FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-15
Date of Issue: June 9, 2020

ISSUES

1) Whether it is improper for a candidate for judicial office to ask sitting judges to answer questions or offer comments that would be included in a book the candidate is writing about the judiciary.

ANSWER: No.

2) Whether publishing a book during an election cycle containing comments from members of the judiciary serve as an endorsement of the candidate by the judges who offered comment

ANSWER: No. As long as the comments are not an actual endorsement.

3) May a candidate for judicial office give away copies of books the candidate has written at campaign events?

ANSWER: Yes.

4) May a candidate for judicial office release campaign related videos that promote the availability of books the candidate has written?

ANSWER: Yes.

 

FACTS

The inquiring candidate is currently writing a book. It is not the first book the candidate has written. All of the candidate’s prior books relate to some aspect of Florida law. The books are sold online accompanied by a video advertising the book for sale and all of the other books in the series. The candidate’s newest book will relate to the “basics” of Florida’s Judiciary. The candidate intends to include in the book the names of and statements by state court judges and justices. The candidate advises the book will not mention the author is a candidate for judicial office. However, the candidate intends to bring copies of his books, including the book relating to the judiciary, to each campaign forum to distribute along with flyers and other campaign materials.

 

DISCUSSION

Issue 1:

There are no prohibitions in the Canons that prevent a candidate from asking members of the judiciary questions the answers to which will appear in a book the candidate is writing. It will be up to the judges to determine whether they should answer the question in light of the restrictions of the Canons. Any judge who responds to the candidate’s inquiry should make certain the answers provided do not cast doubt on the judge’s capacity to act impartially, undermine the judge’s independence, integrity, or impartiality, demean the judicial office, interfere with the performance of judicial duties or lead to frequent disqualification. Fla. Code Jud. Conduct, Canon 4A.

Issue 2:

The candidate also asks if publishing a book during the elections cycle with comments from the sitting judges could be seen as judicial endorsement of the candidate’s candidacy. A majority of the members of this committee do not believe that on the surface simply offering commentary in a book serves as a judicial endorsement. However, whether a comment actually qualifies as an endorsement depends on what the judge or justice says. It will be up to the candidate and the judges to ensure that those statements are not endorsements. Several members of this committee believe that using quotes from members of the judiciary particularly during an election campaign qualifies as an endorsement even if unintended. In JEAC Op. 10-18 a member of the judiciary sought to use a photo of the candidate speaking on the floor of the Florida Supreme Court with the justices in the background. The candidate had received an award that was presented at the supreme court. The committee determined that the use of the photograph would wrongfully give the impression the justices had endorsed the judge’s candidacy. We stated, “The judge should avoid use of photographs depicting other judges, both in campaign literature and on any web site.”

Issue 3:

A majority of the committee believe the Canons do not prohibit a candidate for judicial office from giving away copies of materials the candidate has created at campaign events which includes books the candidate has written. See Commentary to Canon 7C (A judicial candidate may pass out informational material related to the law, legal system, or administration of justice). However, at least four members of this committee caution that giving away books that are normally sold for profit could qualify as a violation of § 104.061, Florida Statutes (2019). The section prohibits a candidate from “directly or indirectly giv[ing] or promis[ing] anything of value to another intending thereby to buy that person’s or another’s vote or to corruptly influence that person or another in casting his or her vote.1” Any information the candidate distributes should not call into question the candidate’s impartiality, integrity or the independence of the judiciary. Fla. Code Jud. Conduct ,Canon 7A(3)(b).

Issue 4:

Campaign videos that talk about the candidate and the candidate’s qualifications are permitted. Fla. Code Jud. Conduct, Canon 7 does not specifically prohibit a candidate from including information on books the candidate has written and where those books can be found and purchased. In Fla. JEAC Op. 76-17, in response to inquiry from a sitting judge, we approved the contents of an advertisement that the publishing company sought to use when promoting the sale of a book written by the inquiring judge. While the ad was itself approved, some of the members of the committee felt the ad could be seen as in poor taste and exploiting the judge’s position. In Fla. Code Jud. Conduct, Cannon 1, judges are admonished to “participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved.” We recognize that the Code of Judicial Conduct is applicable to only members of the judiciary with the exception of Canon 7. In re Kinsey, 842 So. 2d 77, 85 (Fla. 2003). See also, Amendment to Code of Judicial Conduct, Canon 7 (Political Activity), 897 So. 2d 1262, 1264 (Fla. 2005). Lewis, J., concurring in results only. That fact does not mean that aspiring members of the judiciary should not be concerned about whether comingling a judicial campaign with book sales enforces high standards, undermines the integrity of the judicial candidate, demeans the judicial office sought or is in poor taste.

 

REFERENCES

§ 104.061, Florida Statutes (2019)
In re Kinsey, 842 So. 2d 77, 85 (Fla. 2003); Amendment to Code of Judicial Conduct, Canon 7 (Political Activity), 897 So. 2d 1262, 1264 (Fla. 2005).
Florida Code of Jud. Conduct, Canons 2B, 4A, 7A(3)(b), 7C
Fla. JEAC Ops. 10-18; 76-17

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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 Judge (name deleted)
Chief Justice Charles T. Canady, Justice Liaison
John Tomasino, Supreme Court Clerk
All Committee Members
General Counsel of the JQC
Melissa Hamilton, JEAC Staff Counsel

 

1. In light of these concerns, the inquiring candidate may wish to seek an advisory opinion from the Division of Elections pursuant to Section 106.23(2), Florida Statutes, whether Section 104.061, Florida Statutes, prohibits a candidate for judicial office from giving away copies of books the candidate has written at campaign events.