FLORIDA SUPREME COURT
JUDICIAL ETHICS ADVISORY COMMITTEE
Opinion Number: 2000-15
Date of Issue: August 11, 2000
WHETHER A JUDICIAL CANDIDATE MAY HOST A WEEKLY RADIO TALK SHOW DURING THE
ELECTION SEASON, AND IF ELECTED, AFTER THE DATE OF ELECTION?
ANSWER: No, with narrow exceptions.
WHETHER A JUDGE ELECT MAY ACTIVELY PARTICIPATE IN NON- JUDICIAL CAMPAIGNS BEFORE HE IS SWORN IN AS A CIRCUIT JUDGE?ANSWER: No
WHETHER A POLITICAL PARTY MAY SUPPORT THE CANDIDACY OF A JUDICIAL CANDIDATE?ANSWER: Yes, however, the activities of the candidate are nonetheless constrained by Canon 7 of the Code of Judicial Conduct.
The inquiring judicial candidate is presently a member of the Florida Legislature. He has offered himself for election to the circuit court bench. His term as a legislator will end on November 5, 2000. The candidate has a radio talk show that he characterizes as "informative in nature." He selects a topic and has guests on his show who are experts in the field. The show accepts phone calls from the general public and the host, as well as the guests, comment on the topic. The show is aired weekly.
The question of whether a judge may appear as a commentator on a commercial television station was thoroughly surveyed in Opinion 96-25. The analysis for a radio show would be no different. In 96-25, this Committee looked at ethics opinion from around the United States. We concluded that a judge's appearance as a regular commentator on the commercial airwaves would violate the Code of Judicial Conduct if the subject matter covered by the judge focuses upon current legal matters and current cases pending before various courts. We noted that an earlier opinion of this Committee, 91-5, concerned whether a judge may produce and broadcast a weekly radio talk show on divorce and family law. Although in that case, a divided Committee was unable to reach a majority position, the opinion noted the virtual impossibility of avoiding the hazards of giving legal advice or commenting upon pending cases under the situation described. The present inquiry does not identify the various subjects that would be covered on the radio talk show. Under the earlier opinion of this Committee, the inquiring judicial candidate may not host a regular commercial radio talk show that focuses upon comments concerning current legal issues. There would appear to be no prohibition, however, against a candidate for office hosting a show that is in the nature of a political advertisement, so long as the candidate otherwise observes the requirements of the Code of Judicial Conduct and the Florida election laws.
The candidate next inquires whether, if he is successful in his election, he may participate in partisan political activities between the election and his assumption of the bench. This Committee recently answered the same question in the negative in Opinion 98- 25. In that opinion, the Committee stated:
A judge-elect is bound by the political restrictions in the Code of Judicial Conduct and should comply with the restrictions applicable to a sitting judge who is not a candidate. Florida Code of Judicial Conduct, Canon 7(1)(b), prohibits a judge or a candidate for election from publicly endorsing or publicly opposing another candidate for political office.
Opinion 98-25 also concluded that a judge-elect participating in the political arena would be lending prestige of judicial office to advance the private interests of another. Such involvement could easily convey the impression that the candidate is in a special position to influence the judge-elect. Accordingly, the second question is answered in the negative.
The candidate's final inquiry concerns the question of whether a political party may support the candidacy of a judicial candidate. In Concerned Democrats of Florida v. Reno, 358 F.Supp. 60 (S.D. Fla. 1978), the court struck down §105.09, Florida Statutes, which prohibited a political party from supporting, endorsing, or assisting any judicial candidate. Reno has been followed by at least two Florida circuit court decisions.
Pursuant to Reno, this Committee operates upon the assumption that a political party has the constitutional right to support non-partisan judicial candidates. Nevertheless, this Committee has not hesitated to note that the Code of Judicial Conduct places rather tight strictures upon a candidate's right to publicly represent, as part of a judicial campaign, the candidate's experience with, and connections to, a political party. Such analysis appears in Opinion 96-21, in which this Committee stated that, notwithstanding the Reno decision, "Florida is firmly committed to the ideal that insofar as the activities of judicial candidates themselves are concerned, partisan politics will play no role whatsoever in campaigns." See also Opinion 90-16 (prohibiting a judicial candidate from announcing, in response to the question, the candidate's political party affiliation); In re: Inquiry Concerning a Judge, Nancy F. Alley, 699 So. 2d 1369 (Fla. 1997) (disciplining a newly elected judge for, inter alia, injecting party politics into a nonpartisan election by noting the party affiliation of the governor who has appointed her opponent to her position of county judge.).
Florida Code of Judicial Conduct Canon 7(1)(b).
Florida Judicial Ethics Advisory Committee Opinions: 90-16, 91-5, 96- 21, 96-25, and 98-25.
Concerned Democrats of Florida v. Reno, 358 F.Supp. 60 (S.D. Fla. 1978);
In re: Inquiry Concerning a Judge, Nancy F. Alley, 699 So. 2d 1369 (Fla. 1997).
The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.
For further information, contact The Honorable C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 130 West New York Avenue, DeLand, Florida, 32720.
Participating Members: Judges C. Kahn, L. Kahn, Levy, Silverman, Smith, Swartz, Thompson and Townsend.Copies furnished to: