FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-19
Date of Issue: August 7, 2014

ISSUE

May a judge-appointee, who is a member of the State Legislature and who will not take office as judge until after the conclusion of a Special Session, participate in the Special Session of the Legislature by attending and voting?

ANSWER: Yes.

FACTS

A member of the Florida Legislature who has been appointed to fill a judicial vacancy inquires about the propriety of participating in a Special Session of the legislature occurring before the judge-appointee is to take office.

 

DISCUSSION

This Committee has recently opined that a sitting legislator does not have to resign his legislative office in order to campaign for a judicial seat. JEAC Op. 14-05. That opinion noted, “The narrow question before this Committee is whether the inquiring candidate must resign the current position immediately, before commencing a judicial campaign. Even though the candidate cannot, and does not plan to, seek re-election to the legislature at the same time, the official duties of that office are ongoing and may require further service through the upcoming election cycle. For the reasons that follow, a majority of the Committee believes the correct answer is no.”

Notwithstanding its conclusion that the judicial candidate could continue to exercise the responsibilities of being a state legislator, the Committee acknowledged the restrictions imposed by Canon 7’s prohibition against partisan political activities, stating, “Although we do not believe the Canons impose the requirement of immediate resignation from the existing office, they may well call for restrictions on the candidate’s conduct for the remainder of the legislative term. Casting votes and arguing for or against the merits of a proposed piece of legislation is one thing, but it is not uncommon for partisan officeholders to endorse other candidates, speak before or serve in political organizations, attend party functions, and the like as adjuncts to the express duties of their office, as well as directly participate in fundraising. Conduct of this latter type are [sic] expressly forbidden by the Canons and should be scrupulously avoided.” Id.

The Committee sees no distinction between the positions of the inquiring judicial candidate in Op. 14-05 and the inquiring judge-appointee, a member of the legislature recently appointed to fill a judicial vacancy. The Special Session of the legislature is scheduled to occur before the judge-appointee will take judicial office. Thus, the judge-appointee may participate in the Special Session and cast votes required by concomitant legislative responsibilities, subject to the same restrictions upon these legislative responsibilities the Committee articulated in 14-05.

Successful judicial candidates inevitably will be required to wind down their non-judicial employment and associations and wrap up the responsibilities which they will not be permitted to carry on after taking the bench. This Committee has recognized that, subject to compliance with appropriate Canons, such judge-elects may continue to handle cases during the period between their election and assuming judicial office. See JEAC Op. 00-39 (“no outright prohibition exists that would prohibit a newly elected judge from continuing to handle cases during the period between the election and the investiture.”); JEAC Op. 74-13 (“no impropriety in [judge-elects’] continuing as Assistant State Attorney trying cases in the Circuit Court until [assuming] the office of Circuit Judge.”)  No reason exists to treat judge-appointees differently.

As the Committee observed in JEAC Op. 05-19:

This committee has previously recognized the importance of newly selected judges (appointed or elected) having the ability to protect the interest of their clients, while at the same time preserving the ethical integrity of the new judge’s conduct. See JEAC Op. 2005-08. The Committee recognizes that many new judges leave an active law practice to take the bench. It would, therefore, be impractical for the Code to prohibit the newly selected judge from handling cases between the date of the selection and the date of the judge’s taking office.

Similarly, it is permissible for the judge-appointee to continue to meet the responsibilities of a state legislator, subject to the restrictions previously mentioned, between the date of the appointment and the date the judge actually takes office.

 

REFERENCES

Fla. JEAC Ops. 14-05, 05-19, 00-39, 74-13.

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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 to 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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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

For further information, contact Dean Bunch, Chair, Judicial Ethics Advisory Committee, 3600 Maclay Boulevard, South, Tallahassee, Florida 32312.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michael Raiden, Judge Richard R. Townsend.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator