FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-08
Date of Issue: March 16, 2006

ISSUES

1. Must a person resign as pro bono advisor to a local political party executive committee upon “pre-qualifying” as a candidate for judicial office, or may the person wait until the formal qualifying period in May?

2.  May a person, attempting to qualify using the petition process, accept the assistance of a political party in obtaining signatures on the petition?

ANSWERS:

1. Yes.

2. No.

FACTS

The inquiring party intends to become a judicial candidate in the near future. The prospective candidate now serves pro bono as advisor to the executive committee of a local political party and asks if it is necessary to resign from that position upon pre-qualifying, or is it permissible to continue to advise the executive committee until formally qualifying in May?  Also, the political party’s executive committee has offered assistance to the inquiring party in obtaining signatures to qualify for election by the petition process. The inquiry asks if it would violate Canon 7 to accept that offer.

DISCUSSION

The Preamble to the Code of Judicial Conduct includes in the definition of a “candidate” any person who makes a public announcement of candidacy, opens a campaign account, declares or files as a candidate with the election or appointment authority, or authorizes solicitation or acceptance of contributions or support. Section 97.021(4), Florida Statutes (2005) contains a similar definition. While this inquiry does not define “pre-qualify,” it would appear from the Code’s definition that any level of public activity directed at qualifying for office creates a “candidate.” To “pre-qualify” is to become a candidate.

 Canon 7 prohibits a judge or candidate for judicial office from engaging in inappropriate political activity. Canon 7A(1)(a) specifically prohibits a judge or candidate for judicial office from acting as a leader or holding office in a political organization. This code section reflects the non-partisan provisions of Florida law, as described in section 105.071, Florida Statutes (2005). It would be difficult to imagine a more partisan and political activity than being an advisor to a political party executive committee, regardless of whether the advisor were compensated or provided the service pro bono.

In recent years, this Committee has advised numerous candidates to refrain from activities less partisan and political than contemplated here.

In JEAC Opinion 2004-09 the Committee noted that a judicial candidate may not respond in writing to a request from political organization to state whether he or she would accept its endorsement, nor may a candidate directly or indirectly take any affirmative action to obtain the endorsement of a political party in the election process.
 
In JEAC Opinion 2002-11 the Committee advised that candidates who are properly invited to speak at a political party event may arrive at a reasonable time prior to the candidate’s speaking time, and the candidate may distribute literature and speak with attendees, subject to other restrictions of Canon 7. However, the candidate may remain at the meeting only until the candidate’s portion of the meeting is concluded, and the candidate may not attend a political party meeting while the party is conducting party business.
 
Likewise, in JEAC Opinion 2002-08 the Committee advised that a judicial candidate may not be on the premises where a political party is holding a political meeting for the purpose of meeting and greeting delegates where the candidate, and others, have not been invited for the purpose of speaking on behalf of the candidacy. A judicial candidate who has not been properly invited to speak at a political party event may not even stand outside of the event distributing literature. JEAC Op. 2003-13.

In reviewing a recommendation of the Judicial Qualifications Commission, the Florida Supreme Court recently went into detail describing why it is important to keep judicial campaigns separate from political parties and political campaigning. In In re Angel, 867 So. 2d 379 (Fla. 2004), it stated that "[a] review of the stipulation entered into by Judge Angel and the JQC, as well as the JQC's findings, demonstrates by clear and convincing evidence that Judge Angel's conduct relating to partisan political functions violated both the spirit and the letter of section 105.071 of the Florida Statutes and Canon 7 of the Code of Judicial Conduct." Id. at 382-83. The stipulation entered into by Judge Angel and the JQCincluded six counts of the candidate improperly attending partisan political functions.

Given these established restrictions on political activity by a judge or candidate for judicial office, it appears that advising a political party’s executive committee is prohibited by Canon 7.

Canon 7 does not directly address the question of accepting assistance from a political party in gathering petition signatures. However, the Code’s prohibition  on inappropriate political activity should be read in conjunction with the JEAC opinions, cited above, and with section 105.071, Florida Statutes (2005), which prohibits a candidate for judicial office from participating in partisan political party activities and from accepting contributions from a political party. Accepting assistance from a political party in gathering petition signatures should be considered a contribution, just as other “in kind” contributions are required to be reported. See section 106.07(4)(a)5, Florida Statutes.  Accepting the assistance of a political party would be inappropriate political activity, prohibited by Canon 7.

REFERENCES

Florida Statutes, sections 106.07(4)(a)5, 105.071, 97.021(4).

In re Angel, 867 So. 2d 379 (Fla. 2004)

Florida Code of Judicial Conduct: Preamble, Canon 7, Canon 7A(1)(a).

Florida Judicial Ethics Advisory Committee Opinions:  2004-09, 2003-13, 2002-11, 2002-08.

_____________

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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Ervin Gonzalez, Esquire, Marjorie Gadarian Graham, Esquire, Judge Michael Raiden, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III,  Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


Copies furnished to:
Justice Peggy Quince
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
Inquiring Judge (Name of inquiring judge deleted from this copy)