March 20, 1990

Opinion No. 90-3
Canons 4 ; 7
Supporting judge in merit retention election

You have posed the following questions for consideration by the Committee:

"Whether a sitting judge may support the retention of another member of the judiciary in a merit retention election when that member is the target of a rejection campaign by the head of another branch of government, not for legal incompetency or personal misconduct but because he disagrees with a judicial ruling that the member of the judiciary participated in while discharging his responsibility as required by his constitutional oath of office"

If the answer to the above should be in the affirmative, are the following activities appropriate?

1)Speaking in private and in public on behalf of the judicial member under attack,

2)Writing both for private and public publication in support of the judicial member under attack,

3)Organizing or serving on a committee to support the retention of the judicial member under attack, (not involving fund raising)

4)Making a personal financial contribution to a committee to retain in office the judicial member under attack."

Your inquiry has received careful consideration and the committee has unanimously determined that you may not engage in public activity on behalf of a member of the judiciary when such member is the target of a rejection campaign undertaken by the head of another branch of government for reasons unrelated to competency or misconduct. The committee recognizes the tension which exists between Canon 4A and Canon 7. It has concluded that Canon 7A(1)(b) bars activities publicly undertaken on behalf of the targeted judge.

The committee has, however, concluded that you may speak privately on behalf of the judicial officer under attack but you may not organize or serve on a committee designed to support the retention of that person. The committee has also concluded that Canon 7A(1)(c) bars a contribution to the candidate.

Two members of the committee have expressed the view that you may speak privately and publicly on the independence of the judiciary and you may speak in general terms on the merit retention system, how it works and the importance of the voters looking at a retention candidate's record. These members draw heavily upon that aspect of Canon 4A conferring a degree of freedom upon a judge to "speak, write, lecture, teach and participate in other activities concerning the law, the legal system and administration of justice."

The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges 327 So2d 5 (Fla. 1976).

Cordially yours,

Richard H. Frank, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members

Participating Members: Judges Green, Tolton, Booth, Dell, Doughtie,Frank, Simons, Shutter, Goldstein, and Clarke, Esquire.

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
Judson Orrick, 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 .
Deborah Solomon, American Judicature Society
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida
Mr. Richard Kuhn, Court Administrator, Lee County
Hon. Thomas H . Barkdull , Jr ., Third District Court of Appeal
Ms. Georgeanne Marsh, Center for Professional Responsibility, American Bar Association