FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2008-11 (Election)1
Date of Issue: May 16, 2008

ISSUES

(1)  May a judge seeking re-election employ signs and other campaign materials depicting the judge wearing a robe? 

ANSWER: Yes.

(2) May a judge’s campaign web site make reference to, and facilitate, the giving of financial and other support to the judge’s re-election effort? 

ANSWER: No, if the site is the judge’s personal web site.  However, a campaign web site may be created and maintained by a committee of responsible persons organized for the purpose of assisting the judge’s re-election efforts.

(3) May the judge’s campaign materials include pictures of the judge with jurors and/or complimentary letters from jurors?

ANSWER: Yes, so long as those jurors agree to the inclusion and any such letters are unsolicited and not the product of official judicial business.

(4)  May a judge’s campaign materials include pictures of the judge with colleagues and/or other officials, elected and non-elected, and if so should those materials include a disclaimer that the persons depicted have not necessarily endorsed or decided to support the judge?

ANSWER: No, with respect to fellow judges.  Yes with respect to other officials, but a clear disclaimer is required.

FACTS

A judge seeking re-election during the 2008 cycle inquires about proposed campaign literature, signage, and a potential web site.   First, the Judge wants to utilize campaign signs depicting the Judge in judicial robes.  Second, the Judge plans to post a campaign web site and is considering including a button whereby viewers may click to make contributions, offer other assistance, or obtain further information about the Judge.  Third, the Judge is considering using photos of the Judge with jurors from a recent trial, as well as unsolicited letters from jurors in which the Judge is praised.  The jurors in question have consented to appearing in the photo and to the use of at least one of the letters. 

    

Finally, the judge asks about the propriety of using photos of the Judge with elected and non-elected officials and colleagues.  One photo, the only one specifically described in the inquiry, would show the Judge, the Governor, the Secretary of the Department of Children and Families, and other judges touring a juvenile court house.  Otherwise the Inquiring Judge states only that the pictures include persons with whom the Judge has come into contact through community work or official business.

    

 

DISCUSSION

Although it is the stated policy of the Judicial Ethics Advisory Committee not to vet campaign literature, seeFlorida JEAC Opinion 94-35, the Elections Subcommittee has concluded that this Judge’s questions are capable of recurring and that the answers to those questions will be of interest to other candidates now and in future contests.  Accordingly, we offer the following guidance.

    Easiest decided is the question whether the Judge’s campaign signs may include pictures of the Judge wearing the judicial robe.  Because the inquirer is an incumbent judge seeking re-election the answer is yes.  Under these circumstances, there is no chance that such advertisement will mislead the voting public about the Judge’s professional history.  Contrast these facts with In re Alley, 699 So. 2d 1369 (Fla. 1997), in which the candidate claimed to have judicial experience but in fact had served as a general master, not a judge.2

     Regarding any proposed web site, and especially the inclusion of a mechanism to make contributions and offer support, it is well-established that Canon 7C(1), Florida Code of Judicial Conduct, forbids judicial candidates from personally soliciting funds or support.  Instead, such tasks should be performed only by whatever “committees of responsible persons” the candidate may appoint for that purpose.  The resolution of this question depends on whether the web site is created and maintained by the judge personally (in which instance the answer is no) or by a committee of supporters (then, the answer is yes).  We also remind any other judges or judicial candidates who may read this opinion that web sites maintained for campaign purposes must conform to Florida’s election laws and all relevant provisions of the Code of Judicial Conduct.  SeeFla. JEAC Op. 99-26

    The last opinion regarding the advertising of juror comments was Florida JEAC Opinion 06-20.  While the facts of that opinion are not identical, they are instructive.  In that opinion, the inquiring judge who was facing a re-election campaign had on some past occasion surveyed jurors about how the selection process could be improved.  The Elections Subcommittee expressed concern that the information received, even if the judge was praised therein, might run afoul of Canon 3B(12).3  While not dispositive of that opinion:

One member of the Subcommittee also expressed reservations about using the quotes without advance permission of the person being quoted.  That member concedes that obtaining such approval would be impossible given the anonymous nature of the returned questionnaires.  Nevertheless the member was concerned that former jurors might recognize their own comments and object to their use as a form of political endorsement.     

At least where permission has been received to publish the jurors’ unsolicited comments and/or display their photos, the Subcommittee sees no ethical impediment to their use in campaign materials.  The judge is reminded that any contact with former jurors to obtain permission to use photographs or comments would constitute a solicitation for support or endorsement which should be accomplished via a campaign committee and not by the judge personally.  Fla. Code Jud. Conduct, Canon 7C(1). 

    The most difficult question is presented by the other photo described by the Inquiring Judge.  It is the inclusion of other judges in that photo that particularly concerns this Subcommittee.  Canon 7A(1)(b) absolutely forbids judges from endorsing any candidate for any office in any way.  See alsoIn re Glickstein, 620 So. 2d 1000 (Fla. 1993).  If the shoe were on the other foot – that is, if a candidate for non-judicial office sought to publish a photo of that candidate with a judge – the judge could not consent to the use of the picture.  Fla. JEAC Op. 92-40.  Florida JEAC Opinion 92-40 briefly dealt with a photo of an official being sworn in by the inquiring judge and suggesting that the judge and the official may have been related to one another, a fact that could enhance a public perception of endorsement by the judge.  However, this fact was not essential to the decision reached by the Committee. 

     The juvenile courthouse photo in the present case might fairly be described as depicting a routine news event featuring any and all officials who wished to attend.  Certainly judges and judicial candidates may employ favorable publicity in their advertisements.  Fla. JEAC Op. 00-22.  Nevertheless, we are not prepared to recede from or modify JEAC Opinion 92-40 based on these facts.  The judge should avoid use of photographs depicting other judges, both in campaign literature and on any web site.  
 

    

The rule regarding judicial endorsements by other elected, but not judicial, officials is more flexible and is discussed in detail in Florida JEAC Opinion 06-21.  However, endorsements, whether from persons, interest groups, or the media, must not be implied when they do not actually exist.  In re Renke, 933 So. 2d 482 (Fla. 2006).  Viewers of the photos, if used in campaign literature (including any web site), will naturally assume the judge the permission, support, and/or endorsement of others depicted in them.  Thus, while we cannot state that the Code of Judicial Conduct imposes an unequivocal ban on photos of a judge with various functionaries, we do believe that the use of a thorough disclaimer is required lest voters perceive a political alliance that does not actually exist.  It should be clear that any such photos were not taken in connection with the judge’s re-election campaign and do not imply any sort of endorsement of the judge by the persons depicted therein.  The same caveat applies to pictures of the judge with non-officeholders.

    

 

REFERENCES

Fla. Code Jud. Conduct, Canons 3B(12), 7A(1)(b), 7C(1)

Fla. JEAC Ops. 06-21, 06-20, 00-22, 99-26, 94-35, 92-40, 84-17

In re Renke, 933 So. 2d 482 (Fla. 2006)

In re Alley, 699 So. 2d 1369 (Fla. 1997)

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

 

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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: Judge Lisa Davidson, Chair, Judicial Ethics Advisory Committee, The Moore Justice  Center, 2825 Judge Fran Jamieson Way, Viera, FL 32940.

Participating Members:
Participating Members (Elections Subcommittee): Judge T. Michael Jones, Judge Michael Raiden, Judge Richard Townsend


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
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

 

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.While the responsibilities of the two positions are similar, a master remains constantly under the control of a judge and lacks the authority to enter final disposition of a case.  Fla. JEAC Op. 84-17.

3.Canon 3B(12) prohibits any use, other than official, of “nonpublic information acquired in a judicial capacity.”