FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-01 (Election)1
Date of Issue: January 9, 2012

ISSUES

QUESTION 1:  May a judge accept campaign contributions from a candidate running for office in a non-judicial election?

ANSWER: No. A committee of responsible persons established to secure funds for the campaign however may accept such contributions.

QUESTION 2:  May a judge accept contributions from an officer in a local political party organization?

ANSWER: No. A committee of responsible persons established to secure funds for the campaign however may accept such contributions.

QUESTION 3:  May a judge accept contributions that the persons identified in Questions 1 and 2 have generated, if neither of these persons is on the committee of responsible persons established to secure funds for the judge's campaign?

ANSWER: No. A committee of responsible persons established to secure funds for the campaign may accept such contributions.  Neither the judge nor the committee of responsible persons however may encourage or facilitate, directly or indirectly, the activities of either: (i) a candidate running for another office; or (ii) a political party or an officer thereof, to generate contributions to the judge's campaign.

 

FACTS

The inquiring judge is a candidate for reelection and asks whether the specified contemplated conduct is permissible under Canon 7 of the Florida Code of Judicial Conduct.

    

 

DISCUSSION

Questions 1 and 2.   The question posed by the inquiring judge relates to the acceptance of contributions, rather than the solicitation of contributions.

Canon 7C(1) prohibits a judicial candidate from personally soliciting campaign contributions, but provides that a committee of responsible persons may be established "to secure and manage the expenditure of funds for the candidate's campaign… ."

No provision of Canon 7 expressly relates to the acceptance of contributions.  Section 105.071(7), Florida Statutes, provides the only express prohibition against acceptance of contributions, and provides that a judicial candidate may not accept contributions from a political party. 

Canon 7 does not prohibit the committee of responsible persons from accepting contributions from any person but Canon 7C(1) provides that the  committee of responsible persons formed to secure funds for the judge's campaign are "not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law."

It can be argued that the distinction between acceptance and solicitation of a contribution which appears in the provisions quoted above results in it being permissible for a judicial candidate to accept (but not solicit) a contribution from anyone other than a political party.

The Committee believes, however, that the practical distinction between solicitation and acceptance of a contribution blurs in the context of a campaign.  Although the text of Canon 7(C)(1) speaks only to securing and soliciting contributions, and not acceptance of contributions, the purpose of the committee is to insulate the candidate from fundraising, in all of its aspects, including the acceptance of contributions.

Accordingly, it is the opinion of the Committee that the judicial candidate is prohibited from accepting contributions, a function which is reserved exclusively to the committee of responsible persons.

Having determined that the committee of responsible persons is the entity which should accept the contributions, it is then necessary to resolve the issue of whether that entity   may accept contributions from a person who is campaigning for a non-judicial office or from a person who is an officer of a political party.

Section 105.071(7) prohibits acceptance of contributions only from a political party itself, and not from officers of a party.  Nothing in the statutes or the Code disqualifies a candidate in a non-judicial election or an officer of a political party from contributing to a judicial candidate.

Accordingly, this Committee concludes that a committee of responsible persons may accept contributions to a judicial campaign from either a candidate for a non-judicial office or from an officer of a political party. 

Question 3.  For the reasons stated in the answer to Questions 1 and 2, the judge should not accept any contributions, but the contributions, if otherwise permissible, should be accepted only by the committee of responsible persons provided in Canon 7(C)(1).

The question then arises whether a contribution which a judicial campaign is not prohibited from accepting because of the identity of the donor may not be accepted because it has been "generated" by a candidate for a non-judicial office or an officer of a political party.

In other words, is a contribution which is otherwise permissible to accept "tainted" or rendered impermissible to accept because of the identity of the person who "generated" it?

The Committee assumes, for the purposes of this opinion, that the term "generated" means that a contribution has been solicited by one person of another person, obtained by the solicitor, and delivered by the solicitor to a member of the committee of responsible persons who is collecting contributions for the judicial campaign.

The Committee does not believe that the acceptance of such a contribution -- which has been generated by a candidate in another race, or by an officer of a political party -- by a member of the committee of responsible persons is prohibited.  Indeed, it is required by law only that the name of the person making the contribution be disclosed, and therefore it may well be that the identity of the solicitor of the contribution would never be known, and could not be reliably ascertained. 

The Committee's advice however that these contributions may be accepted notwithstanding the identity of the solicitor of the contribution, does not mean that the committee of responsible persons or the candidate should encourage or facilitate, directly or indirectly, the activities of such solicitors. 

As stated by this Committee, analysis of questions involving judicial candidates and support by political figures, begins "by pointing out two election-related activities that must be avoided at all costs.  The first is partisanship and the second is involvement in the political races of others."  Fla. JEAC Op. 2006-21.

The Supreme Court of Florida, in In Re Alley, 699 So. 2d 1369 (Fla. 1997), as well as this Committee in numerous opinions, has made clear that judicial candidates should not become involved in partisan politics.  

For a judicial candidate or a committee of responsible persons supporting that judicial candidate to have any contact for the purpose of encouraging or facilitating solicitation of contributions with an officer of a political party who is soliciting campaign contributions for a judicial candidate would violate that principle.

Similarly, the Committee has made clear that judicial candidates and committees of responsible persons should not become involved in campaigns of other persons running for election, whether that election be a partisan or a non-partisan position. 

For a judicial candidate or a member of a committee of responsible persons supporting that judicial candidate to encourage, facilitate, or have any contact for the purpose of encouraging or facilitating solicitation of contributions with a person running for election, or who is an officer of a political party, and who is soliciting contributions for a judicial candidate, would violate that principle.

    

 

REFERENCES

Florida Statutes, section 105.071.
In Re Alley, 699 So.2d 1369 (Fla. 1997)
Florida Code of Judicial Conduct: Canons 7, 7C(1).
Fla. JEAC Op. 2006-21.

 

_____________


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 Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law. The 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: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Jose′ Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


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.