FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-20 (Election)1
Date of Issue: December 13, 2011

ISSUE

Whether judicial candidates who are running in different races may travel together to campaign speaking events if the candidates do not publicly endorse each other for office.

ANSWER: Yes, as long as the candidates do not travel together so frequently that it creates the impression that the judicial candidates are working together or are endorsing each other, and as long as the vehicle in which they are traveling does not display the other candidate’s campaign advertising.

 

FACTS

The inquiring judicial candidate is considering traveling to campaign speaking events with another judicial candidate who is running in a different race.  The inquiring judicial candidate is concerned whether traveling with the other judicial candidate would create an impression of publicly endorsing the other judicial candidate in violation of Code of Judicial Conduct Canon 7A.(1)(b), which states that “a candidate for election . . . to judicial office shall not . . . publicly endorse . . . another candidate for public office.”

    

 

DISCUSSION

The inquiring judicial candidate may travel to campaign speaking events with another judicial candidate who is running in a different race as long as the candidates do not travel together so frequently that it creates the impression that the judicial candidates are working together or are endorsing each other, and as long as the vehicle in which they are traveling does not display the other candidate’s campaign advertising.

As mentioned above, Canon 7A.(1)(b) states that “a candidate for election . . . to judicial office shall not . . . publicly endorse . . . another candidate for public office.” (emphasis added).  Canon 7A.(1), however, “does not prohibit . . . a judicial candidate from privately expressing his or her views on [other] judicial candidates.”  Canon 7A(1) Commentary (emphasis added).  Moreover, “[a] candidate does not publicly endorse another candidate for public office by having that [other] candidate’s name on the same ticket.”  Id.

Thus, although Canon 7 prohibits a judicial candidate from publicly endorsing another judicial candidate, Canon 7 does not prohibit all relationships among judicial candidates.  Judicial candidates may maintain relationships with each other so long as those relationships do not create the impression that one judicial candidate is publicly endorsing the other.

With that perspective, we opine that judicial candidates who are running in different races may travel together to campaign speaking events as long as the candidates do not travel together so frequently that it creates the impression that the judicial candidates are working together or are endorsing each other. See Fla. JEAC Op. 06-21 (“[A] judicial candidate must not . . . appear to run as part of a ‘slate.’”).

We recognize that what constitutes “frequent” travel is subjective.  However, we are unable to define an objective test as to the number or type of instances which may constitute “frequent” travel.  We leave such conclusions to the view of the reasonable person.

We also recognize that some judicial candidates travel in vehicles which display the candidate’s campaign advertising such as magnetic signs and bumper stickers.  We believe that a judicial candidate who travels in a vehicle displaying another candidate’s campaign advertising may create the impression of publicly endorsing the other candidate.  See Fla. JEAC Op. 87-22 (a judge should not drive an automobile with a bumper sticker supporting the spouse’s candidacy for public office).  Thus, we further opine that a judicial candidate may travel to campaign speaking events with another judicial candidate as long as the vehicle in which they are traveling does not display the other candidate’s campaign advertising.

The current inquiry is distinguishable from the inquiry we addressed in Fla. JEAC Op. 04-29.  There, the inquiry was “[w]hether a judicial candidate who has the same campaign consultant as two judicial candidates running for different judicial seats can, in order to save money, mail his or her individual campaign brochure in an envelope containing the other candidates’ brochures if each candidate encloses a disclaimer card stating that the candidates are not endorsing each other.”  We answered “no.”  We reasoned that, although the conduct subject to this inquiry was not an overt endorsement of a judicial candidate,

mailing the brochures of the three judicial candidates in one envelope may give voters and potential donors the impression that the judicial candidates are working together.  The joint mailing could imply that the judicial candidates share judicial and perhaps political philosophies.  Although a joint mailing would not be an overt endorsement or recommendation, the implied mutual endorsement is obvious.  Since the three candidates are running for different seats, the joint mailing would convey support of the candidates participating in the mailing and not their opponents.

Id.  See also In re Kay, 508 So. 2d 329 (Fla. 1987) (publicly reprimanding a judge for violating Canon 7 and section 105.071, Florida Statutes (1986), for, among other things, joining with two other judicial candidates in promoting and financing the mailing of sample ballots which gave the appearance that each of them endorsed the other); In re Pratt, 508 So. 2d 8 (Fla. 1987) (same).

Unlike the paid mailings which we addressed in Fla. JEAC Op. 04-29 and which the Supreme Court addressed in Kay and Pratt, we do not believe that the mere act of judicial candidates traveling together to campaign speaking events creates the impression that the candidates are working together or are endorsing each other unless the candidates do so with such frequency, or travel in a vehicle displaying the other candidate’s campaign advertising, such that a reasonable person would form that impression.    

 

REFERENCES

In re Kay, 508 So. 2d 329 (Fla. 1987); In re Pratt, 508 So. 2d 8 (Fla. 1987).
Fla. Code Jud. Conduct, Canon 7A(1)(b).
Fla. JEAC Ops. 06-21, 04-29, 87-22.

 

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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 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:
Elections Subcommittee Judge Jonathan D. Gerber, Judge Jose′ Rodriguez, and Judge Richard R. 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.