Stacked Deck In Florida?

Judge Nancy Jacobs has filed a motion to recuse a lay member of the hearing panel in her pending judicial misconduct case, noting that the member is the spouse of a district court of appeal judge appointed by Ron Desantis.

The “seat” 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.

After Judge Jacobs defeated her opponent, he was appointed to another judicial office by DeSantis. 

We reported on the underlying allegations and suggested that there is an “unsavory odor of selective enforcement” in the matter.

Beyond the spousal issue it is alleged

Ms. MacIver was involved in the use of ghost candidates in three 2020 Florida Senate races, involving Ileana Garcia, Ana Maria Rodriguez and Jason Brodeur. See Exhibit 4, Mark Harper, Inquiry Into Ghost Candidates Follows Money to Political Consulting Firms, Palm Beach Post, Feb. 8, 2022, at 1A.

In the Rodriguez election investigation, Ms. MacIver has received transactional immunity associated with the charges against former state senator, Frank Artiles. Mr. Artiles is accused of paying an auto parts dealer to run as a nonpartisan candidate, helping siphon votes from a Democratic incumbent with the same last name. The criminal trial for Mr. Artiles is set to occur in February 2024.

The Palm Beach Post described the matter as follows:

Alex Rodriguez, the ghost candidate — so dubbed because after he qualified for the Senate race, he did not publicly campaign — pleaded guilty to accepting two or more campaign contributions in excess of the limits and a related conspiracy charge. He is serving three years on probation with 12 months of that on home detention, plus fines, and he agreed to testify against Artiles. The investigation has deepened to include a pack of political
committees, consultants and nonprofit social welfare organizations involved in a complex network of financial transactions apparently designed to avoid public scrutiny. During 2020, cash changed hands several times before being sent to a printer to produce and mail thousands of fliers promoting Rodriguez and ghost candidates in two other races with the same apparent goal: steering voters to an independent candidate with left-leaning
campaign pledges in an effort to subtract votes for Democrats. Id.

It appears that Ms. MacIver will be a key witness in this proceeding, as she was a partner with Canopy Partners LLC, which was involved in “spending $550,000 to support two straw candidates in Miami-Dade (plus one the in Seminole-Volusia district).” Id. While it appears Ms. MacIver sought to minimize her personal involvement, she admitted “’somebody’ in her company ‘definitely was involved in these events.’” Id. To be clear, “these events” were schemes to hide illegal money that was being given to political candidates.

The fact that Ms. MacIver has received transactional immunity associated with an effort to corrupt an election would lead a reasonable person (and it has led Judge Jacobs) to conclude that she was engaged in conduct that could have resulted in criminal charges being brought against her because of her involvement in these efforts and reasonably question her ability to serve on the panel.

2. Miami-Dade County Commission Election of Levine Cava

Based upon media reports, it also appears that Ms. MacIver was involved in a secret plan to utilize a political spoiler candidate to “siphon votes away” from then Miami-Dade County Commissioner Daniella Levine Cava. See Exhibit 5, Nicholas Nehamas, Douglas Hanks, Sarah Blaskey and Mary Ellen Klas, Our Plan Might Have Paid Off’: How FPL Dollars Secretly Funded a Spoiler vs. Levine Cava – Consultants for Florida Power & Light Used the Utility’s Money to Fund a Challenger to Daniella Levine Cava During an Election for the MiamiDade County Commission, Miami Herald, Aug. 26, 2023, at 1A.

In this matter, media reports state that Ms. MacIver was involved in a scheme by Florida Power and Light to spend funds greatly exceeding the legally permissible amounts to support Johnathan Burke against incumbent Daniella Levine Cava for her seat on the Miami-Dade County Commission.

Media reports quote Ms. MacIver as sending a text message that stated, “Well that’s a respectable vote number for JB. If barreiro had done a decent job, our plan might have paid off.” Id. This would lead a reasonable person to conclude that Ms. MacIver was a participant in an illegal conspiracy. Further, a reasonably prudent person, and Judge Jacobs, would reasonably question Ms. MacIver’s ability to serve as a member of the panel.

3. The Capitolist

Ms. MacIver controlled the Tallahassee-based news site The Capitolist, which Florida Power & Light “plucked … from obscurity and used it as part of an elaborate, off-the-books political strategy to advocate for rate hikes, agitate for legislative favors, slam political opponents and eliminate anything — even home solar panels — that the publicly traded utility worried might undermine its near monopoly on selling power in the Sunshine State.” See Exhibit 6 –Sarah Blaskey, Powerbrokers: How FPL Secretly Took Over a Florida New Site and Used it to Bash Critics, Miami Herald, Aug. 13, 2022.

The media coverage includes screenshots of messages between Daniel Martell, Vice President of Legislative Affairs for FPL, and Ms. MacIver, showing executives of the power company advising on operations at the Capitolist through Ms. MacIver. Id. One email exchange in the article shows Ms. MacIver weighed in to recommend a story for the Capitolist, and stating, “my gut is to let him do this story. I think it makes him look like he’s not in our pocket and it isn’t bad for FPL.” Id.

The Miami Herald also reported that “[c]ontracts and incorporation documents show FPL consultant Abigail MacIver is the sole owner of Metis Group LLC, the shell company that received money from FPL earmarked for the Capitolist in 2018, an internal ledger from Matrix shows.” Id.

More disturbingly, Ms. MacIver was involved in discussions with the Capitolist editor Brian Burgess where he proposed they “find funding to secretly buy all of the USA Today-affiliated papers in Florida and then ‘let most of the clown reporters go … and syndicate content across the entire state.’ ‘We could even do it stealthily so we could inject content into all those publications and nobody has to know who’s actually pulling the strings.’” Id.

Special Counsel’s response

Special Counsel does not believe the allegations in Respondent’s Sworn Motion to Disqualify are sufficient to warrant disqualification. Nevertheless it was recently brought to the undersigned Special Counsel’s attention that Special Counsel and Special Counsel’s firm represented, in an unrelated matter, a company in which Hearing Panel Member 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.

The allegations involve remarks made by Judge Jacobs in her campaign. (Mike Frisch)