FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 00-23 (Election) 1
Date of Issue: August 22, 2000

ISSUES

WHETHER A JUDICIAL CANDIDATE (NON-INCUMBENT) MAY ETHICALLY PUBLISH A CAMPAIGN ADVERTISEMENT THAT INFORMS THE PUBLIC (IN PERTINENT PART) THAT THE INCUMBENT OPPONENT ENTERED INTO THE DEFERRED RETIREMENT OPTION PROGRAM (DROP); THAT THE OPPONENT IS ALREADY OFFICIALLY IN RETIRED STATUS WITH THE FLORIDA RETIREMENT SYSTEM; THAT ELECTING THE NON-INCUMBENT WILL NOT DEPRIVE THE INCUMBENT OF HIS/HER RETIREMENT; THAT THE ADVERTISEMENT QUOTES AN EXCERPT FROM THE DROP CONTRACT.

ANSWER: So long as the inquiring judicial candidate complies with all of the criteria set forth in Canon 7, its subsections, and this advisory opinion, the advertisement will be ethically permissible. If the candidate does not, then the advertisement is ethically proscribed.

FACTS

The inquiring judicial candidate is a non-incumbent, who is campaigning against an incumbent who has allegedly entered into the DROP. The inquiring candidate desires to publish an advertisement to respond to some of the concerns raised by prospective voters concerning his/her candidacy. Specifically, the inquiring candidate states that some people do not look favorably upon his/her candidacy because, should the incumbent judge lose in the election, the judge would not only lose his/her position as a judge, but also the judge's retirement.

To counter these concerns, and to otherwise apprise the public of the "facts" concerning the incumbent's retirement and the impact of the incumbent entering into the DROP, the inquiring judicial candidate wants to publish an advertisement addressing these issues. The proposed advertisement is entitled "Electing [candidate's name] for [jurisdiction] Judge will not deprive the incumbent of [his/her] retirement." The rest of the advertisement provides the results of the challenger's research on the topic. The proposed advertisement provides, in apposite part:

THE INCUMBENT ALREADY IS OFFICIALLY IN RETIRED STATUS with the Florida Retirement System.

The incumbent is now being paid full retirement in his DROP account.

In [month and year] the incumbent signed a contract in DROP (Deferred Retirement Option Program) with the Florida Retirement System RESIGNING AS JUDGE effective [month, date, and year]. The new term for [County/Circuit] runs from January 2001 to January 2007 - SIX YEARS.

DROP permits the simultaneous payment of salary and retirement.

Beginning [month and year], the incumbent SIMULTANEOUSLY HAS BEEN PAID FULL MONTHLY RETIREMENT DEPOSITED IN HIS DROP ACCOUNT, PLUS HIS MONTHLY JUDGE'S SALARY.

Contract Excerpt:

"I hereby acknowledge that DROP participation for [name of incumbent judge] will begin on [month, date, and year] and I accept [his/her] resignation effective [month, day, and year - - effective prior to the end of the six year term]."

(signature) [Name of the circuit and the court administrator]

The result of the judicial election will not affect the incumbent's right to receive retirement. If the incumbent is re-elected, he will continue to receive BOTH a judge's salary PLUS a full retirement payment each month (paid into his DROP account). 2

* * *

The inquiring judicial candidate now seeks our opinion as to the ethical propriety of the proposed advertisement.

DISCUSSION

During judicial election cycles, it is quite common for this Committee and its individual members to receive inquiries, both formally and informally, from judicial candidates asking for opinions as to the ethical appropriateness of contemplated campaign advertisements. We are pleased that these questions are posed, because they demonstrate the candidates' desires to comply with the terms and conditions of the Code of Judicial Conduct. During the current election season, we have witnessed a significant increase in the number of inquiries by candidates. This intense interest and concern, in our opinion, is directly attributable to the work of the Florida Supreme Court and the overt importance it has placed on compliance with the provisions of the Code of Judicial Conduct. Judicial candidates are now keenly aware that a violation of the Code, during an election, can result in the Florida Supreme Court imposing appropriate discipline, including removal from the bench. See, Art. V, §12, Fla. Const.

In Opinion 94-35, this Committee stated its position that "it should not approve or disapprove specific language of individual judicial campaign advertisements, but rather should provide the ethical provisions which judicial candidates must consider." See also, Fla. JEAC Op. 98-27 ("The Committee would be reluctant to add to its function the review of judicial candidates' campaign advertisements."). Notwithstanding our generally stated position, we reserve the right to render opinions on specific proposed advertisements when appropriate and at the Committee's discretion.

Regarding the present inquiry, this Committee will neither approve nor disapprove the specific language of the proposed advertisement. Rather, we direct the inquiring candidate to be mindful of the requirements of Canon 7A3(a), which provides, in part, "A candidate for a judicial office shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary," and 7A3(d)(iii) which states, "A candidate for judicial office shall not knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent."

A judicial candidate who presents information regarding the identity, qualifications, present position or other fact concerning the candidate or an opponent must not present the information out of context and must give the whole picture. Taking these matters out of context or failing to provide the public with the whole picture, either through inclusion or omission, can result in a violation of the Code of Judicial Conduct. The public relies on the information provided by candidates' advertisements. Half-truths, innuendo, and equivocations run afoul of the Code of Judicial Conduct and are unacceptable in judicial campaign advertisements. Given the present inquiry, the candidate must, therefore, assure himself that his portrayal of the program in question, a program adopted by the Florida Legislature, and which applies to all state employees, is fair, complete, and pertinent to the issues involved in a judicial campaign.

So long as the inquiring judicial candidate complies with all of the criteria set forth in Canon 7, its subsections, and this advisory opinion, the advertisement will be ethically permissible. If the candidate does not, then the advertisement is ethically proscribed.

REFERENCES

Article V, Section 12, Florida Constition

Florida Code of Judicial Conduct: Canons 7, 7A(3)(a), and 7A(3)(d)(iii).

Florida Judicial Ethics Advisory Committee Opinions: 98-27 and 94-35.

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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 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.

2Brackets [ ] are inserted so as to conceal the identity of the inquiring judge.