FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-05
Date of Issue: March 19, 2014

ISSUES

Whether an elected State office holder must resign, in order to become a candidate for election to judicial office.

ANSWER: Not under the specific fact situation faced by this candidate.

FACTS

The inquiry comes from an elected State office holder, who was elected in a partisan election and serves as a member of a political party, who “inten[ds] to file to run” for election to judicial office.  The inquirer holds no office in the national, state, or local political party, and holds no office within the body in which the official currently serves.  

 

DISCUSSION

We begin our discussion by expressing the belief that the inquiry, while it may appear at first blush to involve section 99.012, Florida Statutes (2013) commonly known as the Florida “resign to run” law, is not actually governed by that statute but rather a different one specifically directed to judicial elections, §105.071, Fla. Stat. (2013), and, more important to this Committee’s province, Canon 7 of the Code of Judicial Conduct.1   The question presents a mix of the legal and the ethical.  We stress that it is not the function of this committee to provide legal advice to inquiring judges and candidates, but only to express an advisory opinion as to whether he proposed conduct could create ethical problems for a judge or candidate under the Code of Judicial Conduct.  However, in this instance the appropriate Canon dovetails so closely with the legislative intent expressed in § 105.071 that it is uncommonly difficult to comment on the one but not the other.

The narrow question before this Committee is whether the inquiring candidate must resign the current position immediately, before commencing a judicial campaign.  Even though the candidate cannot, and does not plan to, seek re-election to the legislature at the same time,  the official duties of that office are ongoing and may require further service through the upcoming election cycle.  For the reasons that follow, a majority of the Committee believes the correct answer is no. 

Canon 7 mandates that a candidate for judicial office refrain from “inappropriate political activity.” Among the more rigorously enforced provisions is that forbidding partisan political activity.  For example, Canon 7(A)(1)(d) specifically provides that a candidate shall not “attend political party functions.”  A “candidate” is defined by the Canons, in relevant part, as “[a person becomes a candidate for judicial office] as soon as he or she makes a public announcement of candidacy – that is, not when the candidate officially qualifies for the office. The term “political party” is not defined by the Code, but “political organization” is defined as “a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office.”  See Definitions, Code of Judicial Conduct.  Canon 7A(3) also provides that a candidate “shall not be swayed by partisan interests” and shall “act in a manner consistent with the impartiality . . . and independence of the judiciary.”  Fla. Code Jud. Conduct, Canon 7A(3)(a),(b). 

To that end, a judicial candidate’s partisan political activity is limited to those items specifically described in Canon 7C(3).  That Section states, in part:

A judicial candidate . . . may attend a political party function to speak in behalf of his or her candidacy or on a matter that relates to the law, the improvement of the legal system, or the administration of justice.  The function must not be a fund raiser, and the invitation to speak must also include the other candidates, if any, for that office.  The candidate should . . . avoid expressing a position on any political issue.

See also Fla. JEAC Ops. 06-15, 04-11.  Beyond these limited items, judicial candidates in Florida are prohibited from engaging in partisan political activity.  See In re Angel, 867 So. 2d 379 (Fla. 2004); In re Alley, 699 So. 2d 1369 (Fla. 1997); Fla. JEAC Op. 06-18 n.2.  

Even if the work,  performed by a partisan  state officeholder, is not viewed as “political party function” prohibited by Canon 7A(1)(d), this Committee has opined that a candidate should not attend an event that is not a “political party function” if it is “potentially very political” and could easily become a “political event” promoting a particular political persuasion.  See Fla. JEAC Op. 10-20.    

More directly, political activity is strictly limited by section 105.071, which prohibits a judicial candidate from, among other things, participating in any partisan political party activities, representing him or herself as a member of a political party, or making political speeches other than in the candidate’s own behalf.  That section states, in part:

A candidate for judicial office shall not:
(1) Participate in any partisan political party activities, except that such candidate may register to vote as a member of any political party and may vote in any party primary for candidates for nomination of the party in which she or he is registered to vote.
(2) Campaign as a member of any political party.
(3) Publicly represent or advertise herself or himself as a member of any political party.
(4) Endorse any candidate.
(5) Make political speeches other than in the candidate's own behalf.
(6) Make contributions to political party funds.
(7) Accept contributions from any political party.
(8) Solicit contributions for any political party.
(9) Accept or retain a place on any political party committee.

§ 105.071, Fla. Stat. (2013).

Based upon section 105.071, this Committee has stated that “the only permitted political activity or expression by a judicial candidate is the exercise of the candidate’s right to vote.”  Fla. JEAC Op. 02-11 (emphasis added); accord Fla. JEAC Op. 02-13

The position of a minority of the committee, who would hold the candidate must resign the current office before commencing the judicial campaign, is based on these authorities and what the minority consider logical inferences therefrom.  The minority believe that it is difficult, if not impossible, to conclude that the activities of a member of the state legislature, which include drafting, sponsoring, and supporting legislative bills on a variety of substantive civil and criminal legal issues, would not fall within the spectrum of those prohibited by section 105.071.  Moreover, the intended candidate’s political party affiliation and bill sponsorship are both public record, and easily available for public viewing in the State elections office website.  See Fla. JEAC Op. 02-13 (“The disclosure of political party affiliation to any member of the public in the course of a campaign improperly injects partisan politics into a non-partisan judicial race.”).   

That said, however, and as noted above, the law does not prohibit judges or judicial candidates from continuing to register with a political party for purposes of casting their personal vote in elections.  Further, it is not impossible for an interested voter to ascertain, through public records, how any judge or candidate is registered, even if the judge/candidate personally refrains from advertising that fact.2 The Canons prevent only the judge or candidate from campaigning as a member of a specific party, and do not apply to citizens who may insist on having such information (or others, not under the direction of the judicial candidate, from reporting it; but see section 105.09, Fla. Stat.).

It will be noted that Canon 7A(2) does require that judges running for partisan office must resign immediately upon becoming a candidate.  However, this fact does not demand the conclusion that a partisan official seeking a judgeship must do the same.  Sittingjudges may not engage in partisan electioneering at any time during their judicial careers.  This a clearly definable line in the sand, unlike the situation faced by the inquiring candidate.  In the present case, it is not unreasonable to conclude that whatever partisan electioneering this individual may have engaged in has already occurred.  That is, the majority perceives a distinction between running for the legislature and serving in it following a successful campaign.  This is true even if, as at least one Committee member suggested, legislators may sometimes be pressured to “follow the party line.”  The partisan behavior of any given member of a legislature does not mean the legislature itself is a “political party function.”  It is a governmental function.

The majority also note that the Canons do not seem to prohibit former legislators, when later seeking judicial office, from advertising their past experience in government as proof of their commitment to public service, at least so long as they do not mention their party affiliation.  The legislature has never specifically attempted to exclude sitting members from seeking judicial office, assuming the Florida Constitution would permit it to do so.  See, e.g., Levey v. Dijols, 990 So. 2d 688 (Fla. 4th DCA), rev. denied, 994 So. 2d 304 (Fla. 2008) (qualifications for judicial office are limited to those enumerated in the Constitution).  It is simply not possible for any person in public life to escape history; the Canons require only that the candidate not improperly manipulate that history by injecting partisanship into a judicial campaign.

In reaching this conclusion, the majority are not unmindful of the well-stated concerns of the remaining Committee members.  Although we do not believe the Canons impose the requirement of immediate resignation from the existing office, they may well call for restrictions on the candidate’s conduct for the remainder of the legislative term.  Casting votes and arguing for or against the merits of a proposed piece of legislation is one thing, but it is not uncommon for partisan officeholders to endorse other candidates, speak before or serve in political organizations, attend party functions, and the like as adjuncts to the express duties of their office, as well as directly participate in fundraising. Conduct of this latter type are expressly forbidden by the Canons and should be scrupulously avoided.

 

REFERENCES

§ 97.0585, Fla. Stat.
§ 99.012, Fla. Stat. (2013).
§ 105.071, Fla. Stat. (2013).
§ 105.09, Fla. Stat. (2013).

In re Angel, 867 So. 2d 379 (Fla. 2004); In re Alley, 699 So. 2d 1369 (Fla. 1997).

Levey v. Dijols, 990 So. 2d 688 (Fla. 4th DCA), rev. denied, 994 So. 2d 304 (Fla. 2008)

Ruiz v. Farias, 43 So. 3d 124 (Fla. 3d DCA 2010).

Fla. Code Jud. Conduct, Canon 7.

Fla. JEAC Ops. 10-20, 06-18, 06-15, 04-11, 02-13, 02-11.

 

_____________


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 to 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 which governs any proceeding over which the inquiring judge may preside. 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 Judge Roberto Arias, Chair, Judicial Ethics Advisory Committee, Duval County Courthouse, 501 West Adams Street, Room 7180, Jacksonville, Florida 32202-4603.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michael Raiden, Judge Dorothy L. Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
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 object of the ‘resign to run’ law is to prevent persons who are running for a new position from the safe haven of a current position to which the candidate can retreat in the event [he or] she is unsuccessful.”  Ruiz v. Farias, 43 So. 3d 124, at 127 (Fla. 3d DCA 2010).  The office currently held by the inquiring candidate is a legislative position.  That term will expire at the end of this year, and the judicial position the candidate proposes to seek will not officially be vacant until after that. In other words, the terms of those offices will not overlap.

2. This information is not among the matters exempt from public disclosure by section §97.0585, Fla. Stat. (2013).