September 9, 1988
PERSONAL AND CONFIDENTIAL
You ask whether, as a judicial candidate, you may accept a political party forum invitation extended to all non-partisan judicial candidates and candidates of the particular party. The event is not for raising funds or educational purposes. Your appearance will be in behalf of your own candidacy. Candidates from the opposing parties (including Independent candidates) are not invited.
Because of the urgency of your request, available committee members were polled by telephone. A quorum majority of four members believe the proposed activity is proscribed by Florida Statutes 105.071 and Canon 7. Three other responding members believe that the conduct is not prohibited by these provisions. One additional member abstained for sufficient reasons. Two committee members could not be contacted. In summary, a quorum majority of the committee do not believe you are permitted to appear under the stated circumstances.
Prior opinions are somewhat confusing. Generally, non-candidate judges have been discouraged from appearing before political parties for any purpose. (See Opinions No. 88/9; 87/16; 84/8 and 74/3). On the other hand, candidate judges have more freedom in appearing before political parties. Opinion No. 84/22 resulted in a split decision with respect to a question similar to yours, except the event was open to all candidates. Opinion 83/13 opines that a candidate judge may speak at a partisan political function "where other candidates are in attendance". Opinion 78/6 contains the following paragraph with respect to the inquiry of a judicial candidate:
"By your second question you asked whether you may attend such a meeting
wherein other Republican candidates for local offices are invited, but no prospective
opponents are afforded the opportunity to speak or attend. You specifically
asked whether such activity offends Canon 7A(1)(b. That issue, too, is analogous
to issues touched upon in our Opinion 77/15.
A majority of the committee are of the view, subject to the caveats mentioned
with reference to you first question, that the anticipated activity is not proscribed
by the canons. One member of the committee is of the view that such activity
constitutes engaging in partisan politics and is proscribed by Canon 7."
Opinion 77/15 contains the following response"
"An incumbent judge should not attend a political party fund raising affair unless the affair
one to which all candidates are afforded anopportunity to attend and speak and the incumbent judge is a candidate forre-election." (Also see Opinion 77/21, Question No. 4)
Please note Please note that Florida Statutes 105.09 dealing with a restrictionon partisan political organizations endorsing non-partisan judicial candidates was suggested to be unconstitutional in the case of, Concerned Democrats of Florida vs. Reno, 458 Fed. Supp. 60 (see also Abrams vs. Reno, 452 Fed. Supp. 1166 and Unger vs. Supreme Court, (Republican Party) 692 P.2d 238, Page 243).
It is doubtful that a criminal prosecution would arise under Florida Statute 105.071, with respect to the conduct mentioned under your inquiry. (see Op. Atty. Gen., 072-232, July 25, 1972, and Op. Div. Elect. DE 78-34, August 15, 1978). These Attorney General Opinions do not specify what will occur in the event some candidates are denied attendance. Please note that Op. Div. Elect. DE 78-34 contains the following statement:
"However, in light of the restrictions of ch. 105, F.S., car should be taken to insure that any appearance by a judicial candidate is available to all other such candidates and that the organization is not collectively supporting any particular judicial candidates. It is also advisable that any appearances before partisan groups by judicial candidates be separate from those by partisan candidates." (Emphasis supplied. The term "other such candidates" must mean judicial candidates).
The term "political party activities" specified in F.S. 105.071(1) can be given a narrow construction or a broad construction. This statutory interpretation seems to be the dividing line more so than Canons 7, 8(2)(4) and B(3). Florida judges must strive to preserve a non-partisan posture, while coping with the realities of ethically conduction an effective election campaign.
With regards, I remain
Very truly yours,
Oliver L. Green, Jr., Vice-Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Participating Members: Judges Booth,Turner, Dell, Green, Shutter andAttorney Page
All reference to the inquiring judge is deleted from the copies sent
to the following individuals.
Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Brooke S. Kennerly, Executive Director, Judicial Qualifications Commission.
Hon. Walter K. Stapleton, Chairman, Ethics Advisory Panel of the Judicial
Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida