FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2002-13(Elections)1
Date of Issue: June 21, 2002

JUDICIAL CANDIDATE "PRIVATELY" DISCLOSING POLITICAL PARTY AFFILIATION;
JUDICIAL CANDIATE (sic) USING POLITICAL PARTY FACILITIES;
JUDICIAL CANDIDATE EXPRESSING THE CANDIDATE'S PHILOSOPHY REGARDING THE LAW AND CONSTITUTION;
JUDICIAL CANDIDATE EXPRESSING VIEWS ON CONTROVERSIAL ISSUES SUCH AS RELIGIOUS FREEDOM AND ABORTION;
JUDICIAL CANDIDATE PUBLICISING (sic) OPPONENT'S BUSINESS PRACTICES GLEANED FROM THE PUBLIC RECORD

ISSUES

1. May a judicial candidate "privately" disclose his or her political party affiliation if asked; may a judicial candidate use facilities owned or leased by a political party for various campaign activities; may a candidate utilize publicly available information which is provided by a political party?

ANSWER: No

2. May a candidate for judicial office express his or her philosophy regarding the candidate's general approaches to the construction of the Constitution and Florida Statutes; may a judicial candidate express personal opinions about controversial issues such as religious freedom and abortion?

ANSWER: Yes, if the candidate follows the mandates of Canon 7.

3. May a judicial candidate publicize information about his or her opponent's business practices and dealings as gleaned from public records and newspaper articles?

ANSWER: Yes, if it is relevant to the qualifications for judicial office and it does not misrepresent the identity, qualifications, present position or other fact concerning the opponent.

FACTS

The pertinent facts are set forth in the statement of the issues.

DISCUSSION

In resolving this inquiry, the committee directs the inquiring candidate that the Florida Supreme Court has held that partisan politics have no place in judicial elections. See In Re: Alley, 699 So. 2d 1369 (Fla. 1997). Furthermore, it must be noted that the Florida Supreme Court has strictly construed the laws relating to judicial elections. For example, in Alley, the candidate merely noted the party affiliation of the Governor who appointed her opponent to the bench. This was found to improperly inject party politics into a non-partisan election and was part of a finding of "egregious" conduct.

Against the backdrop of this mandate, we shall consider the issues presented by the inquiry. 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.

Accordingly, the only permitted political activity or expression by a judicial candidate is the exercise of the candidate's right to vote.

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. Canon 7 of the Florida Code of Judicial Conduct specifically prohibits this conduct. See Canon 7C(3) ("the candidate should refrain from commenting on the candidate's affiliation with any political party"). Similarly, Canon 7D, with limited exceptions, prohibits sitting judges from engaging in any political activity and Canon 7E applies Canon 7 to all incumbent judges and judicial candidates.

Likewise, utilization of facilities owned or leased by a political party for the political activities of a candidate and the utilization of publicly available information provided by a political party injects party politics into a nonpartisan election. Section 105.071, Florida Statutes, provides: "a candidate for judicial office shall not accept contributions from any political party." Use of facilities and use of information provided by political parties can only be described as a prohibited contribution to a judicial campaign.

In addition, Section 105.09, Florida Statutes, classifies endorsing, supporting or assisting any candidate in a campaign for election to judicial office by a political party as a second degree misdemeanor.

It is interesting to note that this Statute was made effective in 1995, some seventeen years after its predecessor was struck down by the Southern District in Concerned Democrats of Florida v. Reno, 358 F. Supp. 60 (S.D. Fla. 1978). The candidate's attention is invited to Florida Judicial Ethics Advisory Committee Opinion 00-29 where similar issues were addressed.

The second issue presented by this inquiry involves complex questions where a candidate's right to free speech must be balanced against the compelling interest of the State in protecting and preserving the integrity and objectivity of its judiciary. This committee addressed similar issues in JEAC Op. 94-34 which sets forth an interesting history leading up to the adoption of the new Code of Judicial Conduct in 1994.

Free speech concerns were the subject of lawsuits in the Northern District of Florida in 1990 and 1994. See American Civil Liberties Union, Inc. v. The Florida Bar, 744 F. Supp. 1094 (N.D. Fla. 1990) and American Civil Liberties Union and Larry Schack v. The Florida Bar and the Florida Judicial Qualifications Commission, TCA 90-40163 WS (W.D. Fla. March 22, 1994).

In ACLU, Chief Judge Stafford held that former Canon 7B(1)(c) was likely unconstitutional. Canon 7B(1)(c), at that time, provided that a candidate "shall not make pledges or promises of conduct in office other then the faithful and impartial performance of the duties of the office; announce his views on disputed legal and political issues; or misrepresent his identity, qualifications, present position, or other fact."

In response to this ruling, the Supreme Court of Florida in September 1994, adopted a new Code of Judicial Conduct which reflected "present day concerns and responsibilities of Florida judges." See In Re: Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994). The new Code eliminated the prohibition against "announcing" a candidate's views on disputed legal or political issues, and substituted the following:

A candidate for judicial office shall not: (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; (ii) make statements that appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the Court; or (iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.

Nonetheless, Canon 7C(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."

In summary, this Committee believes that a candidate may state his or her views on constitutional or statutory construction and other controversial issues so long as the candidate does not advocate opposition to or support of political issues, the candidate makes no pledge or promise of conduct in office other than the faithful and impartial performance of the duties of the office, and the candidate does not make statements which commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the Court. The inquiring candidate should note that the Commentary to the Code states that a candidate should emphasize in any public statement the candidate's duty to uphold the law regardless of his or her personal views.

The third issue raised by this inquiry has been extensively addressed by this committee in JEAC Op. 98-27 which is controlling precedent. Furthermore, all candidates for judicial office throughout the State of Florida were recently advised at Judicial Ethics Campaign Forums that a candidate may criticize an opponent only if it is fair and truthful; is pertinent and material to the judicial office; is based on factual, not personal, grounds; is not about a pending case; and does not bring the candidate's impartiality or that of the judiciary into question. This advice is derived from Canon 7A(3)(d)(iii) which states that a candidate shall not knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.

REFERENCES

Florida Code of Judicial Conduct: Canon 7.

Florida Judicial Ethics Advisory Committee Opinions: 94-34, 98-27, 00-29.

Florida Statutes, Section 105.09.

Florida Statutes, Section 105.071.

American Civil Liberties Union, Inc. v. The Florida Bar, 744 F. Supp. 1094 (ND Fla. 1990).

American Civil Liberties Union and Larry Schack v. The Florida Bar and the Florida Judicial Qualifications Commission, TCA 90-40163 W.S. (N.D. Fla. March 22, 1994).

Concerned Democrats of Florida v. Reno, 358 F. Supp. 60 (S.D. Fla. 1978).

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

Participating Members:
Judge Scott J. Silverman
Judge Jeffrey D. Swartz
Judge Phyllis Kotey
Judge Richard R. Townsend

Copies furnished to:
Chief Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
The Inquiring Candidate
Ari Gerstin

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.