FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Receded from by Opinion 2011-15 to the extent that the Committee used language that suggests contrary advice to the advice given in that opinion.

Opinion Number: 2010-23 (Election)1
Date of Issue: July 1, 2010

ISSUE

May a (non-judge) judicial candidate wear a campaign badge or button and distribute campaign literature while attending a fund-raising event for a charitable organization?

ANSWER: Yes.

FACTS

The inquiring judicial candidate is not a judge.  The candidate asks whether it is permissible to campaign (wear a campaign button, distribute campaign literature) while attending a fund-raising event for a charitable organization.

    
DISCUSSION

In the recent Fla. JEAC Op. 10-14, this committee concluded that a non-judge judicial candidate could participate in a walk-a-thon to raise funds for a charitable organization while wearing a shirt that advertised the candidate's campaign.  In our opinion, we observed that non-judge judicial candidates were only governed by Canon 7 and not by the remainder of the Code of Judicial Conduct.  See also In re Kinsey, 842 So. 2d 77 (Fla. 2003); Fla. JEAC Ops. 10-05 and 02-18

Restrictions on a judge's partici-pation in a charity's fund-raising event derives primarily from Canon 2B's provision that "[a] judge shall not lend the prestige of judicial office to advance the private interest of the judge or others;" and several provisions found in Canon 5.  See, e.g., Canon 5A(6) ("A judge shall conduct all of the judge's extrajudicial activities so that they do not appear to a reasonable person to be coercive."); Canon 5C(3)(b)(i) ("A judge . . . shall not personally or directly participate in the solicitation of funds. . . ."); Canon 5C(3)(b)(iii) ("A judge . . . shall not use or permit the use of the prestige of judicial office for fund raising or membership solicitation.")  These Canons are not applicable to the inquiring candidate.

The inquiring candidate has called our attention to the Fla. JEAC Op. 04-27 in which we opined that Canons 2B, 7C(3) and 5C(3)(b) collectively prohibited judges and judicial candidates from participating in a "meet and greet" fundraiser sponsored by a local chamber of commerce.  We take this opportunity to “clarify” that the statement in Fla. JEAC Op. 04-27 referred to “judges who are judicial candidates.” 2

Dissenting Opinion

One member of the JEAC dissents from the majority opinion.3  The dissenting member believes that Fla. JEAC Op. 04-27 should be receded in its entirety.  The majority limits its opinion to the fact that non-judge judicial candidates are only subject to Canon 7 and that they are not bound by Canons 2B, 5A(6), 5C(3)(b)(i), and Canon 5C(3)(b)(iii). Therefore, the inquiring judicial candidate, according to the majority, may attend a charitable fundraiser and wear a campaign badge or button and distribute campaign literature. The majority “leave[s] for another day” (see footnote 2) whether the JEAC should recede from 04-27 as it pertains to judicial candidates who are judges.

The dissenting member adheres to the philosophy that the JEAC should limit its opinions to the facts of the specific inquiry. The inquiry came from a non-sitting judge.  However, judicial campaigns are short in length, approximately twelve weeks. Civic events, fundraising or non- fundraising, provide judicial candidates a means of exposure to the public.4 The majority opinion places sitting judges at a distinct disadvantage during their election campaigns. The dissenting member believes that the logical extension of prior JEAC opinions will result in Fla. JEAC Op. 04-27 ultimately being receded from as to sitting judges who are in election campaigns.

Judges may attend civic fundraisers as long as they are not a speaker, guest of honor, or otherwise featured at an organization’s fundraising event. See Fla. Code Jud. Conduct, Commentary to Canon 5C(3)(b). Fla. JEAC Op. 10-15 allows a judge to participate as a walker in a walk-a-thon fund-raiser to benefit a charitable organization so long as the judge does not solicit sponsorships. Judges may even purchase advertisements that congratulate the recipient of an award in program materials to be distributed at a fundraising event for a civic organization where the advertisement would include the judge’s name and title. Fla. JEAC Op. 08-23. The key to judges’ participation in any manner in a civic organization’s fundraising is whether the judge is using judicial office to implicitly or explicitly solicit funds for the organization. A judicial candidate who is attending a civic fundraiser wearing a campaign badge or button and distributing campaign literature is not soliciting funds for the civic organization. To the contrary, the judicial candidate is soliciting votes. No reasonable person could believe otherwise. For that reason, the dissenting member would permit sitting judges and non-judges who are in a judicial campaign to attend fundraisers for charitable events and wear their campaign badges or buttons and distribute campaign literature. 

 

REFERENCES

In re Kinsey, 842 So. 2d 77 (Fla. 2003)

Fla. Code Jud. Conduct, Canons 2B; 5A(6); 5C(3)(b); 5C(3)(b)(i); 5C(3)(b)(iii); 7C(3); Commentary to Canon 5C(3)(b); An Aid to Understanding Canon 7

Fla. JEAC Ops. 10-15, 10-14, 10-05, 08-23, 04-27, 02-18

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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:
(Elections Subcommittee): Judge Roberto Arias, Dean Bunch, Esquire, and 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.

2 We leave for another day the question of whether we should recede from Fla. JEAC Op. 04-27 as it pertains to judges engaged in a campaign for judicial office.  One must ask whether the type of campaign activity described above, if engaged in by a judge, would reasonably be perceived as an activity which would lend the prestige of the judicial office to a charity's fund-raising event as opposed to being viewed only as an effort to advance the judge's election campaign.

3 The JEAC has two election subcommittees composed of three members each. Election subcommittees are responsible for writing election opinions and they vote among themselves. However, prior to the release of an election opinion, the remaining nine members of the JEAC have an opportunity to object to the election subcommittee’s opinion and to write a dissent. This is what has occurred in this opinion.

4 Canon 7 already limits the exposure of all judicial candidates to members of the public who are often very interested in elections.