FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-09 (Election)1
Date of Issue: March 22, 2020

ISSUES

1. May a judicial candidate appear on a computer or TV screen during a video meet and greet or video fundraiser while a donation button appears on the screen?

ANSWER: No; however, a judicial candidate may participate in a virtual campaign event as provided herein.

2. May a judicial candidate appear on a computer monitor for a virtual fundraiser and can a donation button appear if the candidate leaves the screen temporarily, and then the button disappears when the judicial candidate reappears on the screen?

ANSWER: No; however, a judicial candidate may participate in a virtual fundraiser as provided herein.

3. May a committee of responsible persons solicit donations for a judicial candidate during a telephonic campaign event if they are in another room other than the judicial candidate and the judicial candidate temporarily leaves the event during the request?

ANSWER: No; however, a judicial candidate may participate in a telephonic campaign event as provided herein.

4. May a judicial candidate work with a committee of responsible persons to do introductions telephonically and once the judicial candidate leaves the conversation may members of the committee solicit support and/or donations?

ANSWER: No.

 

FACTS

A judicial candidate notes that due to the social distancing, self-quarantine requirements, and other requirements in view of the COVID-19 pandemic, it has become necessary to consider new methods of fundraising for judicial campaigns. To that end, guidance is sought regarding the inquiries noted above.

DISCUSSION

Our response to these issues is guided by Fla. Code Jud. Conduct, Canon 7C(1), which provides in pertinent part:

A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law.

This Committee has steadfastly safeguarded Canon 7C(1)’s prohibition against candidates’ solicitation of funds and applied it to prohibit proposed conduct when it could appear to a reasonable person that the conduct was a solicitation by the candidate. JEAC Op. 12-14. “An individual who solicits a contribution must be a member of the committee of responsible persons.” JEAC Op. 18-16.

With respect to Issues 1, 2 and 3, the inquiring candidate seeks guidance as to virtual campaign events and activities in the context of a “virtual meeting.”2 In this context, the same principles applicable to in-person campaign events and activities are applicable to virtual campaign events and activities. Specifically, a judge or judicial candidate may not in any way take part in the solicitation of campaign contributions.

In JEAC Op. 12-14, this Committee addressed an inquiry as to whether a committee of responsible persons, established by a judicial candidate to support the candidate’s campaign, could hold an event at the candidate’s parents’ home, at which funds will be solicited for the candidate’s campaign and whether the Committee could solicit contributions at the event. We opined:

“while the committee is expressly allowed to solicit and raise funds, neither the candidate nor the parents may be present when those solicitations occur. Any solicitation of funds at this party must be made only by the members of the committee, in such a way that a reasonable person would not consider that the solicitation is being made by the candidate or the candidate’s parents. Accordingly, the solicitation must be made outside the presence of the candidate and the parents. The candidate and the parents should remove themselves from the party when the solicitation occurs, so as to avoid the impression which a reasonable person may draw that the solicitation was being made by the candidate or the candidate’s parents.”

Thus, in response to Issue 1, a judicial candidate may not appear on a computer or TV screen during a video meet and greet or video fundraiser while a donation button appears on the screen. To opine otherwise would be equivalent to permitting a member of the committee of responsible persons to hold up a donate sign, while the judicial candidate was addressing potential supporters at an in-person campaign event or activity.

In response to Issue 2, a candidate may appear during the virtual fundraiser sponsored by the committee of responsible persons but must leave the virtual meeting before the committee asks for contributions via the donation button. However, the candidate may not come back to the virtual meeting after the ask. Consistent with JEAC Op. 12-14, the candidate should leave the virtual meeting when the solicitation occurs, so as to avoid the impression which a reasonable person may draw that the solicitation was being made by the candidate. The candidates’ departure should be announced when the candidate departs so that it is clear to all concerned that he/she has departed. Such announcement would more clearly eliminate concerns over the appearance of improper soliciting. Simply leaving a virtual meeting is not always that easily noticed by those who continue to participate.

With respect to Issue 3, a candidate may appear during a telephonic campaign event sponsored by the committee of responsible persons but must leave the event before the committee asks for contributions. However, the candidate may not come back to the telephonic campaign event after the ask. Similarly, when the candidate leaves the telephonic meeting, it should be announced so that it is clear to all concerned that he/she has departed.

This Committee has not previously addressed the extent to which a judicial candidate can be personally involved in directing or overseeing the activities of the members of the committee of responsible persons in the solicitation of support3 or donations. In JEAC Op.14-04, this Committee opined:

There is no language in Canon 7 that would prohibit a candidate from being campaign treasurer, directing or managing the campaign (including its website), making campaign expenditures for campaign expenses, or or solicit attorneys for publicly stated support.

With respect to Issue 4, the inquiry posits that candidate might call a prospective contributor, engage in some preliminary conversation, and then turn over the phone to a member of the committee of responsible persons who would make the actual solicitation. The Committee agrees with and adopts the reasoning of the Wisconsin Judicial Conduct Advisory Committee when opining on a similar inquiry:

The Committee believes that such a solicitation method violates the Code of Judicial Conduct because of the candidate's transparent attempt to avoid a “personal” solicitation. It remains solicitation by the candidate but done with a wink and a nod. The presence of the candidate in the conversation continues. It is as if the candidate is looking over the shoulder of the solicitor.” Wis. Jud. Cond. Adv. Comm, Op. 97-7 (1997)

It should be noted that nothing in Canon 7 prohibits a candidate from advising or giving direction to a member of the committee of responsible persons from whom to solicit contributions, without otherwise being present during the solicitation.

 

REFERENCES

Fla. Code Jud. Conduct, Canon 7C(1)
Fla. JEAC Ops. 18-16, 17-14, 14-04, and 12-14
Wis. Jud. Cond. Adv. Comm. Op. 97-7 (1997)

_____________


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 W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

Election Subcommittee Members:
Judge Roberto Arias, Mark Herron, Esquire, Judge Matthew C. Lucas and Judge Michael Raiden.

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 Jeffrey T. Kuntz, 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 deleted)
Chief Justice Charles T. Canady, Justice Liaison
John Tomasino, Supreme Court Clerk
All Committee Members
General Counsel of the JQC
Melissa Hamilton, JEAC Staff Counsel

 

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 uses the term “virtual meeting” as permitting individuals, regardless of their location, to use video, audio, and text to link up online, permitting participants to share information and data in real-time without being physically located together.

3. In JEAC Op. 17-14, the Committee opined that a judicial candidate may personally submit support and endorsements from public officials and individuals who are not attorneys, subject to certain ethical restrictions.