FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-24 (Election)1
Date of Issue: September 30, 2018

ISSUE

1. Whether a judicial candidate can accept support or endorsement from former judicial candidates who the inquiring candidate defeated in the recent primary election cycle.

ANSWER: Yes.

2. Whether a judicial candidate can advertise the support or endorsement from former judicial candidates who the inquiring candidate defeated in the recent primary election cycle.

ANSWER: Yes.

FACTS

As a result of the August 28, 2018, primary election cycle ballot, the inquiring judicial candidate will participate in a run-off for the general election scheduled for November 6, 2018. Judicial candidates who unsuccessfully ran in the same primary election cycle would now like to openly support or endorse the inquiring judicial candidate in the general election cycle. The inquiring judicial candidate would like to advertise the endorsement in campaign literature and social media.

 

DISCUSSION

Florida Code of Judicial Conduct, Canon 7 “generally applies to all incumbent judges and judicial candidates.” Fla. Code Jud. Conduct, Canon 7E. Florida Code of Judicial Conduct, Definitions, defines a candidate as “a person seeking selection for or retention in judicial office by election or appointment” and a further states that the term “[p]ublic election . . . includes primary and general elections.”

Canon 7A(1)(b) provides that “[a]ll judges and candidates . . . shall not . . . publicly endorse or publicly oppose another candidate for public office.” See also Fla. JEAC Op. 10-14. In addressing the issue of whether a judicial candidate may accept an endorsement from a non-judicial candidate elected official, this committee and subcommittee have made clear that Canon 7 prohibits a judicial candidate from accepting an endorsement from a non-judicial candidate who is campaigning in the same election cycle:

The judicial candidate may not, however, accept an endorsement from a non-judicial candidate running for office in the same election cycle. Canon 7A (1)(b) provides that a judge or judicial candidate shall not publicly endorse or publicly oppose another candidate for public office. This section has been construed to prohibit a judicial candidate from appearing to run as part of a “slate.” In re Kay, 508 So. 2d 329 (Fla. 1987). To accept an endorsement from another candidate running for office would impermissibly create the appearance that the judicial candidate was running as part of a slate.

Fla. JEAC Op. 10-14; see also Fla. JEAC Op. 12-18 (“A judicial candidate may accept an endorsement from a non-judicial elected official who is not campaigning for election . . . ) (emphasis added).

Here, the inquiring judicial candidate states that the individuals who wish to endorse the candidate in the general election were unsuccessful in the primary election cycle. As a result, the individuals are no longer seeking “judicial office by election” in the general election cycle, and therefore no longer qualify as candidates for the purposes of Canon 7. Because the individuals are no longer candidates in the same election cycle, the inquiring judicial candidate may accept the endorsement of the now, non-candidate private citizens. Moreover, as the former judicial candidates are no longer candidates under Canon 7, no prohibition exists under the Canon preventing the inquiring judicial candidate from advertising their endorsement in the upcoming run-off election scheduled for November 6, 2018. However, as this committee noted in Florida Judicial Ethics Advisory Committee Opinion 17-14, a judicial candidate’s “solicitation, acceptance, and publication of such endorsements must comply with the requirements of the Canons to maintain the dignity appropriate to the judicial office and in a manner so as not to call into question the impartiality, integrity, and independence of the judiciary.”

 

REFERENCES

Fla. Code Jud. Conduct, Canon 7 Definitions; Canon 7E; Canon 7 A (1)(b)
Fla. JEAC Ops. 17-14, 12-18, 10-14

_____________


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 James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.


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.