FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-29 (Election)1
Date of Issue: July 20, 2004

ISSUES

Whether a judicial candidate who has the same campaign consultant as two judicial candidates running for different judicial seats can, in order to save money, mail his or her individual campaign brochure in an envelope containing the other candidates' brochures if each candidate encloses a disclaimer card stating that the candidates are not endorsing each other.

ANSWER: No.

FACTS

The inquiring judicial candidate has hired a campaign consultant who has also been hired by two other judicial candidates. The judicial candidates are running for different seats. The inquiring judicial candidate asks whether it is appropriate for the three candidates to mail their campaign brochures in the same envelope if each candidate encloses a disclaimer card stating that the candidates are not endorsing each other. Each judicial candidate would pay one-third of the mailing cost.

DISCUSSION

Canon 7 of the Code of Judicial Conduct governs this inquiry. Canon 7 reads in pertinent part:

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

A. All Judges and Candidates.

(1) [A] judge or judicial candidate for election or appointment to judicial office shall not: ...

(b) publicly endorse or publicly oppose another candidate for public office; ...

(3) A candidate for 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.

In Opinion 01-01, this committee answered the inquiry of a traffic hearing officer who asked whether it was appropriate to endorse and make a contribution to a judicial candidate. After determining that Canon 7 applied to traffic hearing officers, the committee answered that neither judges nor judicial candidates should endorse judicial candidates. Id. (Emphasis supplied). The committee has previously written that various forms of endorsement by judges or judicial candidates are prohibited by the Code. See JEAC Op 03-24 (holding that a judge may not endorse the appointment of a public guardian where the endorsement will be used to solicit funds); JEAC Op 92-32 (stating that a judge may not sign a petition for an individual to qualify for election because the judge's "signature on the petition may reasonably be perceived as an endorsement of the candidate for public office"); JEAC Op 89-15 (holding that a judge may not personally appear before a nominating commission to support and endorse a candidate).

We conclude that mailing the brochures of the three judicial candidates in one envelope may give voters and potential donors the impression that the judicial candidates are working together. The joint mailing could imply that the judicial candidates share judicial and perhaps political philosophies. Although a joint mailing would not be an overt endorsement or recommendation, the implied mutual endorsement is obvious. Since the three candidates are running for different seats, the joint mailing would convey support of the candidates participating in the mailing and not their opponents. Further, the joint mailing would create the appearance of impropriety, a violation of Canon 2.

The conduct subject to this inquiry is not an overt endorsement of a judicial candidate. However, the statement of the Florida Supreme Court in a case where the endorsement was overt is instructive. In Inquiry Concerning Judge Glickstein, 620 So. 2d 1000 (Fla. 1993), the court publicly reprimanded a judge who wrote a letter to a newspaper in support of the retention of a supreme court justice. The court wrote that Judge Glickstein's intent had been nothing more than to inform the public of the justice's attributes. Id. at 1002. Notwithstanding the benign intent of the judge, the court stated: "Neither honest motives nor well-intentioned conduct, however, excuse less than strict compliance with the Code of Judicial Conduct." Id. at 1002.

We recommend that the inquiring judicial candidate read JEAC Opinion 04-24. In that opinion, the committee discussed the restrictions on campaigning by judicial candidates and the need for judicial candidates to strictly follow the Code of Judicial Conduct.

REFERENCES

Inquiry Concerning Judge Glickstein, 620 So. 2d 1000 ( Fla. 1993)

Florida Code of Judicial Conduct: Canons 2; 7A(1)(b); 7A(3)(a)

Florida Judicial Ethics Advisory Committee Opinions: 04-24; 03-24; 01-01; 92-32; 89-15

_____________

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 R. Thompson, Jr., Judge McFerrin Smith, III, and Marjorie Gadarian 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.