FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-16
Date of Issue: August 5, 2014

ISSUE

May a sitting judge, who is not up for election in the current cycle, and whose adult child is running for an open judicial position, attend the adult child’s post-election gathering after all polls close in the relevant voting area?

ANSWER: Yes.

FACTS

The adult child of a sitting judge is running for an open judicial seat. The inquiring judge would like to attend the adult child’s post-election gathering. The inquiring judge states that, in an attempt to avoid the appearance of influencing potential voters, the judge would not attend the gathering until all relevant polls are closed. The inquiring judge adds that the post-election gathering will be comprised of people who previously knew the judge as the candidate’s parent.

 

DISCUSSION

This inquiry is governed by Canon 7. A majority of this Committee believe that the judge’s attendance at the social function is permissible under that Canon, at least under the limited circumstances enumerated in this opinion, but one member concludes that the inquiring judge should not attend the post-election gathering described.

The intent of Canon 7 is to separate judges and judicial candidates from political activity, including partisan activities and, more relevant to the present inquiry, endorsement of other candidates for public office. See Fla. JEAC Ops. 07-13, 06-13. Canon 7A(1)(b) quite specifically states that a judge shall not “publicly endorse or publicly oppose another candidate for public office.” Canon 7D also states: “A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law, the legal system or the administration of justice, or (iii) as expressly authorized by law.” Accordingly, the dispositive question is whether the inquiring judge’s proposed conduct constitutes a public endorsement for purposes of Canon 7.

The majority view is that it does not but, as noted, their position has taken into account four unusual and very specific facts included within the inquiry. First, the Committee assumes this function is intended as a typical victory party following the completion of the election. If so, it is difficult to conceive how the judge’s personal appearance could influence any voters given that the act of voting was accomplished hours before the event commenced. A different conclusion would have been drawn if the inquiring judge’s child were in a multi-candidate race with the prospect of a runoff.

Second, the majority’s determination is limited to judicial races only, in which partisanship is not a factor and the candidates themselves do not make endorsements. In other words, this will not be a combination of celebration and “rallying the troops” such as may be experienced in partisan or issue-oriented politics. A post-election gathering can easily become a political event based on what occurs, which will not be known until the event is in progress. See, e.g., Fla. JEAC Op. 10-20: “[C]aution is strongly advised when attending these types of events, since the purpose is for the citizens to voice their opinions on varying issues and their expectation of receiving a pledge or commitment on particular issues from the public figures and/or elected officials.” See also Fla. JEAC Op. 98-17 (judicial candidates should be cautious that their presence, remarks, and/or actions are not construed by others to be political or partisan).

Third, it is important that the inquiring judge not be up for election or retention during the same cycle as the judge’s child, lest the event be perceived as participation in a slate of candidates rather than an event limited to honoring a specific and successful individual candidate. Conceivably a different conclusion might be drawn if both the judge and the judge’s child had won their respective races, but for purposes of this opinion we limit ourselves to the actual facts.

Fourth and finally, the majority have placed considerable weight on the fact the candidate is the inquiring judge’s child. It is difficult to imagine that any voter would not assume that the judge supports the child’s electoral efforts even if the judge cannot personally say so during the campaign.

The minority position argues for a stricter construction of Canon 7. As the Supreme Court of Florida made clear in In re Glickstein, 620 So. 2d 1000 (Fla. 1993), “Canon 7A is absolute in its prohibition of public endorsements of political candidates.” 620 So. 2d at 1002. Moreover, the prohibition against publicly endorsing another candidate for public office applies to endorsements made both by action or word. See Fla. JEAC Op. 07-13. Of particular importance here, the prohibition applies equally when the judge and candidate are members of the same family. See Fla. JEAC Ops. 07-13, 06-13, 87-22. Additionally, this Committee has advised that a post-election public gathering held by a candidate for public office is a “campaign-related event,” rather than a “purely social function.” Fla. JEAC Op. 12-03 (victory party found to be a “campaign-related event” at which the inquiring judge may not appear).

The majority, however, conclude that these prior opinions can be distinguished. Among those closest on point, 06-13 and 07-13 involved judges whose spouses were candidates for political office. In both instances the judges inquired about the permissibility of accompanying the spouse to campaign-related events such as a “meet-and-greet.” That is, the spouses’ election attempts were still ongoing at the time of the functions being considered.1

The majority do acknowledge that Fla. JEAC Op. 12-03 may appear distinguishable only in that the successful candidate (who was unopposed) was a friend as opposed to a relative and was running for a non-judicial office. However, the majority also believe that the following cautionary language from 12-03 explains the Committee’s hesitancy to endorse the proposed conduct of that judge: “Here, although it is possible that the attendees would belong to more than one political organization and the party is not for one particular group, it appears that the party is not a “purely social function,” but a part of the campaign of the judge’s friend as it is a victory party to celebrate a successful candidacy” [footnote omitted]. The particular candidate had stood for election as a mayor. Whether nominally partisan or not such a high office is closer to the modern concept of “permanent campaign” than is a judicial race where the only allowable commitment is to fair and diligent application of the law.

We decline to speculate whether a distinction should be drawn between a judge who is a parent and one who is a more distant relative or, as in Op. 12-03, a close friend.

The dissenting Committee member, notwithstanding the inquiring judge’s representation that attendance at the post-election gathering would be as a parent, and not as a judge, points out that in Fla. JEAC Op. 06-19 this Committee determined that the judge’s good intentions are inconsequential as the mere presence of a judge at an event has the potential to convey a message of political support. See also In re Glickstein, 620 So. 2d at 1002; Fla. JEAC Op. 06-25 (“[O]nce an individual occupies a judicial office or becomes a candidate for judicial office, he can no longer separate his public position from his private status.”). Although the commentary of Canon 7A(1)(b) states that Canon 7 “does not prohibit a judge or judicial candidate from privately expressing his or her views on judicial candidates or other candidates for public office,” a judge cannot avoid the strictures of the Florida Code of Judicial Conduct by seeking to place oneself in a “private citizen status,” and thus the status of parent would not separate the inquiring judge from the judge’s public position. Canon 7A(1)(b) (commentary); Fla. JEAC Op. 06-25.

REFERENCES

In re Glickstein, 620 So. 2d 1000 (Fla. 1993).

Fla. Code Jud. Conduct, Canons 7, 7A, 7A(1)(b), 7D, Commentary to Canon 7A(1)(b).

Fla. JEAC Ops. 12-03, 10-20, 07-13, 06-25, 06-19, 06-13, 87-22.

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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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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 whether the proposed conduct violates a provision of that Code.

For further information, contact Dean Bunch, Chair, Judicial Ethics Advisory Committee, 3600 Maclay Boulevard, South, Tallahassee, Florida 32312.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, 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 Richard R. Townsend.


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

 

1. Interestingly, both opinions did express the view that the spouses could utilize family photos featuring the inquiring judge in campaign literature, so long as the judge’s position was not identified.