FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2002-11(Elections)1
Date of Issue: June 17, 2002

CANDIDATE HANDING OUT CAMPAIGN LITERATURE AT A POLITICAL PARTY MEETING
CANDIDATE SPEAKING WITH ATTENDEES AT A POLITICAL PARTY MEETING CANDIDATE
ATTENDING POLITICAL PARTY MEETING PRIOR TO SPEAKING

ISSUES

1. May a judicial candidate, who, along with his opponent, is invited to speak at a political party meeting do the following:

a) hand out campaign literature;
b) speak with the attendees;
c) attend the meeting until called upon to speak.

ANSWER: Subject to the restrictions of Canon 7, a candidate may attend a political party meeting, hand out campaign literature, and speak with the audience. Candidates may arrive at a political party function a reasonable time prior to their speaking time, and may remain at the meeting only until their portion of the meeting is concluded. A candidate may not attend a political party meeting while the party is conducting party business.

FACTS

A political party has invited all the judicial candidates in a county to a party meeting. The invitation states "candidates will be introduced and will have an opportunity to meet and greet the [political party] members." A judicial candidate questions whether the candidate may attend the event, and if so, what actions are permitted by the candidate while there.

DISCUSSION

Section 105.071, Florida Statutes, strictly limits the political activity of a candidate for judicial office. The statute states:

A candidate for judicial office shall not: (1) Participate in any partisan political party activities, except that such candidate may register to vote as a member of any political party and may vote in any party primary for candidates for nomination of the party in which she or he is registered to vote. (2) Campaign as a member of any political party.

Based upon a review of the statute, the Judicial Ethics Advisory Committee opines that the only permitted political activity or expression by a judicial candidate is the exercise of the candidate's right to vote.

Nonetheless, Canon 7C(3) of the Code of Judicial Conduct provides that a judicial candidate "may attend a political party function to speak in behalf of his or her candidacy or on a matter that relates to the law, the improvement of the legal system, or the administration of justice."

Although a candidate may have permission to speak at such a function, the Code precludes the content of some speech, such as disclosure of his or her political party affiliation. Id. The disclosure of political party affiliation to any member of the public in the course of a campaign improperly injects partisan politics into a non-partisan judicial race. See, In Re: Alley, 699 So. 2d 1369 (Fla. 1997). Similarly, Canon 7D, with limited exceptions, prohibits a judge from engaging in any political activity. Canon 7E applies Canon 7 to both incumbent judges and judicial candidates.

We partially addressed the questions raised by this inquiry in Opinion 00-22. In that Opinion, a judicial candidate asked whether it was ethically permissible to attend a political party event with his opponent for the purpose of speaking to those in attendance for a specified amount of time. We stated, "because this event was 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.

The inquiring candidate may not, however, use the opportunity to speak at a political party event as a subterfuge to engaging in partisan activities. The type and kind of speech contemplated under the Code is speech which is directed towards an audience, not personal chatting.

In JEAC Op. 00-26, the inquiring judicial candidate, as well as other judicial candidates in the circuit, were invited to attend a political party social gathering. The candidates would be the guests of the party and would be able to socialize and speak to other guests. The candidates would not, however, be afforded an opportunity to address the entire gathering at one time. The inquiring candidate asked if attendance would be in compliance Canon 7. In response to this inquiry the JEAC stated:

The thrust of Canon 7C(3) is that a candidate may attend a political party function solely for the purposes enumerated in that section. These purposes are 'to speak in behalf of his or her candidacy' or to speak 'on a matter that relates to the law, the improvement of the legal system, or the administration of justice.' The Canon makes specific reference to an 'invitation to speak.' The Committee concludes that the informal social function envisioned by the present inquiry is not within the contemplation of Canon 7C(3).

Under a similar analysis, the Code of Judicial Conduct would permit the inquiring candidate the opportunity to introduce himself/herself to the entire audience; however, private social discussions and campaigning with the attendees is not be permissible because of the likelihood of partisan taint. If candidates were permitted to socialize and personally chat with members at a political party event, the safeguards imposed by Canon 7C(3); requiring the invitation of all candidates, limitations on some speech, and the prohibition on expression of party affiliation or political issue stance could easily be thwarted.

Given this same reasoning and rationale, candidates are not permitted to attend political party meetings in their entirety while the members are conducting party business. Candidates are permitted limited appearances at a political party function and if all underlying Code conditions are satisfied, then the candidate may speak. Canon 7C(3). Any other participation or prolonged attendance would be proscribed participation in a partisan political party function. See, Canon 7C(3). Candidates may arrive at a political party function a reasonable time prior to their speaking time, and may remain at the meeting only until their portion of the meeting is concluded. Upon conclusion of the judicial candidate portion of the meeting, the candidates must leave, as the conduct sanctioned under Canon 7 has lapsed.

Regarding the distribution of campaign materials while attending a Canon 7 sanctioned political party function, the committee directs the inquiring candidate to JEAC Op. 00-22. In Opinion 00-22, we stated "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." Nonetheless, Canon 7(C)(3) states that at political party functions a candidate "should avoid expressing a position on any political issue" and that a candidate attending a political party function "must avoid conduct that suggests or appears to suggest support of or opposition to a political party, a political issue, or another candidate."

The invitation attached to the inquiring candidate's inquiry does not state that the judicial candidates will be afforded an opportunity to "speak." Rather, it merely invites them to be "introduced and have an opportunity to meet and greet the [political party] members." Under these specific circumstances, Opinion 00-26 would preclude attendance at the meeting.

REFERENCES

Florida Code of Judicial Conduct: Canon 7.

Florida Judicial Ethics Advisory Committee Opinions: 00-26, 00-22, 98-17, 96-11, 78-6, 77-15.

Florida Statutes, Section 105.071.

In Re: Alley, 699 So. 2d 1369 (Fla. 1997).

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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 The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th St #712, Miami, FL 33125

Participating Members: Judges Kotey, Silverman, Swartz, and Townsend.

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

1. The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purposes of this subcommittee is to give immediate responses to campaign questions instances where the normal Committee procedure would not provide a responses 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.