FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2008-14 (Election)1
Date of Issue: June 16, 2008

ISSUES

May a candidate, in the candidate's discretion, sign a Cuban American Bar Association 2008 Judicial Election Campaign Pledge?

ANSWER: Yes, if the candidate qualifies the pledge.

 

FACTS

The Cuban American Bar Association has asked all judicial candidates to sign a pledge committing a candidate to diversity.  The pledge is as follows:

The members of the judiciary provide a crucial service to the community.  Judicial office comes with tremendous power and responsibility.  It is essential to the well-being of our legal system that judges be committed to promoting fairness and justice for all members of the community.  Therefore, as a candidate for judicial office, I proudly pledge to treat all who come before the Court, be they litigants, attorneys, jurors, or witnesses, equally and with respect, regardless of their race, gender, ethnicity, national origin, religion, or sexual orientation.  My staff will always do the same. 

I recognize the importance of promoting diversity in the legal profession as a whole.  As a judge, I will strive for diversity in my discretionary appointments.  I pledge to voluntarily report my discretionary appointments to the Chief Judge so that he or she can use or disseminate that information.

Finally, I pledge to always be open to hearing from the community concerning ways of improving access to the courts, promoting diversity, and ensuring equal treatment.

The Cuban American Bar Association intends to publish the name of any candidate that does not sign the pledge.

    

 

DISCUSSION

Canon 7(A)(3)(d)(i), Florida Code of Judicial Conduct, states that a candidate shall not "with respect to parties or classes of parties, cases, controversies, or issues that are likely to come before the Court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicated duties of the office."  Paragraph one of the pledge is consistent with the impartial performance of the adjudicated duties of the office.  Paragraphs two and three are not promises or commitments prohibited by Canon 7(a)(3)(d)(i). 

Paragraph one of the pledge is also consistent with Canon 3B(5), Florida Code of Judicial Conduct:

A judge shall perform judicial duties without bias or prejudice.  A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, and shall not permit staff, court officials, and others subject to the judge’s direction and control to do so.

The commitment set forth in paragraph one is nothing more than a pledge to follow the Code of Judicial Conduct.

The second paragraph of the pledge is more problematic.  The Committee finds that a candidate may commit to an aspirational goal of providing diversity in appointments.  However, this pledge should be qualified by a pledge to follow Canon 3C(4), Florida Code of Judicial Conduct, which provides that “[a] judge shall exercise the power of appointment impartially and on the basis of merit.”  A commitment to appoint based upon diversity alone, without a commitment to exercise the power of appointment impartially and upon the basis of merit, is a commitment which appears to violate the Code. 

The aspirational goals set forth in the second paragraph of the pledge are consistent with the Supreme Court's stand on diversity and are wholeheartedly endorsed by this Committee.  The Supreme Court's Administrative Order AOSC04-225, which created a Standing Committee on Fairness and Diversity, states in its first paragraph that the court system should include court staff that reflect the community's diversity.  In giving direction to the Standing Committee on Fairness and Diversity, the Court stated: "The Florida State's Court System can better serve the people of this State and enhance the credibility of the justice system if judges and court staff reflect the diversity of the community we serve."  In its report to the Supreme Court, the Standing Committee on Fairness and Diversity stated:

The Florida Justice system - including judges, court staff, attorneys, prosecutors, mediators, and others - does not yet fully reflect the diversity of those it serves.

The aspirational goals of the pledge appear to reflect the aspirational goals of the Supreme Court, as well as its Committee on Fairness and Diversity.

The third paragraph does not appear to implicate the Code of Judicial Conduct, except to the extent it may imply the judge may receive ex parte communications.  Canon 3B(7), Code of Judicial Conduct, provides in pertinent part: "A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding."  The Committee believes a pledge by a candidate to be "open to hearing from the community concerning ways of improving access to the courts, promoting diversity, and ensuring equal treatment" is not inappropriate so long as such a pledge is made "subject to the requirements of the Florida Code of Judicial Conduct."

    

 

REFERENCES

Fla. Code Jud. Conduct, Canons 3B(5), 3B(7), 3C(4), 7A(3)(d)(i).

Supreme Court Administration Order AOSC04-225.

 

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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 Richard Townsend (Chair), Judge T. Michael Jones, Judge Kerry I. Evander.


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.