For the second time, a Hillsborough County circuit judge trying to fend off allegations of campaign wrongdoing has called for the disqualification of a member of a panel that will consider her case.
Circuit Judge Nancy Jacobs on Monday filed a motion to disqualify Abigail MacIver from a Florida Judicial Qualifications Commission hearing panel, in part because MacIver is married to 5th District Court of Appeal Judge John MacIver.
Jacobs faces allegations because of remarks about her 2022 election opponent, then-Hillsborough County Circuit Judge Jared Smith. After Smith was defeated by Jacobs, he was appointed by Gov. Ron DeSantis to the 6th District Court of Appeal.
“The ‘seat’ (on the hearing panel) occupied by Ms. MacIver is intended to be filled by a ‘public member.’ In this case, Ms. MacIver is not a public member or lay person, rather she is married to a current judge of the Fifth District Court of Appeal, John MacIver, and presumably receives a significant portion of her family income as a result of her husband's service as a judge,” the motion to disqualify Abigail MacIver said. “It is possible that the (Judicial Qualifications) Commission was unaware of Judge MacIver’s current position when Ms. MacIver was selected but, in any event, it is not appropriate to have the spouse of a sitting district court judge functioning as a lay member.”
Late Tuesday afternoon, Jacksonville attorney Hank Coxe, special counsel for the Judicial Qualifications Commission, made a filing that said he does not believe the allegations in Jacobs’ motion are “sufficient to warrant disqualification.”
But Coxe raised a new issue, saying his law firm, in an unrelated matter, represented a company in which Abigail MacIver has an ownership interest. “As a result, in an abundance of caution, special counsel believes it would be appropriate to seat a different alternate,” Coxe wrote.
Jacobs’ motion to disqualify MacIver came after the circuit judge in October filed a similar motion to disqualify Jonathan Bronitsky from the hearing panel. That motion alleged Bronitsky, the founder of a public-relations firm who served as a chief speech writer for former U.S. Attorney General William Barr, had a “conservative bias.”
Bronitsky withdrew from the Jacobs case on Oct. 24, while saying in a filing that “it is not in the best interest of this proceeding for me to comment upon Judge Jacobs’s sworn motion.” Abigail MacIver was named to the hearing panel on Dec. 4 after member Michelle Montanaro recused herself. A notice about Montanaro’s recusal did not explain the reasons.
The Judicial Qualifications Commission investigates allegations of misconduct by judges and makes recommendations to the Florida Supreme Court, which has ultimate disciplinary authority.
An investigative panel of the commission in September filed what is known as a “notice of formal charges” against Jacobs. A hearing panel will consider the charges and make recommendations to the Supreme Court. The hearing panel is scheduled to start a hearing March 24, according to a document posted on the Supreme Court website.
"Judge Jacobs regrets that the 2022 race took the path it did, but hopes this panel will recognize that it was not her actions alone, but a culmination of many factors, that made it a more difficult race than other judicial elections."Response by Judge Nancy Jacobs' lawyers
The notice of formal charges detailed a series of allegations against Jacobs, including that her campaign social-media sites included inappropriate statements about Smith’s positions on abortion issues and that she made disparaging remarks such as saying Smith couldn’t be fair and impartial because of his religious beliefs.
Also, the notice said Jacobs inappropriately touted her support from a Planned Parenthood PAC and that her campaign inappropriately advertised an endorsement from the group Indivisible Action Tampa Bay. The notice described Indivisible Action Tampa Bay as an “expressly partisan organization.”
In a Nov. 3 response to the notice, Jacobs’ lawyers wrote that the 2022 campaign was “unlike other judicial races,” as it came after the U.S. Supreme Court overturned the Roe v. Wade abortion-rights decision and as Smith drew attention for ruling against a teen seeking a waiver from a requirement that parents give consent before minors can have abortions.
Jacobs’ lawyers wrote that the attention defined the judicial race as “one about reproductive rights with a focus on Judge Jared Smith’s prior ruling.” The lawyers also wrote that Smith made and supported “statements he may not have otherwise made and many of Judge Jacobs’ comments at issue here were made in response to these.”
“It appears that no formal charges will be brought against Judge Smith,” the response said. “However, the context in which the alleged actions took place is relevant in considering Judge Jacobs’ actions and her ability to continue to serve as a judge. Judge Jacobs regrets that the 2022 race took the path it did, but hopes this panel will recognize that it was not her actions alone, but a culmination of many factors, that made it a more difficult race than other judicial elections.”
