FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2002-07 (Election)1
Date of Issue: May 24, 2002

ISSUES

1. Where a judge is in a contested election immediately after the judge's gubernatorial appointment, may the judge use the word "re-elect" in conjunction with the judge's campaign advertisements?

ANSWER: No.

2. Where a judge is in a contested election immediately after the judge's gubernatorial appointment, may the judge use the word "retain" in conjunction with the judge's campaign advertisements?

ANSWER: Yes.

FACTS

The inquiring judge was appointed to the bench by the governor. The judge recently qualified for his/her first election and drew opposition. The judge now questions this committee whether the Code of Judicial Conduct permits the judge to use the terms "re-elect" or "retain" in campaign advertisements.

DISCUSSION

The issues presented in this inquiry involve the linguistics necessary to convey an appropriate campaign message.

Section 106.143(5) of Florida Statutes provides: "No political advertisement of a candidate who is not an incumbent of the office for which the candidate is running shall use the word "re-elect."

This provision must be examined in conjunction with Canon 7A(3) of the Code of Judicial Conduct which provides: "A candidate for a judicial office shall not knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate." Inherent in this Canon is the need for clarity in statements by candidates to eliminate any possibility of misrepresentation of facts or confusion.

Where the use of a word in conjunction with a campaign is likely to lead others to draw an inaccurate conclusion or will likely result in confusion, that word is to be avoided.

The use of "re-elect" in a campaign to keep an incumbent judge in office after appointment would be inappropriate and proscribed by the Code.

Merriam-Webster's Collegiate Dictionary defines "reelect" as "to elect for another term in office," while the American Heritage Dictionary defines "reelect" as "to elect again." Although these definitions are similar, they are not identical and can lead to different interpretations, which in the situation addressed by this opinion could result in confusion. The usage of "re-elect" in the context of one of the dictionary's definitions would be consistent with the situation presented in this opinion because the judge is currently in office seeking another term. However, utilizing the other dictionary's definition, we encounter a potential misrepresentation because the judge cannot be elected again since he/she was originally appointed.

The use of the term "re-elect" in conjunction with the inquiring judge's campaign could mislead others into believing that the candidate was previously elected to this position thereby giving a false impression.

The use of "retain" in conjunction with candidacy is appropriate where a candidate was previously appointed and had not stood for election for the judge's current position. By adopting this position, there is no possibility of either an intentional or unintentional misrepresentation, because "retain" is interchangeable with "keep." These words represent an appropriate description of the action of electing a candidate who is an appointee and who has not stood for election to his/her current position.

REFERENCES

American Heritage Dictionary of the English Language (4th ed. 2000).

Florida Code of Judicial Conduct: Canon 7A(3).

Florida Statutes § 106.143(5) (2000).

Merriam-Webster's Collegiate Dictionary (Online ed. May 23, 2002).

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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 The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th St #712, Miami, FL 33125

Participating Members: Judges Kotey, Silverman, Swartz, and Townsend

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)

1 The 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.