Opinion Number: 98-3
Date of Issue: March 11, 1998
JUDICIAL CANDIDATE ACCOMPANIED BY LEGISLATOR SPOUSE TO NON-PARTISAN LEGISLATIVE EVENTS AND OTHER EVENTS
The inquiring party is a judicial candidate. The candidate's spouse is a member of the Florida Legislature.
The candidate is predominately concerned with the role of the candidate's spouse as it relates to the campaign and the Code of Judicial Conduct, as well as the application of the Code to other members of the Florida legislature and school board members.
The candidate is also concerned whether the Code of Judicial Conduct precludes the candidate's attendance at various non-partisan functions, including legislative events.
The Code of Judicial Conduct applies to justices of the Supreme Court and judges of the District Courts of Appeal, Circuit Courts, and County Courts, as well as others who perform judicial functions. See, Code of Judicial Conduct - Application of the Code of Judicial Conduct. The Code's application also extends to judicial candidates. Code of Judicial Conduct, Canon 7E. ("Canon 7 generally applies to all incumbent judges and judicial candidates.") [Emphasis added.]; See also, Rule 4-8.2(b) of the Rules Regulating the Florida Bar ("A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Florida's Code of Judicial Conduct.").
The application of the Code of Judicial Conduct does not directly extend to the inquiring candidate's spouse, a member of Florida's legislature or to other members of Florida's legislature or the school board. Nevertheless, the Code places an affirmative duty on a candidate for judicial office to see that others, such as family members, campaign employees and officials who serve at the pleasure of the candidate, comport with the Code. See, Canon 7A(3)(a)-(c).
Canon 7A(3) of the Code of Judicial Conduct provides, in pertinent part, that:
A candidate for a judicial office:
(a) shall...encourage members of the candidate's family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate;
(b) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate's direction and control from doing on the candidate's behalf what the candidate is prohibited from doing under the Sections of this Canon;
(c) except to the extent permitted by Section 7C(1), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon;
The behavior, which forms the basis of the judicial candidate's inquiry, is not prescribed by the Code of Judicial Conduct.
The Code of Judicial Conduct does not prohibit a judicial candidate's spouse, who serves as a member of the Florida legislature, from mentioning the candidate's campaign to other colleagues or constituents, as well as from answering questions about the candidate's campaign. Nor does the Code preclude a judicial candidate's spouse, who serves as a member of the Florida legislature, from attending the candidate's campaign events, such as fundraisers, coffees, etc. Additionally, it does not prohibit a judicial candidate's friends who serve in the Florida legislature and/or on the school board from sponsoring a fundraiser for the candidate.
Further, the Code of Judicial Conduct does not prohibit a judicial candidate and the candidate's spouse, a member of the Florida legislature, from attending non-partisan legislative events, i.e. opening day of the legislative session, open house sponsored by the Governor, etc.
While the Code does not prohibit the above conduct, the judicial candidate must be cautioned that except to the extent permitted by Canon 7C(1) of the Code of Judicial Conduct, the candidate must encourage members of the candidate's family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate. Additionally, the judicial candidate shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate's direction and control from doing on the candidate's behalf what the candidate is prohibited from doing under the Sections of Canon 7. Also, the judicial candidate must at all times maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary.
Two members of the Committee, while agreeing with this opinion, suggest that you be cautioned as follows:
Even though the Code of Judicial Conduct does not apply to members of the legislature, the judge candidate should encourage members of [the judge's] family who have a role in partisan political activities to avoid engaging in any activity with or on behalf of the candidate which might give the appearance that a political party or organization endorses or otherwise supports the judicial candidacy. See, F.S. § 105.071 (1997) and F.S. § 105.09.
One member of this Committee, while agreeing that the inquiring judge may do each of the five things proposed herein, expresses some concern. That member notes:
I am particularly concerned about item number 5 because, presumably, the candidate would be at any fundraisers sponsored by the "friends" alluded to. If that is the case, [the candidate] would be hard pressed to separate [himself or herself] from the words and actions of the friends at a campaign fundraiser.
Finally, our opinion only addresses those matters within the purview of the Code of Judicial Conduct. It does not address any other ethical codes or statutes that may apply to members of the Florida legislature or school board members.
Florida Code of Judicial Conduct: Canons 7, 7A(3)(a)-(c), 7C(1), and 7E.
Rule 4-8.2(b) of the Rules Regulating the Florida Bar.
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, Charles J. Kahn, Jr., Lisa D. 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)