FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-22 (Election)1
Date of Issue: August 19, 2019

ISSUE

1. May a judicial candidate post, share, promote or send, to the candidate’s social media friends, the candidate’s campaign kickoff party invitation which does not have a solicitation for contributions or support?

ANSWER: Yes.

2. May a judicial candidate post, share, promote or send, to the candidate’s personal social media friends, the candidate campaign’s invitation to the campaign’s “Kickoff Fundraiser?”

ANSWER: No.

3. May a judicial candidate post, share, promote or send, to the candidate’s personal social media friends, the candidate campaign’s social media website which suggests, directs or provides the viewer with a link to contribute to or support the candidate?

ANSWER: No. However, the candidate may send a message to the candidate social media’s “friends” informing them of the candidate’s campaign website.

4. May a judicial candidate use a photograph in which an elected official, not up for reelection, appears?

ANSWER: Yes, so long as the public official has agreed to support the candidate, is not for reelection in candidate’s cycle and such publications would not reasonably appear a candidate is involved in partisan politics.

 

FACTS

The JEAC has received very similar requests from two candidates for judicial office. One asks if the candidate may send to all Facebook “Friends” an invitation to the candidate’s campaign kickoff, so long as the invitation does not have a contribution or support solicitation. The other inquirer asks if the candidate can “promote and share” the campaign’s website and fundraising flyer through the candidate’s own personal social media page. Both the campaign website and fundraising flyer seek contributions and support or directs viewers to “contribute” link. Additionally, this inquirer asks if a photo depicting the candidate and an elected official, not running for election in the same cycle as the candidate, may be published on the website.

 

DISCUSSION

These inquiries are covered by Canon 7 and the topics have been the subject of JEAC opinions in the past. Canon 7C(1) provides, in relevant part:

A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditures of funds for the candidate’s campaign and to obtain support for his or her candidacy.

This Committee has previously opined that a candidate could post and send or distribute, through personal Facebook page, the message of “Vote for [candidate’s name] on August 30.” Fla. JEAC Op. 16-13. There, we noted that “[n]othing in Canon 7 prohibits a judicial candidate from asking the electorate to vote for him or her - whether on Facebook, in person, or through the mass media.” Therefore, so long as the candidate did not seek to raise funds or solicited publicly stated support for the candidate’s election, any candidate could use the personal Facebook page to encourage persons to vote for the candidate. However, a candidate cannot host a website or Facebook page to promote that candidate’s campaign. In Fla. JEAC 10-28, the Committee found that “[w]ebsites and Facebook pages promoting the candidacy of a judge or judicial candidate” should not be established by the judge or judicial candidate personally. Likewise, in Fla. JEAC Op. 08-11, the JEAC cautioned that personal websites, “and especially the inclusion of a mechanism to make contributions and offer support,” was forbidden by Canon 7. Thus, the sites must not be created or maintained by the judicial candidate personally, but rather by the committee of supporters. See also Fla. JEAC Op. 10-21. (prohibiting personal campaign website with “contribute” link); Fla. JEAC Op. 12-15 (Code of Judicial Conduct does not govern the procedures used in soliciting campaign funds, other than the requirement that it be conducted by a committee of responsible persons. Therefore, a campaign website could include link to facilitate contributions.)

Based upon the foregoing opinions, the candidates can post and/or share the announcements of their candidacy or campaign kickoff party, so long as these do not contain any solicitation of public support from attorneys or contributions, including links facilitating such contributions or support. The announcement of one of the inquirers is actually an invitation to a “Kickoff Fundraiser” rather than a mere invitation to a “Campaign Kickoff Party”. The invitation a “Kickoff Fundraiser” may not be posted, shared or promoted in the candidate’s personal Facebook or webpage. Likewise, a candidate may not “share” the candidate’s campaign website, as doing so would be re-directing the recipient of the “share” to the actual campaign’s website where contributions and support are being solicited. “Promoting” the campaign’s website is prohibited because, in addition to the above concerns, it is a paid advertisement. In order for the candidate to be able to “promote” the campaign’s website, the candidate would have to pay for the services associated with such promotion. See https://www.facebook.com/business/help/546433732525511. This can only be done by the campaign, subject to the election statutes. Therefore, the candidate may not “promote” the campaign’s website.

One of the inquirers also asks if a photo, which shows the candidate along with a current elected official not running for office in the same cycle as the candidate, may be included in the campaign website and advertisement. This Committee has previously opined that judicial candidate may use photos of the candidate with other elected officials. In Fla. JEAC Op. 08-11 the Committee allowed such photos to be used but cautioned that “[v]iewers of the photos, if used in campaign literature (including any website), will naturally assume the judge [has] the permission, support, and/or endorsement of others depicted with them. Thus, while we cannot state that the Code of Judicial Conduct imposes an unequivocal ban on photos of a judge with various functionaries, we do believe that the use of a full disclaimer is required lest voters perceive a political alliance that does not actually exist. It should be clear that any such photos were not taken in connection with the judge’s reelection campaign and do not imply any sort of endorsement of the judge by the persons depicted therein. The same applies to pictures of the judge with non-office holders.”

On the other hand, if the photograph used is intended to reflect that the candidate is indeed being endorsed by the office holder, the candidate needs to comply with the other requirements imposed by Canon 7, so as to ensure that the candidate’s conduct could not be perceived as involvement in any partisan political activity. Fla. JEAC Op. 10-21. Therefore, this Committee cautions the candidates to read and comply with the conditions that must be met in order to properly accept and publicize an endorsement from a non-judicial elected official found in our previous opinions. These are delineated and explained in our opinions. Fla. JEAC Ops. 17-14, 16-09, 14-11, 10-14 and other opinions cited therein.

 

REFERENCES

Fla. Code Jud. Conduct, Canon 7
Fla. JEAC Ops. 16-13, 16-09, 14-11, 12-15, 10-28, 10-21, 10-14 and 08-11

_____________


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 W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

Election Subcommittee Members:
Judge Roberto Arias, Mark Herron, Esquire, Judge Matthew C. Lucas and Judge Michael Raiden.

Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.


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
General Counsel of the JQC
Melissa Hamilton, JEAC Staff Counsel

 

 

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.