FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2016-06 (Election)1
Date of Issue: May 12, 2016

ISSUE

May an incumbent judicial candidate publicly comment about the events surrounding the termination of a court employee, including the employee’s arrest and conviction?

ANSWER: Yes.

FACTS

The inquiring judge is involved in a contested campaign for reelection. Some time ago, a court employee who worked in the same courthouse as the inquiring judge was terminated, and later arrested and convicted. After the employee’s termination, the employee made certain allegations about the inquiring judge. At sentencing, the employee made remarks apologizing to the inquiring judge. The employee was sentenced to a period of incarceration and probation. The employee is currently on probation.

The inquiring judge advises that there have been media accounts during the current campaign about the employee’s previous allegations about the inquiring judge. The inquiring judge would like to publicly comment on the former employee’s allegations, and on the former employee’s comments at sentencing, but is concerned whether doing so would contravene the proscription of Florida Code of Judicial Conduct, Canon 3B(9), which states:

A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing… This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.

 

DISCUSSION

Because the former employee remains on probation, it is theoretically possible that the employee may be involved in future court proceedings. However, no such proceeding is pending or impending. More to the point, the inquiring judge was not the presiding judge in the employee’s criminal case. Cf. Fla. JEAC Ops. 98-28 (inquiring judge who presided over case that is currently on appeal cannot appear in documentary concerning the case); 11-16 (inquiring judge may not speak to conference of judges and others interested in the administration of justice concerning a trial presided over by the judge and which is being appealed). The inquiring judge would have even less connection to any future court proceedings stemming from the employee’s probationary status.

Consequently, the Committee is of the opinion that the inquiring judge can comment on the allegations made by the employee about the judge, including discussing comments by the employee at sentencing, so long as the inquiring judge’s comments are truthful and do not otherwise violate the Canons. See Republican Party of Minn. v. White, 122 S. Ct. 2528 (2002) (stating that speech about the qualifications of candidates for public office, including judges, is at the core of our First Amendment freedoms).

 

REFERENCES

Republican Party of Minn. v. White, 122 S. Ct. 2528 (2002)
Fla. Code of Jud. Conduct, Canon 3B(9)
Fla. JEAC Ops. 98-28, 11-16

 

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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 Judge Barbara Lagoa, Chair, Judicial Ethics Advisory Committee, Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami, FL 33175.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Miguel de la O, Judge James A. Edwards, Judge Jack Espinosa, Jr., Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, Judge Michael Raiden.


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. 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 candidate or judge. 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.