FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-21 (Election)
Date of Issue: August 28, 2006

ISSUES

May a judicial candidate accept and advertise an endorsement from an elected partisan official acting in the official’s individuals capacity?

ANSWER: Yes, provided the support is in fact from an individual and not the political party that person represents, the official is not also campaigning for re-election, the partisan aspects of the official’s position are not mentioned, and the content of the advertising is not otherwise violative of the Code of Judicial Conduct.

FACTS

The inquiring candidate has drawn the support of a local (partisan) elected official.  The candidate asks whether, and if so to what extent, the official’s endorsement may be included in campaign advertising.  Among the activities being contemplated are a letter from the official praising the candidate, a photograph of the candidate and the official together, and pre-recorded telephone messages by the official.

DISCUSSION

Each election cycle this Committee receives many queries on the issue of judicial candidates promoting endorsements or otherwise accepting campaign assistance from prominent political figures.  Because these inquiries involve divergent facts it is difficult to fashion a concise, consistent answer that will satisfy all candidates.  We begin our analysis by pointing out two election-related activities that must be avoided at all costs.  The first is partisanship and the second is involvement in the political races of others.    

Both Canon 7 of the Fla. Code of Jud. Conduct and Section 105.071, Florida Statutes, unequivocally prohibit judicial candidates and sitting judges (whether running or not) from becoming involved in partisan politics.  With respect to endorsements and contributions, most of the published source materials deal with the efforts of political parties, not individuals.  For example, Fla. JEAC Op. 04-09 states that a judicial candidate cannot directly or indirectly take action to obtain the endorsement of a political party. 1   Even if a party were to endorse a judicial candidate with no prompting by that candidate, the candidate may not thereafter advertise the endorsement.  Fla. JEAC Op. 00-29.

Neither Canon 7 nor Chapter 105 expressly addresses the situation we now confront, in which an individual partisan officeholder seeks to assist a judicial candidate.  We begin with the assumption that a majority of voters are registered with one party or another.  Moreover, the party affiliation of prominent persons may be a matter of common knowledge even if those persons have never sought political office.  Even so, should people of this stature choose to support a judicial candidate, it does not automatically follow that their party would do the same. 2   The Committee believes that the Code of Judicial Conduct does not contain a blanket proscription of accepting support from such individuals in judicial races.  There is no presumption that a judicial candidate’s identification with an individual officeholder equates to adoption of that official’s party platform.   

As for the candidate becoming entangled in the endorser’s own political campaigning, we have been assured that the elected official in the instant case is not running for office this cycle.  It has been held that a judicial candidate must not share sample ballots with other candidates or otherwise appear to run as part of a “slate.”  In re Kay, 508 So. 2d 329 (Fla. 1987).  In this vein, judicial candidates who are married to elected officials have been cautioned to proceed with extreme discretion when appearing in the family portraits that are a ubiquitous component of political advertising, whether it is the judge or the spouse who is running for election.  See, e.g., Fla. JEAC Op. 06-13.  Fundraising by a judicial candidate cannot be co-mingled with that by any other candidate, judicial or otherwise.  The Committee very strongly cautions all judicial candidates to make sure their publicly advertised supporters are not also campaigning simultaneously for election or re-election to some political office. 

We close by observing that we have not been asked by the inquiring candidate to vet the content of any particular piece of advertising.  Since at least 1994 it has been the steadfast policy of the Committee to refrain from doing so.  Fla. JEAC Op. 06-18.  Recent history shows a pattern of increasingly harsh sanctions against judges who employ inappropriate arguments on the campaign trail.  Any judicial candidate is well advised to become familiar with those precedents.

REFERENCES

In re Kay, 508 So. 2d 329 (Fla. 1987). 

Chapter 105, Fla. Stat. and sections 105.09 and 105.071, Fla. Stat.

Florida Code of Judicial Conduct, Canon  7.

Florida Judicial Ethics Advisory Committee Opinions. 06-18, 06-13, 04-09 & 00-29.

_____________

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 Robert T. Benton, II, Chair, Judicial Ethics Advisory Committee, 301  S. MLK Jr. Blvd. Tallahassee, FL 32399.

Participating Members:
Judge Terry Michael Jones, Judge Lisa Davidson, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Leslie B. Rothenberg,  Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy L. Vaccaro, Patricia Lowry, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
All Committee Members
Thomas D. Hall, Clerk of Supreme Court
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 Code of Judicial Conduct does not, of course, govern the independent activities of the political parties themselves, only the behavior of judges vis-à-vis those parties.  However, attention should be paid to § 105.09, Fla. Stat.

2. For example, a state legislator who is also a lawyer might appear before a judge and be favorably impressed with the judge’s professionalism regardless of the judge’s personal political beliefs.