FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2016-08 (Election)1
Date of Issue: June 22, 2016

ISSUE

May a judicial candidate attend a gathering sponsored by a group claiming no party affiliation but describing itself as “conservative,” where a fee is charged for attendance solely to defray the costs of the event and all candidates for the same office are not guaranteed an opportunity to attend and speak?

ANSWER: Yes, unless the organization is political (as that term is defined by the Code of Judicial Conduct), in which case the candidate cannot pay a fee to attend, and may attend only if (1) all judicial candidates are allowed to attend without purchasing a table, and (2) all judicial candidates are invited to speak and are guaranteed equal time to do so.

 

FACTS

The inquiring judicial candidate asks whether it is permissible to attend a function to be held in the candidate’s circuit of residence. The organization sponsoring the event does not claim any precise party affiliation but does describe itself as “conservative” and in favor of “limited government.” However, its vision statement indicates the organization once included “Tea Party” in its name. It appears that the group intends to bring together candidates for federal, state, and local office, and that all judicial aspirants would be welcome. A $50.00 fee will be charged, for which the attendees will be permitted to set up a table and talk to those in attendance. However, the invitation indicates space is limited and candidates will be obliged on a “first come, first served” basis. Prior to seeking this Committee’s opinion the candidate asked the organization whether attendees will be allowed to speak, and was informed they can do so if they have paid the $50.00. Further, this opportunity will be parceled out as time permits - that is, not every candidate is guaranteed speaking time.

 

DISCUSSION

The propriety of judicial candidates appearing at public election year gatherings, particularly those where an attendance fee is charged, depends in part upon who is sponsoring the event. In Florida Judicial Ethics Advisory Committee Opinion 15-13 the inquiring judge, who was facing a re-election campaign, asked if it would be permissible to attend a candidate’s fair sponsored by a local Chamber of Commerce and requiring a fee of $50.00. (The price included a barbecue dinner.) The judge’s concern in that case was not partisanship but whether the function could be viewed as a charity fundraiser. This Committee looked to the relatively modest fee for participating and concluded that by attending the judge should not be seen as promoting the event in violation of Canon 5C(3)(b) of the Code of Judicial Conduct regarding assistance with charitable fundraising. Importantly, the Committee also noted that there was no indication the Chamber of Commerce intended to make endorsements or utilize the proceeds for political contributions. Accordingly, we expressed the opinion that attendance was permissible.

The rules are different when the event is sponsored by a political party. Attendance at partisan events is governed by Canon 7C(3). In order for a judicial candidate to attend, the sponsor must extend the invitation to all other candidates for the same office. Additionally the event must not be a fundraiser for the party. We last visited this issue in Florida Judicial Ethics Advisory Committee Opinion 14-08. Notably, the sponsor in that inquiry was proposing to sell tables for $100.00 to any candidate who wished to participate, as well as advertising space in its bulletin, though there was no indication that said payment was required. The candidate advised us that the event was not a fundraiser and that the proceeds would be used only to cover costs. This Committee concluded that the candidate could attend but that the expenditure of money “would reasonably be construed by others to suggest that the candidate supports the political party sponsoring the event.” We cautioned the candidate not to sponsor a table or pay for an advertisement in the program.

Accordingly, our first task is to determine whether the function in the present case is partisan in nature. As noted, apart from describing itself as “conservative” the sponsor of this event no longer expressly claims a particular party affiliation. However, the Code of Judicial Conduct’s definition of “political” is not limited to formally established political parties, but extends also to “other group[s], the principal purpose of which is to further the election or appointment of candidates to political office.” The inquiring candidate has provided us with the event sponsor’s mission statement, which indicates its goal is to educate and “activate” the public on various issues. While it does not specifically mention endorsements, the statement at least suggests these issues are often discussed in the context of the performance of current and possibly potential officeholders.

This Committee has been approached many times by judges or candidates who seek guidance about attending events sponsored by or otherwise participating in organizations whose goals or activities could be described as political, and we have considered these on a case-by-case basis.2 As will be seen we have specifically dealt with the Tea Party as well as a group utilizing the same name as former presidential candidate H. Ross Perot. Before examining those opinions in greater detail we believe candidates can find explicit guidance in Florida Judicial Ethics Advisory Committee Opinion 13-20. The Committee was evenly divided on the question whether a candidate may appear before a political action committee (PAC), but cautioned as follows:

Although we cannot prejudge a particular event, in making the determination of whether the event is appropriate to attend, the judge should take into account not only subject of the program but also the advocacy of the organization. The more zealous, and the more one-sided the advocacy of the organization, the more weight the judge should give that factor in deciding whether to attend or not. If an organization had historically taken a very consistent, unwavering position on a highly political issue, that would create the rebuttable presumption that an event they were sponsoring on that issue was not informative but instead was an exercise in advocacy. That presumption could be rebutted by advance publicity concerning the event, the bent of the speakers, the location of the event and the totality of circumstances surrounding the event.

In Florida Judicial Ethics Advisory Committee Opinion 94-27 the event sponsor was “United We Stand.” By a 6-3 majority the Committee concluded the inquiring judge could attend and speak, despite concerns that the organization was closely identified with Mr. Perot. While the opinion does not specifically reference the fact, it might be noted that Mr. Perot actively campaigned under the banner of the Reform Party. The facts in Florida Judicial Ethics Advisory Committee Opinion 10-19 are closer to those we now consider. There the candidate had been asked to speak before two organizations who, in the candidate’s view, “advocate[d] constitutional education” but did not make endorsements or engage in lobbying. One of the organizations described itself as a local “Patriots group.” Its website suggested to us that its mission was similar to the second, which was called the “Tea Party Patriots.” At the time the Tea Party was registered with the Florida Department of State. Even if the particular organizations named in the inquiry were not formally affiliated with the registered party the activism then being engaged in by both the official Tea Party and a concomitant “grass roots movement” gave us concern that involvement in any extent greater than that approved by Canon 7C(3) would result in the public perception that the candidate endorsed the party’s goals, and we share that concern today for the same reasons. We noted a “continuing problem with public perception” of the true nature of political events and cautioned that while an “organization’s bylaws may proscribe certain activities, the actual practices of the organization may differ, placing the judge [or candidate] in an awkward position.” (citing Fla. JEAC Op. 94-27). As the late Judge James Lehan observed in a different context, “[i]f it looks like a duck and quacks like a duck, then it must be a duck.” Booker Creek Pres., Inc. v. Pinellas Planning Council, 433 So. 2d 1306, 1308 (Fla. 2d DCA 1983).

Even if we are correct about the “political” nature of the organization involved in the present inquiry, this fact alone does not automatically bar a judicial candidate from participating in functions of this sort, neither in 2010 or now. However, certain aspects of the invitation do cause us concern. We have already mentioned the prohibition against buying tables and similar expenditures. It also appears that this event may have been conceived as a “meet and greet” or “mix-and-mingle” affair even if, in response to the candidate’s personal communication, the sponsor stated that candidates may address those in attendance. In Florida Judicial Ethics Advisory Committee Opinion 02-08, we cautioned a candidate against attending party functions unless specifically invited to speak. See also Fla. JEAC Op. 06-15. This is so because we believe the Code strictly limits the amount of time that judicial candidates may spend at such events. Those limitations are fully set forth in Florida Judicial Ethics Advisory Committee Opinion 02-11. Finally, we question the organization’s “first come, first served” restrictions, for both attendance and speaking rights. We conclude that the candidate may attend this event only if all judicial candidates are invited and all are allowed to attend without being required to purchase a table, and are all given equal—and guaranteed—time to address the gathering.

 

REFERENCES

Booker Creek Pres., Inc. v. Pinellas Planning Council, 433 So. 2d 1306, 1308 (Fla. 2d DCA 1983)
Fla. Code Jud. Conduct, Definitions, Canons 5C(3)(b) and 7C(3)

Fla. JEAC Ops. 15-13, 14-08, 13-20, 10-19, 06-15, 03-23, 02-11, 02-08, 00-22, 96-10, 95-01, and 94-27

_____________


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, Judge Joel Boles, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Miguel de la O, Judge James A. Edwards, 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.

2. See, e.g., Fla. JEAC Ops. 95-01 (Tiger Bay club, approved by majority vote because the organization was bipartisan or nonpartisan and appeared to engage in discussion of current events rather than endorsing or campaigning for candidates it might regard favorably); 96-10 (a “pro life” but nonpartisan group, so long as the candidate did not appear to commit to any specific policy regarding abortion); 00-22 (National Rifle Association fundraiser, because the NRA “is neither a ‘political party’ nor a ‘political organization’ as defined [by] the Definitions of the Code of Judicial Conduct and conducts lobbying efforts through a separate if affiliated organization); 03-23 (League of Women Voters and NAACP, under the circumstances described in the inquiry).