FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-19 (Election)1
Date of Issue: June 18, 2010

ISSUE I

May a candidate for judicial office speak at a gathering of a local “Patriot” group?

ANSWER: Yes, but only under the limited conditions prescribed by Fla. Code Jud. Conduct, Canon 7(C)(3).

ISSUE II

May a candidate for judicial office speak at a gathering of Tea Party Patriots?

ANSWER: Yes, but only under the limited conditions prescribed by Fla. Code Jud. Conduct, Canon 7(C)(3).

 

 

FACTS

A candidate for judicial election has been asked to speak at the gatherings of two organizations both of which, according to the candidate, advocate constitutional education.  The candidate represents that both groups are organized pursuant to Section 501(c)(3) of the Internal Revenue Code and are focused on education2.  The candidate further represents that neither group endorses a candidate nor “seems to work as a lobby group.”  The candidate has attached to the inquiry web pages for both groups.

ANALYSIS

Pertinent provisions of the Florida Code of Judicial Conduct

Canon 7 of the Florida’s Code of Judicial Conduct mandates that a judge or candidate for judicial office shall refrain from inappropriate political activity.

Canon 7(A)(1)(d) provides that a judge or candidate for election or appointment to judicial office shall not “attend political party functions.”  Although “political party” is not defined by the Code, “political organization” is defined as “a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office.”  Definitions.

Canon 7(A)(3)(b) states that a candidate for a judicial office “shall maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity, and independence of the judiciary, . . ..“

Canon 7(C)(3) sets forth conduct a judicial candidate may engage in: “[a] judicial candidate involved in an election or re-election . . . may attend a political party function to speak in behalf of his or her candidacy or on a matter that relates to the law, the improvement of the legal system, or the administration of justice.  The function must not be a fund raiser, and the invitation to speak must also include the other candidates, if any, for that office.”  Further, “[t]he 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.  A judicial candidate attending a political party function must avoid conduct that suggests or appears to suggest support of or opposition to a political party, a political issue, or another candidate.  Conduct limited to that described above does not constitute participation in a partisan political party activity.”

Prior Opinions of this Committee

In Fla. JEAC Op. 94-27, a sitting judge requested an opinion as to whether the judge could accept an invitation to speak at an open public meeting sponsored by “United We Stand.”  The judge enclosed material from the organization explaining that it was not a political party, did not sponsor candidates, and operated on a non-partisan basis.  In the Opinion, the Committee noted that “[t]he obvious problem you have is that ‘United We Stand’ was closely identified with the campaign of [presidential candidate] Ross Perot.”  Although six members of the Committee concluded that the judge could appear before this organization and give a talk, three members of the Committee expressed the view that because the organization is political in nature, and may be perceived by the public as being a political party, the judge should not appear.  Although it is not clear from the opinion whether the following represented the view of the entire committee or some portion thereof, the opinion goes on to state that “There is also a continuing problem with public perception.  Even though an organization’s by-laws may proscribe certain activities, the actual practices of the organization may differ, thus placing a judge in an awkward position.”

In Fla. JEAC Op. 95-01, a majority of the Committee concluded it should recede from its prior divided opinion in Fla. JEAC Op. 92-28, and advised that a judge may belong to a Tiger Bay Club, concluding that Tiger Bay Clubs are “essentially public awareness organizations that address political and societal issues,” “are bipartisan in membership and nonpartisan in nature,” and do not appear to be the type of organization proscribed by Canon 7.  Even though the majority in Fla. JEAC Op. 95-01 determined that a judge could attend meetings of and become a member of a Tiger Bay Club, the majority cautioned that any judges who become members “must be constantly on guard not to be placed in a partisan position or act for the political advantage of a person or party.”  See also Fla. JEAC Op. 75-21 (similar caution expressed to judge who becomes a member in the “Bull Snort Forum, Inc.” who’s motto was “politics for the sake of politics.”).  A dissenting member of the Committee opined in Fla. JEAC Op. 95-01 that judges should not be members of a group that has for its primary agenda the advancement of a political program, adding “[t]he partisan distinction is not persuasive for me.”

In Fla. JEAC Op. 96-10 the Committee opined that a judicial candidate may attend a nonpartisan, pro-life spring banquet but must avoid any appearance of making a commitment with respect to abortion issues in violation of Fla. Code Jud. Conduct, Canon 7A(3)(d)(ii), or of adopting the pro-life agenda.  The Committee reached its conclusion in part on the basis that the event did not appear to be a partisan political party function because the invitation indicated there would be speakers from both parties at the event.

In Fla. JEAC Op. 00-22 (Election), the Committee advised that a judicial candidate may attend and distribute campaign materials at a National Rifle Association (NRA) fundraiser, stating:

While the NRA is involved in political matters, it is neither a “political party” nor a “political organization” as defined in Definitions of the Code of Judicial Conduct . . ..

Although the inquiring judicial candidate may attend the fundraiser, this Committee reminds the candidate that he/she “shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary,” and shall not “make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”  Fla. Code Jud. Conduct, Canons 7A(3)(a), 7A(3)(d)(i).  Further the candidate “shall not make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”  Canon 7A(3)(d)(ii).

In Fla. JEAC Op. 03-23 the Committee advised a candidate for re-election with no announced opposition that the judge may speak to the League of Women Voters and the NAACP regarding adequate funding for the courts in the implementation of Article V, Revision 7.  There, the Committee concluded first that a judge with no announced opposition is essentially in the position of any sitting judge, and therefore the candidate must follow the dictates of Fla. Code Jud. Conduct, Canon 7A(1), but is not entitled to the exceptions contained in Canon 7C(3).  The Committee then went on to advise that the deciding factor there was whether the League of Women Voters and the NAACP are partisan political parties.  If they were, attending their functions would be prohibited by Canon 7A(1) absent active opposition triggering Canon 7C(3).

The Committee concluded that neither the League of Women Voters nor the NAACP were partisan political parties.  In reaching its determination with respect to the League of Women Voters, the Committee relied on prior opinions of the Committee3 as well as information from the organization’s website indicating that the organization is “a nonpartisan political organization” and “encourages the informed and active participation of citizens in government.”

With respect to the NAACP, the Committee also relied on information from the NAACP’s website, including statements that the “primary focus of the NAACP continues to be the protection and enhancement of the civil rights of African Americans and other minorities,” that membership is open to anyone believing in the basic tenets of the NAACP, and that the NAACP’s programs are designed to ensure civil rights compliance and equitable treatment of all Americans, and its political empowerment initiative is devoted to all Americans.  The Committee noted that “although the NAACP is an organization of political nature, it appears to fit the description of both bipartisan (i.e., open to all) and nonpartisan (i.e., for all Americans.).”

The Committee also cautioned however, as it has in other opinions, about the “continuing problem with public perception,” and that, although the organization’s bylaws may proscribe certain activities, the actual practices of the organization may differ, placing the judge in an awkward position (citing Fla. JEAC Op. 94-27, discussed above).  Accordingly, the Committee concluded its Opinion by advising that “the inquiring judge needs to be ‘constantly on guard not to be placed in a partisan position or act for the political advantage of a person or party.’” (quoting from Fla. JEAC Op. 95-01).

Finally, in Fla. JEAC Op. 04-09 (Election) the Committee advised that a candidate for judicial election may not directly or indirectly solicit or take any affirmative action to obtain the endorsement of a major political party, opining that to do so would violate Canon 7, Fla. Code Jud. Conduct, as well as Section 105.071(1), Florida Statutes.

 

DISCUSSION

Addressing the questions presented here, the Committee first notes that the website materials provided by the candidate suggest that the local Patriots group is an organization similar in mission and vision to the Tea Party Patriots organization, and so the Committee reaches the same conclusion discussed herein as to both organizations.

    

The Tea Party Patriots’ national website, provided by the candidate, states that its mission is to “attract, educate, organize and mobilize our fellow citizens to secure public policy consistent with our three core values of Fiscal Responsibility, Constitutionally Limited Government and Free Markets.”  The website further states that its philosophy is to “recognize and support the strength of grassroots organization powered by activism and civic responsibility at a local level.” 

    

The website material provided regarding the local Patriots group states that it is comprised of local citizens sharing a common passion for liberty and limited government, which believes that the Constitution of the United States maintains the powers of government are only those granted within the Constitution.  Its mission includes, among other activities, “[t]o monitor, report and present evidence of encroachment upon Constitutional Liberty.”  The organization’s pledge is “I will do all within my power to preserve, protect and hold government accountable to the United States Constitution.  I will educate myself on the United States Constitution, whereas I may be able to defend the same against all usurpation’s [sic].” 

Based on the materials submitted by the candidate regarding these organizations, it appears to the Committee that these Patriots gatherings either are associated with, or may be perceived as being associated with, what has become known as the Tea Party movement.  There appear to be a number of political organizations using the name Tea Party, as well as a political party registered with the Florida Department of State as the Tea Party.  Based on the well-publicized political activism and ongoing participation in current political electoral processes of the Tea Party on both a national and local level -- either as a grass roots movement or as a registered political party -- the Committee believes that the candidate should treat the gatherings of both of these Patriots groups as political party functions. 

In describing the limited circumstances under which a judge may attend a political party function, Canon 7(3)(C) provides that “[a] judicial candidate attending a political party function must avoid conduct that suggests or appears to suggest support of or opposition to a political party, a political issue, or another candidate,” thereby making clear that such conduct is inappropriate political activity prohibited by the Code.  Based on the activities of the various Tea Party organizations, the Committee believes that a judicial candidate’s appearance at one of these Patriot gatherings -- other than as prescribed by Canon 7(C)(3) -- would at a minimum give the appearance of inappropriate political activity violative of Canon 7.  Accordingly, the Committee believes that the candidate may speak at one of these functions only under the conditions described in Canon 7(3)(C), that is, the event is not a fundraiser, the other candidates for the position have been invited, and the candidate limits the presentation to the topics permitted by Fla. Code Jud. Conduct, Canon 7(3)(C).

The Committee further opines that, absent the restrictions set forth in Canon 7(3)(C), the candidate’s attendance and speaking at the events may call into question the candidate’s impartiality and independence, in violation of Canon 7(A)(3)(b), or may be perceived as an attempt to directly or indirectly solicit the endorsement of a major political party, in violation of Canon 7 and Florida Statutes 105.071(1).  Fla. JEAC Op. 04-09 (Election).

The Committee is also of the opinion that the factual scenario presented here is different than that presented by prior inquiries regarding the propriety of attending meetings of organizations which merely have political interests such as the League of Women Voters, the NAACP, and the NRA.  The Committee believes these groups are distinguishable from political parties or other political organizations whose principal purpose is to further the election or appointment of candidates to political office.  Although it is not clear whether the Committee’s Opinion regarding “United We Stand” is factually distinguishable, the Committee notes that its members at the time were divided as to the result reached in that Opinion.

Finally, the Committee is expressly charged with rendering advisory opinions interpreting the application for the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate.  The Committee does not render legal opinions regarding the constitutionality or enforceability of various provisions of the Florida Code of Judicial Conduct.  See Fla. JEAC Op. 02-16.

 

REFERENCES

Internal Revenue Code, Sections 501(c)(3), 501(c)(4)
Fla. Stats., Section 105.071(1).
Fla. Code Jud. Conduct, Definitions, Canons 7, 7(A)(1)(d), 7(A)(3)(b), 7(C)(3)
Fla. JEAC Ops. 04-09 (Election), 03-23, 02-16, 00-22 (Election), 96-10, 95-01, 94-27, 75-21, 74-11

 

_____________


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.

Participating Members:
(Elections Subcommittee): Judge Robert T. Benton, Patricia E. Lowry, Esquire, Judge Dorothy Vaccaro.


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 The materials submitted by the candidate, however, indicate that Tea Party Patriots, Inc. represents that it is organized under section 501(c)(4) of the Internal Revenue Code.

3 Fla. JEAC Op. 94-27 (in reaching opinion, Committee cited to the League of Women Voters as an example of the type of organization before which a judge could appear and give a talk on the function of courts and related matters); Fla. JEAC Op. 74-11 (no impropriety in judge who was a candidate for re-election with no opposition, to attend “political fair” sponsored by the League of Women Voters as well as a number of other groups including the Democratic and Republican parties, as it was a nonpartisan political gathering).