FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-20 (Election)1
Date of Issue: August 8, 2006

ISSUES

May a judge standing for re-election incorporate favorable remarks from juror questionnaires in campaign literature?

ANSWER: No, unless it is clear the questionnaires are not nonpublic information acquired in a judicial capacity.

FACTS

The inquiring judge, who is facing re-election, at one time passed out questionnaires to jurors asking them to suggest ways in which the process could be made more “juror-friendly.”  According to the judge, the answers were anonymous.  Apparently some of the jurors’ comments were complimentary of the judge.  The jurors’ remarks were not solicited during the present or a past election cycle, and the judge has since rotated into an assignment that does not utilize jurors.  The judge asks whether favorable quotes from the questionnaires may be incorporated into the judge’s political advertising.

DISCUSSION

As a general rule a candidate for judicial office may incorporate in campaign literature laudable remarks by newspapers and other nonpartisan sources, whether outright endorsements or just favorable coverage.  Fla. JEAC Ops. 04-33 and 00-22.  However, the Elections Subcommittee is concerned that use of the juror questionnaires may violate Canon 3B(12) of the Code of Judicial Conduct, which forbids “disclos[ure] or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity,” a description which may very well fit these questionnaires.

One member of the Subcommittee also expressed reservations about using the quotes without advance permission of the person being quoted.  That member concedes that obtaining such approval would be impossible given the anonymous nature of the returned questionnaires.  Nevertheless the member was concerned that former jurors might recognize their own comments and object to their use as a form of political endorsement, particularly since these questionnaires may not have been treated as public records.  A majority of the Subcommittee concluded that the lack of permission to quote anonymous jurors does not constitute an issue involving any section of the Code of Judicial Conduct.

REFERENCES

Florida Code of Judicial Conduct, Canon  3B(12).
Florida Judicial Ethics Advisory Committee Opinions. 04-33 &00-22.

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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: Judge Robert Benton, Chair, Judicial Ethics Advisory Committee, 301 S. MLK Jr. Blvd., Tallahassee, FL 32399.

Participating Members:
Judge McFerrin Smith, III, Judge Michael Raiden and Judge Dorothy Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
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

 

1.The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purpose of this subcommittee is to give 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 whole Committee.