FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-07
Date of Issue: March 25, 2020

ISSUES

Whether a candidate may permit the candidate’s father-in-law to write letters and emails to professional acquaintances in support of the candidate’s candidacy (while refraining from asking for contributions).

ANSWER: Yes, subject to appropriate precautions.

FACTS

The inquiring judicial candidate would like to permit the candidate’s father-in-law to write letters soliciting support of the candidate’s candidacy. The letter would include a reference to the candidate’s web page. The candidate informs us that the candidate is not “close by any means” to the father-in-law, nor are they on especially friendly terms (apparently, the father-in-law is nevertheless willing to offer this support). It does not appear that the candidate would request the father-in-law to serve on the candidate’s campaign committee. The candidate asks whether this would be permissible under Canon 7.

 

DISCUSSION

Two subsections of Canon 7 form the framework for our consideration of this issue. Florida Code of Judicial Conduct, Canon 7C(1) provides that “[a] candidate . . . for a judicial office . . . shall not personally solicit campaign funds . . ., but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy. Canon 7A(3)(b) extends that prohibition insofar as it requires a judicial candidate to “encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate[.]” The Code of Judicial Conduct defines a member of a candidate’s family to include “a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship.” (emphasis supplied).

Unfortunately, this definition necessarily imposes a potentially awkward (and inherently ambiguous) query that candidates must be prepared to answer: which family members are sufficiently “close” such that the candidate should “encourage” their adherence to Canon 7’s various restrictions?1 In Fla. JEAC Op. 10-16, we gave this precautionary advice:

In the current inquiry, the relatives (brothers, mother-in-law, and cousins) are not within the definition a judge’s family provided in the Code. However, if the judge “maintains a close familial relationship” with any of the persons identified, then that person would also fall within the admonition of Canon 7A(3)(b).

Therefore, if the judge maintains a close familial relationship with the family member identified, the judge must encourage that person to refrain from soliciting contributions and endorsements. If the judge does not maintain a close familial relationship with the family member identified, then the judge is not required to encourage that person to refrain from soliciting contributions and endorsements.

The peril of the situation, as is evident from the distinction drawn in the previous paragraphs, is that whether or not a relative (who is not within the definition of “family”) maintains a close familial relationship with a judge is question of fact. Therefore, if it were determined that the relative did have a close familial relationship with the person soliciting support, and if it were determined that the judge had failed to encourage that person to abstain from solicitation of contributions or support, then the judge would have committed a violation of the Code. See Inquiry Concerning a Judge, re Angel, 867 So. 2d 379 (Fla. 2004) (The Supreme Court of Florida publicly reprimanded a judicial candidate for, among other improprieties, permitting the judge’s spouse and family members to attend and campaign at partisan political gatherings.)

The inquiring candidate states that the father-in-law is not close. Insofar as the candidate is satisfied that “the peril of the situation” - that is, that a finder of fact might deem otherwise - is sufficiently minimal, then the candidate need not “encourage” the father-in-law to refrain from sending a letter soliciting support.

The inquiring candidate here also tempers any potential violation of Canon 7 in that it does not appear that the letter the candidate’s father-in-law contemplates sending would solicit financial contributions or endorsements, but would simply ask for “support” in a more generic sense. Cf. Fla. JEAC Op. 16-13 (“Nothing 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.”). However, we would caution the inquiring candidate that if the father-in-law were deemed a “member of the candidate’s family,” and if the letter he sends refers the reader to the candidate’s campaign website, and if the website includes a feature that facilitates financial contributions or endorsements, then this solicitation (although admittedly somewhat attenuated) could potentially run afoul of Canon 7A(3)(b). See Fla. JEAC Op. 19-22 (“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.”).

 

REFERENCES

Fla. Code Jud. Conduct, Canon 7A(3)(b); 7C(1)
Fla. JEAC Op. 19-22, 16-13, 10-16

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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 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.

Participating 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 Candidate (name deleted)
Chief Justice Charles T. Canady, Justice Liaison
John Tomasino, Supreme Court Clerk
All Committee Members
Executive Director of the JQC
Office of the State Courts Administrator

 

 

1. We would note that Canon 7A(3)(b)’s prohibition further extends an already significant curtailment upon candidates’ constitutional rights in contested elections. Crafting a more narrow, “bright line” definition of “Member of a candidate’s family” might better serve everyone concerned while also minimizing the encroachment on civil liberties.