FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-04 (Election)1
Date of Issue: March 28, 2018 (Amended)2

ISSUE

May a judicial candidate personally solicit voters’ signatures on petition cards to be submitted at qualifying time in lieu of a filing fee?

ANSWER: YES, so long as the procedure adopted by the candidate does not include personal solicitations from attorneys or people who may appear in court before the judge.

FACTS

This inquiry comes from a candidate for a judicial office to be filled by election in 2018. The candidate would like to qualify for that race with petition cards in lieu of paying the filing fee. The candidate asks whether it is permissible to personally ask registered voters for signatures, adding that signatures will not be solicited from attorneys.

  
DISCUSSION

This Committee has never before addressed this precise question, the answer to which would be covered by Canon 7C(1), Florida Code of Judicial Conduct. We read Canon 7C(1) as prohibiting two different types of activity. First, a judicial candidate may not personally seek endorsements from attorneys. This is so because such solicitations might reasonably be perceived as coercive by those attorneys, who may find themselves appearing in front of the candidate if he or she wins the election. Asking an attorney to sign a signature card would clearly fall within the ambit of “soliciting support.”  However, Canon 7C(1) does notexpressly prohibit a candidate from seeking support from people who are not attorneys. This is the sine qua non of engaging in a campaign in a State whose trial judges are selected by the voters.3  Second, Canon 7C(1) bars judicial candidates from “solicit[ing] campaign funds.”  Unlike the proviso regarding “publicly stated support,” this portion of the rule is not limited to attorneys. Judicial candidates are expected to appoint “committees of responsible persons” for raising campaign money regardless of the source of that money.

Typically the filing fee required for placement on the ballot is a considerable expense, running to thousands of dollars. It is certainly understandable why a candidate might prefer his or her contributions to be invested elsewhere, such as commercials, flyers, or signage. Florida law affords an opportunity, for those who can collect enough verifiable signatures from voters, to avoid paying the qualifying fee. See § 105.035, Fla. Stat. The dispositive question in this inquiry is whether signing a judicial candidate’s petition is the functional equivalent of making a campaign contribution.

The subject of qualifying by petition was first mentioned, albeit briefly, in Florida Judicial Ethics Advisory Committee Opinion  92-29, wherein we stated, “Canon [7C(1)] provides for the establishment of a committee to secure campaign funds. The Committee believes a judge who is up for re-election may establish a committee to qualify by petition. Qualifying fees or qualifying petitions are statutory requirements for the election of judges and either method is available” (emphasis added). However, despite suggesting that the candidate’s “committee of responsible persons” may assist in gathering signatures, Op. 92-29 does not explicitly say that the candidate cannot perform this function as well.

A number of later opinions have addressed the extent to which a judicial candidate’s social networking web site may be employed in connection with the election campaign. Most recently, in Florida Judicial Ethics Advisory Committee Opinion 17-24, the Committee was contacted by a judicial candidate who had opened a campaign account and was also seeking to qualify by petition. The specific question was whether the candidate could “establish an open Facebook page that would request individuals to sign petitions that permit the candidate to qualify without paying the qualifying fee otherwise required by law.” Our answer was no, but we concluded the candidate could properly “establish and maintain a Facebook page in support of [the] campaign” through a “committee of responsible persons … so long it is clear that the Facebook page is not maintained by the candidate personally.”

We do not choose to recede from this position. A typical campaign web site will likely make numerous requests of the reader, including for donations, and thus is best left to the candidate’s campaign committee rather than a personal site such as a Facebook page. Since the current inquiry suggests face-to-face solicitation of voters rather than via a web site, limited only to obtaining signatures for the petition, we must determine whether this is a distinction with a difference.

In Florida Judicial Ethics Advisory Committee Opinion 17-24 the Committee found guidance in Florida Judicial Ethics Advisory Committee Opinion 10-21, in which the contemplated activity was “placing of the word ‘contribute’ [with a link] on a web site maintained by the candidate personally.”  It takes no leap of faith to equate this proposal with solicitation of campaign funds.4  It is further notable that we concluded Op. 17-24 with the following sentence: “Therefore, only a committee of responsible persons sponsoring a Facebook page may solicit attorneys to sign a petition to waive the qualifying fee of a judicial candidate”  (emphasis added). A close reading of the opinion indicates that our main concern was “putting the touch” on attorneys. See also Fla. JEAC Op. 12-15 (“[I]f a web site supporting the election of a judicial candidate is to solicit campaign funds or attorneys’ publicly stated support, that activity may not be conducted by the candidate personally, but instead must be conducted by a committee of responsible persons established ‘to secure and manage the expenditures of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy’”) (emphasis added).

We do concede that Florida Judicial Ethics Advisory Committee Opinion 17-24 expressed our view that “asking voters to sign the petitions to waive the qualifying fee is a solicitation for publicly stated support.”  However, as noted above, the prohibition in Canon 7C(1) against personally seeking “support,” without mentioning money, is limited to approaching attorneys or people who may find themselves appearing in front of the candidate if he or she wins the election. The mere verbal or written endorsement by an attorney, without more, is likely to carry weight with many voters, who may think that attorneys’ knowledge of a judicial candidate’s fitness is superior to their own. By offering to exempt attorneys from those being asked to sign petitions the inquiring candidate acknowledges the prohibition in Canon 7C(1), Code of Judicial Conduct, against “solicit[ing] attorneys for publicly stated support” and agrees not to do that. We agree with the candidate’s reasoning that the Canon does not extend to seeking signatures from laypersons. Neither do we consider such a request the functional equivalent of asking for a monetary contribution. Instead, we distinguish the potential defrayal of expenses from a “contribution” as that term is used in the Canon, simply because signing a petition costs the voter nothing.5  While we find this type of solicitation is allowed by Canon 7, we caution incumbent judges that the solicitations must comply with the other Canons. For example, a sitting judge could not ask a person who appears before the judge to sign a petition.

 

REFERENCES

§ 105.035, Fla. Stat.
Fla. Code of Judicial Conduct, Canon 7C(1)
Fla. JEAC Ops. 92-29, 08-11, 10-21, 10-28, 12-15, 17-24

_____________


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, Miami-Dade County Courthouse, 73 W. Flagler Street, Room 1407, Miami, FL 33130.

Election Subcommittee Members:
Judge Roberto Arias, Judge Barbara Lagoa, Mark Herron, Esquire, and Judge Michael Raiden.

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.

2. The Committee originally issued Fla. JEAC Op. 2018-4 on February 26, 2018. This opinion was amended to provide further clarification.

3. By attending candidate rallies, going door-to-door, and distributing literature, are not candidates “soliciting support” from whomever they encounter?

4. Florida Judicial Ethics Advisory Committee Opinion 08-11 and 10-28, which were written in more general terms, also found that “[w]ebsites and Facebook pages promoting the candidacy of a judge or judicial candidates should be established and maintained by these committees, and not by the judge or judicial candidate personally.”

5. Further, it can fairly be questioned whether signing the petition is a public expression of support for the candidate, as opposed to supporting only the candidate’s desire for free ballot access.