FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-12 (Election)1
Date of Issue: June 8, 2018

ISSUE

May a judicial candidate provide campaign literature to a partisan political group of volunteers for distribution to potential voters along with other partisan and non-partisan candidates’ flyers?

ANSWER: No.

FACTS

This inquiry comes from a candidate for a judicial office to be filled by election in 2018.  A group of volunteers has asked the candidate to provide them with campaign literature which the group intends to distribute in their community.

This is a group of elderly citizens that wish to distribute copies of all nonpartisan candidate’s campaign fliers, as well as all fliers for Republican candidate.  They have advised the candidate that volunteers will distribute the flyers when they walk their neighborhoods.  Because of the age of those walking, they have found it easier to combine multiple flyers in one plastic bag and to hang the plastic bag on the door handles of homes, rather than hang each campaign’s fliers individually.  Those doing the work and distribution are members of a local Republican club.

  
DISCUSSION

The answer to the inquiry is governed by Canon 7 of the Florida Code of Judicial Conduct and Florida Statute Section 105.071, Florida Statutes.

Canon 7A(1) provides, in relevant part, that “a candidate for election…shall not: … (b) publicly endorse or publicly oppose another candidate for public office.

Canon 7A(3)(d) also provides that “except to the extent permitted by Section 7C(1), shall not authorize or knowingly permit any other person to do for the candidate  what the candidate is prohibited from doing under the Sections of this Canon.”

Florida Statute Section 105.071(1)-(7) prohibits candidates for judicial office from participating in any partisan political activities, except registering as member of a party and voting in the party’s primary. The candidate shall not campaign as a member of a particular party; publicly represent or advertise themselves as a member of a political party; endorse any candidate; make political speeches other than in candidate’s own behalf; make contributions to political party funds; or accept contributions from any political party. Additionally, Florida Statute Section 105.09 prohibits any political party from endorsing, supporting, or assisting any candidate in a campaign for election to judicial office.

Canon 7A(1)(b), Florida Code of Judicial Conduct, expressly prohibits judges and judicial candidates from publicly endorsing or publicly opposing another candidate for office. Because of this prohibition, the Committee has previously written that various forms of advertisements are prohibited by the code because they may give voters the impression that the judicial candidates are working together, and share judicial and perhaps, political philosophies in contravention of Canon 7A(1)(b). In fact, we addressed a similar scenario Florida Judicial Ethics Advisory Committee Opinion 04-29. There we opined that a judicial candidate could not mail campaign brochures in the same envelope with other candidates in order to save money, even if each candidate encloses a disclaimer card stating that the candidates are not endorsing each other, because this impermissibly created the appearance of running as part of a slate.

In Florida Judicial Ethics Advisory Committee Opinion 12-19, we likewise opined that a judicial candidate should direct supporters who serve at the pleasure of the candidate to remove judicial candidate’s campaign sign from the supporter’s vehicle, if the supporter is also displaying a partisan candidate’s campaign sign on the supporter’s vehicle, because this could leave the impression that the candidates are running as a slate.

Following the same analysis as these cases, in Florida Judicial Ethics Advisory Committee Opinion 10-14, this Committee considered an inquiry from a judge who asked: “May a judicial candidate place an advertisement on the side of a moving advertising truck which would also display other advertisements for other candidates for elected office?” The Committee opined that sharing advertising space with other candidates would impermissibly create the appearance that a judicial candidate was running as part of a slate. The Committee further explained that “there would be a risk that the judicial candidate would appear to be running for office as a member of a political party if the other advertisements on the truck were for candidates all running as members of the same political party.”

Here, similarly, the inclusion of the judicial candidate’s flyers along with the other partisan and non-partisan flyers will undoubtedly give the impression that the judicial candidate is supporting the other candidates’ races and partisan political affiliation – either of which is prohibited by the Canons. Additionally, the partisan political group seems to be lending their “support” or “assistance” to a “candidate in a campaign for election to judicial office,” which is prohibited by the Section 105.09, Florida Statutes.

Canon 7C(3) provides, as follows:

A judicial candidate involved in an election or re-election, or a merit retention candidate who has certified that he or she has active opposition, may attend a political party function to speak in behalf of his or her candidacy or on a matter that relates to the law, the improvement of the legal system, or the administration of justice. The function must not be a fund raiser, and the invitation to speak must also include the other candidates, if any, for that office. The candidate should refrain from commenting on the candidate’s affiliation with any political party or other candidate, and should avoid expressing a position on any political issue. A judicial candidate attending a political party function 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.

In Florida Judicial Ethics Advisory Committee Opinion 04-31, we opined that this provision limits a candidate’s partisan political activity.  In that opinion, we concluded that a judicial candidate may not leave campaign literature on display tables in Republican and Democratic committee headquarters. Such activity, we opined, “crosses the line into inappropriate political activity.” Similarly, having members of a local Republican club distribute a judicial candidate’s campaign literature crosses that same inappropriate line.

 

REFERENCES

§§ 105.071 and 105.09, Fla. Stat. 
Fla. Code of Judicial Conduct, Canon 7A(1) and 7A(3)
Fla. JEAC Ops. 12-19; 10-14; and 04-29

_____________


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, Charles Reynolds, 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.