January 31, 1995
PERSONAL AND CONFIDENTIAL
(Candidate Campaign Activity
(Under New Code of Judicial Conduct
Re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated December 8, 1994
As an attorney who has already filed papers with the Division of Elections to become a candidate for circuit court judge in the 1996 election, you ask several questions regarding the effect of Canon 7C(1) of the new Code of Conduct on your existing campaign committee, campaign account and filing.
Additionally, since the new Code did not become effective until January 1, 1995, there are a small number of judges and candidates that have established campaign committees or opened campaign accounts prior to January 1, 1995 that may have these same questions.
Initially, it should be noted that a relevant portion of Canon 7C(1)
provides as follows:
"A candidate should not expend funds in furtherance of his or her judicial campaign or establish a committee to solicit contributions or public support earlier than one year before the general election." In Re Code of Judicial Conduct, 643 So.2d 1037, 1060. (Emphasis provided).
In responding to your questions, the Committee is taking a position based
upon the intent and spirit of the new Code, rather than a strict or legalistic
approach. To do otherwise and to allow certain candidates to campaign throughout
1995 would give unfair advantage to candidates who have filed prior to the
effective date of the new Code and defeat the purpose of Canon 7C(1). With
this understanding, eight responding members of the Committee answer your
questions as follows:
1. Does this rule apply to committees and candidates established before January 1, 1995?
Yes, but only effective January 1, 1995. Since your campaign committee was already in existence on January 1, 1995, the new Code would not abolish your committee, but would rather seek to prohibit any "soliciting" of contributions or public support by the prior to "one year before the general election."
2. If so, what are the limitations on the campaign committee and me from January 1, 1995 until November 1995?
Pursuant to Canon 7C(1), from January 1, 1995 until November 1995 your campaign committee should not "solicit contributions or public support" and a candidate should not "expend funds in furtherance of his or her judicial campaign." In other words, you should not participate in campaign activities that other candidates should not do between January 1, 1995 and November 1995.
(a) May we take contributions and conduct fundraisers (sic)?
Assuming the "we" means the candidate and committee volunteers, you should not. The candidate may never accept contributions and the committee should not accept contributions or conduct fund raisers until one year before the November 1996 general election.
(b) May we pass out endorsement cards that are printed before January 1, and seek endorsements?
This would be considered soliciting "public support", contrary to Canon 7C(1).
(c) May I campaign and identify myself as a candidate?
The Committee believes the Code allows potential candidates to campaign and to identify themselves as candidates, but you should not "expend funds in furtherance of your judicial campaign" until November 1995.
(d) May I add people to the established committee?
Adding members after January 1, 1995 and prior to November 1995 would in be an effort in "establishing a committee" and should not be done.
(e) May we use materials purchased before January 1 in furtherance of my candidacy, such as stamps, paper, and printed materials?
This would violate the spirit of Canon 7C(1). Although technically it could be argued that using previously purchased materials would not be "expending funds" after January 1, 1995, the goal of Canon 7C(1) is to give all judicial candidates for judicial office only one year to establish committees to solicit contributions or public support. Since other candidates should not purchase materials and use them without an established committee during this time period, candidates who had pre-established committees should not either.
(f) May we make expenditures?
Pursuant to Canon 7C(1) a candidate or committee "should not expend funds in furtherance of his or her judicial campaign earlier than one year before the general election." (Emphasis supplied.)
(g) May I apply for endorsements of organizations?
Pursuant to Canon 7C(1) only your election committee can obtain public statements or support for a candidacy, and the Committee should not "solicit contributions or public support" between January 1, 1995 and November 1995.
(h) May we accept in-kind contributions?
Only the committee should solicit contributions and then only after November 1995. Again, although a distinction could be drawn between solicited and unsolicited contributions, the spirit of Canon 7C(1) is that no contributions should be accepted until "one year before the general election."
3. If I am not permitted to campaign or engage in any election related activities from January until November 1995, may I engage in partisan political activities and other normally prohibited activities during that portion?
You may engage in any authorized political activity any other announced lawyer candidate could during this period. The restrictions of Canon 7C(1) only address the establishment of the committee, expenditure of funds and the resultant limitation upon soliciting campaign contributions or public support "earlier than one year before the general election."
One dissenting member of the Committee stated: "I would for these reasons advise Candidate ____ that she is not prohibited from doing any of the activities she proposes in her letter of December 8, 1994, although the 1995 Code specifically points out that candidates should not engage in these activities. Presumably, a candidate's violation of a hortatory provision of the Code would be fodder for public comment during the campaign."
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 judges, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 327 So.2d 5 (Fla. 1976).
Very truly yours,
Steve Rushing, Chairman
Committee on Standards of Conduct
CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)
Participating Members: Judges Doughtie, Farina, Green, Kahn, Patterson, Rushing, Silverman, Taylor, Tolton, and Edwards, Esq.