FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 00-22 (Election)1
Date of Issue: August 16, 2000

ISSUES

MAY A JUDICIAL CANDIDATE ATTEND AND SPEAK AT A PARTISAN POLITICAL EVENT WHICH IS NOT A FUNDRAISER AND AT WHICH THE OPPONENT HAS LIKEWISE BEEN INVITED TO SPEAK; AND IF SO, MAY THE CANDIDATE DISTRIBUTE CAMPAIGN LITERATURE AT THE GATHERING?

ANSWER: Yes.

MAY A JUDICIAL CANDIDATE ATTEND AND DISTRIBUTE CAMPAIGN MATERIALS AT A NATIONAL RIFLE ASSOCIATION FUNDRAISER?

ANSWER: Yes.

MAY A JUDICIAL CANDIDATE (OPPONENT) ETHICALLY CLAIM IN CAMPAIGN MATERIALS THAT THE INQUIRING CANDIDATE IS ATTEMPTING TO "BUY THE JUDGESHIP" WITH FAMILY MONEY; AND MAY THE INQUIRING CANDIDATE RESPOND TO THE CHARGE BY STATING THAT THE ACCUSER (OPPONENT) IS ATTEMPTING TO "BUY THE JUDGESHIP" WITH CAMPAIGN CONTRIBUTIONS?

ANSWER: The Judicial Ethics Advisory Committee (Committee) respectfully declines to answer this particular inquiry, but cautions the candidate to be aware of the requirements of Canons7A(3)(a) and 7A(3)(d)(iii).

MAY A JUDICIAL CANDIDATE POST ON AN INTERNET CAMPAIGN WEBSITE NEWSPAPER ARTICLES AND EDITORIALS REGARDING THE CAMPAIGN?

ANSWER: Yes.
FACTS

The inquiring judicial candidate poses several questions to this Committee. The candidate and the opponent have each been invited to speak to at a Republican Party breakfast. The breakfast is not a fundraiser, and each candidate will have two or three minutes to talk about his or her respective positions. After their speeches, they may be asked some questions.

Further, the inquiring judicial candidate is a member of the National Rifle Association (NRA). The candidate ponders whether it is ethical to attend an NRA fundraiser and distribute campaign materials while at the event.

Additionally, the inquiring candidate's opponent is claiming, "Unfortunately, my opponent is attempting to buy a judgeship for himself" with his family's money. The inquiring judicial candidate believes the Code of Judicial Conduct (Code) prohibits the characterization of his efforts as an attempt to "buy the judgeship." Furthermore, the inquiring judicial candidate desires to respond to the claim by suggesting in campaign literature that the opponent is attempting to "buy the judgeship" with campaign contributions.

Lastly, the inquiring judicial candidate questions whether the Code permits the posting of newspaper articles and editorials on an internet campaign website.

DISCUSSION

Canon 7C(3) provides, in pertinent part, "A judicial candidate involved in an election or re-election . . . may attend a political party function to speak in behalf of his or her candidacy. . . . The function must not be a fundraiser, and the invitation to speak must also include the other candidates, if any, for that office."

The inquiring judicial candidate and the opponent have both been invited to attend and speak at a Republican Party breakfast. Because the event is not a fundraiser, the Code does not prohibit attendance at the event. See, Fla. JEAC Op. 98-17 (A candidate may attend a non-fundraising "Candidate Question and Answer" forum and reception sponsored by the local Young Republican Club; however, the candidate should be cautious that his or her presence, remarks and/or actions are not construed by others to be political or partisan.); Fla. JEAC. Op. 96-11 ("As a candidate for judicial office, the Committee agrees that you can attend political functions to speak in behalf of your candidacy as long as the function is not a fundraiser and the other candidates for the office are also invited."); See also, Fla. JEAC Op. 78-6; Fla. JEAC Op. 77-15.

In Opinion 92-26, this Committee held that the Code of Judicial Conduct permits a judicial candidate to attend and speak at Democratic Party political events, provided that all other candidates for the judicial position are invited. We further stated, however, that the judicial candidate must request that the moderator announce at the outset that the judicial candidate is a non-partisan candidate for judge, and that the candidate's presence should not be interpreted as an endorsement of any other candidate for public office. If the moderator fails to make the above disclaimers, then the candidate must do so.

So long as all the provisions of Canon 7C(3) are met, the Code of Judicial Conduct and the spirit of Canon 7C(3) permit the distribution of campaign literature and materials by the candidate to attendees of the partisan political event.

In the second inquiry, the judicial candidate is a member of the NRA. The NRA is having a fundraiser, and the candidate would like to attend it and distribute campaign materials. The candidate questions whether the Code of Judicial Conduct proscribes his attendance at the event.

Canon 7 states, "A Judge or Candidate for Judicial Office Shall Refrain from Inappropriate Political Activity." The Code does not preclude the inquiring judge from attending the NRA's fundraising dinner and distributing campaign literature and materials.

While the NRA is involved in political matters, it is neither a "political party" nor a "political organization" as defined in Definitions of the Code of Judicial Conduct ("'Political organization' denotes a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office.").

Although the inquiring judicial candidate may attend the fundraiser, this Committee reminds the candidate that he/she "shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary," and shall not "make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." Canons 7A(3)(a), 7A(3)(d)(i). Further, the candidate "shall not make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." Canon 7A(3)(d)(ii).

The next matter raised by the inquiring judicial candidate pertains to claims made by his/her opponent. The inquiring candidate's opponent has claimed, "Unfortunately, my opponent is attempting to buy a judgeship for himself" with his family's money. The inquiring judicial candidate does not believe that it is ethically appropriate to characterize his efforts as an attempt to "buy the judgeship." Furthermore, the inquiring judicial candidate desires to respond to the claim by suggesting in campaign literature that the opponent is attempting to "buy the judgeship" with campaign contributions.

In Opinion 84-16, this Committee was asked to respond to a circuit court candidate's questions concerning the conduct of his/her political opponents or potential opponents. We stated, "The Committee on Standards of Conduct Governing Judges [the predecessor to the Judicial Ethics Advisory Committee] can only respond to the inquiries of a judge or a judicial candidate concerning his own conduct in terms of the Code of Judicial Conduct. Therefore, we must decline to respond to your inquiry." This Committee readopts this explanation and accordingly declines to respond the inquiring candidate's question about the opponent's conduct.

The inquiring judicial candidate also asks whether it is ethically permissible to suggest in his/her own campaign literature that the opponent is attempting to "buy the judgeship" with campaign contributions. This Committee is reluctant to add to its function the review of judicial candidates' campaign advertisements and, therefore, declines to answer this query. See, Fla. JEAC Ops. 98-27 and 94-35 ("The Committee's position is that it should not approve or disapprove specific language of individual judicial campaign advertisements, but rather should provide the ethical provisions which judicial candidates must consider.").

Consistent with our dicta in Committee Opinion 94-35, we want to caution the inquiring judicial candidate of the requirements of Canons 7A(3)(a) and 7A(3)(d)(iii) which state, respectively, "A candidate for a judicial office shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary . . ." and "A candidate for a judicial office shall not . . . knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent." (emphasis added)

Lastly, the inquiring judicial candidate asks whether he/she may post on an internet campaign website newspaper articles and editorials regarding the campaign. In Opinion 99-26, this Committee found it ethically permissible for a judge to establish a campaign web site on the internet. We noted that the content of the site must be consistent with the requirements and restrictions of Canon 7A(3), and specifically to those provisions relating to campaign literature, media advertising, and the dissemination of public information. For an excellent discussion of whether a judicial candidate may produce negative or critical headlines, stories or opinions about the candidate's opponent, we direct the inquiring candidate to Committee Opinion 98-27.

REFERENCES

Florida Code of Judicial Conduct: Canons 7; 7A(3); 7A(3)(a); 7A(3)(d)(i); 7A(3)(d)(ii); 7A(3)(d)(iii); and 7C(3).

Florida Judicial Ethics Advisory Committee Opinions: 99-26, 98-27, 98-17, 96-11, 94-35, 92-26, 84-16, 78-6, and 77-15.

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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 Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members:
Judge Charles J. Kahn, Jr.
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge Scott J. Silverman

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)

1The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purpose of this subcommittee is to give immediate responses to campaign questions in instances where the normal Committee procedure would not provide a response in time to be useful to the inquiring candidate or judge. Opinions designated with the "(Election)" notation are opinions of the Election Practices Subcommittee of the Judicial Ethics Advisory Committee, and have the same authority as an opinion of the whole Committee.