FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-25 (Election)1
Date of Issue: December 30, 2017

ISSUES

1. Whether a judge who is up for re-election, but who currently has no declared opponent, may:

a) Attend and address the audience at an event sponsored by a non-partisan group promoting minority voting, when all candidates are invited to speak in favor of the candidate’s election?

ANSWER: Yes.

b) May the judge do so, even if the above organization publicizes a list of both partisan and non-partisan candidates it recommends for election?

ANSWER: Yes.

2. Can the judge send a campaign flyer to local voters touting the judge’s endorsements and experience?

ANSWER: Yes.

3. Can the judge go and meet with individuals of a partisan political party club prior to the commencement of the club’s meeting?

ANSWER: No.

4. Can the judge attend a holiday party hosted by a partisan political party where there will be no party business handled and no speakers will appear?

ANSWER: No.

 

FACTS

The inquiring judge is up for re-election in 2018. The judge has no declared opponent but there are rumors that the judge will most likely face an opponent. The judge has made a number of inquiries regarding contemplated typical campaign appearances and voter outreach efforts. In addition, the judge has inquired whether the judge may meet with individuals who will be attending a partisan political party club’s meeting, prior to the commencement of their meeting and whether the judge may attend a partisan political party’s holiday party where no business will be conducted or partisan speakers appear. The typical campaign activities are appearing and speaking on behalf of the judge’s campaign at a non-partisan organization’s meeting which promotes minority voting efforts and mailing flyers to prospective voters.

The organization, invites all candidates, partisan and non-partisan, to appear and speak. It also has a Political Action Committee that supports both types of candidates and publishes a list of the candidates it supports. The judge asks whether attendance at the group’s meeting to address the attendees and sending a flyer to prospective voters in support of the re-election effort, in which the judge’s experience and endorsements will be included, are allowed.  

DISCUSSION

Canon 7 of the Code of Judicial Conduct provides, in relevant part:

A Judge or Candidate for Judicial Office Shall Refrain From Inappropriate Political Activity

A. All judges and Candidates.

(1) . . . shall not:

(a) act as a leader or hold an office in a political organization;
 . . .
(c) make speeches on behalf of a political organization;
(d) attend political party functions; or
(e) . . . purchase tickets for political party dinners or other functions.

B. Judges and Candidates Subject to Public Election.

(3)    A judicial candidate involved in an election or re-election…may attend a political party function to speak on behalf of his or hers candidacy or on a matter that relates to the law, the improvement of the legal system, or administration of justice, … the candidate should refrain from commenting on the candidate’s affiliation with any political party … A judicial candidate attending 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.

Canon 7C(3) limits a judicial candidate’s participation in partisan political party activity to the conduct and activity specifically set forth therein. Fla. JEAC Op. 04-31. For that reason, this Committee has opined that it would be a violation of Canon 7 for a candidate to leave literature on display at both Republican and Democratic committee headquarters, Fla. JEAC Op. 04-31; for a candidate to use facilities owned by a partisan political party or to even “privately” disclose his/her party affiliation, Fla. JEAC Op. 02-13; appear at a party gathering without speaking, Fla. JEAC Op. 00-26; appear and stand outside a partisan political function at the beginning or end of the political party meeting and hand out literature, Fla. JEAC Op. 03-13;  or submit information to a partisan political party for the purpose of obtaining an endorsement. Fla. JEAC Op. 04-09. Particularly relevant to attending a holiday party, a judicial candidate may not attend a political party social gathering, even when all candidates have been invited to attend, to socialize and speak to guests without an opportunity to address the entire gathering at one time. Fla. JEAC Op. 00-26.

Therefore, based upon the specific language of Canon 7C(3) and as our opinions have consistently held, neither the judge nor the campaign volunteers may attend and meet with attendees before or after the partisan political party club meetings, or attend the holiday party hosted by the partisan political party.

The judge also inquired about attending and addressing the audience at a gathering sponsored by a non-partisan group, which promotes minority voting efforts. As described by the inquirer, such a group would not meet the definition of a partisan political party, though it may meet the definition of a “political organization.” A “‘political organization’ denotes a political party or other group,  the principal purpose of which is to further the election or appointment of candidates to political office.” Code of Judicial Conduct Definitions (emphasis added). Canon 7(A)(1)(a) and (c) prohibits candidates from “act[ing] as a leader or hold an office in a political organization [or] make speeches on behalf of a political organization.” The contemplated conduct does not conflict with these prohibitions. Additionally, the contemplated conduct of attending gatherings where all candidates are invited to speak, even in the absence of clear opposition, is allowed by the Code. Fla. JEAC Op. 00-12. In Florida Judicial Ethics Advisory Committee Opinion 00-12, this Committee opined that a Circuit Judge, who was up for re-election with no active opposition, could attend a political forum hosted by a partisan political group. There, as here, the Judge had filed the qualifying papers and opened a campaign account. Therefore, the judge may attend and speak at the forums. See also Fla. JEAC Op. 04-28 (the Committee approved of a candidate’s attendance at a private and non-partisan “meet and greet” function of a neighborhood group, even if the opponent was not invited).

The fact that this organization will endorse candidates, by itself, does not prohibit the judge from attending because this organization is not a partisan political party. However, the Committee advises the judge to avoid saying or doing anything at the event that could be interpreted as an endorsement of any other candidates that are present. Fla. JEAC Op. 04-28. Also, the judge should be vigilant of the nature of the meetings and avoid attending if it is likely to have a partisan political nature.

The last issue is whether the judge may send flyers to prospective voters touting his experience and endorsements. The judge’s campaign may send these flyers just as the judge may campaign for the judge’s re-election, as discussed herein. These flyers must comply and be consistent with the requirements and restrictions of Canon 7A(3) and to those provisions relating to campaign literature, media advertising and the dissemination of public information. Additionally, the flyers will have to comply with the applicable election Statutes relating to advertisements and reporting of expenditures of the campaign, issues that are not within this Committee’s purview.

 

REFERENCES

Fla. Code of Judicial Conduct, Canon 7

Fla. JEAC Ops. 00-12, 00-26, 02-13, 03-13, 04-09, 04-28, 04-31

_____________


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 of 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 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 Judge Miguel de la O, Chair, Judicial Ethics Advisory Committee, Eleventh Circuit, Richard E. Gerstein Justice Building, 1351 N.W. 12th Street, Room 424, Miami, FL 33125.

Participating Members:
Judge Michael F. Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, and Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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

 

 

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.