Opinion 78-11

May 22, 1978

Re: Canon 7

Dear Judge:

The Committee on Standards of Conduct Governing Judges acknowledges receipt of your recent inquiry in which you advise that you are an incumbent Judge and anticipate submitting your name under the merit retention plan to be voted on pursuant to law in the November election. You point out that the statute relating to the payment of a qualifying fee of 3% of the current annual salary for Judge participating in the merit retention plan is applicable to Judges subject to merit retention even though there is no election as such. Your query requests an opinion of this Committee as to whether the acceptance of contributions from lawful sources toward the payment of your qualifying fee is in harmony with the Canons of Judicial Conduct.

A search of the Canons reveals none directly applicable. Canon 7 is the only one which appears to be remotely involved. Although some portions of that Canon refer to judicial offices filled by public election, other portions refer to "merit system election". It would appear that the conduct which is permitted by one is permitted by the other and that which is proscribed for one is proscribed for the other. Canon 7B(2) permits solicitation by a candidate, including an incumbent Judge, for a judicial office that is filled by public election between competing candidates, to establish committees for soliciting campaign contributions and public support from any persons or corporations authorized by law. The only restriction is that "A candidate should not use or permit the use of campaign contributions for the private benefit of himself or members of his family." Canon 7B(3) provides that an incumbent Judge who is a candidate for retention or reelection without a competing candidate, and whose candidacy has drawn active opposition, may campaign and may obtain publicly stated support and campaign funds in the manner provided in subsection B(2). A majority of those members of the Committee participating are of the view that said subsection 3 should not be construed so as to prohibit the receipt of funds, in an authorized manner, until after active opposition has developed. To use an old colloquialism, such a construction would be somewhat like closing the barn gate after the horse had already gotten out. Inasmuch as the qualifying fee is a necessary expenditure, whether or not active opposition develops, a majority of the Committee are of the view that the receipt of modest contributions via a committee from friends, relatives and others interested in the maintenance of a good judiciary is not proscribed by the Canons. Such an interpretation is consistent with our opinion 76-15 wherein we opined the "active opposition" as used in the Canon should be construed in favor of an interpretation consistent with the general campaign financing law (chapters 99 and 106, Florida Statutes) and "does not limit or otherwise prohibit a candidate for judicial office form solicitation or accepting campaign contributions so long as such judicial candidate complies with the provisions of Canon 7B(ii) and the pertinent section of the campaign reporting laws.

One member of the Committee, while expressing complete agreement with the foregoing, is nevertheless of the view that you might "strongly consider bearing the filing fee" yourself. Another member of the committee votes neither affirmatively nor negatively but, instead, quotes form Thode's Notes to Code of Judicial Conduct as follows:

"In theory the merit system election removes a judge from politics and from the rigors of the campaign trail, but in a significant number of instances the theory fails. The Committee nevertheless accepted the theory as sound for the purpose of establishing a general standard in merit system elections. Ordinarily candidates in such elections may campaign for office within the limitations imposed by Canon 7B(1) but are not authorized to seek outside funding or publicly stated support. If, however, a candidate draws active opposition, subsection B(3) permits him to campaign in response to the opposition and to seek outside funding and publicly stated support in the manner provided in subsection B(2). In thus authorizing a response analogous to self-defense, the Code allows a merit system candidate with active opposition to campaign under the same standard that is applicable to a candidate who is competing against another candidate for judicial office."

We hope that this opinion may be of assistance to you.

Sincerely yours,

Tyrie A. Boyer, Chairman
Committee on Standards of Conduct Governing Judges


Participating members: Judges Boyer, Carlisle, Haverfield, Letts, O'Connell, Stephenson, Turner and Samuel J. Powers, Attorney