August 10, 1994
PERSONAL AND CONFIDENTIAL
Re: Committee on Standards of Conduct Governing Judges
Your Inquiry dated July 26, 1994
You have requested our Committee to advise you concerning the appropriateness of responding to the Christian Coalition of Brevard County Candidate Questionnaire, a copy of which you have enclosed.
All of the members of the Committee that have responded agree that there is no ethical prohibition against responding to such a survey or questionnaire. The thornier issue is rather how and to what extent may a judge or judicial candidate ethically respond to specific questions.
In an effort to provide useful guidance in formulating replies to the various surveys and questionnaires that judicial candidates are more and more frequently requested to answer, and in order to gain better insight into the spirit and intent of the Canons, the Committee believes that a brief review of the history of this issue would be instructive.
Before 1990, relying on Opinions 78-5, 78-13, 78-15, 80-13, and 84-11, all interpreting Canons 7 B(1)(a) and (c) the Committee consistently maintained that judges and judicial candidates may not commit themselves in advance on disputed legal issues, campaign on views of solutions to disputed political issues, campaign on a platform of partially for specific persons or groups, participate in an endorsement or rating interview session, and, most pertinent to the present inquiry, respond to questionnaires covering such issues as gun control, abortion, the Equal Rights Amendment and other issues.
In 1990 the Federal District Court for the Northern District of Florida found the portion of Canon 7 B(1)(c) that proscribes discussion of "disputed legal or political issues" unconstitutional as a violation of the First Amendment. The preliminary injunction against enforcement of this code provision by the JQC was made permanent in 1991. American Civil Liberties Union, Inc, v. The Florida Bar. 774 F. Supp. 1094 (N.D. Fla. 1990). The Court noted:
There can be no question that the State of Florida has a compelling interest in protecting and preserving the integrity and objectivity of its judiciary. Campaign rhetoric which is untruthful or deceptive, or which contains promises with respect to pending cases, or which commits or appears to commit the candidate to a course of conduct on cases or issues likely to come before the courts, cannot be tolerated. Any such speech--whether or not it announces a candidate's views on disputed legal or political issues--would result in an evil the parameters of which are difficult to imagine.
Additionally, in American Civil Liberties Union of Florida, Inc. and Larry Schack v. The Florida Bar, and The Florida Judicial Qualifications Commission. TCA 90-40163-WS (March 22, 1994) the court held that Canon 7 B(1)(c) is unconstitutional both on its face and as applied to the speech contemplated under the facts of that case. Thus, it appears that while the Committee may still use Canon 7 B(1)(a) and (c) analysis in the opinions it provides to judges and judicial candidates regarding their campaign conduct, the JQC may not presently prosecute anyone who violates those provisions. Also, it should be noted that there is currently pending before the Supreme Court of Florida a proposed Amendment to Canon 7 B(1) (c) which attempts to address concerns of the District Court Judge.
In 1993 and 1994, the Committee has responded to a number of inquires concerning judicial conduct that are analogous to the questionnaire/campaign speech issues that is the subject of the current inquiry. In addition to consideration of Canon 7 provisions, other Canons also bear on the analysis. For example, Canon 2 A states that "A judge should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." "Canon 3 A(6) states, "A judge should abstain from public comment about a pending or impending proceeding in any court..." Canon 3 A(1) states that a judge "...should be unswayed by partisan interests, public clamor, or fear of criticism". Additionally, Canon 3 C(1) cautions: " A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned..."
Thus, despite the Federal District Court decisions concerning Canon 7 B(1)(a) and 7 B(1)(c), judges and judicial candidates should not engage in campaign conduct which violates any other provision of the Canon for which the candidate could be sanctioned.
In Opinion 93-64, the Committee suggested to an inquiring judge that it would violate the Canons for a judge to publicly advocate for handgun control. The Committee perceived gun control to be a political issue not related to the administration of justice. Although the Committee did not cite a particular Canon section, both Canons 3 and 7 bear on the analysis. As the Committee noted in Opinion 93-64, the contemplated conduct "casts a judge in the role of a political advocate." Under a Canon 3 A(6) analysis, lawsuits involving handgun control legislation and criminal matters involving the use of or access to handguns arise frequently in state and federal courts. Therefore, a judge's impartiality could be compromised by his or her public statements about the subject matter.
The Committee has addressed public comment on disputed legal or political matters four times in 1994. In Opinion 94-1 an inquiring judge asked about the propriety or publicly advocating the signing or two petitions relating to criminal justice. The first petition proposed a one percent sales tax to be used for criminal justice matters. The second petition proposed that prisoners must serve 85 percent or proposed sentences. All but one committee member agreed that some public comment on these issues would be permissible. Quoting from In re: Inquiry Concerning a Judge, 417 So.2D 950 (Fla.1982), the Committee acknowledged that "in an appropriate forum (a judge) may express his protest, dissent and criticism of the present state or the law as long as he does not appear to substitute his concept of what the law ought to be for what the law actually is, and as long as he expresses himself in a manner that promotes public confidence in his integrity and impartially as a judge."
In Inquiry Concerning a Judge, supra at 955, the court gave additional clarification to this issue as follows.
The record in this case does not establish that his letters and article caused any disrespect for the law or his judicial office, interfered with the performance of his official duties,, or resulted in a loss of public confidence in the integrity and impartiality of the judicial system. Judge Gridley made it clear that he was duty bound to follow the law and that he would do so although he did advocate law reform in the area of capital punishment.
In another opinion on public petitions related to change in the law, Opinion 94-5, the Committee answered an inquiry asking whether a judge as a private citizen can sign a petition calling for a proposed constitutional amendment banning gill netting in state waters. The majority found ethical problems with signing such a petition. The Committee noted that in the past it had found no problem in judges taking public positions on issues relating to the improvement of the legal system or the administration or justice, but the majority believed that a judge's signature on the petition could be misused. The opinion does not state involving gill nets in state waters might come before "any court", but the Committee's analysis is consistent with Canon 3 A(6) requiring judges to refrain from public comment about pending or impending proceedings in any court.
More recently, in Opinion 94-14, an inquiring judge asked whether the Canons proscribe expressing an opinion on certain pending legislation. The general topic of the legislation was perceived practical problems arising from the Florida Supreme Court's decision in Fabre v. Martin, a controversial decision discussing how fault is to be apportioned in civil negligence suits. The inquiring judge believed that the current status of the law would inhibit settlements and increase litigation.
A majority or the Committee concluded that the Canons would not prohibit the judge from addressing the appropriate legislative committee on this matter since it concerned the administration of justice. Like the two earlier 1994 opinions, Opinion 94-14 centers more on an interpretation of Canon 3 than on Canon 7; the opinion does not refer to campaign or political conduct. It analysis addresses problems of perceived impartiality. In this opinion, systemic concerns for the orderly administration of justice outweigh concerns over the appearance of partiality. The inquiring judge's comment does not seem to suggest how the judge might rule in a negligence suit. It merely concerns procedural impediments to the orderly and efficient disposition of such cases.
Finally, in Opinion 94-16, an April 1994 Committee opinion, the Committee directly addressed the North District's opinion in American Civil Liberties Union of Florida, Inc. and Larry Schack vs. The Florida Bar and the Florida Judicial Qualifications Commission, supra, to an inquiring judicial candidate who had posed 16 separate questions concerning campaign conduct. Among those questions was one regarding the ethical propriety of criticizing an opponent. The Committee found "that in general it would be proper to criticize a political opponent when the criticism is truthful, pertinent, and material to judicial office. We find it would...be improper to criticize a judge on any open case as the candidate could conceivably have to rule on the same case, and, of course, the incumbent judge could not comment on a pending case," Thus, despite the federal court's holding that a particular portion of Canon 7 is facially unconstitutional, the Committee grounded at least part of impartiality, that is, the importance of not giving the public reason to believe that the judge's mind is already made up about how he or she might rule in a future matter.
In light of the foregoing considerations, all responding members agree that any response to a judicial candidate questionnaire must be carefully tailored to be consistent with the spirit and intent of the Canons. Additionally, a judicial candidate should consider the relationship between the subject matter of the questionnaire and any current "hot" issues in the judge's locale. One concurring member suggested that judicial candidates consider using either a preface or closing paragraph on any questionnaire to which they elect to respond making it clear that judges are required to follow the laws of the state regardless of their personal views. One concurring judge felt that in addition to the foregoing analysis, that the Committee should offer the following responses to each question:
Question 1, 2, 3, and 13 are in clear violation of Canon 3.
Question 4, 5, and 9 are governed by law and could be answered in that manner.
Question 7 and 10 are legislative matters upon which a judge might express an opinion to a legislator or legislative committee.
Question 6, 8, and 14 are irrelevant to judicial qualifications.
Questions 11 and 12 are proper.
In summary, a judicial candidate may respond to judicial candidate questionnaires, but many responses may not necessarily fit into the "yes" or "no" or "undecided" boxes on the questionnaire. Depending upon the subject matter of the question, some complex legal or political questions may not be able to be ethically answered at all. Other questions may need a thoughtfully drafted explanation or elaboration to appropriately satisfy ethical considerations. Despite the Federal District Court decisions which invalidated a portion of Canon 7 B(1)(c) and all of 7 B(1)(a), judges and judicial candidates must be aware that certain campaign related speech remains impermissible under the Canons; e.g., Canon 3 (A)(6) which provides that judges should abstain from public comment about pending or impending proceedings in "any court".
The 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 judges, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 327 So.2d 5 (Fla. 1976).
Very truly yours,
Steve Rushing, Chairman
Committee on Standards of Conduct
CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)
Participating Members:Judges Doughtie, Farina, Green, Kahn, Patterson,
Rushing, Silverman, Tolton, and Edwards, Esq.
Created 7.13.97 by DAF