, has filed for an open spot on the county court, and so far no one has come along to compete with him. He has a lot of campaign money and he has been on the trail for more than a year. At noon, unless someone shows up, he wins. He's not even an incumbent. He can pull the neat trick of becoming a judge without the hassle of being elected or appointed.

"Somebody'll show up," he says nervously. Calvin Fox, a Levy floater, heads to the front counter with his papers. A reporter asks what seat he is seeking. Fox, trembling, says, "I'll have to talk to my publicist."

The previous evening he had gone to the hotel restaurant for a piece of pie. Within minutes, a crowd of 15 people, candidates and advisers, had formed a perimeter around him, and while a few sounded him out the rest sat like vultures, in silence, listening, watching him eat, wondering: Where would he file?

Another last-second floater is Al Zemlock, who runs almost every year and always loses. In 1984 he hired a plane to sky-write the letter Z over Miami. That was his platform: Not a name, as with most candidates, but just a letter. Now, Schwartz takes him aside and tries to talk sense to him. Look, Al, he says, don't run for judge--run for secretary of state!

Zemlock won't go for it. He wants a judgeship. He will decide at the last second. He likes making everyone sweat. "They know that I'm a nut," he says with gleeful menace.

The clock hands are starting to straighten up. The denouement is just seconds away. . . . Everyone is hanging on . . . hanging, hanging. . . .

The election argument . . .

Let's tear ourselves away for a moment from this inspiring spectacle of democracy in action to pose the question: Who are these guys and what are they doing to our courts?

Most lawyers and judges think judicial elections--with the attendant slobbering, grubby excesses of last-second filing, the torture of fund raising, the inscrutability of the ballot--are a nightmare. But although it's a perennial controversy, there is no major movement afoot to scrap the elections in favor of a strictly appointive process (which would put the decision in the hands of the legal community and the governor), in part because there is a sizable and vocal faction that still supports the democratic process of selecting judges. This is America. The pro-election faction gives four basic justifications:

1. The people have an inalienable right to select their judges.

2. Judges ought to get off their thrones once in a while and mix it up with common folk, to learn what's up in the real world.

3. Elections are the only way to get rid of lousy judges.

4. The system has given us good judges, so why change it?

Each of these reasons, however, tends to disintegrate in the harsh glare of recent history. In order:

The people's will . . .

No one has marched on Washington yet to complain that U.S. Supreme Court justices, federal appeals judges, state Supreme Court justices and state appellate judges are all appointed, not elected. Democracy has not crumbled.

Appointment is certainly as political a process as popular elections--there is a saying, "A judge is a member of the Bar who once knew a governor"--but it usually yields good judges. For one thing, the appointive process can draw from a larger and somewhat better pool of lawyers, one that includes all those who cringe at the idea of campaigning but want to be judges nonetheless. One other fact: Since 1966, according to Florida Supreme Court Justice Ben Overton, all the judges removed by the qualifications commission have been ones who gained the bench through popular elections.

Florida voters had a chance in 1978 to kill judicial elections, but the constitutional amendment was part of an unwieldy package of amendments that failed at the polls. The legal community has since rather craftily tried to limit elections. The idea is simple: Stop elections before they happen. This is done, first, by persuading retiring judges to quit a few months early so the seat can be filled through appointment rather than popular election. The new judge's seat is then up for grabs in the next election, but most go unopposed, because it's virtually taboo in the legal community to challenge an incumbent judge and difficult to beat one. The result is that, if you go down the roster of Dade judges, the vast majority were originally appointed, not elected.

A corollary phenomenon is that a number of candidates who have been rejected by voters at the polls are then appointed to judgeships anyway. Forget this will of the people business. For example, David Tobin. Twice he ran for judge, and both times he lost. In 1987 he was appointed to the circuit bench to fill a vacancy. Another is Celeste Muir: She lost to Jack Block in 1984, but was appointed the next year.

Gisela Cardonne is a special case. Gov. Bob Graham appointed her to the county bench in 1982. She had to run for re-election a few months later. At the time her name was Gisela Cardonne-Dienstag, and her publicist, Gerald Schwartz, citing Name Game requirements, insisted that she drop the Dienstag. It was ethnically confusing and too long for a bumper sticker. Her challenger, moreover, had the name Murray Klein, and though he had raised almost no money, had mediocre ratings in the Bar poll and had lost seven previous elections, he had a great Name Game name, solidly Jewish and very judge-sounding on account of how three other judges in town were also named Klein. But Cardonne-Dienstag refused to change her name, saying it would ruin her marriage. She lost. Now there were four Judge Kleins. Cardonne subsequently applied yet again for an appointment. But the governor had a major concern: Would she insist on running with one of those awful hyphenated names again? Cardonne, mercifully, had divorced, and vowed to keep her maiden name unfettered, even if she were to marry again. Schwartz says, "She personally assured me and the governor, on more than one occasion, that she would run with one name, and not make such a strategic error." She got the job, and has not been challenged since.

Judges should mix with common folk . . .

Campaigns force judges to mix not only with common folk but with sleazebags and favor seekers. Campaigns politicize the judiciary, and while this may be no big deal in rural North Florida or sleepy St. Pete, in Dade County it means the judges are forced to immerse themselves in a world of hustlers, hacks and men bearing gifts. Campaigns force judges to take money from people. Almost always, the contributor is a lawyer.

"It was the most humiliating experience of my entire life," says Circuit Judge Frederick Barad, who last had electoral opposition in 1978. "Running for a judicial office, having to raise money and accept money from attorneys, constitutes in my opinion the greatest evil in our judicial system."

When "the Great Corruptor" of Hialeah, Alberto San Pedro, was tape-recorded saying that he had 20 judges in his pocket, it was probably braggadocio--but it's also a fact that at least eight Dade judges showed up at the ex-con's house for his annual St. Lazarus Day party in December 1985 (mixing with the common folk!). Naturally, after San Pedro's subsequent indictment for bribery, conspiracy, cocaine trafficking and attempted murder, these judges claimed they barely knew the man. So what were they doing at his house? Making contacts. Rubbing elbows. Immersing. (The man who helped introduced many of those judges to San Pedro: Bob Levy. Levy knew that San Pedro helped political candidates. He was just doing his job.)

There are, of course, many legitimate candidate forums, but not all of them are grand affairs. Bob Levy's prized calendar of judicial events lists the important venues in upper case ("MIAMI BEACH RETIREES AT AMERICAN SAVINGS LINCOLN & ALTON MB--BE THERE 12:30 Hand out literature--you'll be introduced--THIS IS HARRY & PAULINE MILDNER'S GROUP VERY VERY VERY VERY IMPORTANT!"). Janet Reno, the Dade state attorney, says, "It's just horrible seeing a good circuit judge standing out there at the condos shaking hands." Sometimes real live common folk don't even show up. Judge Martin Kahn, a reluctant campaigner, says, "Frequently we'll go to an event where the candidates literally outnumber the public. We end up shaking hands with each other."

Elections purge inept judges . . .

Bizarrely, even inept judges get massive contributions and endorsements from lawyers, who have an instinct for currying favor with the bench. And since decent candidates seldom materialize at filing time, the incompetent judge tends to either go unopposed or be challenged by someone just as incompetent (see Testa 'n' Lantz, below).

Advocates of a strictly appointive system note that voters could still remove judges through a "merit retention" election, a yes/no vote. This method is already in place for appellate judges.

The only other way to get rid of a bad judge is through disciplinary expulsion, via the Judicial Qualifications Commission. But since the JQC was founded, it has confined itself to a narrow range of criminal and ethical misconduct, and has never once disciplined a judge on grounds of incompetence. The JQC is a low-budget operation with no permanent investigators; the commission is afraid that full-time gumshoes would throw their weight around, feeling compelled to justify their existence with a pile of vanquished judges.

Thomas Barkdull, a Third District Court of Appeal judge and senior member of the JQC, says, "We've probably erred on the side of being too conservative."

The system works . . .

It is true that Dade County has, for the most part, good judges--and a few, such as Chief Judge Gerald Wetherington, could probably be making $400,000 a year if they were in private practice. But lawyers say there is also a thick layer of mediocre judges and below them, stuck to the bottom of the pan, the dregs.

Judge Seymour Gelber says, "I don't think that being a judge is a difficult job. . . . But somehow we have gotten some judges who can't hack it."

How? They got elected, of course.

A candidate's forum . . .

"You'll be up soon," the campaign manager, Greg Borgognoni, says to Judge S. Peter Capua. "What do I do? What's going on?" the judge says.

"You get up and say something," says the campaign manager.

The Cuban American Bar Association is holding a luncheon at the Hyatt. Every candidate gets to speak. But there's a catch. They can only speak for 60 seconds. Some forums go a full 90. But those are usually night gigs. Luncheons are more chop-chop.

Even if Capua had the time, there isn't much he could say. Judges are supposed to be dignified, impartial, uncontentious. An official Judicial Elections booklet produced for the Dade bench gives candidates three examples of what they are allowed to say without violating judicial canons:

"State that, if elected, you would look closely at each case before issuing a capias in a misdemeanor offense;

"State that you would generally be in favor of using the summons power of the court to bring misdemeanor defendants to Bar; and

"State that you would not threaten defendants for exercising their right to trial."

Capua strides to the podium. He thanks everyone in the crowd (mostly, it seems, other candidates and consultants). Ten seconds. A summary of his resume takes another 40 seconds. He mentions the names of his children. Time's up! He slips in a last-second thanks for their support and sits down.

The best sound-bite of the day comes from County Judge Ed Swanko, who's running for an open circuit seat. "I am productive, and I've got 10 kids, so you know I do get results!"

Calvin Fox tells the Cuban lawyers, "I would introduce my son, Calvin Manuel Fox, who is bilingual and is teaching his father Spanish, but he's not here today."

The campaign trail is unfamiliar territory for most of these poor candidates, so they must depend on the PR men to guide their way. Take Jack Martin Coe. He was a private lawyer until July 7, when his phone rang and he heard the governor's voice. He had won appointment to the county bench. He had to report for duty in four days.

"I had to close out my practice with my partners, I had to get together with my partners so they could take over my cases, then I had to come to the courthouse, then you get indoctrinated in the job, then you're on the bench. And every free moment when I'm not a judge, I have to be out campaigning. You go to breakfasts, you go to lunches, you go to dinners and then everything after dinner. It's a grueling process."

What should he tell the voters?

He runs on his strength: incumbency.

"I am Judge Jack Martin Coe, and I am the incumbent in my position," he tells a crowd of North Dade Democrats. A moment later, he reiterates this seminal point: "I'm the incumbent, as I said."

A Case Study, 1984

Fred Dellapa had it in the bag. He was a respected lawyer running against one of the worst-rated judges in the county, Tom Testa. The only judge who rated worse than Testa in the Bar poll was Dick Lantz, who recently had distinguished himself by stating in court that a black man must have been run over on a dark country road because "he wasn't smiling." Testa and Lantz were so often mentioned together as examples of judicial incompetence that one might have assumed that "Testa 'n' Lantz" was a law firm. Both were up for re-election.

The local newspapers endorsed Dellapa. The Herald editorialized that of the 26 candidates for judgeships in the fall of 1984, he was clearly the best. The teacher's union and the AFL-CIO endorsed him. Latin organizations endorsed him. Church groups endorsed him. The Young Republicans and the Young Democrats endorsed him. He raised a healthy $100,000 for his campaign and added $20,000 of his own; "It was my entire life's savings," he says.

There was one small thing that might prove problematic. The third name on the ballot. Mary Ann MacKenzie. It's a good ballot name--it sounds very "American-born." Two years earlier a 21-year-old clerk named Christina MacKenzie almost unseated County Commissioner Jorge Valdes in an ugly campaign that many perceived as anti-Cuban.

Mary Ann MacKenzie was a former two-term state representative in the early 1960s, and in 1964 she had run unsuccessfully for county mayor. She didn't have much of a legal practice; she hadn't even been in a courtroom for two years, and that was just for a traffic case. In one year, 1977, she reported a net income of $239, with expenses of $13 for stamps and $58 for secretarial services. She was physically disabled and in constant pain from a hip injury suffered in 1980 when her husband accidentally clipped her with his Thunderbird. She had raised only a few thousand dollars. The Bar poll, which rates judicial candidates during election years, gave her a rating nearly as low as Testa's. Her view of the law was at times absurd; she told The Miami News editorial board that murderers deemed to be insane should be executed: "If he's crazy (there's) no point in keeping him alive. . . . Insane people are vegetables. He's of no use to himself or anybody else."

In the September vote, there was no majority. Testa was out. Dellapa was shocked to find himself in second place behind MacKenzie. What kind of mystique did that name have? he wondered. They would meet in a runoff in November.

Then Dellapa got his big break: The Herald ran a story revealing that MacKenzie had in recent years suffered from severe alcoholism. MacKenzie's doctors said at one point she was drinking a quart of booze a day and was once admitted to the hospital incoherent and covered with food and feces. Yet MacKenzie denied she ever had a problem and said she hadn't touched a drop in years.

But for MacKenzie it was a PR disaster. Dellapa's friends called him up and said congratulations. Game over.

November.

The election.

It wasn't even close. The winning margin was a comfortable 25,000 votes.

Her Honor appeared to nod off during her first trial.

"She was actually sleeping on the bench. There were times when objections would wake her up," recalls one of the lawyers who handled the first trial in front of Circuit Judge Mary Ann MacKenzie. "It was truly a farce. I've been in front of some mediocre judges. This was a novel experience."

It was a bad start for MacKenzie. The case ended in a conviction, but an appellate court threw it out because MacKenzie had allowed jury selection to take place when she wasn't present.

With Testa 'n' Lantz gone, the two worst judges in the annual Bar poll are now the candidates who beat them in 1984, MacKenzie and Rosemary Usher Jones. Jones was the only lawyer in town willing to run against Lantz. As a candidate she was rated unqualified by 43 percent of the bar; after nine months on the bench, her unqualified rating had risen to 56 percent; and by 1987, it reached 68 percent. Assigned to Juvenile Court, Jones was known to become easily confused and flustered by the hectic traffic of people, forgetting names, losing track of legal requirements. A fellow judge called her "a disaster." Jones moved in May to the civil division, and says she likes it much better.

In the 1987 bar poll MacKenzie weighed in with an unqualified rating of 79 percent.

"Those are the people who supported my opponents," MacKenzie said in a recent interview. "They're sorry losers. I'm not at all concerned about my Bar polls."

MacKenzie repeatedly declined to grant an in-depth interview for this article. She said she was glad to be out of the criminal division: "I like civil court, it makes you think. It takes my mind off the pain."

MacKenzie sued her doctors for malpractice after her hip injury. When the case went to trial earlier this year, the lawyers for the doctors tried to show that MacKenzie's problems were her own fault, the result of her alcoholism. On the stand she repeatedly denied ever having a drinking problem, but the jurors believed the defendants and were amazed that the case ever made it to trial. They deliberated only 23 minutes before returning with their verdict: Zilch for the plaintiff.

"We kinda don't understand why we have judges that don't have to go through some sort of qualifications screening," said juror Harriet Pearson.

As for Fred Dellapa, private attorney, he's still stewing over his loss to MacKenzie in 1984. His friends keep asking him, "Hey, Fred, when you going to become a judge?" He has applied to the nominating commission, but hasn't gotten an appointment. He says, "Don't think that I'm not thinking that MacKenzie's seat is up again in 1990."

By then, the voters will have figured it all out.

Won't they?

July 22, The Capitol

The clock hits noon.

Al Zemlock ("I'm a nut!") dives into an already-contested county court race, jamming things up.

Calvin Fox (the guy who ate the slice of pie) joins another pile-on for a circuit seat.

Wally Pesetsky bravely files against the allegedly incompetent Judge Peter Capua.

No one challenges Judge Jack Block ("B" for bookie). No one challenges Judge Juan Ramirez ("Who told you I hired Bob Levy?").

Only five of the 36 incumbent judges draw opposition; the other 31 are automatically re-elected. Even Shenberg, the private lawyer, the nonincumbent, gets no competition. Boom. He's a judge-elect.

Astonishingly, a lawyer named Alan Dubow challenges the highest-rated county court incumbent, Morton Perry. It's hard to find anyone who doesn't think Perry is a good judge. Dubow thinks Perry is vulnerable because he hasn't had to campaign in years.

A similar thing happens to highly regarded incumbent Circuit Judge Martin Kahn. He is challenged, out of the blue, by a lawyer named Don . . . MacKenzie. AAAAAAeeeeeeeeee! That name again. Indeed, it is the husband of Judge Mary Ann, the guy who clipped her with his T-Bird way back when.

It is 12:01 p.m. Of Gerald Schwartz's 18 paying clients, 12 have won without opposition, without garnering a single vote. Schwartz's income for those dozen uncontested races is, he later calculates, "about $100,000-plus. I'm way down. That's much below two years ago."

At 12:02 p.m. Schwartz rifles through the filing papers and sees a clerical error on the loyalty oath signed by Don MacKenzie. Schwartz represents Kahn.

"Shhhhhhhh!" Schwartz commands those around him, lest MacKenzie realize that he has made a mistake. "Didn't make it. Didn't qualify. Wrong form!"

Schwartz is so tickled he smacks his palm down on the table. The law, unfortunately for Schwartz, says such technicalities can be corrected, no problem. But Schwartz insists: "He's out!"

It is time to go home. Calm slowly erupts over the 18th floor of the state Capitol. People begin to load into the elevator. In the hallway, Bob Levy announces, "Schwartz is going to be up on charges for making threats!" but Levy can find no one to testify to the complex extortion scheme he describes, and the matter is soon forgotten.

There is momentarily some confusion, and consternation, about mail that might be coming up from downstairs. Judge Jack Block lingers, concerned. Five minutes pass. Then Block--who had once stood across the street in the Supreme Court and received a public reprimand for unethical behavior--gets some good news. He approaches Levy in the corridor.

"They just announced that there's nothing in the mail room," Block says.

"Congratulations," Levy says.

They shake hands.

Four more years.

Section: TROPIC
Copyright (c) 1988 The Miami Herald