FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-11 (Election)1
Date of Issue: May 20, 2012

ISSUE ONE

Whether a trial judge, who has opposition for reelection in a multi-county circuit may accept the public endorsement of the circuit’s elected State Attorney, for whom the judge worked three years before becoming a judge and who has publicly endorsed the judge in an earlier contested reelection.

ANSWER: Yes.

ISSUE TWO

Whether a trial judge, who has opposition for reelection in a multi-county circuit may accept the public endorsement of county sheriffs or police chiefs in the circuit.

ANSWER: Yes.

ISSUE THREE

Whether the judge may indicate the title or designation of office of the State Attorney, county sheriff, or police chief in any such publicly-stated endorsement, that is, whether the endorsement may list the supporters as State Attorney, county sheriff, or chief of police.

ANSWER: Yes.

 

FACTS

The inquiring trial judge faces opposition for reelection in a multi-county circuit.  The elected State Attorney for the circuit has offered to endorse the judge for reelection. The State Attorney has supported the judge in a prior contested judicial election. The judge worked for this State Attorney three years before becoming a judge. The judge has served a number of years in the criminal division of the circuit.

The inquiring judge asks whether a judge is permitted to accept the public endorsement of the elected State Attorney, the county sheriffs, and the police chiefs in the judge's jurisdiction and, if so, whether the judge may publicly identify these supporters by their title or office in connection with their endorsements.

  
DISCUSSION

Two election-related activities must be avoided at all costs. The first is partisanship and the second is involvement in the political races of others. JEAC 06-21. “Both Canon 7 of the Fla. Code of Jud. Conduct and Section 105.071, Florida Statutes, unequivocally prohibit judicial candidates . . . from becoming involved in partisan politics . . . [but t]he Committee believes that the Code of Judicial Conduct does not contain a blanket prohibition of accepting support from [elected public officials] in judicial races." JEAC Op. 06-21 (endorsement permissible where elected partisan official not running for office same cycle as judicial candidate receiving official's endorsement); see also JEAC Op. 06-24. Note, however, a judicial candidate may not accept an endorsement from a non-judicial candidate running for office in the same election cycle. JEAC Op. 10-14 (would impermissibly create appearance that judicial candidate running as part of a slate).

This Committee has consistently opined, "A judicial candidate may accept an endorsement from a non-judicial elected official who is not campaigning for election, but only if the partisan aspects of the official’s position are not mentioned.  Fla. JEAC Op. 10-14 (Election).  In JEAC Opinion 06-21, this Committee explained that the following conditions must be met for a judicial candidate to accept an endorsement from a non-judicial elected official:

  1. The endorsement is in fact from an individual and not the political party the person represents;
  2. The official is not also campaigning for re-election;
  3. The partisan aspects of the official’s position are not mentioned; and
  4. The content of the advertisement referencing such endorsement is not otherwise violative of the Code of Judicial Conduct."

JEAC Op. 12-18 (where non-judicial elected partisan official not appearing on the ballot and not campaigning for re-election, judicial candidate’s acceptance and publication of official’s endorsement in official’s individual capacity would not create appearance that judicial candidate is running as part of slate or is supporting political party).

Neither Florida's Code of Judicial Conduct nor Florida's statutes contain any prohibition against indicating the title or designation of office of the State Attorney, county sheriff, or police chief in any such publicly-stated endorsement. Thus, the Committee believes the endorsement(s) may be referenced on the judicial candidate's website, in the judicial candidate's printed campaign materials, and by the judicial candidate in an open forum while discussing his or her candidacy, so long as the above-referenced conditions are met. JEAC Op. 10-14.

The Committee adds an important caution to its response that a judicial candidate may receive and publicize the endorsement(s) of the State Attorney, sheriffs and police chiefs in the judge's circuit. Canon 2 provides, in pertinent part:

A.  A judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B.  A judge shall not allow . . . political or other relationships to influence the judge's judicial conduct or judgment . . . ; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.

Thus, judicial candidates must exercise discretion in the choice and use of endorsements to ensure the candidate does not convey the impression he or she will not be independent or impartial in carrying out the duties of office if elected.

The Supreme Court of Florida has reprimanded judicial candidates who have manifested the appearance of partiality toward the prosecution or law enforcement in campaign materials, advertisements, and comments. That court found substantial violations of Florida's Code of Judicial Conduct occurred sufficient to remove Judge McMillan from office when, while a candidate for office, he clearly indicated during his campaign that he would favor both the State and the police in court proceedings and also that he would side against the defense. In re McMillan, 797 So. 2d 560 (Fla. 2001); see also In re Kinsey, 842 So. 2d 77, 88 (Fla. 2003)(“...Judge Kinsey fostered the distinct impression that she harbored a prosecutor’s bias and police officers could expect more favorable treatment from....”).

The inquiring judge, who regularly presides over a criminal division, also seeks an opinion from the Committee about the effects of any endorsements from the State Attorney, sheriffs, police chiefs, or other law enforcement officials on a specific criminal case and about issues of disclosure and disqualification in that case. He observes that there have been or will be allegations in the case of possible Brady violations by the State Attorney’s office and claims of misconduct by various law enforcement agencies. The Committee declines to comment on any specific cases pending before a judge. The Committee notes that the implications of the suggested endorsements would apply to all the cases in the judge's division. The judge is directed to Canon 3E(1), which provides, in pertinent part, "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . ." Further, the judge asks about the effects of a waiver by the parties in that case to his possible disqualification. Any waiver of a disqualification is governed by Canon 3F, "Remittal of Disqualification," which states:

A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

If the judge concludes, in the specific case mentioned or in any other case, that the judge is disqualified from presiding over the matter because campaign endorsements from the State Attorney or law enforcement officials, considered individually or cumulatively, would cause a reasonable defendant to believe he or she could not receive a fair and impartial trial before the judge, then the judge should either enter an Order of Disqualification or follow the procedure set out in Canon 3F. Of course, if the parties, without participation by the judge, all agree the judge should not be disqualified, the judge can remain on the case. If they do not so agree, the judge must enter an Order of Disqualification.   

 

REFERENCES

In re McMillan, 797 So. 2d 560 (Fla. 2001); In re Kinsey, 842 So. 2d 77, 88 (Fla. 2003).
Florida Statutes Section 105.071.
Florida Code of Judicial Conduct Canons 2A, 2B, 3E(1), 3F, and 7.
Judicial Ethics Advisory Opinions 06-21, 06-24, 10-14, and 12-18.

_____________


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 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 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.