FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2016-09 (Election)1
Date of Issue: June 23, 2016

ISSUE

May a judicial candidate accept and advertise an endorsement from a county commissioner who is not running for re-election during the same election cycle as the candidate, but who has already opened a campaign account for re-election to the same office in 2018?

ANSWER: Yes, so long as the endorsement is from the individual and not the political party that person represents; the official is not running for re-election in the same election cycle as the judicial candidate; the partisan aspect of the official’s position is not mentioned; and the content of the candidate’s advertisement referencing such endorsement does not otherwise violate the Code of Judicial Conduct.

 

FACTS

The inquiring candidate is running for election in the 2016 August primary. A sitting county commissioner, who is up for re-election during the 2018 cycle, but not during the 2016 election cycle, has offered to endorse the candidate. While the commissioner is not up for election at the same time as the inquiring candidate, the commissioner has already filed to run for re-election in 2018.

 

DISCUSSION

The inquiring candidate acknowledged having read Florida Judicial Ethics Advisory Committee Opinion 10-14 where this Committee opined that a judicial candidate may accept an endorsement from a non-judicial elected official who was not campaigning for election. The inquiring Judge felt that the additional fact of the commissioner’s filing for re-election in 2018 necessitated an opinion.

This Committee has dealt with inquiries on whether judicial candidates may accept and advertise endorsements from non-judicial elected officials in the past. Our opinions have consistently held that “‘[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. 14-11 (quoting Fla. JEAC Op. 10-14).

The JEAC has also set out a number of conditions that must be met in order for a judicial candidate to accept and advertise such an endorsement. These conditions are: (1) the endorsement is, in fact, from an individual and not from the political party the person represents; (2) the official is not also campaigning for re-election during the same cycle as the judicial candidate; (3) the partisan aspects of the official’s position are not mentioned; and (4) the content of the advertisement referencing the endorsement does not otherwise violate the prohibitions contained in the Code of Judicial Conduct. See Fla. JEAC Ops. 06-21; 10-14; 14-11. The Committee, in Florida Judicial Ethics Advisory Committee Opinion 10-14, additionally cautioned that a candidate could not accept an endorsement from a non-judicial candidate running for office in the same election cycle. That opinion is based upon the Florida Supreme Court’s construction of ¬†Florida Code of Judicial Conduct, Canon 7A(2)(b) as prohibiting a judicial candidate from appearing to run as part of a “slate.” In re Kay, 508 So. 2d 329 (Fla. 1987). Therefore, in Florida Judicial Ethics Advisory Committee Opinion 12-18, we agreed that a judicial candidate could accept and advertise an endorsement from a non-judicial elected partisan official in the official’s individual capacity. There, the official had qualified to run for re-election in the same election cycle as the judicial candidate. However, because the official automatically retained the office without election when no one else filed to run for the same office, the official would not be campaigning for re-election nor appear on the ballot during the same election cycle as the judicial candidate.

Based upon the foregoing, Canon 7 allows the inquiring candidate to accept and publicize the endorsement of the county commissioner, as long as the conditions set forth above are met, because the prohibition against appearing to run as a “slate” is not violated when the endorsing non-judicial elected official is not up for election during the same cycle as the judicial candidate.

 

REFERENCES

In re Kay, 508 So. 2d 329 (Fla. 1987)
Fla. Code of Jud. Conduct, Canon 7A(2)(b)
Fla. JEAC Ops. 14-11; 12-18; 10-14; 06-21

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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, Judge W. 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.