FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-07 Election1
Date of Issue: February 6, 2004

ISSUES

May a circuit judge who is a candidate for office directly solicit attorneys for public and financial support?

ANSWER: No.

May a circuit judge who is a candidate for office distribute to attorneys at meetings in non- government buildings, campaign material that has a profile of the judge, solicits a financial contribution or in-kind contribution, and contains an envelope for mailing a contribution?

ANSWER: No.

FACTS

The inquiring judge is currently seeking re-election. The inquiring judge asks whether it is permissible to directly solicit attorneys for public and financial support. The judge raises the question based on Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002), which found Canon 7(B)(2) of the Georgia Code of Judicial Conduct unconstitutional. The judge writes that Georgia's Canon 7 is substantially similar or identical to Florida's Canon 7C(1).

The inquiring judge also asks whether it is permissible to distribute to attorneys at meetings, in non-government buildings, campaign material with a profile of the judge, soliciting financial or in-kind contribution, and containing an envelope for mailing a contribution.

DISCUSSION

Canon 7C(1) provides that a candidate for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds or solicit attorneys for publicly stated support:

 (1) A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidates' campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or members of the candidate's family. (Emphasis supplied).

A judicial candidate subject to public election may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate's campaign and to obtain public statements of support for his or her candidacy.

The committee is aware of Weaver. In Weaver, the Eleventh Circuit held that Georgia's Canon 7B(2), which prohibits judicial candidates from personally soliciting campaign contributions and publicly stated support, is unconstitutional. The 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. Opinions are advisory to the inquiring party, to the Judicial Qualifications Commission, and to the judiciary at large. Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). The Committee does not render legal opinions regarding the constitutionality or enforceability of various provisions of the Code of Judicial Conduct and declines to do so in this case. Fla. JEAC Op. 02-16.

Canon 7C(1) prohibits a candidate for a judicial office from personally soliciting campaign funds or from personally soliciting attorneys for publicly stated support. Thus, it would violate Canon 7C(1) to distribute campaign material which has a profile of the judge, solicits a financial contribution or in-kind contribution, and contains an envelope for mailing a contribution. Directly giving material which includes a campaign solicitation for money or in-kind contributions, could be perceived as coercive. The judges' campaign committees are created to raise funds and public support, and a judge should allow the committee to solicit attorneys. To personally solicit attorneys with envelopes for campaign contributions could be seen as paying for "cash register justice."

Furthermore, there are several other canons that apply to the inquiries. Canon 1 reads in part:

A judge should participate in establishing, maintaining and enforcing high standards of conduct and shall personally observe those standards so that the integrity and independence of a judiciary may be preserved.

Canon 2A states:

A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities. Canon 7A(3)(a), which reads 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.

Providing attorneys envelopes with solicitation forms would create an ethical dilemma for lawyers: Some attorneys may feel compelled to contribute to the inquiring judge's campaign, out of fear of adverse rulings or adverse treatment when attempting to schedule motions. Conversely, some attorneys may feel that by contributing, they curry favor with the judge.

We conclude the appearance of impropriety would be great and would erode public confidence in the judiciary if a judicial candidate distributed literature soliciting campaign contributions. The committee reminds the inquiring judge that judicial candidates have restrictions which do not encumber candidates seeking other elective offices. See 105.071, Fla. Stat. The commentary to Canon 2A reads in part that:

A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

This is not to say that a judge may not distribute any campaign literature. In JEAC Op. 00-22, the committee was asked whether a judicial candidate could distribute literature at a partisan political event. We stated "[s]o long as all the provisions of Canon 7B(3) are met, the Code of Judicial Conduct and the spirit of Canon 7C(3) permit the distribution of campaign literature and materials by the candidates to attendees of the partisan political event." We also stated that the judge could distribute material as long as the judge did not express a position on any political issue. Id. Given that a judge may distribute campaign literature at a partisan political event, we see no harm in distributing campaign literature at an attorneys' meeting as long as the judicial candidate does not solicit an attorney. See JEAC Op. 02-11. We further remind the judge that the judge may not socialize and greet participants if the event is a political meeting. JEAC Op. 02-08.

We conclude that as long as the judicial candidate scrupulously complies with the provisions of Canon 7A(3) of the Florida Code of Judicial Conduct, the judge may distribute campaign literature.

REFERENCES

Florida Code of Judicial Conduct: Canons 1, 2A, 7, 7A(3), 7B(2), 7B(3) and 7C(1), 7C(3).

Florida Statute 105.071.

Weaver v. Bonner, 309 F. 3d 1312 (11th Cir. 2002)

Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997)

Fla. JEAC Ops. 00-22; 02-8; 02-11; 02-16

_____________

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 Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Melanie May, Judge McFerrin Smith, III, Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
All Committee Members
Judicial Qualifications Commission
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 the subcommittee is to provide 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 Committee.