FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-13 (Election)1 Amended2
Date of Issue: June 12, 2006

ISSUES

May a judge facing a contested election include a family picture in campaign advertising even though the inquiring judge’s spouse is also a judge?

ANSWER: Yes, so long as the spouse’s office is not identified and there is no indication that the spouse has endorsed the judge’s candidacy.

May the same judge’s spouse accompany the judge to campaign appearances?

ANSWER: No.

FACTS

The inquiring judge faces a contested election in 2006. The inquiring judge’s spouse is also a judge. The judge asks two questions:  whether the spouse may appear in a family photograph to be used in connection with the judge’s campaign materials, and whether the spouse may accompany the judge to campaign-related events.

DISCUSSION

At the heart of Canon 7 is an intent to disentangle judges and judicial candidates from most forms of political activity, especially partisanship. As a result judges cannot campaign as members of a political party, nor can they endorse other candidates for office, appear to join others in a “slate” of candidates, or imply that other officeholders endorse them. As one well-regarded judge learned to his detriment, this includes offering public support to other judges facing opposition or merit retention. In In re Glickstein, 620 So. 2d 1000 (Fla. 1993), the judge was apparently disturbed by the tenor of a campaign against Chief Justice Leander Shaw, and wrote at least two newspapers on judicial letterhead explaining his intent to vote “Yes.” The Supreme Court explained that, despite good intentions, “Canon 7A is absolute in its prohibition of public endorsements of political candidates.” 620 So. 2d at 1002.

          The inquiring judge is not unique in having a spouse who is also a judge. The judge’s questions also acknowledge the appeal of family photos in campaign advertising. This Committee has examined similar dilemmas at least twice in the past.. In Fla. JEAC Op. 90-07, it was the judge’s spouse rather than the judge who was seeking elective office. The Committee saw no harm in the family photo per se but cautioned that the judge should only be identified as a “spouse” in the literature and that the judge’s position should not be publicized. In Fla. JEAC Op. 98-19, both judge and spouse were running in the same year, the latter for a legislative seat. In this instance the judge was cautioned not to identify the office sought by the spouse or the spouse’s political affiliation. In the present case the judge has promised that the office held by the spouse will not be identified and that no explicit endorsement by the spouse will be featured. So long as these precautionary measures are employed, the goals of Canon 7 are not undermined.    

The Election Practices Subcommittee is in agreement that the judge’s spouse should not attend campaign events with the judge. Political advertising is unilateral. There is no opportunity for the recipient to probe beyond the four corners of a brochure or a commercial whose content is carefully managed in advance. Face-to-face encounters with potential voters, members of the media, or political supporters are far more likely to progress beyond the benign parameters of the advertisement.

REFERENCES

In re Glickstein, 620 So. 2d 1000 (Fla. 1993)

Canon 7; Canon 7A

Fla. JEAC Ops. 90-07; 98-19

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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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

Participating Members:
Judge Robert Benton, Judge Michael Raiden, Judge McFerrin Smith, III, and Judge Dorothy Vaccaro.


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

1. The 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.

2. This opinion corrects the description of the inquiring judge’s spouse.