FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-09
Date of Issue: May 20, 2014

ISSUES

Must a judge seeking re-election who has appointed a “committee of responsible persons” for fundraising  purposes, and includes attorneys on that committee, always disclose those attorneys’ status to counsel or parties opposing the attorney(s) in proceedings before the judge, or may the judge use discretion based on the extent to which a given committee member has actually participated in the re-election campaign?

ANSWER: Yes. The judge must disclose in all such cases regardless of how active or involved a committee member actually has been.

Must the judge agree to disqualification in all post-disclosure cases if requested?

ANSWER: No. The mere fact an attorney has contributed to the judge’s campaign or assisted with the judge’s committee, without more, does not require automatic recusal. 

Must a judge assigned to a civil division, in which many cases may be inactive or in default status, actively seek out the attorney or parties in such cases to make the necessary disclosure, or may the judge limit such disclosure to circumstances where the judge is actually asked to take action in the case? 

ANSWER: No. The judge may limit disclosure to those cases in which some action by the judge is requested.

May the judge perform the necessary disclosure using the judge’s official letterhead at public expense?

ANSWER: Yes, because the disclosure is for the benefit of litigants and the integrity of the judicial system, not for the judge’s personal benefit.

FACTS

With this inquiry we are asked to withdraw, reconsider, or at least modify the recent Fla. JEAC Op. 13-19.  That opinion and the opinion upon which it heavily relied, Fla. JEAC Op. 07-17, were requested by sitting judges facing re-election and who had included attorneys in the committees designated by the judge to solicit contributions and support for the judges’ campaigns.  The inquiries dealt with the extent to which those judges, whenever one of their committee members appeared before them, should disclose that fact to an opposing counsel or party.  The inquiring judge maintains that Op. 13-19 is “not practical and does not take into account many circumstances involved in judicial campaigns.”  Apparently the judge has designated a fairly large committee that includes numerous attorneys.  Further, the judge advises that many of these individuals have limited themselves to signing a single letter of support, and may not even have made campaign contributions to the judge.  The judge asks that we draw a distinction between attorneys who have made significant contributions or have expended more than a token effort on behalf of the judge’s re-election, or what the judge describes as “a true, substantial and active position in the campaign.”  

 

DISCUSSION

We concluded in those earlier opinions, and now affirm, that disclosure is mandatory because the existence of that candidate-supporter relationship is per se relevant to the issue of potential disqualification of the judge.  Accordingly, we are unwilling to withdraw Op. 13-19.

Canon 7C(1) bars judges and judicial candidates from personally soliciting (a) campaign contributions from anyone and (b) public professions of support from attorneys.  Instead, these activities must be delegated to “committees of responsible persons.”  The Canon does not include more specific guidelines about whom or how many persons may sit on such committees.  Experience tells us that attorneys are often among those designated.  Neither does Canon  7C(1) distinguish on the basis of how much work these “responsible persons” actually do.  We assume that committee members are selected for a number of reasons ranging from the willingness to leave no stone unturned on the candidate’s behalf to the prestige inherent in an endorsement by a widely-respected individual who actually does no “heavy lifting.”  Much as this Committee does not vet individual pieces of campaign literature to insure compliance with the Code of Judicial Conduct, we are disinclined to micromanage committee appointments or attempt to refine the plain language of 7C(1).  It is, perhaps, broad in its scope, but we suspect it may have been written that way intentionally because no two committee members provide exactly the same services to the candidate and it may sometimes be challenging to quantify the actual value of what they do.  However, we do believe it is appropriate to distinguish between members of the judge’s specially designated committee and a lawyer who has, through that lawyer’s own initiative or who has been requested by members of the judge’s committee, to donate to, provide services to or endorse a judge’s campaign.

The inquiring judge also suggests that Op. 13-19 unnecessarily encourages motions for disqualification from attorneys who are not on the campaign committee.  We are not persuaded of this.  While we find this information relevant to an opponent’s perception of fair treatment, this in itself does not demand the conclusion it is dispositive.  The fact that an attorney is on judge’s campaign committee does not equate to recusal on demand.  The commentary to Canon 3E(1) requires only that “a judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”  

A body of case law has developed regarding the appropriateness of disqualification when one attorney is a contributor to the judge’s campaign or is working with the judge’s election committee.  The leading case with regard to contributors is MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990), which contains a thorough analysis spread over several separate opinions, and which holds that the mere fact of a contribution, standing alone, does not require disqualification.  Similarly, our appellate courts have held that the mere fact an attorney serves on one of these committees, standing alone, is not sufficient.  See, e.g., Neiman-Marcus Group, Inc. v. Robinson, 829 So. 2d 967 (Fla. 4th DCA 2002); Caleffe v. Vitale, 488 So. 2d 627 (Fla. 4th DCA 1986).  However, certain additional facts could lead to a different conclusion, and these can be said to dovetail somewhat with the inquiring judge’s concerns about passive or insubstantial committee members.  For example, in Caleffe, where disqualification was appropriate, the attorney in question was “actually running the judge’s ongoing re-election campaign.”  488 So. 2d at 629.  Similarly, in Barber v. MacKenzie, 562 So. 2d 755, 757 (Fla. 3d DCA 1990), it is clear the attorneys had a “substantial and continuing relationship” with the judge’s current campaign.1 In sum a bare-bones motion based solely on a contribution or endorsement letter is not likely to suffice, but a better-pled and detailed set of facts might.

Finally, the inquiring judge, who presides over a civil division with over two thousand pending cases, contends that it is unduly cumbersome to monitor so many files on a constant basis to ensure compliance with Op. 13-19.  As to this point we agree that a clarification or refinement of Op. 13-19 is warranted.  Op. 13-19, as noted above, relied in turn on Fla. JEAC Op.07-17, in which compliance was relatively easy because the judge in that case sat in a criminal division where frequent personal appearances are the norm, making disclosure relatively easy and prompt.  In Op. 13-19 we emphasized that the disclosure rule is not limited to criminal cases, acknowledging that the judge could find it “a bit more challenging in certain divisions of the court” to identify and notify attorneys or parties who would be entitled to such disclosure.  The specific docket in 13-19 “include[d] matters that are typically resolved by magistrates or are uncontested.”  In a civil division cases generally do not move forward unless someone takes the initiative to do so, and some percentage of the case load will result in the entry of defaults.  Accordingly, we take this opportunity to clarify that the need for disclosure does not arise until the judge is asked to take some action in the case.

As to how such disclosure should be made, such as in person vs. by mail, we leave that to the sound discretion of the judge.  In Op. 13-19 the judge asked if it is permissible to defray the cost with campaign funds, and we found no direct prohibition against it.2 However, we also observed that it is not mandatory for the judge to do so because “[t]he intent of the notification requirement is to insure fairness for parties who may have an objection to the judge remaining assigned to a given case, not to advance the judge’s campaign.”  Part of the Supreme Court’s analysis in MacKenzie v. Super Kids Bargain Store, Inc., supra, focuses on the political reality that trial judges must periodically run to keep their positions, that such efforts are not accomplished for free, and that some judges are not independently wealthy and so cannot realistically be expected to absorb the full cost of an expensive campaign.  Certainly it can be expected that some litigants may object to the judge continuing to hear their cases when the judge has received assistance from opposing counsel.  As Judge Alan Schwartz observed in Breakstone v. MacKenzie, 561 So. 2d 1164, 1167 (Fla. 3d DCA 1989), some such objections come from “the factually unsubstantiated perceptions of the cynical and distrustful,” but many of course do not.  While the inquiring judge expresses reservations about giving notification “at taxpayer’s expense,” the judge who makes these disclosures is constrained to do so by law.  The judge is not soliciting the support of the recipient, but instead is protecting the integrity of our judiciary by enhancing the perception of fairness. 

 

REFERENCES

Barber v. MacKenzie, 562 So. 2d 755, 757 (Fla. 3d DCA 1990)
Breakstone v. MacKenzie, (Fla. 3d DCA 1989)
Caleffe v. Vitale, 488 So. 2d 627 (Fla. 4th DCA 1986) 
MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)
Neiman-Marcus Group, Inc. v. Robinson, 829 So. 2d 967 (Fla. 4th DCA 2002)
Fla. Code of Judicial Conduct, Canons 3E(1) and 7C(1)
Fla. JEAC Ops.07-17 and 13-19

_____________


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, 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 Richard R. Townsend, Judge Dorothy L. Vaccaro. 


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator

 

1. These opinions also hold that the requirement of disqualification is likely to dissipate with the passage of time. However, the present inquiry limits itself to a campaign still pending at the time this is written.

2. We did, however, advise against the use of campaign stationary or literature for this purpose.