FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2010-16 (Election)1
Date of Issue: June 11, 2010
(1) May the brothers, mother-in-law, and cousins of a judge in a contested election campaign, who are members of the committee of responsible persons supporting the judge's campaign, solicit contributions and endorsements in support of the judge's election?
ANSWER: Yes, if the judge does not maintain a close familial relationship with the relatives.
(2) May the spouse of a judge in a contested election campaign, who is also a member of the committee of responsible persons supporting the judge's campaign, attend a political party dinner event?
ANSWER: Yes, but only if the spouse does not campaign in any way for the judge's election at the political party dinner event.
The inquiring judge is running for reelection in a contested campaign. Relatives, including the judge’s spouse, brothers, mother-in-law, and cousins are members of the committee of responsible persons who are supporting the judge’s reelection.
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 responsible persons to raise funds and to obtain public statements of support for the judge's campaign.
As we noted in Fla. JEAC Op. 08-09, Canon 7A(3)(b) requires a judicial candidate to “encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate[.]” The Code defines a member of the judge’s or candidate’s family to include “a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship.”
In Fla. JEAC Op. 08-09, the family members whose conduct was contemplated were the parents of the judge, and thus were specifically within the definition of the judge's family. We concluded that "the judge must encourage family members, including the judge's parents, to refrain from personally soliciting campaign contributions via the proposed letter."
In the current inquiry, the relatives (brothers, mother-in-law, and cousins) are not within the definition a judge's family provided in the Code. However, if the judge "maintains a close familial relationship" with any of the persons identified, then that person would also fall within the admonition of Canon 7A(3)(b).
Therefore, if the judge maintains a close familial relationship with the family member identified, the judge must encourage that person to refrain from soliciting contributions and endorsements. If the judge does not maintain a close familial relationship with the family member identified, then the judge is not required to encourage that person to refrain from soliciting contributions and endorsements.
The peril of the situation, as is evident from the distinction drawn in the previous paragraphs, is that whether or not a relative (who is not within the definition of "family") maintains a close familial relationship with a judge is question of fact. Therefore, if it were determined that the relative did have a close familial relationship with the person soliciting support, and if it were determined that the judge had failed to encourage that person to abstain from solicitation of contributions or support, then the judge would have committed a violation of the Code. See Inquiry Concerning a Judge, re Angel, 867 So. 2d 379 (Fla. 2004) (The Supreme Court of Florida publicly reprimanded a judicial candidate for, among other improprieties, permitting the judge’s spouse and family members to attend and campaign at partisan political gatherings.)
The question posed is whether the spouse of the judge may attend a political party dinner event. The issue is thus different from the previous question in two respects. First, the spouse is within the definition of "family" in the Code, so the factual issue of whether there is a "close familial relationship" does not exist. Second, the spouse is contemplated only to attend the political party dinner, and not to campaign on behalf of the judge. Of course, as is exemplified by the Angel decision, a judge may not encourage a spouse to do that which the judge is prohibited from doing personally, i.e. to solicit support at a political party function.
The question of whether a spouse may attend, but not campaign at, such a political party dinner, presents a closer question.
The judge could not personally even attend the dinner unless the requirements of Canon 7C(3) were satisfied – all candidates in the race must be invited and the judge must speak on behalf of the judge's candidacy. If the judge could not personally attend the event, may the spouse attend if the spouse does not campaign for the judge in any way at the event?
As the Committee recognized in Fla. JEAC Op. 06-11, "…the judge's spouse has autonomy in the political arena, and the spouse is free to engage in political activities as the spouse deems appropriate."
In this situation, the spouse has the autonomy to attend the political party dinner if the spouse is in no way identified as the spouse of the judge, and engages in no campaigning for the judge at the event.
Just as with the previous answer, the attendance by a spouse at such an event is fraught with peril because what takes place at the event, and whether or not the spouse campaigns for the judge at the event, become questions of fact. Also, the spouse, even with the best of intentions, may not control the events at the dinner, and such events may suggest that the spouse attended the dinner for the purpose of campaigning for the judge.
For example, the spouse may carefully arrange with the person presiding at the event that when the spouse is introduced, that no indication be made of the spouse's relationship to the judge or the judge's campaign. That careful arrangement may or may not be adhered to by the person presiding. However, even if that arrangement is adhered to by the person presiding, another speaker at the dinner, not having been made aware of the issue, might publicly extol the virtues of the spouse and the judge during the speaker's remarks, and urge those in attendance to support the judge's candidacy. The presence of the spouse in the audience might then suggest that the spouse was in attendance at the dinner for the prohibited reason: to campaign for the judge, rather than for the spouse's autonomous political reasons.
This loss of control is exemplified in Fla. JEAC Op. 06-13. In that opinion, discussing the difference between printed advertisements and personal appearances, the Committee noted: "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."
Thus, although is it is permissible for a judge's spouse to attend a political party event for the spouse's own reasons, so long as the spouse does not campaign in any way for the judge, such attendance exposes the judge to the charge that the spouse's attendance at the event was for the prohibited purpose of campaigning for the judge. If such a charge is made, the resolution of such charge will depend, upon other things, upon the imprecise memories of the attendees at a possibly helter-skelter, boisterous political party event.
Although this Committee's opinions are only advisory to the Judicial Qualifications Commission and the judiciary at large, the opinions may be evidence of good faith which can be utilized by the judge in the event a complaint is filed.
The Committee desires to encourage judges and candidates to seek such opinions, and does not desire for its opinions to have a chilling effect on proposed conduct which the Committee determines is not in violation of the Code. However, because the questions posed by the judge in this case involve facts which are unknown, and indeed unknowable because they involve facts which have not yet occurred (such as the events at a political party dinner to be held in the future) the Committee believes that it would be remiss in its duty to provide helpful advice to the judge if it did not raise the existence of these factual issues, the resolution of which might ultimately determine whether a violation of the Code had been committed.
In re: Angel, 867 So. 2d 379 (Fla. 2004)
Fla. Code Jud. Conduct, Canon 7; Canon 7A(3)(b); Canon 7C(1); Canon 7C(3)
Fla. JEAC Ops. 08-09; 06-13; 06-11
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.
(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 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.