FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-10 (Election)1
Date of Issue: May 20, 2012

ISSUE

May a judge who is a candidate for re-election use in the judge’s campaign literature and electronic media a picture of the judge being sworn in at the judge’s investiture by a now deceased former judge?

ANSWER: No.

 

FACTS

The inquiring judge is a candidate for re-election who is contemplating using a photograph of the judge taken at the judge’s judicial investiture. The photograph in question depicts the judge being sworn in by another judge who is now deceased. The inquiring judge has indicated that the deceased judge pictured in the photograph has never publicly endorsed the judge. 

  
DISCUSSION

As a preliminary matter, the Judicial Ethics Advisory Committee (JEAC) has a standing policy not to vet campaign literature. Fla. JEAC Op. 94-35; Fla. JEAC Op. 08-11; Fla. JEAC Op. 10-18.  However, the Elections Subcommittee has concluded that the inquiring judge’s question is capable of reoccurring and may assist other candidates now and in the future.  

The use of a photograph in campaign materials and electronic media (e.g. candidate’s website, Facebook page, etc.) depicting a candidate for re-election with other judges, has been considered and addressed in previous opinions of this Committee.  JEAC Ops. 08-11; JEAC Op. 10-18.

In JEAC Op. 08-11, a judge seeking re-election sought to use in the judge’s campaign materials a photograph of the candidate judge and other judges touring a juvenile courthouse.  While acknowledging the juvenile courthouse photograph might fairly be described as depicting a routine news event featuring any and all officials who wished to attend, the Committee ultimately advised that the candidate judge should avoid use of photographs depicting other judges, both in campaign literature and on any website because Canon 7A(1)(b) forbids judges from endorsing any candidate for office. 

In JEAC Op. 10-18, a judge seeking re-election sought to use on the judge’s campaign website or in campaign literature a photograph taken when the judge was once awarded the “Distinguished Judicial Service Award.”  Visible behind the inquiring judge in the photograph were three justices, three former justices and the nameplate of a fourth former justice.  In addressing the candidate judge’s use of the photograph, the Committee pointed out that the justices depicted in the photograph did not, presumably, intend any endorsement of the inquiring candidate judge and explained this and of itself was a reason why the photograph should not be used by the candidate judge. The Committee further stated that the inquiring candidate judge should not represent, or even imply, that the justices support the inquiring judge’s candidacy over any other, particularly if that is not the case, citing to the dictate in Canon 7A(3)(e)(ii) that a candidate for a judicial office shall not “knowingly misrepresent. . . [any] fact concerning the candidate.” 

In the present inquiry, while the candidate judge’s intentions for including the photograph may be innocent in nature, the Committee believes that inclusion of the photograph could give the impression that the deceased judge previously endorsed or would have endorsed the candidate judge.

As touched upon above, in Fla. JEAC Op. 10-18, the Committee identified two specific reasons why use in campaign materials of a photograph of justices visibly behind a candidate judge was prohibited.  First, the Committee recognized that the justices depicted in the photograph did not, presumably, intend any endorsement by appearing in the photograph.  Second, and perhaps more importantly as it relates to the actions of the inquiring candidate judge in the present inquiry, the Committee determined “[t]he inquiring judge should not represent, or even imply, that the justices support the inquiring judge’s candidacy over any other, particularly if that is not the case.”  This determination was, and remains, rooted in the language of Canon 7A(3)(e)(ii) that provides a candidate for a judicial office shall not “knowingly misrepresent. . . [any] fact concerning the candidate.”

The Committee is aware that the current inquiry is factually distinguishable from Fla. JEAC Op. 08-11 and Fla. JEAC Op. 10-18 in that it involves the use of a photograph of a deceased judge.  However, whether the judge in the photograph is alive or deceased appears to be a distinction without a difference as it relates to the application of Canon 7A(3)(e)(ii) and the actions of the candidate judge in this inquiry.  It is the candidate judge’s actions of including the photograph that must be analyzed and considered as well as the potential message use of the photograph in campaign materials sends to the intended audience of the materials – the voting public. 

Regardless of whether the judge in the photograph is deceased or alive, it appears the use of this photograph could “imply” to the voting public that the judge pictured with the candidate judge previously endorsed or would have endorsed the candidate judge.  It must be recognized that the audience to whom the campaign materials are directed may or may not realize the pictured judge is deceased, but this realization arguably does not change the outcome of the inquiry.  For example, if the voting public knows the judge pictured with the candidate judge is deceased, the picture still potentially implies the deceased judge previously endorsed or would have endorsed the candidate judge.  If the voting public does not know the judge pictured is deceased, the picture potentially implies the pictured judge endorses the candidate judge.  These implications, and potential misrepresentations, are the very type of conduct addressed in Fla. JEAC Op. 10-18 and prohibited by Canon 7A(3)(e)(ii).

Therefore, given this Committee’s prior opinions prohibiting the use of photographs depicting other judges, both in campaign literature and on any website, and given candidates have an obligation under Canon 7A(3)(e)(ii) to not knowingly misrepresent a fact concerning their candidacy, and given that use of the photograph in question could imply and give to the voting public the perception of endorsement of the inquiring candidate judge by the deceased judge pictured in the photograph, the Committee believes the inquiring judge should avoid use of the photograph in question in the judge’s campaign materials and electronic media.

 

REFERENCES

Fla. Code Jud. Conduct Canons 7A(1)(b),  7A(3)(e)(ii)
Fla. JEAC Op. 94-35
Fla. JEAC Op. 08-11
Fla. JEAC Op. 10-18.

_____________


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 Terry 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 the Florida 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 judge or candidate. 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.