FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-25
Date of Issue: October 3, 2006

ISSUE

May a judge who is not a candidate for re-election or retention attend a community-sponsored, nonpartisan function, in order to socialize and listen to the candidates’ speeches?

ANSWER: Yes.

FACTS

The inquiring judge is mindful of this committee’s opinion that a judge who is not seeking election may not attend a “nonpartisan” political function sponsored by a political party in order to socialize and listen to the candidates’ speeches. Fla. JEAC Op. 06-19. The judge questions whether that opinion relates to candidate meet-and-greet events sponsored by civic or governmental organizations where the judge, who is not a candidate for reelection or retention, attends as “a  passive observer for [the judge’s] own information and education without indicating a preference, endorsement, or support for any candidate.”

DISCUSSION

Canon 7 of the Florida Code of Judicial Conduct directs judges to “refrain from inappropriate political activity.” Canon 7A(1)(d) provides that a judge or a candidate for election or appointment to judicial office shall not attend political party functions, with only the limited exceptions authorized in Canon 7B(2) (a non-judge candidate for appointment to judicial office may attend political gatherings); Canon 7C(2) (a candidate for merit retention may conduct only limited campaign activities until certification of active opposition); and Canon 7C(3) (with certain restrictions, a judicial candidate for election or for actively opposed retention may attend and speak at a political party function for the judge’s candidacy or on matters relating to the law, improvement of the legal system, or the administration of justice). Canons 7A(1)(d), 7B(2), 7C(2) and 7C(3), Fla. Code Jud. Conduct.

In Fla. JEAC Op. 06-19, the committee concluded (1) none of the exceptions to Canon 7 permitted the judge’s attendance at the political party-sponsored function and (2) the judge’s mere presence at the event in the capacity of a “spectator” could potentially give the appearance of support for a political party. The judge’s good intentions were inconsequential to the application of the clear proscriptions of Canon 7A(1) (d), Fla. Code Jud. Conduct.

In the current inquiry, the event is not sponsored by a political party. Thus, the conduct does not implicate Canon 7A(1)(d).

Canon 7D prohibits judges from engaging in any political activity except as authorized by the Florida Code of Judicial Conduct or by express law, or on behalf of measures to improve the law, the legal system or the administration of justice.  Thus, the issue is whether the incumbent judge’s mere passive attendance at such an event - not sponsored by a political party - constitutes “political activity” and, if so, whether any exception exists.

The Committee on Standards of Judicial Conduct (the precursor of the Judicial Ethics Advisory Committee), with one dissenting, found nothing in the language of Canon 7, or section l05.071, Fla. Stat., which would preclude a judicial officer from attending “a non partisan political gathering to acquaint the voters with the incumbents and candidates for state and county offices.” Fla. JEAC Op. 74-11. The event, billed as a “Political Fair,” was sponsored by the League of Women Voters, Chamber of Commerce, County Council of PTA, Council of Neighborhood Associations, Junior League, Jaycees, Democratic Party, Republican Party, and local newspaper, designed as a political gathering to acquaint the voters with the incumbents and candidates for state and county offices.  The inquiry was made by an unopposed judicial candidate for reelection.

The Committee emphasized the community-wide sponsorship of the event and the fundamentally nonpartisan nature of it. Even though the two primary political parties were among the many co-sponsors of the gathering, their roles appeared to be de minimis, there was no emphasis on partisanship, and there was no indication that any other political party was excluded. Thus, the Committee determined the function was not a “political party function” which the judge would be prohibited from attending by Canon 7A(1)(d). This is consistent with this Committee’s recent opinion in 06-19 (judge may not attend a “nonpartisan” political function sponsored by a political party).

In response to the question of whether the inquiring judge could attend as a “private citizen” rather than as a judge or judicial candidate, the committee pointed out that “once an individual occupies a judicial office, or becomes a candidate for judicial office, he can no longer separate his public position from his private status. He cannot avoid the strictures of the Florida Code of Judicial Conduct by attempting to place himself in a ‘private citizen status.’ He is a judge or judicial candidate at all times.”  Fla. JEAC  Op. 74-11.

Mere passive attendance by an incumbent judge at a nonpartisan, community-sponsored political fair or candidate meet-and-greet in order to socialize and listen to the candidates’ speeches does not involve political activity prohibited by Canon 7D.

In attending such an event, the judge is reminded that Florida Code of Judicial Conduct, Canon 7A(1)(b), prohibits a judge or a candidate for election from publicly endorsing or publicly opposing another candidate for political office. In Fla. JEAC Op. 00-15 and 98-25, the committee also concluded that a judge-elect participating in the political arena by expressing support for or endorsing a candidate would be impermissibly lending the prestige of the judicial office to advance the private interests of another. The committee observed that such involvement could easily convey the impression that the candidate is in a special position to influence the judge-elect. Fla. JEAC Op. 00-15; Fla. JEAC Op. 98-25. Thus, the judge who attends such a function must exercise care to ensure the judge does not appear to support or endorse any particular candidate.

REFERENCES

Florida Statute, section 105.071.

Florida Code of Judicial Conduct, Canons 7, 7A(1)(b), 7A(1)(d), 7B(2), 7C(2), 7C(3) and 7D.

Florida Judicial Ethics Advisory Committee Opinions, 06-19, 00-15, 98-25, and 74-11

_____________

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

Participating Members:
Judge Robert T. Benton, II, Judge T. Michael Jones, Judge Lisa Davidson, Judge Michael Raiden, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III,  Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro, Patricia Lowry, Esquire, 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
Inquiring Judge (Name of inquiring judge deleted from this copy)