April 12, 1994
PERSONAL AND CONFIDENTIAL
RE: Committee on Standards of Conduct Governing Judges
Your inquiry dated March 4, 1994
You have requested our Committee to give a response to 16 separate questions concerning campaign conduct. Rather that answer each yes of no, we feel that a more generic response would be appropriate. I would first like to call your attention to the recent order from the District court for the Northern District of Florida. This order is styled, American Civil Liberties Union of Florida, Inc. and Larry Schack v. The Florida Bar and the Florida Judicial Qualifications Commission. This opinion was ordered March 22, 1994 and would presumably be appealable. As you can see, the US District Judge found that Canon 7(B)(1)(a) was unconstitutional on its face. Also, there is currently pending before the Supreme Court a proposed amendment to the Code of Judicial Conduct. The new proposed Canon 7 may or may not address some of the concerns of the District Court Judge. [Editors note: See In Re: Code of Judicial Conduct , 19 Fla. L. Wkly. S473 (October 7, 1994)] The code does not directly address what is ethically acceptable when a candidate wishes to criticize a political opponent. Our Committee finds that in general it would be proper to criticize a political opponent when the criticism is truthful, pertinent and material to judicial office. We find it would also be improper to criticize a judge on any open case as the candidate could conceivably have to rule on the same case and, of course, the incumbent judge could not comment on a pending case. Materials published in judicial polls are open to criticism by opponents. Our Committee finds that details of an opponents procedural process could be ethically criticized. You may ethically point out your experience and expertise as a lawyer and indicate specific procedural measures that would save money to the system. A number of your questions relate to heresay information from lawyers. Our Committee feels that repeating heresay comments would be undignified since heresay is not admissible evidence. This would not prohibit you as a candidate from commenting on the results of the judicial poll or simply suggesting to the voters that if they wish to find out more about the candidates, they should ask a lawyer.
Despite the ruling by the District Judge in the above-referenced case,
our Supreme Court has ruled that judges give up some First Amendment rights.
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 So.2d 5 (Fla.1976).
Very truly yours,
Nath C. Doughtie, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Office of the Courts Administrator (name of judge deleted from this copy)
Participating members: Judges Dell, Doughtie, Goldstein, Green, Taylor, Tolton and Edwards, Esq.