FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-11
Date of Issue: May 9, 2006

ISSUES

May a judge authorize placement of a campaign sign supporting a partisan political candidate in the yard of a residence jointly owned by the judge and the judge’s spouse?

ANSWER: No.

May a judge authorize placement of a campaign sign supporting a partisan political candidate on an automobile occasionally operated by the judge and  jointly owned by the judge and the judge’s spouse?

ANSWER: No.

May a judge operate an automobile solely owned by the judge’s spouse which displays a sign supporting a partisan political candidate?

ANSWER: No.

FACTS

The judge and the judge’s spouse are related to a person seeking partisan political office. The parties jointly own an automobile and the marital residence. The judge’s spouse wishes to put a campaign sign on the automobile and in the yard of the marital residence. The judge is contemplating conveying the automobile to the spouse so that this personal property is solely titled in the spouse’s name. However, the judge would continue occasionally to utilize the automobile which is the only automobile owned by the parties.

DISCUSSION

The Code of Judicial Conduct applies to justices of the Supreme Court and judges of the District Court of Appeal, Circuit Courts, and County Courts.  Application Section, Code of Judicial Conduct. The Code does not apply to partisan political candidates nor does the Code apply to the spouse of a judge. See Fla. JEAC Op. 98-3 and 94-21. Therefore, the judge’s spouse is free to engage in political activity so long as the political activity is independent of the judge.

The judge is precluded by Canon 7A of the Code of Judicial Conduct from publicly endorsing a candidate for political office. The campaign sign in the yard of the residence jointly owned by the judge and spouse conveys to the public a message that the judge supports the candidate. Likewise, a campaign sign on the jointly owned automobile conveys the same message. This is true even when the judge is operating a motor vehicle solely owned by the judge’s spouse. In all of the above scenarios, the judge is identified with the endorsement.

In JEAC Opinion 92-33, the Committee on Standards of Conduct Governing Judges opined that judicial assistants were prohibited by Canon 7B of the Code of Judicial Conduct from participating in partisan political activity. The Supreme Court discussed this opinion in conference (September 8, 1992) and expressed the view that the opinion raised serious First Amendment implications. The justices believed that a judicial assistant occupied a position analogous to a spouse, who was permitted to engage in political activity, provided that it was done in the name of the individual family member, independent of the judge, and without reference to the judge or the judge’s office. See Fla. JEAC Op. 93-45. Therefore, this Committee declines to render any opinion which has a chilling effect upon the spouse’s First Amendment rights.

The foregoing analysis is consistent with prior opinions of this Committee.  In JEAC Opinion 87-22, this Committee opined that a judge should not drive an automobile solely owned by the judge’s spouse if the judge’s spouse is a candidate for political office and the car has a bumper sticker supporting the candidacy. This Committee also opined that a spouse may have a campaign party for a judicial candidate at the spouse’s law office, even though the judge is a “co-tenant” on the deed. However, the judge was advised not to attend the party. Fla. JEAC Op. 94-21. Finally, this Committee has opined that the spouse of a judge may make campaign contributions so long as it is done in the name of the spouse without any reference to the judge or the judge’s position. Fla. JEAC Op. 84-19.

For the foregoing reasons, the judge should neither place, nor authorize or encourage the judge’s spouse to place, a political sign in the judge’s yard or on an automobile owned or operated by the judge. However, the judge’s spouse has autonomy in the political arena, and the spouse is free to engage in political activities as the spouse deems appropriate.

The inquiring judge presented a hypothetical question to the Committee regarding a marital residence solely owned by the spouse. This Committee declines to answer hypotheticals and will only address actual or contemplated conduct.

REFERENCES

Canon 7, Florida Code of Judicial Conduct.

Fla. JEAC Ops. 98-3, 94-21, 93-45, 92-33, 87-22, and 84-19.

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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)