FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-14 (Election)1
Date of Issue: May 28, 2010

ISSUES

(1) May a judicial candidate send an email inviting persons to attend a fundraiser for the candidate’s campaign and personally encourage persons to attend the fundraiser?

ANSWER: No.

(2) May a judicial candidate, in answering questions by voters as to what criteria they should use to evaluate candidates for judicial office, indicate that he or she agrees with the criteria used by a named United States President in nominating identified justices of the United States Supreme Court?

ANSWER: No.

(3a) May a judicial candidate participate in a walk-a-thon to raise funds for a charitable organization?

ANSWER: Yes.

(3b)  May a judicial candidate participate in a walk-a-thon to raise funds for a charitable organization while wearing a shirt advertising the candidate's campaign?

ANSWER: Yes.

(3c)    May members of the judicial candidate's campaign committee participate in a walk-a-thon to raise funds for a charitable organization while wearing a shirt advertising the candidate's campaign?

ANSWER: Yes.

(4a)  May a judicial candidate accept an endorsement from a non-judicial elected official who is not campaigning for election?

ANSWER: Yes, but only if the partisan aspects of the official’s position are not mentioned.

(4b)  If a judicial candidate accepts an endorsement from a non-judicial elected official, may the judicial candidate: (i) advertise the endorsement on the judicial candidate's campaign website; (ii) advertise the endorsement in printed campaign advertisements; and (iii) discuss the endorsement in a campaign speech or other public forum?

ANSWER: Yes.

(5)  May a judicial candidate accept an endorsement from a non-judicial candidate for elected office?

ANSWER: No.

(6)  May a judicial candidate place an advertisement on the side of a moving advertising truck which would also display other advertisements for other candidates for elected office?

ANSWER: No.

(7)  May a judicial candidate purchase tent space with funds drawn from the campaign account made out to the organizer of the county fair, and share space in the tent alongside other candidates for judicial or non-judicial elected office?

ANSWER: Yes, but only if the sharing of tent space with other candidates is done in a manner which does not create an appearance that the judicial candidate is running as part of a slate or as a member of a political party.

    
DISCUSSION

Issue (1)
Canon 7C(1), of the Florida Code of Judicial Conduct, provides that a candidate or judge may not personally solicit campaign funds, but may establish committees of interested persons to raise funds for the campaign.  Encouraging persons, either through emails or by direct contact, to attend a fundraiser for the campaign, is a form of solicitation of campaign funds, which may not be undertaken by the candidate or judge.  Solicitation of campaign funds, whether by requesting a donation, or by requesting a person to attend a fundraiser for the campaign, must be undertaken by the committee of interested persons, and not by the candidate or judge.

Issue (2)
Canon 7C(3) provides, in relevant part, “The candidate should refrain from commenting on the candidate’s affiliation with any political party or other candidate, and should avoid expressing a position on any political issue”.  At first blush the answer to this question would seem to allow a candidate to specifically endorse the criteria used by the named U.S. President in appointing an identified Supreme Court justice.  The problem, however, is that by specifically naming the president and the justice(s), the judicial candidate will be circumventing the prohibition against disclosing that candidate’s party affiliation or at the very least, such a statement will be perceived by the public as a statement that the candidate belongs to the political party of the named president.  Regrettably, the partisanship that is evident in today’s political arena is such that the mere affirmation of an action by specific president will be perceived as a signal that the candidate belongs to the political party of the named president.

Issues (3a), (3b) and (3c)
This Committee has consistently held that judges are prohibited from lending the prestige of the judicial office to charitable organizations or to actively participate in fund-raising activities, such as instances during which the judge can be perceived as a “celebrity” participant or, appears to be soliciting funds.  See, Canon 2 and Fla. JEAC Ops 88-31; 00-17 (amended in part by Fla. JEAC Op. 05-07); and Fla. JEAC Op. 88-05.  Additionally, “a judge must also make reasonable efforts to ensure that the judge’s staff, court officials and others subject to the judge’s direction and control do not solicit funds on the judge’s behalf for any purpose, charitable or otherwise.”  Commentary to Canon 5C(3)(b).   However, in Fla. JEAC Op. 10-05, this committee held that judicial candidates are only governed by Canon 7, and not by the remainder of the Code of Judicial Conduct.  Therefore, judicial candidates and supporters may participate in the activities described.

Issues (4a), (4b) and (5)
As the Committee stated in Fla. JEAC Op. 06-21, a judicial candidate may accept an endorsement from a non-judicial elected official, provided:

1.   The endorsement is, in fact, from an individual and not the political party the person represents;

2.   The official is not also campaigning for re-election;

3.   The partisan aspects of the official's position are not mentioned; and

4.   The content of the advertisement referencing such endorsement is not otherwise violative of the Code of Judicial Conduct.

The Committee believes that, provided the above-referenced conditions are met, the endorsement may be referenced on the candidate's website, in the candidate's printed campaign material, and by the candidate in an open forum while discussing his or her candidacy.

The judicial candidate may not, however, accept an endorsement from a non-judicial candidate running for office in the same election cycle.  Canon 7A(1)(b) provides that a judge or judicial candidate shall not publicly endorse or publicly oppose another candidate for public office.  This section has been construed to prohibit a judicial candidate from appearing to run as part of a "slate."  In re Kay, 508 So. 2d 329 (Fla. 1987).  To accept an endorsement from another candidate running for office would impermissibly create the appearance that the judicial candidate was running as part of a slate.

Issue (6)
The Committee believes that by sharing advertising space with other candidates, the candidate would impermissibly create the appearance that he or she was running as part of a slate.  Furthermore, there would be a risk that the judicial candidate would appear to be running for office as a member of a political party if the other advertisements on the truck were for candidates all running as members of the same political party.

Issue (7)
For purposes of answering this question, the Committee assumes that the county fair's rental of tent space to candidates is simply to provide candidates with a sheltered location in which to meet members of the public.  However, the Committee can only provide the candidate with a qualified answer because of the non-specific nature of the inquiry.  There are potentially several factors which may affect whether the candidate is creating the appearance that he or she is running as part of a slate or as a member of a political party.  For example, if a single tent was occupied by the judicial candidate and his or her opponent(s) or by all judicial candidates in a particular county, there would appear to be no suggestion that the candidate was running as part of a slate or as a partisan political candidate.  On the other hand, if the judicial candidate shared the tent with several candidates that were all members of the same political party there likely would be created an impermissible suggestion that the judicial candidate was running a politically partisan campaign.

    

 

REFERENCES

Fla. Code Jud. Conduct, Canon 2; Canon 5C(3)(b); Canon 7; Canon 7A(1)(b); Canon 7C(1); Canon 7C(3)
Fla. JEAC Ops. 10-05; 06-21; 05-07; 00-17; 88-31; 88-05
In re:  Kay, 508 So. 2d 329 (Fla. 1987)

 

_____________


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.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

Participating Members:
(Elections Subcommittee): Judge Roberto Arias, Dean Bunch, Esquire, Judge Kerry I. Evander (Subcommittee Chair)


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.