FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2002-12(Elections)1
Date of Issue: June 18, 2002

CANDIDATE USING "ELECT PROSECUTOR (NAME OF CANDIDATE) FOR CIRCUIT COURT JUDGE" LITERATURE

ISSUES

May a judicial candidate state: "Elect Prosecutor (name of candidate) for Circuit Judge" on the candidate's campaign literature?

ANSWER: NO

FACTS

The inquiring candidate indicates that the candidate wishes to place the following on the candidate's campaign literature: "Elect Prosecutor (name of candidate) for Circuit Judge. The candidate is an Assistant State Attorney in the circuit which the candidate is running for judicial office. It should be noted that on the candidate's inquiry the candidate uses the designation "Assistant State Attorney" on the signature line.

DISCUSSION

Canon of the Florida Code of Judicial Conduct states:

Canon 7. A Judge or Candidate for Judicial Office Shall Refrain From Inappropriate Political Activity

Canon 7A (3) reads in pertinent part:

(3) A candidate for a judicial office:

(a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, ...

(d) shall not:

(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;

(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or

(iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or and opponent; (emphasis added)

The inquiring candidate should refrain from the use of the designation Prosecutor as a title. In the State of Florida there is only one person (or staff member to this one person) who may use the term "Prosecutor" as a title. The term prosecutor is not a term of art or a position that is recognized in Florida Statutes or case law. That is the person fulfilling the office under §16.56 Florida Statutes as the "Statewide Prosecutor." All other persons acting in that capacity in the different circuits of the state are "State Attorneys" or "Assistant State Attorneys." The use of the term prosecutor not only misidentifies the present position of the candidate, but also may appear to commit the candidate to a course of conduct on issues before the court.

The Judicial Qualifications Commission has considered and reached a plea agreement with Judge Pat Kinsey. In that matter Judge Kinsey had centered her entire campaign in the cloak of her experience as an Assistant State Attorney. The J.Q.C. determined that statements she made and her entire campaign was designed to present Judge Kinsey in the light of being a judge more concerned with "protecting victims" than promising the fair and impartial determination of the matters placed before her. The Florida Supreme Court has rejected the plea agreement which included a public reprimand and a fine and is still pending before the Court.

The best guidance may be the Florida Supreme Court's order in Inquiry Concerning a Judge, Re: Matthew E. McMillan, 797 So.2d 560 (Fla. 2001). McMillan during the his campaign for County Court Judge in 2000 made the statement that he would "always have the heart of prosecutor." (emphasis added) Although McMillan was removed for many reasons, in finding that this statement was in violation of Canon 7 of the Code of Judicial Conduct the Court stated:

"At a minimum, statement of this nature erode public confidence in the integrity and impartiality of the judiciary and commit or appear to commit you with respect to issues that may come before the court." McMillan, supra, at page 563.

In analyzing the question one must remove the name of the candidate from the proposed literature and determine whether the statement "Elect a prosecutor Judge" would fall within the concerns of the McMillan court. The committee believes it does. Campaign literature which outlines the candidates' qualifications, including past legal experience is not only permitted, but encouraged, as long as it is accurate. But using the words "Prosecutor" or "Assistant State Attorney" as a title in identifying the candidate is not permitted for the reasons expressed in McMillan and herein.

REFERENCES

Florida Code of Judicial Conduct Canons 7A(3)(d) (i), (ii) and (iii)

Inquiry Concerning a Judge, Re: Matthew E. McMillan, 797 So.2d 560 (Fla. 2001).

_____________

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:
Judge Scott J. Silverman
Judge Jeffrey D. Swartz
Judge Phyllis Kotey
Judge Richard R. Townsend

Copies furnished to:
Chief Justice Charles T. Wells
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 purposes of this subcommittee is to give immediate responses to campaign questions instances where the normal Committee procedure would not provide a responses 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.