Florida Supreme Court

Judicial Ethics Advisory Committee

Opinion Number: 97- 34

Date of Issue: February 5, 1998

 

JUDGE INVOLVED IN CAMPAIGN ACTIVITIES DURING REGULAR COURTHOUSE HOURS

ISSUES

May a judge draft, write or edit judicial campaign materials in the judge's chambers during regular courthouse hours? ANSWER: A judge should strive to arrange his or her campaign activities to be conducted outside regular courthouse hours; i.e., lunch hours, evening, weekends and holidays. Minor campaign related activities, i.e., brief telephone calls or handling minor emergency matters during regular office hours may be permissible as long as the conduct does not cast reasonable doubt on the judge's capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties. The judge must maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary.

May a judge actively campaign outside of the courthouse during regular courthouse hours, so long as another judge is covering the judge's docket? ANSWER: A judge should strive to minimize campaign activities during normal courthouse hours. Requesting one judge to handle another judge's calendar/docket to campaign could potentially "interfere" with the proper performance of judicial duties for both judges. However, since attendance at certain campaign functions; i.e., breakfasts and luncheons, and travel time to and from these functions may occasionally encroach on regular courthouse hours, some minor campaign activities may be permissible, so long as the conduct does not cast reasonable doubt on the judge's capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties. Additionally, the judge must maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary.

FACTS

The inquiring party is a trial judge who is facing re-election. We have summarized the judge's questions into the above two issues.

In essence, the inquiring judge is requesting this Committee to establish and define clear boundaries or "bright-line" rules upon which the judge can rely for campaigning during regular working hours. The judge questions whether there are any ethical limitations upon campaign activities during normal courthouse hours. This is a very difficult task.

DISCUSSION

This Committee has conducted a thorough review of its twenty-five years of published opinions. None of those opinions assist us in responding to these issues. Moreover, a review of the national ethics literature fails to provide us with any instructions or guidance. These are questions of first impression.

Canon 7 of the Code of Judicial Conduct states, "A Judge or Candidate for Judicial Office Shall Refrain From Inappropriate Political Activity." The Canon, unlike its Commentary, is authoritative. See, The Preamble to the Code of Judicial Conduct ("The text of the Canons is authoritative. The Commentary provides guidance with respect to the purpose and meaning of the Canons.").

Canon 7A(3)(a) requires judicial candidates to "maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary." We are satisfied that the inquiring judge's contemplated conduct does not, per se, offend either the language or the intent of Canon 7. The answer to the inquiring judge's questions is best arrived at on a case by case basis.

While campaign activities are generally addressed in Canon 7, extrajudicial activities are addressed in Canon 5. Campaign activities also come under the guise of extrajudicial activities.

Pursuant to Canon 5A, "A judge shall conduct all of the judge's extra-judicial activities so that they do not:

  1. cast reasonable doubt on the judge's capacity to act impartially as a judge;
  2. demean the judicial office; or
  3. interfere with the proper performance o f judicial duties."

The Code does not categorically prohibit the inquiring judge's contemplated judicial/non-judicial conduct. As with Canon 7, the delineated conduct is ethically permitted and appropriate. Nevertheless, a judge should strive to arrange his or her campaign activities to be conducted outside regular courthouse hours; i.e., lunch hours, evening, weekends and holidays. Minor campaign related activities, i.e., brief telephone calls or handling minor emergency matters during regular office hours may be permissible so long as the conduct does not cast reasonable doubt on the judge's capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties, the campaign activities are permissible.

Additionally, requesting one judge to handle another judge's calendar/docket to campaign could potentially "interfere" with the proper performance of judicial duties for both judges. However, since attendance at certain campaign functions; i.e., breakfasts and luncheons, and travel time to and from these functions may occasionally encroach on regular courthouse hours, some minor campaign activities may be permissible, subject to the restrictions in Canon 5A.

This Committee further cautions the inquiring judge to use sound judgment and common sense. Chambers must not be used as a campaign headquarters nor is the judge to take a cavalier attitude towards the use of judicial facilities.

Two members of the Committee, while agreeing with this unanimous opinion, note as follows:

Sometimes a judge's calendar, civil or criminal, 'washes out,' leaving empty time which cannot be filled by scheduling new matters. This can occur in the civil division a week in advance with a scheduled jury trial settling. In such situations, a judge would have advance time to schedule campaigning activities, assuming he or she were otherwise caught up with their duties. [This opinion] should, by implication at least, not restrict the use of such time by the judge.

It should also be noted that this opinion addresses only those ethical issues arising under the Code of Judicial Conduct. It does not address statutory prohibitions such as those found in F.S. §106.15(3) and (4), which provide:

(3) No candidate shall, in the furtherance of his or her candidacy for nomination or election to public office in any election, use the service of any officer or employee of the state during working hours.

(4) No person shall make and no person shall solicit or knowingly accept any campaign contribution in a building owned by a governmental entity. For purposes of this subsection, "accept" means to receive a contribution by personal hand delivery from a contributor or the contributor's agent. This subsection shall not apply when a government-owned building or any portion thereof is rented for the specific purpose of holding a campaign fundraiser.

 REFERENCES

Florida Code of Judicial Conduct, Canons 5; 5A; 7; and 7A(3)(a).

Florida Statute §106.15(3) and (4)

__________________

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 by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, Opinion No. 90,133 (Fla. September 4, 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th Street #513, Miami, Florida 33125.

Participating Members: Judges Dell, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith, Tolton, and Attorney Blanton

Copies furnished to:

Justice Charles T. Wells

All Committee Members

All Members of the J.Q.C.

Office of the State Courts Administrator (Name of judge deleted from this copy)