FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 00-28 (Election) 1
Date of Issue: August 15, 2000

ISSUES

WHETHER A SENIOR JUDGE, SUBJECT TO RECALL, MAY SERVE ON A JUDICIAL ELECTION CAMPAIGN PRACTICES COMMITTEE, SPONSORED BY A LOCAL BAR ASSOCIATION.

ANSWER: Yes.

FACTS

The inquiring judge is a senior judge subject to recall. The local bar association has asked the judge to serve on a recently formed Judicial Election Campaign Practices Committee (JECP Committee). According to the JECP Committee's rules, the members may not endorse or contribute to a candidate or be in any way involved with a candidate's campaign. The members will not offer individual responses or opinions, but will answer inquiries only by stating that the JECP Committee is available to act upon written complaints after a review of appropriate rules and statutes.

The JECP Committee will provide each candidate the opportunity to execute an Agreement to Guidelines for a Judicial Campaign, which the candidate should return to the JECP Committee. Failure to execute the Agreement, however, will not preclude the JECP Committee's consideration and resolution of a written complaint.

Upon receipt of a written complaint, copies will be distributed to the JECP Committee members and the candidate complained against, together with copies of the JECP Committee's operating procedures. The candidate against whom the complaint has been filed will be requested to file a written response within 48 hours. The response, if any, will be distributed to the complainant and the JECP Committee members.

The JECP Committee's judgment will be based on the complaint and the response without any form of conference or hearing. In reaching its judgment, the JECP Committee may use fax, e-mail, or other means of communicating during the deliberation process.

The JECP Committee will base its opinion upon the assumption of facts in the complaint and the response, if any. The JECP Committee will render its opinion based upon the standards of the Florida Code of Judicial Conduct, the Rules Regulating The Florida Bar, appropriate Florida Statutes, prior advisory opinions of the JEAC, and any court opinions construing the foregoing.

The JECP Committee will seek to produce a written opinion within 24 hours which will be delivered to the complainant and the respondent. Copies of the complaint, response, and opinion will be available to anyone at the local bar association office. Copies of the opinion may be transmitted to the Judicial Qualifications Commission, The Florida Bar, and/or other appropriate authorities.

The JECP Committee will not render an opinion on questions concerning financial disclosure by candidates. Questions on the propriety of campaign solicitations of funds or support will be within the proper scope of the JECP Committee's function.

DISCUSSION

Canon 7 mandates that judges and candidates for judicial office refrain from inappropriate political activities. Canon 4 of the Code of Judicial Conduct, however, authorizes a judge to engage in activities to improve the law, the legal system, and the administration of justice. Canon 4B states "A judge may speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, and the administration of justice, subject to the requirements of this Code."

The Judicial Ethics Advisory Committee (Committee) finds that a retired judge serving on a JECP Committee would be participating in an activity concerning the law, the legal system and the administration of justice. Therefore, the inquiring judge may serve on the local bar committee.

The Committee encourages such activity by judges who are not involved in campaigns themselves as well as retired judges subject to recall. The Committee itself has sponsored statewide judicial election campaign forums to instruct judicial candidates and their campaign managers on the judicial canons and how they apply to a judicial election. Florida trial judges are elected, but their judicial campaign races must be conducted in a manner that does not undermine the public's confidence in the judiciary. Activities such as the one described by the inquiring judge, that promote responsible and ethical judicial campaign practices, provide a service to the judiciary, the legal profession, and the public.

REFERENCES
Florida Code of Judicial Conduct, Canon 4 and 4B.
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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 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.