FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-25 (Election)1
Date of Issue: September 12, 2019

ISSUE

Whether a judicial candidate’s campaign manager / consultant who has been retained by other judicial candidates in the same judicial circuit for different seats advertise or publish in any way, a slate or “group of his picks” using the names and/or images of those judicial candidates together in the same ad / publication.

ANSWER: No.

Whether the judicial candidate must advise the campaign manager / consultant not to advertise or publish in any way, a slate or “group of his picks” using the names and/or images of those judicial candidates together in the same ad / publication.

ANSWER: Yes.

 

FACTS

A judicial candidate inquires whether it is permissible for a campaign manager/consultant hired by multiple judicial candidates in the same judicial circuit but in different races, to advertise or publish in any way, a slate or “group of his picks” using the names and/or images of those judicial candidates together in the same ad/publication. If it is not permissible, the judicial candidate asks whether the candidate must advise the campaign manager / consultant to avoid this practice.

 

DISCUSSION

The answer to this inquiry is governed by Fla. Code Jud. Conduct, Canon 7. Fla. Code Jud. Conduct, Canon 7A(1)(b) prohibits judges and judicial candidates from publicly endorsing or publicly opposing another candidate for office. Canon 7A(3)(d) provides that “except to the extent permitted by Section 7C(1), shall not authorize or knowingly permit any other person to do for the candidate  what the candidate is prohibited from doing under the Sections of this Canon.”

The Committee is of the opinion that the proposed advertising would give the impression that the candidates are running as a slate. In numerous opinions this Committee has previously opined that various forms of advertisements are prohibited by the Code because they may give voters the impression that judicial candidates are working together, and share judicial and perhaps, political philosophies in contravention of Canon 7A(1)(b). See, for example, Fla. JEAC Op. 04-29 (Judicial candidate may not mail campaign brochures in same envelope with other candidates in order to save money even if each candidate encloses a disclaimer card stating that the candidates are not endorsing each other because this impermissibly creates the appearance of running as part of a slate); Fla. JEAC Op.  12-19 (Judicial candidate should direct supporter who serves at the pleasure of the candidate to remove judicial candidate’s campaign sign from the supporter’s vehicle if the supporter is also displaying a partisan candidate’s campaign sign on the supporter’s vehicle because this could leave the impression that the candidates are running as a slate).

The Florida Supreme Court noted these opinions and others while approving amendments to Canon 7A(1)(b) in 2015 to permit limited joint campaign activities by judges facing active opposition in a merit retention election. In re Amendments to the Code of Judicial Conduct - Canon 7, 167 So. 3d 399, 403 (Fla. 2015). The revised Commentary to Canon 7A(1)(b), in light of the amendment, notes:

Section 7A(1)(b) prohibits judges and judicial candidates from publicly endorsing or opposing candidates for public office to prevent them from abusing the prestige of judicial office to advance the interests of others. Section 7C(2) authorizes candidates facing active opposition in a merit retention election for the same judicial office to campaign together and conduct a joint campaign designed to educate the public on merit retention and each candidate's views as to why he or she should be retained in office, to the extent not otherwise prohibited by Florida law. Joint campaigning by merit retention candidates, as authorized under Section 7C(2), is not a prohibited public endorsement of another candidate under Section 7A(1)(b).

167 So. 3d at 411.

Judicial candidates should be cautious on relying on the advice campaign managers or campaign consultants and others as to what is required conduct in elections under Canon 7. See In re Kay, 508 So.2d 329, 330 (Fla. 1987) (“Judge Kay testified that he relied on the advice of other lawyers before embarking on this joint venture. Specifically, he inquired of one lawyer whether the ballot would be viewed as an illegal endorsement of the other two candidates.”)

Thus, it is the opinion of the Committee that Canon 7A(3)(d) requires the judicial candidate to advise the campaign manager / consultant not to advertise or publish in any way, a slate or “group of his picks” using the names and/or images of those judicial candidates together in the same ad / publication.

 

REFERENCES

In re Amendments to the Code of Judicial Conduct - Canon 7, 167 So. 3d 399 (Fla. 2015)
In re Kay, 508 So. 2d 329 (Fla. 1987).
Fla. Code Jud. Conduct, Canon 7A(1)(b) and Canon 7A(3)(d).
Fla. JEAC Op. 12-19
Fla. JEAC Op. 04-29

*JEAC member Judge Matthew Lucas recused and did not participate in this opinion.

_____________


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.