Opinion Number: 98-27
Date of Issue: November 10, 1998
WHETHER A JUDICIAL CANDIDATE MAY USE ADVERTISING WHICH REPRODUCES
NEGATIVE OR CRITICAL HEADLINES, STORIES OR OPINIONS ABOUT THE
Whether a judicial candidate may use radio, television or print
advertising which reproduces negative or critical newspaper headlines,
stories or opinions about the candidate's opponent?
The inquiring judicial candidate asks whether it would be a
violation of the Florida Code of Judicial Conduct to produce radio,
television, or print advertising which reproduces negative or
critical newspaper headlines, negative or critical stories or
negative or critical opinions about the candidate's opponent.
A judicial candidate is bound by the Florida Code of Judicial Conduct. See
Canon 7. The judicial candidate has posed a question regarding reproducing negative
or critical newspaper headlines or critical stories, or critical opinions about
the candidate's opponent. The candidate did not provide copies of the materials
that she was considering reproducing. However, even if the candidate had submitted
these items, the Committee would be reluctant to add to its function the review
of judicial candidates' campaign advertisements. In Opinion
94-35 the Committee responded to a request by a judicial candidate for an
opinion regarding the ethical propriety of two proposed scripts for television
campaign commercials, stating that the Committee "should not approve or
disapprove specific language of individual campaign advertisements, but, rather,
should provide the ethical provisions which judicial candidates must consider."
In ACLU Of Fla., Inc. v. The Florida Bar, 744 F. Supp. 1094 (N.D. Fla. 1990), Judge William Stafford stated:
A person does not surrender his constitutional right to freedom of speech when he becomes a candidate for judicial office. A state cannot require so much. Indeed, when a state decides that its trial judges are to be popularly elected, as Florida has done, it must recognize the candidates' right to make campaign speeches and the concomitant right of the public to be informed about the judicial candidates. ACLU, supra, 744 F. Supp. at 1097.
Nevertheless, Canon 7A(3)(d), which was adopted by the Florida Supreme Court after ACLU, supra, provides restrictions to which a candidate for a judicial office shall adhere. Canon 7A(3)(d) states:
(3) A candidate for judicial office
(d) shall not :
ii. make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or
iii. knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.
It would not be a violation per se of the Code for a judicial candidate to reproduce negative articles about the candidate's opponents, but the candidate must follow the mandates of Canon 7. This Committee's Opinions in 94-16 and 94-35 are instructive. In Opinion 94-16 the Committee stated: "The code does not directly address what is ethically acceptable when a candidate wishes to criticize a political opponent. Our Committee finds that in general it would be proper to criticize a political opponent when the criticism is truthful, pertinent and material to judicial office. We find it would also be improper to criticize a judge on any open case as the candidate could conceivably have to rule on the same case and, of course, the incumbent judge could not comment on a pending case." In Opinion 94-35 the Committee stated that a candidate must carefully craft each advertisement so that there are no improper pledges or misrepresentations.
One Committee member further advised that the inquiring candidate is responsible for verification of the information contained in the newspaper articles the candidate wishes to use in the campaign. It is not a defense to a violation of the Rules Regulating the Florida Bar, Section 4-8.2(a) and (b) that the judge or candidate relied upon the research of a media source in perpetuating what may be a false statement about a judge or candidate for judicial office. The Committee member also warned that the information the candidate intends to republish must relate to the opponents "qualifications" to sit as a judge, and not just a personal attack on him/her.
The Committee would be remiss if it did not direct attention to the Florida Supreme Court's decision in In re Inquiry Concerning A Judge Alley, 699 So.2d 1369 (Fla. 1997). In that decision the Florida Supreme Court sounded a warning to all judicial candidates that it will take judicial campaign ethical violations seriously. Judge Nancy Alley was reprimanded by the Court for judicial election campaign violations. One of those violations was sending campaign mailers that improperly included a portion of a newspaper editorial which falsely implied that Alley, not her opponent, had been endorsed by the newspaper. The Court stated "we find it difficult to allow one guilty of such egregious conduct to retain the benefits of those violations and remain in office. Yet, we are constrained by the JQC's recommendation." The Supreme Court is no longer constrained by the JQC's recommendation. Prior to the 1996 amendment to Art. V, §12, of the Florida Constitution, the Florida Supreme Court's "constitutional prerogative" in judicial disciplinary proceedings was "limited to approving or reducing the disciplinary recommendations of the JQC." In re Inquiry concerning a Judge Fowler, 602 So.2d 510 (Fla. 1992). In 1996, Art. V. §12, Fla. Const., was amended to allow the Supreme Court to modify the recommendations of the JQC. In re Inquiry Concerning a Judge Alley, 699 So.2d 1369 (Fla. 1997). Therefore, the Florida Supreme Court is no longer bound by the disciplinary recommendations of the JQC and may now impose a harsher sanction than recommended by the JQC.
Florida Code of Judicial Conduct Canons: 7, 7A(3)(d)(ii) and (iii).
Florida Judicial Ethics Advisory Committee Opinions: 94-16 and 94-35.
In re Inquiry Concerning A Judge Alley, 699 So.2d 1369
In re Inquiry concerning a Judge Fowler, 602 So.2d 510 (Fla. 1992).
ACLU of Fla. Inc. v. The Florida Bar, 744 F. Supp. 1094 (N.D. Fla. 1990).
Rules Regulating the Florida Bar, Section 4-8.2(a) & (b).
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, Chair, Judicial Ethics Advisory Committee, Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.
Participating Members: Judges Dell, C. Kahn, L. Kahn, Patterson, Rodriguez, Rushing, Smith, Swartz, Tolton.
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)