FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-31 (Election)1
Date of Issue: July 23, 2004

ISSUES

Whether a judicial candidate can leave campaign literature on display tables in both Republican and Democratic committee headquarters, where no plans are made involving campaigning within these offices and where both Republican and Democratic committee offices are open to any and all candidates for the purpose of displaying campaign material.

ANSWER: No.

FACTS

Recently, campaign headquarters for both the Democratic and Republican committees have opened in the inquiring candidate's county. The question is whether the inquiring judicial candidate can leave campaign literature on display tables in both Republican and Democratic committee headquarters. No plans are made involving campaigning within these offices. It is the candidate's understanding that both Republican and Democratic committee offices are open to any and all candidates for the purpose of displaying campaign material.

DISCUSSION

Canon 7 of the Code of Judicial Conduct governs this inquiry. Canon 7 reads in pertinent part:

A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY

A. All Judges and Candidates... shall not: ...

(b) publicly endorse or publicly oppose another candidate for public office; ...

(d) attend political party functions;

C(3) A candidate involved in an election or re-election...may attend a political party function to speak in behalf of his or her candidacy . The candidate should refrain from commenting on the candidate's affiliation with any political party or other candidate...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...

Conduct limited to that described above does not constitute participation in a partisan political activity.

The last sentence of Canon 7C(3) effectively limits a judicial candidate's partisan political party activity to those items specifically described therein.

Nothing in Canon 7 permits a judicial candidate to have a campaign presence at a political party's offices through the device of placing campaign literature there. Since this activity is not specifically permitted by 7C(3), it would appear to be a violation of Canon 7A.

There are several obvious conclusions a casual or curious voter could reach upon entering a political party office where judicial campaign literature is on display: the judicial candidate is a member of that party; the judicial candidate has a special relationship with that political party; the judicial candidate is part of that political party's "slate" of recommended candidates; or the judicial candidates who share the literature space are running together as a group. These impressions would not be easily or effectively dispelled with disclaimers or because other judicial candidates could also leave campaign literature.

This Committee has consistently advised judges and judicial candidates to avoid this type of political conduct. In Fla. JEAC Op. 02-13 the Committee concluded that the use 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. Leaving judicial campaign literature at party offices is no different. The judicial candidate would clearly be using the party's facilities.

In a similar opinion, Fla. JEAC Op. 00-26 concluded that appearing at a party gathering without speaking, as authorized in Canon 7C(3), is not permitted. See also Fla. JEAC Ops. 90-16 and 02-08. Canon 7A(3)(b) further prohibits the candidate from doing through others those things the candidate could not do in person. Since the candidate cannot personally appear at political party offices to campaign, doing the same thing through campaign literature is equally prohibited.

It is also clear from Canon 7, and its interpretation, that judicial candidates must avoid publicly suggesting or disclosing any party affiliation. See Fla. JEAC Ops. 00-29, 94-34, 04-09, 02-11(Election), In Re: Alley, 699 So. 2d 1369 (Fla. 1997), and In Re: Angel, 867 So. 2d 379 (Fla. 2004).

In conclusion, Canon 7 is, in part, an effort to implement the non-partisan nature of judicial selection in Florida. See Fla. Stat. 105.071. It creates an ethical barrier between judicial candidates, including incumbent judges, and political parties. The proposed conduct in this inquiry crosses the line into inappropriate partisan political activity.

REFERENCES

Florida Code of Judicial Conduct, Canons 7A and 7C(3).

Fla. Stat. 105.071.

Fla. JEAC Ops. 90-16, 94-34, 00-26, 00-29, 02-08, 02-11, 02-13, 04-09.

In Re: Alley, 669 So. 2d 1369 (Fla. 1997); In Re: Angel 867 So. 2d 379 (Fla. 2004).

_____________

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 C. McFerrin Smith, III, Judge Karen Cole, and Marjorie Gadarian Graham, Esquire.


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.