FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-18 (Election)1
Date of Issue: May 27, 2004

ISSUES

1. Whether a judge who is a candidate for re-election may publicly comment on the reasons for his ruling on a motion filed by a judicial opponent in a pending legal proceeding.

ANSWER: No.

2. Whether a judge who is a candidate for re-election may publicly comment on the past conduct and actions in a pending legal proceeding of a judicial opponent.

ANSWER: No.

FACTS

The inquiring judge is a candidate for re-election. The judge denied a motion filed by an attorney in a case assigned to the inquiring judge. The appellate court affirmed the judge's order. The judge deferred ruling on another motion filed by the attorney in that case. The attorney subsequently became an opponent of the judge in the election for judicial office. The case remains pending before the inquiring judge. The judge intends to grant a motion for disqualification if the judicial opponent files a motion. The case will then be assigned to another judge in the same circuit.

The judge would like to comment publicly on the reason for the judge's denial of the motion filed in the case. The judge would also like to comment publicly on past conduct and action in that pending case of the attorney who is now a judicial opponent.

DISCUSSION

Canon 3 of the Florida Code of Judicial Conduct mandates that a judge shall perform the duties of judicial office impartially and diligently. Canon 3B(9) provides:

A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing . . . .

The Commentary to Canon 3B(9) further explains that this requirement continues during any appellate process and until final disposition.

The Committee finds that under Canon 3, the inquiring judge is precluded from commenting publicly regarding the reasons for the judge's ruling while the case was pending before the judge. The case remains pending and it would be inappropriate for the judge to comment, as such comments might affect the outcome of future matters to be decided in the still-pending case. The Committee addressed a similar issue in JEAC Op. 00-30.

The same rationale applies to the judge's query whether it is appropriate to comment publicly on the past conduct and actions in that pending case of the attorney who is now the inquiring judge's judicial opponent. Canon 7A(3)(d)(iii) specifies that a candidate shall not knowingly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent. In JEAC Op. 02-13, the Committee relied on JEAC Op. 98-27, and said:

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 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. [emphasis supplied]

The inquiring judge's contemplated public comments would be about a pending case and are thus prohibited by Canon 3B(9) and JEAC Op. 02-13. Moreover, the inquiring judge's opponent is governed by the same considerations and cannot comment publicly on these same matters.

REFERENCES

Canon 3
Canon 3B(9)
Canon 7A(3)(d)(iii)
JEAC Op. 00-30
JEAC Op. 02-13
JEAC Op. 98-27

_____________

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 Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Emerson Thompson, Judge McFerrin Smith, III, Marjorie Gadarian Graham


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director 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 purpose of the subcommittee is to provide 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 Committee.