FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-24 (Election)1
Date of Issue: September 19, 2006

ISSUES

1. May a candidate for judicial office obtain loans from a parent or other family member in amounts exceeding $500.00 per person?

2.  May a candidate for judicial office use the endorsement of a current partisan officer holder, or the endorsement of a partisan candidate who was unsuccessful in a recent primary, in advertisements?

3.  May a candidate for judicial office use the endorsement of a retired judge in advertisements?

ANSWERS:
1. Decline to Answer.
2. Yes, with limitations.
3. No, if the retired judge is eligible for recall to judicial service.

FACTS

These inquiries come from a candidate for judicial office.  With no additional facts stated, the candidate asks, “May a candidate for judicial office obtain loans from a parent or other family member in amounts exceeding the $500.00 per person limitation on such contributions imposed by controlling law.”

The candidate further asks if a candidate for judicial office may use, in the candidate’s advertisements, the endorsement of: a) a current partisan office holder, such as a sheriff, county commissioner, or any other partisan office holder, or b) a recent partisan candidate who was unsuccessful in the primary, or c) a retired judge.

DISCUSSION

The recent Supreme Court opinion in In Re Renke, 933 So. 2d 482 (Fla. 2006), provides all judicial candidates with a very detailed description of the improper nature of accepting family loans as a form of campaign contributions.  Most of the law cited by the Supreme Court in Renke involves the application of Florida’s campaign finance statute, specifically sections 106.08(1)(a), 106.08(5), and 106.19(a) and (b).  While the general provisions of Canon 7A(3)(a) of the Code of Judicial Conduct apply those statutes to judicial candidates as a matter of ethics, this committee has not historically attempted to give advisory opinions to judicial candidates regarding the interpretation or application of statutes. Accordingly, we decline to answer this part of the inquiry and refer the inquiring candidate to the Renke opinion and chapter 106, Florida Statutes for further details.

In JEAC Opinion 2006-21 this committee concluded that a candidate for judicial office may accept, and advertise, an endorsement from an elected partisan official acting in his or her personal capacity, as long as the support is not from the official’s political party, the official is not running for reelection, the partisan aspects of the official’s position are not mentioned, and the advertising does not otherwise violate the Code.  We noted that neither Canon 7 nor Chapter 105 expressly addresses the situation where an individual partisan officeholder seeks to assist a judicial candidate.  We began with the assumption that a majority of voters are registered with one party or another.  Moreover, the party affiliation of prominent persons may be a matter of common knowledge even if those persons have never sought political office.  Should a person of this stature choose to support a judicial candidate, it does not automatically follow that their political party would do the same.   The Code of Judicial Conduct does not contain a blanket proscription of accepting support from elected public officials in judicial races.

This inquiry does not say whether the retired judge in question is eligible for recall to judicial service. (See, Application of the Code of Judicial Conduct, Section B.) This status is critical. In JEAC Opinion 2001-04 this Committee noted that a retired judge eligible for recall to judicial service must comply with all provisions of the Code of Judicial Conduct except for sections 5C(2), 5E, 5F, and 6A.  Accordingly, Canons 7A and 7B apply to a retired judge eligible for recall.  See Fla. JEAC Opinion 99-6. Pursuant to Canon 7A(1)(b), a judge may not “publicly endorse or publicly oppose another candidate for public office.”  The Code specifically provides, however, that if a retired justice or judge does not desire to be assigned to judicial service, such a judge or justice who is a member of The Florida Bar may engage in the practice of law and shall be entitled to all the rights of an attorney at law and no longer be subject to the Code of Judicial Conduct.

Based on the foregoing analysis, the inquiring candidate should make certain whether the retired judge is eligible for recall to judicial duty before accepting and using the retired judge’s endorsement.  The inquiry simply refers to the endorsing individual as a “retired judge.”  If the retired judge is in fact eligible for recall, it would be a violation of Canon 7A(1)(b) and 7A(3)(c) for the candidate to accept or advertise the endorsement.

REFERENCES

In Re Renke, 933 So. 2d 482 (Fla. 2006).

Florida Code of Judicial Conduct: Canons 5C(2); 5E; 5F; 6A; 7; 7A; 7A(1)(b); 7A(3)(c); 7B; Application of the Code of Judicial Conduct, Section B.

Florida Judicial Ethics Advisory Committee Opinions:  06-21, 01-04 & 99-6.

§§ 106.08(1)(a); 106.08(5); 106.19(a) and (b), Florida Statutes (2005); ch 105 and 106, Florida Statutes. 

 

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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 C. 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.