FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-16 (Election)1
Date of Issue: September 2, 2017

ISSUES

1.  May a judge appear as the candidate’s spouse in a family photograph to be used in the spouse’s campaign seeking election to a partisan office?

ANSWER: Yes, as long as the judge is not identified as a judge, and there is no indication that the judge has endorsed the spouse’s candidacy.

2.  May a judge appear at non-partisan events where the judge’s spouse, a declared candidate for an elected partisan office, will be speaking, for example, local citizens’ groups or neighborhood forums?

ANSWER: No. The judge’s mere presence may be perceived as endorsing the spouse’s candidacy in violation of Canon 7A(1)(b).

3.  May a judge attend any fundraising events for the judge’s spouse, a declared candidate for an elected partisan office, if those events are not sponsored by a political party (i.e., “friendraisers” at private homes)?

ANSWER: No. Canon 7D states that a judge shall not engage in any political activity with certain exceptions.  Canon 7A(1)(b) prohibits a judge from publicly endorsing another candidate for public office.  Canon 7A(1)(e) prohibits a judge from soliciting funds for a candidate.

4.  May a judge wear a campaign button or any other item supporting the spouse’s political campaign?

ANSWER: No. Canon 7A(1)(b) prohibits a judge from publicly endorsing another candidate for public office.

 

FACTS

The inquiring judge’s spouse is a declared candidate for an elected office in a partisan race.

  
DISCUSSION

Each of the judge’s inquiries involves Canon 7 which is entitled, “A Judge Shall Refrain From Inappropriate Political Activity.” The JEAC has previously noted the Supreme Court’s declaration that “Canon 7A is absolute in its prohibition of public endorsements of political candidates.” Fla. JEAC Op. 07-13 (quoting In re Glickstein, 620 So. 2d 1000, 1002 (Fla. 1993)). Generally speaking, Canon 7 prohibits any sitting judge from engaging in any political or campaign activity, except for seeking his or her own re-election or retention. There are no stated or implied “family member” exceptions.

The judge’s first question is whether the judge may ethically appear as the candidate’s spouse in a family photograph to be used in the spouse’s campaign. This Committee has addressed this issue in Florida Judicial Ethics Committee Opinions 16-07 (Election), 07-13, 98-19, and 90-07. We concluded that Canon 7 is not violated where a judge simply appears in a family photograph that will be used in the spouse’s campaign as long as the judge’s office is not mentioned, no judicial paraphernalia is visible, and there is no explicit endorsement of the spouse’s candidacy by the judge.

The second question is whether the judge may appear at the spouse’s “non-partisan” campaign speaking engagements, such as local citizens’ groups or neighborhood forums. Canon 7A(1)(b) states, “Except as otherwise authorized, a judge or [judicial] candidate may not publicly endorse or publicly oppose another candidate for office.” The judge’s mere presence would likely be taken as a public endorsement of the spouse’s candidacy. It can sometimes be difficult to predict the presence of or role played by partisan politics at such gatherings until the event is already underway. However, given that the spouse is a candidate for political rather than judicial office, it is likely that some expressions of partisanship will arise. Florida Judicial Ethics Committee Opinion 06-13 involved two incumbent judges, married to each other, with one facing a contested re-election. We concluded that the non-candidate judge should not accompany the spouse to campaign-related appearances or events. The inquiring judge is invited to review Florida Judicial Ethics Committee Opinion 14-16 to understand the very limited conditions under which this Committee believes that a judge may attend any campaign or post-campaign function even if the candidate is a member of the judge’s family.

Regarding the third question, there are several reasons why the judge may not attend any informal fundraising gatherings at friends’ homes, referred to as “friendraisers,” even if they are not sponsored by a political party. First, as noted above Canon 7A(1)(b) generally prohibits a judge from publicly endorsing another candidate for office. In Florida Judicial Ethics Committee Opinion 07-13, we concluded that “the Judge’s attendance at a [campaigning] spouse’s ‘meet and greet gatherings’ would be a very clear and improper endorsement of the spouse’s candidacy.” Second, Canon 7A(1)(e) prohibits judges from soliciting funds for a political candidate. The mere presence of the judge at such fundraisers can be seen as an inappropriate effort to assist in soliciting funds for the spouse’s political campaign. Third, these informal fundraisers appear to be a form of political activity which is generally prohibited by Canon 7D, which states in pertinent part: “A judge shall not engage in any political activity . . .,” subject only to several exceptions which do not apply here. There are no special family or spouse exceptions to Canon 7; thus, the judge should consider whether the judge would even contemplate attending any type of fundraiser for another political candidate.

In the fourth question, the judge asks if it is permissible to wear a button promoting the spouse’s campaign. It is impermissible and would be a clear violation of Canon 7A(1)(b) which prohibits a judge from publicly endorsing any candidate, other than the judge, for office.

The role of this Committee is strictly limited to responding to specific questions regarding the ethical implications of a judge’s or candidate’s intended conduct. However, we invite all judges who have a family member who is a candidate for political or judicial office to review Canon 7 and our prior opinions that deal with various aspects of election-related ethical issues.

 

REFERENCES

In re Glickstein, 620 So. 2d 1000, 1002 (Fla. 1993)
Fla. Code Jud. Conduct, Canons 7, 7A, 7A(1)(b), 7A(1)(e), and 7D
Fla. JEAC Ops. 16-07, 14-16, 07-13, 06-13, 98-19, and 90-07 

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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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Miguel de la O, Chair, Judicial Ethics Advisory Committee, Eleventh Circuit, Richard E. Gerstein Justice Building, 1351 N.W. 12th Street, Room 424, Miami, FL 33125.

Participating Members:
Judge Michael F. Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, and Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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.