Opinion Number: 98-19
Date of Issue: August 21, 1998
JUDICIAL CANDIDATE APPEARING IN PHOTOGRAPH WITH LEGISLATOR SPOUSE AND ATTENDING INTERVIEW BY POLITICAL PARTY TO OBTAIN PARTY ENDORSEMENT.
May a judicial candidate appear in a photograph with her spouse who is a member of the Florida Legislature for use in direct mail or television commercials? ANSWER: Yes. However, the candidate should be careful not to inject directly or by inference partisan politics into her campaign literature.
May a judicial candidate attend an interview by a political party for the purpose of obtaining the party's endorsement of the judicial candidate? ANSWER: No.
May a judicial candidate send written campaign materials to a political party requesting these materials in order to obtain the endorsement of that party? ANSWER: No.
The inquiring party is a judicial candidate whose spouse is a member of the Florida Legislature. The candidate would like to know if she may appear in photographs with her spouse to be used in campaign materials. She would also like to know if she may attend an interview by a political party in order to obtain the endorsement of that party. If she cannot attend an interview by a political party in order to obtain the endorsement of that party, may she send written campaign materials to the requesting political party?
The Code of Judicial Conduct does not prohibit a judicial candidate from appearing in a photograph with a spouse who is a member of the Florida Legislature. However, under Sections 105.071 (2) and (3), Florida Statutes, a judicial candidate may not campaign as a member of any political party or publicly represent or advertise herself as a member of a political party. Violation of this statute could result in a misdemeanor conviction. Therefore, the judicial candidate should take great care in preventing the appearance that she is a member of any political party or that she is supported by a political party when using the photograph of herself and her spouse in her campaign materials. Any reference to her spouse's elected position and/or his party affiliation would be an indirect means of injecting partisan politics into her campaign.
The Judicial Ethics Advisory Committee addressed a similar issue in Opinion Number 90-7. In that opinion, a judge whose spouse was a candidate in a nonpartisan election asked if she could appear in photographs used in her spouse's campaign. The Committee advised that the candidate refer to the judge only as his wife and not as a member of the judiciary. This advice could be applied to the facts here. The judicial candidate could use the picture of her spouse in her campaign materials, but refrain from identifying him as a member of the Florida Legislature and refrain from referring to his party affiliation. This would prevent the appearance of a political party endorsement or an inference that the judicial candidate is associated with a particular political party.
The Supreme Court recently addressed the seriousness of injecting party politics into a judicial election. See In re Alley, 699 So.2d 1369 (Fla. 1997). In the judicial candidate's campaign mailers she noted the party affiliation of the Governor who had appointed the candidate's opponent to her position as county judge. The Court found that the judge's action was improper, in addition to her other improper campaign activities. The Court publicly reprimanded the judge.
The judicial candidate should not attend an interview by a political party for the purpose of obtaining the party's endorsement. This could give the appearance that the judicial candidate is representing herself as a member of a political party in violation of Section 105.071(3), Florida Statutes.
The Judicial Ethics Advisory Committee addressed this issue in Opinion Number 84-22. The committee advised that the judicial candidate not participate in an endorsement or rating interview session sponsored by a partisan political group.
A similar issue was also addressed in Opinion Number 96-21, wherein a candidate wished to respond to a questionnaire propounded by a county Republican executive committee. The Committee found it improper for the candidate to respond to the questionnaire by listing the candidate's extensive partisan activities.
In Concerned Democrats of Florida v. Reno, 458 F. Supp. 60 (S.D. Fla. 1978), the federal court issued a preliminary injunction enjoining enforcement of Section 105.09, Florida Statutes, which prohibited a political party from supporting, endorsing or assisting any judicial candidate. The court found plaintiffs had shown a likelihood of success on the merits in their argument that the statute was an unconstitutional infringement of their First Amendment rights. See also Pinellas County Republican Executive Committee vs. Robert A. Butteworth, Case No. 98-1570-CI-07 (Florida Sixth Judicial Circuit June 9, 1998) and Republican Executive Committee v. Butterworth, Case No. 97-1283-CA01 (Florida 20th Judicial Circuit August 27, 1997). The federal court noted:
"There are certainly less restrictive alternatives available to the state; in fact, it appears that they already exist. The court feels that the state can permissibly achieve its goal of keeping judicial elections non-partisan by regulating the partisan activity of judges and political candidates. This appears to have been accomplished by Fla. Stat. s. 105.071." 458 F. Supp. at 65. (emphasis added)
Accordingly, the judicial candidate should not attend the interview; nor should the judicial candidate send a political party campaign literature in order to obtain the political partyís endorsement.
Section 105.071(2) & (3), Florida Statutes (1997).
Section 105.09, Florida Statutes (1997).
Florida Judicial Ethics Advisory Committee Opinions : 96-21; 90-7; 84-22.
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 Lisa D. Kahn, Chair, Judicial Ethics Advisory Committee, Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.
Participating Members: Judges, Cardonne, Dell, Charles Kahn, Patterson, Rodriguez, Rushing, Smith, Tolton, Swartz and Mr. 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 the Judicial Candidate deleted from this copy).