FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-10
Date of Issue: July 13, 2011

ISSUE

Whether a judge’s spouse hosting a campaign event for a candidate at the home of the judge and spouse poses any potential ethical violations for the judge.

ANSWER: Yes.  The judge may not attend the event, and the judge should adamantly and genuinely encourage the spouse to host the event elsewhere to avoid the appearance of impropriety on the part of the judge.

FACTS

The inquiring judge’s spouse is an elected official in a municipality located within the jurisdiction in which the inquiring judge serves.  A candidate has requested the inquiring judge’s spouse to host a campaign event at the home of the inquiring judge and spouse.

DISCUSSION

The inquiring judge’s spouse may host the event.  The Code of Judicial Conduct “does not apply . . . to the spouse of a Judge.”  Fla. JEAC Op. 06-11.  “Therefore, the judge’s spouse is free to engage in political activity so long as the political activity is independent of the judge.”  Id.

The inquiring judge may not attend the event.  See Fla. JEAC Op. 07-13 (a judge, whose spouse plans to run for office, may not attend the spouse’s campaign gatherings at the judge’s home); Fla. JEAC Op. 87-22 (a judge, whose spouse is running for office and has supporters meeting at their home, may not serve as a host at the meeting).

Although we did not say so in Fla. JEAC Ops. 07-13 or 87-22, we add today that the inquiring judge also should encourage the spouse to host the event elsewhere.  The committee believes that having the event at the home, regardless of whether the inquiring judge attends or not, reasonably may create the appearance that the inquiring judge is:  (1) publicly endorsing the candidate; and (2) engaging in political activity.  Such appearances could subject the judge to being accused of violating the following provisions of the Florida Code of Judicial Conduct:

Although the inquiring judge ultimately may be successful in defending against such accusations, the inquiring judge “must avoid all impropriety and appearance of impropriety.”  Canon 2A (Commentary).  Thus, the inquiring judge should seek to avoid the appearance of impropriety by encouraging the spouse to host the event elsewhere.  See Fla. JEAC Op. 94-21 (a judge’s spouse can host a campaign event for a candidate at the spouse’s office so long as the judge does not attend the event).

Our opinion today is consistent with certain portions of the Code of Judicial Conduct which require a judge or judicial candidate to encourage family members to comply with the Code.  See Canon 5D(5) (a judge shall urge members of the judge’s family residing in the judge’s household not to accept a gift, bequest, favor or loan except under certain identified circumstances); Canon 7A(3)(b) (“A candidate for judicial office . . . shall 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.”).

Our opinion today also is consistent with our opinion in Fla. JEAC Op. 06-11.  There, we opined that a judge may not authorize the judge’s spouse to place a campaign sign supporting a partisan political candidate in the yard of the jointly-owned residence of the judge and the judge’s spouse.  Our opinion did not turn on the fact that the candidate was partisan or on the fact that the residence was jointly-owned.  Those were simply facts presented in the inquiry.  Rather, we reasoned that Canon 7A precluded the judge’s authorization of the spouse’s conduct because “[t]he campaign sign in the yard of the residence . . . conveys to the public a message that the judge supports the candidate.  . . .  [T]he judge is identified with the endorsement.”  Id.  Yet we recognized that “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.”  Id.

Similarly, our opinion today applies regardless of whether: (1) the candidate is partisan or non-partisan; (2) the home is jointly-owned or owned in the spouse’s name only; or (3) the event is a fundraiser or not a fundraiser.  Any of those scenarios reasonably may create the appearance of impropriety if the event occurs at the inquiring judge’s home, regardless of whether the inquiring judge attends or not.  Thus, although the inquiring judge’s spouse is free to host the event, the inquiring judge should encourage the spouse to host the event elsewhere to avoid conveying to the public the message that the inquiring judge supports the candidate.

We expect that the inquiring judge’s spouse would abide by the inquiring judge’s request to host the event elsewhere.  However, we also recognize that the spouse is free to reject that request.  Thus, the inquiring judge should seek to avoid the appearance of impropriety by adamantly and genuinely encouraging the spouse to host the event elsewhere.

One member of the committee believes that the inquiring judge should not permit the inquiring judge’s home to be used for a campaign gathering on behalf of a political candidate who is not a member of the household.   This member assumes that most married judges are in marriages in which spouses would not schedule campaign events in the marital home without clearing it with the other spouse.  This member believes that this assumption accords with reality, not to mention public perception.

REFERENCES

Fla. Code Jud. Conduct, Canons 2A (Commentary), 5D(5), 7A(1)(b), 7A(3)(b), 7D.
Fla. JEAC Ops. 07-13, 06-11, 94-21, 87-22.


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 a 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. See 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. See Id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law. The 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: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Patricia E. Lowry, Esquire, Judge T. Michael Jones, Judge Jose′ Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


Copies furnished to:
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
Inquiring Judge (Name of inquiring judge deleted from this copy)