FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-33 (Election)1
Date of Issue: August 12, 2004

ISSUES

Whether a judge who is a candidate for re-election may reproduce and distribute the recommendations or endorsements of newspapers, or a portion of those recommendations or endorsements, in campaign literature.

ANSWER: Yes.

FACTS

The inquiring judge, who is a candidate for re-election, states that the major newspapers in the circuit print their recommendations or endorsements of candidates in the judicial races. The inquiring judge states that it is the usual practice for judicial candidates to reproduce and distribute the recommendations of the major newspapers in mailings or at events to which the candidates are invited. The newspaper has recommended the inquiring judge for re-election. The article containing the recommendations references two pending cases handled by the inquiring judge. The judge asks whether it is permissible to reproduce the entire recommendation, even though it references two pending cases handled by the judge.

The inquiring judge also asks whether it is permissible to reproduce parts of the recommendation that would include positive statements about the judge and the statements made about the judge's opponent by the newspaper. The inquiring judge affirmatively represents that there would be no misrepresentations regarding the representation, but the entire document would not be included in materials to be represented.

DISCUSSION

Canon 7A(3)(d)(iii), Fla. Code Jud. Conduct, provides that a candidate for judicial office shall not "knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent." It would not be a violation per se of the Code of Judicial Conduct for the judicial candidate to reproduce articles about the candidate or negative articles about the candidate's opponent; however, the candidate must follow the mandate of Canon 7. If the inquiring judge does not follow the criteria set forth in Canon 7, the advertisement is ethically proscribed.

This committee has addressed similar issues in prior opinions. In Fla. JEAC Op. 00-23, the judicial candidate inquired whether it was permissible to publish a campaign advertisement that informed the public in pertinent part that the incumbent opponent had entered into the deferred retirement option program; that the opponent was already officially in retired status; that electing the non-incumbent would not deprive the incumbent of his/her retirement. In that inquiry, the advertisement quoted an excerpt from the deferred retirement option program contract. This committee opined that so long as the inquiring judicial candidate complied with all of the criteria set forth in Canon 7, its subsections and the advisory opinion, the advertisement would be ethically permissible.

Similarly, in Fla. JEAC Op. 98-27, a judicial candidate inquired whether it was permissible to use advertising that reproduced negative or critical headline stories or opinions about the candidate's opponent. Once again, this committee noted that a judicial candidate is bound by Canon 7 of the Code of Judicial Conduct. This committee concluded that it would not be a violation per se of the Code of Judicial Conduct for a judicial candidate to reproduce negative articles about the candidate's opponents, but that the candidate must follow the mandates of Canon 7. The committee stated that "Our committee finds that in general it would be proper to criticize a political opponent when the criticism is truthful, pertinent, and material to judicial office." In that opinion, one committee member advised that the inquiring candidate would be responsible for verification of the information contained in the newspaper articles that the candidate wished to use in the campaign, stating that "it is not a defense to the violation of the Rules Regulating the Florida Bar, Section 4-8.2(a) and (b) that the judge or candidate relied upon the research of a media source in perpetuating what may be a false statement about a judge or candidate for judicial office."

In Fla. JEAC Op. 98-27, this committee called attention to the opinion In Re: Inquiry Concerning A Judge Alley, 699 So. 2d 1369 (Fla. 1997). There, the Supreme Court reprimanded Judge Alley for judicial election campaign violations that included sending campaign mailers that improperly included a portion of a newspaper editorial which falsely implied that Alley, not her opponent, had been endorsed by the newspaper.

Finally, the inquiring judge, who is a candidate for re-election, is reminded that it is impermissible for the judge to comment publicly on rulings made by the judge in a pending legal proceeding. See Fla. JEAC Op. 04-18 (Election).

REFERENCES

Canon 7A(3)(d)(iii), Fla. Code Jud. Conduct
Fla. JEAC Op. 98-27, 00-23, and 04-18 (Elections)
In Re: Inquiry Concerning A Judge Alley, 699 So. 2d 1369 (Fla. 1997)

_____________

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 McFerrin Smith, III, Judge Emerson R. Thompson, Jr., 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.