FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 00-21 (Election)1
Date of Issue: August 14, 2000

ISSUES

WHETHER A JUDICIAL CANDIDATE WHO IS NOT A JUDGE SHOULD USE A WEBSITE WITH AN ADDRESS IDENTIFYING HIMSELF AS A JUDGE IF THE WEBSITE CONTAINS A DISCLAIMER THAT HE IS NOT A JUDGE.

ANSWER: No.

WHETHER A JUDICIAL CANDIDATE MAY STATE THAT THE OPPONENT WAS RANKED THE WORST OF ALL COUNTY COURT JUDGES IN FIVE OUT OF EIGHT CATEGORIES IN A BAR POLL.

ANSWER: Yes, but care must be taken not to mislead the voting public.

WHETHER A JUDICIAL CANDIDATE MAY UTILIZE VOICE RECORDINGS OF THE OPPONENT RECORDED IN OPEN COURT PROCEEDINGS DURING THE CAMPAIGN.

ANSWER: Yes, but care must be taken not to mislead the voting public.

WHETHER A JUDICIAL CANDIDATE MAY COMMENT TO THE MEDIA REGARDING HIS CLIENTS' PENDING CRIMINAL OR CIVIL CASES?

ANSWER: No.

WHETHER A JUDICIAL CANDIDATE'S OPPONENT MAY RESPOND TO THE CANDIDATE'S USE OF THE JUDICIAL BAR POLL.

WHETHER A JUDGE OTHER THAN THE INQUIRING JUDGE MAY MAKE COMMENTS TO THE PRESS THAT APPEAR TO BOLSTER AN INCUMBENT JUDGE.

WHETHER IT IS PROPER FOR A JUDICIAL CANDIDATE'S OPPONENT TO QUESTION THE CANDIDATE'S CONTRIBUTORS REGARDING THEIR CAMPAIGN CONTRIBUTION.

ANSWER: This Committee only can respond to the inquiries of a judge or judicial candidate concerning his own conduct in terms of the Code of Judicial Conduct (Code).

FACTS

The inquiring candidate is running for county court against an incumbent judge. First, the candidate seeks to use a website address of www.judgex.com ('x' denotes the judicial candidate's first name). The website contains a disclaimer that the candidate is not a judge. Second, the candidate seeks to utilize the results of a judicial bar poll in which the incumbent judge is ranked as the worst of all county court judges in five out of eight categories. The candidate seeks to use the information during the campaign, in meetings and in various forms of the media. The candidate also seeks guidance regarding the need to disclose the fact that the incumbent judge was ranked by only 55 lawyers.

Third, the candidate has obtained voice recordings of the incumbent judge making comments while presiding on the bench and wishes to publish or otherwise use such recordings.

The fourth inquiry asks whether the candidate can respond to the media about his clients' pending criminal or civil cases.

Fifth, the candidate inquires as to whether the incumbent judge may make particular statements in response to the judicial bar poll results.

Finally, the candidate inquires into the conduct of another judge in responding to judicial poll, and the incumbent judge's questioning of contributors to the candidate's campaign.

DISCUSSION

First, Canon7A(3)(d)(iii) states, "A candidate for judicial office shall not knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent." The website address used clearly refers to the candidate as judge. The disclaimer that the candidate is not a judge, contained on the website, does not alter this misrepresentation. The public can undoubtedly be misled to believe that the candidate identified by the website address is a judge. Therefore, the website address is both misleading and inappropriate.

Regarding the second inquiry, a judicial candidate's reproduction of the results of the judicial bar poll is not a violation per se of the Code. This Committee's Opinion 98-27 provides a beneficial discussion of this application of the Code. Committee Opinions 94-16 and 94-35 also provide some guidance. The dispositive issue regarding criticism of an opponent appears to be whether such criticism is truthful, pertinent, and material to judicial office. The forum for disclosure of the information criticizing the opponent does not appear to be an issue. Therefore, no distinction is made as to whether the information is disclosed during meetings or through advertisements. Accordingly, the information regarding the judicial bar does not appear violative of the Code provided that it is truthful, pertinent and material to judicial office.

The fact that only 55 attorneys voted in the bar poll is an important factor. In Michigan Advisory Opinion JI-120 (March 22, 1999), the Michigan State Bar Standing Committee on Judicial Ethics wrote:

When a fact is necessary to make the candidate's campaign statement considered as a whole not materially misleading it must be included in all announcements. Fairness and honesty are important characteristics for which candidates for judicial office must strive. Material misrepresentations in speech or writing about the candidate or an opponent's qualifications must not be tolerated. Therefore, great care and precautions should be taken by a judicial candidate to ensure the content of the candidate's campaign literature or speeches is truthful, accurate and non-misleading.

The Michigan Code contains a provision almost identical to Canon 7A(3)(d)(iii). The Michigan Code would require the disclosure that 55 lawyers participated in the poll. A failure to disclose the number of those voting would likely mislead the public as to the opponent's qualifications with a belief that an overwhelming number of the Bar voted "the worst." Caution must also be used to avoid using terms not utilized in the actual poll. The actual categories (e.g., exceptionally qualified, qualified, unqualified), the percentages for each, and the number of those voting should be published. In essence, a candidate should not selectively use anecdotal information and statistics to try to create false impressions. See In the Matter of Bybee, 716 N.E. 2d 95 (Ind. 1999). This information prevents the public from being misled and thus avoids violating Canon 7.

Third, the use of the voice recordings of the incumbent judge while presiding on the bench is governed by the same provisions that relate to the use of the judicial bar poll. The Code and Committee Opinion 94-35 require that the information be truthful, pertinent and material to judicial office. As indicated in Bybee, "innuendo and equivocal" statements that are designed to raise doubt about a judge and destroy public confidence should be avoided. Therefore, extreme caution must be used to avoid taking comments out of context, and to ensure that the recordings give the entire picture. Cf. In re Alley, 699 So. 2d 1369 (Fla. 1997).

In response to the fourth inquiry, notwithstanding the provisions of the Florida Bar and the law regarding a lawyer commenting on pending cases, Canon 3B(9) specifically states,

A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness?The judge shall require similar abstention on the part of court personnel subject to the judge's direction and control.

Therefore, comment on pending cases would be inappropriate.

The Committee specifically declines addressing the fifth inquiry regarding the conduct of the incumbent judge. Also, the Committee will address neither the inquiry regarding the conduct of another judge in responding to the judicial bar poll, nor the conduct of the incumbent judge in questioning the contributors to the candidate's campaign. Committee Opinion 84-16 specifically provides that the Committee can respond only to the inquiries of a judge or judicial candidate concerning his own conduct in terms of the Code of Judicial Conduct.

REFERENCES

Florida Code of Judicial Conduct: Canon 3B(9), Canon 7 and Canon 7A(3)(d)(iii).

Florida Judicial Ethics Advisory Committee Opinions: 84-16, 94-16, 94-35, 98-27.

Michigan Advisory Opinion JI-120 (March 22, 1999).

In re Alley, 699 So. 2d 1369 (Fla. 1997).

In re Bybee, 716 N.E. 2d 95 (Indiana, 1999).

_____________

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 Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members:
Judge Charles J. Kahn, Jr.
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge Scott J. Silverman

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)

1The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purpose of this subcommittee is to give immediate responses to campaign questions in instances where the normal Committee procedure would not provide a response in time to be useful to the inquiring candidate or judge. Opinions designated with the "(Election)" notation are opinions of the Election Practices Subcommittee of the Judicial Ethics Advisory Committee, and have the same authority as an opinion of the whole Committee.