FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-09 (Election)1
Date of Issue: February 25, 2004

ISSUES

1. May a candidate for judicial office submit material in writing to a major political party or its executive committee for the purpose of receiving an endorsement by the major political party or its executive committee before the election process?

ANSWER: No.

2. May a candidate for judicial office directly or indirectly take any affirmative action to obtain the endorsement of a major political party in the election process?

ANSWER: No.

3. May a candidate for judicial office announce the candidate's views on disputed legal or political issues, orally or in writing, consistent with the ruling in Republican Party of Minnesota v. White, 536 U.S. 765 (2002)?

ANSWER: Yes, provided the candidate also states that the candidate will uphold the law. See In re Kinsey, 842 So. 2d 77, 87 (Fla. 2003).

FACTS

The inquiring attorney is a candidate for judicial office who has been asked to state in writing to a major political party that the candidate would accept the party's endorsement, if it is granted. The candidate would not have to answer a questionnaire, submit to an interview or answer questions. A member of the party's executive committee would present the candidate's name for the endorsement. It is not clear from the judicial candidate's inquiry whether all the judicial candidates have been offered this opportunity.

The candidate also asks whether the candidate could, "directly or indirectly through others take any affirmative action (verbal, written or otherwise) to seek, request, receive, accept or obtain the endorsement of a major political party in a judicial election."

Furthermore, the candidate asks whether he can announce his views orally or in writing, publicly or privately, consistent with the United States Supreme Court opinion in Republican Party of Minnesota v. White, 536 U. S. 765 (2002).

DISCUSSION

The Committee has answered similar inquiries involving major political parties and judicial candidates. We have determined that a judicial candidate may not publish any rating or endorsement received from a major political party. Fla. JEAC Op. 00-29. We also determined that a judicial candidate may not attend an interview or submit written materials for the purpose of obtaining an endorsement from a major political party. Fla. JEAC Op. 98-19. Nor could a judicial candidate list extensive partisan activities in a questionnaire received from a major political party. Fla. JEAC Op. 98-19. The instant inquiry is slightly different however.

First, the candidate cannot directly or indirectly solicit the endorsement of a major political party. To do so would violate Canon 7 of the Code of Judicial Conduct and Section 105.071(1), Florida Statutes. Both prohibit inappropriate political activity. Canon 7C(3) limits the political activity in which a judicial candidate may engage, and any activity not permitted by Canon 7C(3) would be partisan party activity. Canon 7 of the Code of Judicial Conduct provides in pertinent part:

A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY

A. All Judges and Candidates.

(1) Except as authorized in Sections 7B(2), 7C(2) and 7C(3), a judge or a candidate for election or appointment to judicial office shall not . . .

(d) attend party functions . . .

(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 . . . .

(b) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate's direction and control from doing on the candidate's behalf what the candidate is prohibited from doing under the Sections of this Canon;

(c) except to the extent permitted by Section 7C(1), shall not authorize or knowingly permit ay other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon;

The purpose of the canon is to prevent interjection of partisan politics into a judicial race. The committee's view is that accepting an endorsement in advance indirectly solicits an endorsement. Further, by accepting an endorsement in advance, the candidate could be perceived to be commenting on an affiliation with a political party or to be a member of a major political party. 105.071(3), Fla. Stat.; Fla. JEAC Op. 98-19. It could also appear that the candidate is attempting to convey that the candidate is supported by a major political party. See In re: Alley, 699 So. 2d 1369 (Fla. 1997). In Alley, a judge printed in her campaign brochure the political affiliation of the governor who appointed her. Id. at 1369. She was not a member of the same party and did not state otherwise, but the court found that the brochure was inappropriate and violated the Code of Judicial Conduct. Id. Thus, we conclude that a judicial candidate may not state in writing to a major political party or its executive committee that the candidate would accept the party's endorsement if granted.

Second, a judicial candidate cannot authorize a surrogate to engage in activities which would be proscribed under the Florida Statutes or the Florida Code of Judicial Conduct. Recently, the Florida Supreme Court disciplined a judge for participating in partisan political activities. In re: Angel, 2004 WL 306073 (Fla. Feb. 19, 2004). In Angel, the supreme court publicly reprimanded a judge for appearing and making speeches at partisan political functions because his judicial opponents had not been invited to these events. Id. at *1. More significant, he was disciplined for allowing his family members to make speeches on his behalf. Id. The court held that the use of the surrogates violated Canon 7 and section 105.071, Florida Statutes. Id. at *8. The committee notes that although the Code of Judicial Conduct is binding only on judicial candidates, section 105.09(1) proscribes political parties or organizations from endorsing judicial candidates. A violation of the statute is a misdemeanor of the second degree. 105.09(2), Fla. Stat.

Finally, regarding the expression of views, the committee is aware of Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which invalidated a Minnesota law prohibiting candidates for judicial office from announcing their views on disputed legal or political issues. 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. The committee does not render legal opinions regarding the constitutionality or enforceability of various provisions of the Code of Judicial Conduct. Fla. JEAC Op. 02-16. However, this question can be resolved by analyzing Florida case law and the existing Code of Judicial Conduct.

The Florida Supreme Court addressed the applicability of White to the Florida Code of Judicial Conduct in In re Kinsey, 842 So. 2d 77 (Fla. 2003). In Kinsey, the Judicial Qualifications Committee alleged that as a judicial candidate, a judge had violated Canons 1, 2, 3, and 7. The judge responded that the campaign was protected by the First Amendment right to free speech and that Canon 7 could not prevent the judge from speaking about issues of interest to the electorate.

The court noted that the only issue in White was whether the "announce clause" of the Minnesota Code of Judicial Conduct was constitutional. Id. at 86. The court also wrote that a similar provision in the Florida Code of Judicial Conduct had been removed years earlier.2 Id. at 87. The Florida Supreme Court stated that Florida's Canon 7A(3)(d)(i)-(iii) was narrowly tailored to serve a compelling state interest and met the test articulated by the United States Supreme Court. Id. at 87. The court stated:

In reviewing the "narrowly tailored" prong of the test, we conclude that the restraints are narrowly tailored to protect the state's compelling interests without unnecessarily prohibiting protected speech. As is clear from the canons and related commentary, a candidate may state his or her personal views, even on disputed issues. However, to ensure that the voters understand a judge's duty to uphold the constitution and laws of the state where the law differs from his or her personal belief, the commentary encourages candidates to stress that as judges, they will uphold the law.

Id. (emphasis added).

In JEAC Op. 02-13(Elections), the committee reached the same conclusion. The committee wrote:

In summary, this Committee believes that a candidate may state his or her views on constitutional or statutory construction and other controversial issues so long as the candidate does not advocate opposition to or support of political issues, the candidate makes no pledge or promise of conduct in office other than the faithful and impartial performance of the duties of the office, and the candidate does not make statements which commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the Court. The inquiring candidate should note that the Commentary to the Code states that a candidate should emphasize in any public statement the candidate's duty to uphold the law regardless of his or her personal views. Canon 7A(3)(d)(i)-(ii) reads: A candidate for judicial office . . . shall not: (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [or] (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 . . . .

Thus, we conclude that a judicial candidate may state his or her own views orally or in writing on disputed issues as long as the candidate also states that the candidate will uphold the law. Judicial candidates should be cautious, however. The parts of Canon 7 concerning promises, commitments, and pledges will be enforced.

REFERENCES

Florida Statute 105.071, 105.071(3), 105.09(1), 105.09(2);

Republican Party of Minnesota v. White, 536 U.S. 765 (2002);

American Civil Liberties Union of Florida, Inc. v. The Florida Bar, 744 F. Supp. 1094 (N.D. Fla. 1990);

In re Angel, 2004 WL 306073 (Fla. Feb. 19, 2004);

In re Kinsey, 842 So. 2d 77 (Fla. 2003);

In re Alley, 699 So. 2d 1269 (Fla. 1997);

Florida Code of Judicial Conduct: Canons 1, 2A, 7, 7A(3), 7A(3)(d)(i)-(ii), 7B(2), 7C(1), 7C(2), 7C(3);

Fla. JEAC Ops. 96-21; 98-19; 00-29; 02-13; 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 Emerson Thompson, Judge McFerrin Smith, and Marjorie G. Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director 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 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.

2 See American Civil Liberties Union of Florida, Inc. v. The Florida Bar, 744 F. Supp. 1094 (N.D. Fla. 1990).