FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2008-02 (Election)1
Date of Issue: January 16, 2008

ISSUES

(1)  When a sitting judge campaigning for election is being supported by the local state attorney, sheriff, and defense lawyers, is a mass mailing to members of the local bar listing the members of the judge’s campaign committee a sufficient dicslosure pursuant to canon 3?

ANSWER: No.

(2)  Is it proper for the judge to announce these relationships on the record in open court?

ANSWER: Yes.

(3) Must the judge also post a roster of campaign committee members in the local courthouse?

ANSWER: No.

FACTS

The Inquiring Judge, currently assigned to a criminal division, has an announced opponent who is a criminal defense attorney.  The Judge has established a large campaign committee.  Two of its members are the local State Attorney and Sheriff, neither of whom is campaigning for election this year.  In addition, several criminal defense attorneys are serving on the committee. 

The Inquiring Judge understands that the support of these officials is something that should be disclosed.  In furtherance of that goal, the Judge has mailed campaign literature to all listed Florida Bar members in the Judge’s circuit.  According to the Judge, these materials prominently list all members of the campaign committee.  The Judge has also published four advertisements in the local bar association newsletter, again listing the campaign committee members.  The Judge wishes to know whether these measures are adequate, or whether more is required, such as, announcing the Sheriff’s and State Attorney’s support in open court or posting some sort of notice within the courthouse.

DISCUSSION

As a threshold matter, the Elections Subcommittee notes that the full Committee, writing in Florida JEAC Opinion 06-21, perceived no ethical impediment to a judicial candidate accepting and publicizing the endorsement of an elected official, even one who holds partisan office.  The Committee did caution that judicial candidates should never embroil themselves in partisan campaigns; should take pains to avoid any appearance the judge and the official are campaigning as a team or part of a slate; and the endorsement should be that of the officeholder personally and not any party that person may represent.  In the present case, one of the elected officials is nonpartisan and the other is not standing for election again.  This reduces the likelihood the Judge’s own campaign activities will be seen as anything but independent.

The requirement of disclosing these relationships stems from the commentary to Canon 3E(1), which was relied upon by the Committee in deciding Florida JEAC Opinion 07-17.  In that opinion, a criminal court judge inquired whether the judge should disclose to prosecutors the fact a certain defense attorney was on the judge’s campaign committee.  The Committee agreed that disclosure was required, the fact of the defense attorney’s service being “relevant to the issue of [possible] disqualification” if sought by the prosecutor’s office.  Whether actual disqualification is mandatory is to be determined on a case-by-case basis.  JEAC Opinion 07-17 includes a thorough discussion of this subject including analysis of recent case law.  

The actual focus of the present inquiry is not whether disclosure is called for, but how such disclosure should be made, a subject not covered by Florida JEAC Opinion 07-17.  The commentary to Canon 3E(1) states that disclosure should be “on the record,” which the Elections Subcommittee interprets as open court.  The Judge’s newsletter advertisements and especially the mass mailings may have achieved much the same result, but it is recommended that the Judge also reveal the relationships during any court session where attorneys might be expected to appear in person, such as, arraignment or pretrial conference.  Not only would actual notice be effected by this practice, but there would exist a permanent record of same.  The Subcommittee does not believe that notice by posting in the courthouse is required – or sufficient - under Canon 3E(1)2.

REFERENCES

Fla. Code Jud. Conduct, Canon 3E(1)
Fla. JEAC Op. 06-21
Fla. JEAC Op. 07-17

 

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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 Lisa Davidson, Chair, Judicial Ethics Advisory Committee, The Moore Justice  Center, 2825 Judge Fran Jamieson Way, Viera, FL 32940.

Participating Members:
Participating Members (Elections Subcommittee): Judge T. Michael Jones, Judge Michael Raiden, Judge Richard Townsend.


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.

2. The Inquiring Judge is concerned that such posting might run afoul of statutes prohibiting electioneering within public buildings.  Because the Judicial Ethics Advisory Committee is not authorized to enter advisory legal opinions, the Elections Subcommittee will not address this precise question except to reiterate that we conclude, as a matter of ethics, such posting is unnecessary.