Scott DuPont and Don Holmes:
Dogma vs. Nuance in 7th Judicial Circuit Race

It wasn’t coleslaw wrestling, but close.

When Scott DuPont and Don Holmes met in a candidate forum in Bunnell Thursday evening, they proved why judicial candidates running for office is a bad and silly idea. Watching two grown men claw at each other intellectually and personally may be a natural impulse for politicians running for more menial positions like the state Legislature or the governorship. It’s crass when it involves a judgeship. Even as Holmes and DuPont paid homage to impartiality and fairness, they went at each other as if they were two prosecutors set loose from the rules of evidence.

DuPont, without a shred of evidence, implied that Holmes’ character was suspect and that Holmes, “a millionaire,” was buying the election with his money, even though DuPont has plunked $3,000 more of his own money in his campaign than Holmes has in his. Holmes has more than twice DuPont’s contributions ($92,000 to $44,000, at last count), but that’s because he has more than twice the number of contributors. Holmes, who seemingly repeated 34 times the fact that he’s been practicing law for 34 years, spoke of DuPont as if he were barely out of law school, didn’t know the difference between complex and simple cases, and may, after 10 or 15 years, “probably have the perspective that will allow him to be a good judge.” But not yet.

Holmes and DuPont also proved why judicial candidates running for office is an excellent idea. Their sparring was more substantive and edifying than most debates between political candidates for other offices. Holmes and DuPont, who are in a run-off for the 7^th Judicial District’s Group 10 seat in Putnam County (Flagler County voters cast ballots in that race because Flagler is in the same judicial district), spoke of the variety of their experience, their idea of the law, of the bench’s responsibility toward litigants and the docket, of judges’ power and limitations, and of their views about juvenile justice, which said more about their social philosophy than all their endorsements and years on Rotary clubs combined.

Along the way, Holmes and DuPont revealed what no lawyer, however political or theatrical, could hide: their temperament, the nuances of their thinking, their preparedness for the bench, and the depth of their experience.

If this were a scored debate, Holmes would have beaten DuPont on virtually every count. He was more relaxed, less dogmatic, and rarely spoke in the kind of slogans DuPont reached for on many occasions, as if to fill in for more substantial answers. DuPont repeatedly emphasized his belief in “strict constructionism” and “not legislating from the bench,” and even took a swipe at U.S. Supreme Court Justice Stephen Breyer’s notion of a “living Constitution” (“I don’t believe that the constitution is living,” DuPont said derisively, “I don’t believe that it’s breathing, and I don’t believe that it changes over time unless the people give the amendments to do so”). It was as if DuPont were in a Senate hearing for a Supreme Court seat. But he wasn’t. A circuit court seat is more banal than that. Constitutional questions, as opposed to statutory matters, are rare in county courthouses. But DuPont was borrowing catchy sound-bytes from the national debate about the federal bench and playing on the public’s ignorance that his statements were locally irrelevant.

Holmes, seizing on a question about poor lawyering in the courtroom, finally struck back at the slogans: “Your job is to apply the law and not make law. I don’t think any of us have any illusions about that,” Holmes said. “But on the other hand you’re not just sitting up there like a machine, and if you see something going on in your courtroom that’s just absolutely not right, equitable or fair, you have an obligation to do what you can to address it.”

The forum, sponsored by the Flagler Palm Coast Civic Association, took place in the chambers of the Bunnell’s Government Services Building. DuPont and Holmes shared the dais with Dennis Craig and Joe Horrox, the two candidates running in the 7^th Judicial District’s Group 5 seat (the one held by Kim C. Hammond, who’s retiring), but fielded different questions. (The article on Craig and Horrox will appear tomorrow.)  All candidates had appeared in a similar forum in August, before the primary, when they faced much larger fields. Both pairs are in run-offs. Holmes won 44.7 percent of the vote in a three-way race in the primary. DuPont won 31.9 percent, and Eric Neitzke won 23.4 percent.

The questions Thursday evening were largely retreads from the August forum, but they elicited sharper answers from the candidates, who’ve had two months to hone their message.

When first opening the floor to the Group 10 candidates, the moderator made a mistake and gave the floor to Holmes first. He offered to go with it.

“Actually,” DuPont jumped in—like a trained lawyer ready with an objection—“I’d like to go first.” It was a flash of petulance that made Holmes’ point: DuPont’s rigidity immediately showed. And so he went first, speaking sternly and in the cadences of a preacher putting his congregation on notice.

DuPont said he decided to run as a public service, and as a seven-generation member of the community, he was best fit to represent it. (Actually, DuPont hasn’t lived in Putnam County since graduating high school. He works in Daytona Beach.) After bible college in Texas, he attended Regent University in Virginia—a Christian madrassa that makes no bones about its mission: “Christian leadership to change the world”—where he earned his law degree on top of an MA in public policy. He then joined the State Attorney’s office in Volusia County for two years, where he said he “prosecuted thousands of cases.” That sounds impressive. But on his disclosure statement to the Florida Bar, which asks for the number of jury trials in which he participated, he said “approximately 70-80,” and another 30 to 40 bench trials. He then went into private practice. Choosing him, he said several times Thursday evening, is a matter of trust. “Who do you trust not to be judicial activist?” he said, again making an implication about Holmes that could stick to a federal appellate judge, but not a local county judge.

Holmes—looking and sounding more relaxed than he did in the August forum, when he was the one sounding somber and insistent—began by noting that it was his first time out as a candidate (as it is for DuPont). It was a tactical preface to a jab at his opponent: “But I waited until I practiced law for 34 years before I ran for public office. I think that the question of who do you trust is probably a very valid one,” he continued, “but maybe the better question is, how do you decide who to trust? Do you trust someone based on what someone says they’re going to do, or do you trust someone based on a track record of what they have done?” He then listed—what else—his 34 years of experience, some 140 felony jury trials (to DuPont’s zero) and 75 bench trials, and so on. He’s represented plaintiffs half the time, defendants the other half.

When the two candidates were asked one of the more original questions of the evening—what steps they would take if faced with a “developmentally disabled” person in the courtroom, DuPont said there’d be technology to help the hearing impaired and other “appropriate things for people that are handicapped,” and that he himself would defer to the law. “My job is to follow the law, and that’s exactly what I’m going to do,” he said.

Holmes’ answer, visualizing more angles than doctrine, again showed the differences between the two men (with a touch of condescension on Holmes’ part): “Obviously every judge’s job is to follow the law,” Holmes said, “we all understand that. But there may be a case where you’re called upon to protect the rights of a developmentally disabled person other than in the context of a criminal trial or in the context of a guardianship proceeding. For instance, if someone disabled appeared in your courtroom as a witness, and there’s no law that covers that. As a judge you use discretion and experience in deciding how best to protect that witness from maybe an overaggressive attorney, for instance, or from themselves on occasion.”

The candidates got snippy, too. When asked about the role of a judge, Holmes, grabbing one more chance to speak of his experience, said knowledge of the law in the courtroom was crucial because a judge doesn’t have time to go back to his chambers to flip through law books “when lawyers are in the heat of battle in the courtroom making objections on evidence that’s being presented. You’ve got to make a ruling then. And if you’re wrong, then one of two things happen. Either injustice occurs, or the state spends a lot of money, or some person spends a lot of money in making an appeal.” The implication was that a young, inexperienced judge would cost the system time and money.

DuPont struck back—first with repeats about being a public servant and a strict constructionist, then at Holmes directly: “I strongly, respectfully disagree with Mr. Holmes, in that a circuit judge doesn’t have time to go back and look up the law. Actually I think that that would distinguish a good judge from a bad judge, because a good judge will take the time to find the right answer to make sure that they render the right decision, and at the end of the day if judges knew everything, they wouldn’t have clerks.” That summation drew the first tight-lipped smile of the evening from DuPont.

They were asked what they’d do if they saw a defendant being poorly represented in their courtroom. After asking for the question to be repeated, DuPont, seeming still confused by it (even though the question was relayed on the computer screen in front of each candidate), said the poor economy means a lot of people are choosing to represent themselves in court, which causes delays and lack of preparedness. A judge would have to be impartial regardless, he said.

It was Holmes’ turn to be snippy. “The question doesn’t have to do with pro se litigants or people representing themselves. It asked, it’s on our screens, it asked us how we would handle an unprepared, ineffective lawyer,” Holmes said, his beard and weathered temper hiding his sneer. “And I think it’s a matter of degree. Obviously the judge’s job isn’t to sit up there and grade papers and intercede if they think that one lawyer is better than the other. However, I think again that’s where experience and perspective comes into play. If you’re sitting up there on the bench and you see an attorney who for whatever reason is just absolutely, totally unprepared or absolutely totally ineffective, and isn’t providing any kind of representation for the client, I think you do have an obligation to step in. My personal way of handling that would probably be to declare a recess, ask the attorney to come back in the chambers and simply ask the attorney if there’s a problem with the case, with his understanding of it, if he’s undergoing something himself physically or mentally that might be causing him a problem in going forward with the case. And I think in doing that many attorneys might come forward and tell you why they’re not able to handle the case as effectively as they might. If the representation is so bad that a mockery is taking place in the courtroom, I think you have an obligation to stop the trial.”

The question about juvenile crime—why there’s so much of it—was outdated: the juvenile crime wave has passed, the explosion in juvenile crime never materialized, and in Florida, the problem is not juvenile crime so much as it is prosecutors’ habit of transferring juveniles to the adult system. But the question was posed, so the candidates answered it, and revealingly so. First, they both bought its flawed premise. Second, DuPont used it to apply one rule: the problem is all in broken homes and with single mothers. Fix those homes, and juvenile crime would be fixed. (The answer was bunk: European societies have higher incidences of single or unwed mothers but a fraction of America’s juvenile crime; what they have in its place is a wider social safety net.) DuPont, who’d just decried judges who “legislate from the bench,” then spoke like a state lawmaker rather than a judge: “Whatever program the legislature or the court system come up with, it must be within the budget, and we don’t need to be spending taxpayer dollars that we don’t have. So if you want to fix the problem, fix the family.”

Holmes’ answer wasn’t more searching. He spoke of the benefit of diversionary programs, than plucked at the audience’s stereotypical fear of juvenile crime: If those programs don’t work and the juveniles end up in the adult system, “we will lose the battle, they will outnumber us before it’s all over.”

The two men swiped each other one more time when discussing the range of their work, DuPont characterizing all cases as “complex,” and Holmes deriding the notion. “I disagree that all cases are complex. All cases are vitally important,” he said, “but they’re not all complex, they don’t all have the same issues involved.” Then off he went speaking about his 34 years. It was a set up for his final send-off of DuPont in his closing statement, when he suggested that in a decade and a half DuPont might have the makings of a judge.

DuPont read his closing statement. “The most important issue about this race is who do you trust. This isn’t about experience,” he said. In the very next sentence, he said it was about experience. “And for the record, I just don’t have it? Mr. Holmes, if I didn’t have it, the Legislature wouldn’t allow me to qualify to run for judge to begin with. It’s not about experience. I’m not a political insider. I don’t have big political endorsements, and I don’t have the big unions backing me just like my opponent does.”

It’s not clear what a union backing a judicial candidate has to do with the candidate’s character, other than DuPont’s attempt again to appeal to voters’ anti-union biases. He added: “I’m not a millionaire, just like my opponent, I don’t have the money to spend on the campaign just like he has done,” never noting that he’d spent more of his own money ($22,500) than Holmes has of his ($18,400).

And it was DuPont, not Holmes, who’d made honesty an issue.