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: 2010-30
Date of Issue: August 18, 2010

ISSUE

Whether a judicial candidate who is not a judge can attend a candidates’ forum to which all candidates are invited at which candidates are asked to pay for tables from which to distribute campaign literature?

Does it matter if the event is a fundraiser for the sponsoring organization?

ANSWER: Yes, so long as the event is non-partisan and all candidates are required to pay the same amount to participate.

For a candidate who is not a sitting judge, it does not matter whether the event is a fundraiser.

FACTS

A local, non-partisan, leadership meet-the-candidates event has been scheduled and all candidates have been invited to attend.  “There is a $200 fee for the candidate which allows the candidate to have a table and pass out campaign information it also includes food for the candidate.”  A breakdown of the actual costs is not known. The inquiry asks whether it matters whether the event is a fundraiser.

The inquiring candidate suggest that excluding judicial candidates from non-partisan fundraising events like the one described above puts the judicial candidates at a disadvantage from meeting the voting community.   

DISCUSSION

The JEAC has previously opined that “a judicial candidate may purchase a table with campaign funds, distribute campaign literature, and meet voters at a county-wide, non-partisan event,” if the event is truly non-partisan and the candidate does not comment on party affiliation.  Fla. JEAC Op. 04-23.

In Opinion 04-23, and again in Opinion 04-27, we stated as a condition of participation—by sitting judges and by non-judge candidates alike—that the event not be a fundraiser.  (In this connection, we said, however, “The organization that charges a fee to defray costs and expenses is not fund-raising” even if the sponsor is “making an incidental profit.”)

Earlier this year, however, we revisited and clarified the applic-ability of fund-raising restrictions on candidates who are not sitting judges.  See Fla. JEAC Ops. 10-23, 10-14 and 10-05 (“[T]he Supreme Court of Florida, in its opinion in In re: Kinsey, 842 So.2d 77 (Fla. 2003), held that Canon 7 of the Code of Judicial Conduct is the only canon applicable to candidates for judicial office.”).  In JEAC Opinion 10-23, we concluded that a non-judge candidate could campaign at a charitable fundraiser, citing JEAC Opinion 10-14 for the proposition that “non-judge judicial candidates were only governed by Canon 7 and not by the remainder of the Code of Judicial Conduct.”

In other words, if the candidate is not already a judge there are no restrictions on the candidate’s raising funds for charity.  We said:

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.”

Fla. JEAC Op. 10-23.  Since the inquiring candidate is not a sitting judge, the candidate is not under canonical restrictions concerning raising funds for charity.

REFERENCES

Fla. Code Jud. Conduct, Canon 7.
Fla. JEAC Opinions:  10-23, 10-14, 10-05, 04-27 & 04-23.

_____________

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 a 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. See 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. See 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 Kerry I. Evander, Chair, Judicial Ethics Advisory Committee, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida  32114-5002.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge José Rodriguez, Judge C. McFerrin Smith III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.


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)