FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-18 (Election)1
Date of Issue: June 16, 2010

ISSUES

1.  May the inquiring judge, who has received an award from the Florida Supreme Court and who is now a candidate for judicial office, use a photograph wherein the inquiring judge delivered an acceptance speech and wherein the justices are in view looking on as the speech is delivered on the inquiring judge’s campaign website or in campaign literature?

ANSWER: No.

2.  May a candidate for judicial office use as a campaign consultant a sitting member of the county commission who is not currently running for office or asserting any political party view in support of any other non judicial or judicial candidate?

ANSWER: Yes, since the county commissioner is not running himself, provided the county commissioner acts as an individual only and not on behalf of any political party, and does nothing to present the inquiring judge as sharing judicial or political philosophies with any other candidate.

 

FACTS

The inquiring judge poses two different questions.  First, the judge reports that the judge was once awarded the “Distinguished Judicial Service Award” and attaches a photograph taken on the occasion depicting the inquiring judge in the well of the Florida Supreme Court, standing at a lectern.  Visible behind the inquiring judge are three justices and three former justices, all seated at the bench apparently listening intently, and the nameplate of a fourth former justice.  The inquiring judge asks whether there would be any ethical impropriety in displaying the picture on the judge’s campaign website or in the judge’s campaign literature.

As for the second question the inquiring judge poses, no detail not set out in the question itself has been furnished.

    

 

DISCUSSION

The Judicial Ethics Advisory Committee has a “policy, held to steadfastly since [1994] not to vet individual examples of candidates’ campaign literature.” Fla. JEAC Op. 06-18 (Election).” “The Committee’s position is that it should not approve or disapprove specific language of individual judicial campaign advertisements, but rather should provide the ethical provisions which judicial candidates must consider.”  Fla. JEAC Op. 94-35.  (The pertinent ethical provisions are set out in Canon 7.)  The Committee has also apparently extended the policy to photographs.

But the Committee opined, as recently as last election year, on the subject of including in campaign materials photographs of the candidate that also depicted other judges:  “The judge should avoid use of photographs depicting other judges, both in campaign literature and on any web site.”  Fla. JEAC Op. 08-11 (Election).  

In this context, it is apparently of no moment that the photograph depicts an historical event and was not staged for campaign purposes.  See Fla. JEAC Op. 92-40 (deeming use of a photograph of an official being sworn in by a judge a canonically forbidden endorsement of the official’s candidacy, and advising the judge against consenting to the use of the photograph after reciting, “You state that years ago you administered the oath of office to a local government official. A photograph was taken of that ceremony with you in judicial robes. Now, that official has requested permission to use the photograph in political campaign literature”).  “Canon 7A(1)(b) absolutely forbids judges from endorsing any candidate for any office in any way.  See also In re Glickstein, 620 So. 2d 1000 (Fla. 1993).”  Fla. JEAC Op. 08-11 (Election).    

Here the justices depicted in the photograph do not, presumably, intend any endorsement.  But this is an additional reason why the photograph should not be used.  The inquiring judge should not represent, or even imply, that the justices support the inquiring judge’s candidacy over any other, particularly if that is not the case.  See  Canon 7A(3)(e)(ii) (forbidding candidate to “knowingly misrepresent . . . [any] fact concerning the candidate”).

The inquiring judge’s second question asks whether a county commissioner can serve as a campaign consultant.  In considering this question, we proceed on the assumption that the county commissioner is not an executive officer of a partisan political committee and offer no opinion on campaign finance issues or any other election law issue.

Judicial elections are non-partisan.  We have said, however, that a judicial candidate may accept and advertise an endorsement from an individual “elected partisan official”  “provided the support is in fact from an individual and not the political party that person represents, the official is not also campaigning for re-election, the partisan aspects of the official’s position are not mentioned, and the content of the advertising is not otherwise violative of the Code of Judicial Conduct.”  Fla. JEAC Op. 06-21.  We reasoned that there “is no presumption that a judicial candidate’s identification with an individual officeholder equates to adoption of that official’s party platform.”  Id.  

On the other hand, a candidate for judicial office cannot combine forces with any other candidate in the same election.  We answered “no” when asked the question:  “May a candidate for election to judicial office hire a partisan political candidate running for a different office to be the judicial candidate's campaign manager/ consultant?”  Fla. JEAC Op. 08-16 (Election).  But the inquiring judge here states that the county commissioner proposed as a campaign consultant is not currently running for office, a crucial distinction. 

In opining that Canon 7 did not permit judicial candidates who had hired the same campaign consultant to keep expenses down by a joint mailing, we “conclude[d] that mailing the brochures of the three judicial candidates in one envelope may give voters and potential donors the impression that the judicial candidates are working together. The joint mailing could imply that the judicial candidates share judicial and perhaps political philosophies.”  Fla. JEAC Op. 04-29 (Election).  On this basis, we concluded the joint mailing would be improper.

But we raised no objection to different judicial candidates’ hiring the same consultant.  We have also said that “a judge running for reelection may retain as a consultant a company in which another judge’s spouse has an ownership interest.”  Fla. JEAC Op. 03-20 (acknowledging spouse’s political autonomy).  We have not viewed retaining a campaign manager as presenting issues apart from issues related to endorsement of a candidacy or compromising the non-partisan nature of judicial elections.

In sum, we find no basis for a per se rule forbidding other, nonjudicial officeholders – who are not themselves candidates in the same election cycle, are not acting on behalf of any partisan organization, and are not presenting judicial candidates to the public as a group – to serve as campaign managers for judicial candidates. 

    

 

REFERENCES

Fla. Code Jud. Conduct, Canon 7 & 7A(3)(e)(ii).

Fla. JEAC Ops. 08-16, 08-11, 06-18, 06-21, 04-29, 03-20, 94-35 & 92-40.

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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.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

Participating Members:
(Election Subcommittee): Judge Robert T. Benton, II, Judge Dorothy Vaccaro & Patricia E. Lowry, Esquire.


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 provide 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 Committee.