FLORIDA SUPREME COURT
JUDICIAL ETHICS ADVISORY COMMITTEE


Opinion Number: 98-24
Date of Issue: October 21, 1998


JUDICIAL CANDIDATE FOR MERIT RETENTION SPEAKING AT CANDIDATES' NIGHT, SPONSORED BY CHURCH.

ISSUES

May a judicial candidate for merit retention, without active opposition, speak at a Candidates' Night event sponsored by a local church and open to the general public? ANSWER: Yes. See Canon 7(C) (2).

FACTS

The inquiring party is a judicial candidate for merit retention. The candidate has been invited to appear at a Candidates' Night sponsored by a local church. The candidate will be introduced and allowed to speak for four minutes. The sponsoring church has invited guests from other churches, and the meeting is open to the general public. The candidate would like to attend and talk generally about the judicial system and her background. She asks whether this action would be a violation of the Judicial Canons.

DISCUSSION

The Code of Judicial Conduct allows a candidate for merit retention to conduct only limited campaign activities until such time as the judge certifies that the judge's candidacy has drawn active opposition. Limited campaign activities include appearances and speaking engagements before public gatherings and organizations. Fla. Code Jud. Conduct, Canon 7(C)(2).

Attendance before the church group at Candidates' Night would therefore be permissible.
At this forum the judge may also talk about the judicial system and her background. In Opinion 77-21 an incumbent judge inquired whether he could attend the meeting of a non-partisan civil, social or homeowner's association to give a speech solely relating to a county judge's role in the judicial system and in the improvement of the administration of justice, prior to the time of qualifying for the judicial office presently held. Eight members of the Committee expressed the view that the conduct anticipated by this inquiry was permissible under Canon 4A (which is now Canon 4B). Canon 4B provides:

" A judge may speak, write, lecture, teach and participate in other activities concerning the law, the legal system and the administration of justice, subject to the requirements of this Code."

Two Committee members did have concerns that should be pointed out to the inquiring judge.

One member of the Committee agreed that the judge may attend the event; but he stated: "I am concerned, however, that we not construe Canon 7C(2) in an unduly broad manner. It is true that this section allows merit retention candidates to make appearances and speaking engagements before public gatherings and organizations. There has never been, to my knowledge, an opinion of this Committee construing that language. It would seem to me that if this language is construed broadly, then a merit retention candidate may do anything that any other candidate can do, with the exception perhaps of utilizing signs, advertisements, and campaign literature. I am not convinced that this is consistent with the spirit of limited campaign activities envisioned by Canon 7... What makes the invitation to speak now under review clearly acceptable, in my view, are the distinct parameters placed upon it by the program organizer. Specifically, each candidate is allowed a limited time to speak; no surrogates may speak; and no questions will be allowed. This type of structured environment is compatible with 7C(2). On the other hand, if merit retention judges begin attending other sorts of political rallies and meetings, even though they are open to the public, I believe it would be very difficult for the candidate to observe the limited campaign activities restriction of 7C(2). It is one thing for a judge to appear and explain the function of a district court of appeal judge and to speak briefly on the merit retention process; it is quite another thing for a judge to appear at a function and be put in a position of having to respond directly to questions of why someone should vote to retain that particular judge. "

Another Committee member stated that although he too agreed that the judge could appear at the function and speak about the legal system, the administration of justice, and her background, "a question might arise whether discussions about background constitute limited campaign activity."
In conclusion, a candidate for merit retention who has no active opposition may appear before a non-partisan group's Candidates' forum and speak about the judicial system in general and about the judge's background.

REFERENCES

Florida Code Jud. Conduct, Canons 7(C)(2) and 4(B) (formerly Canon 4A)

Florida Judicial Ethics Advisory Committee Opinion : 77-21.

_____________________

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, 698 So.2d. 834 (Fla. 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, Chairperson, Judicial Ethics Advisory Committee, Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.

Participating Members: Judges Cardonne, Dell, C. Kahn, L. Kahn, Patterson, Rodriquez, Rushing, Smith, Tolton 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 inquiring judge deleted from this copy)