October 7, 1996

Opinion 96-21

Candidate questionnaire asking for
information concerning past partisan
political activities
Canon 7

Re: Committee on Standards Governing Judges
Your inquiry dated July 23, 1996


You are a candidate for the position of circuit judge. You wish to respond to a questionnaire propounded by a county Republican executive committee. The specific question you have expressed concern about asked each candidate to list "political activities or previous offices held."

As you know, the obligation of this Committee is to respond to questions concerning the propriety of contemplated conduct by judges and judicial candidates. This Committee is not a judicial tribunal, nor has it been charged with the responsibility, or even the right, to pass judgment on the constitutionality of the Code of Judicial Conduct or of any statutes.

Seven members of the Committee who have responded to your inquiry find that the Code of Judicial Conduct would bar you from responding to the questionnaire by listing your extensive partisan activities, which, according to your proposed response, continued up until the time this year when you announced your candidacy.

Canon 7C(3) controls what a candidate may sat when attending a political party function to speak on behalf of his or her candidacy. "The candidate should refrain from commenting on the candidate's affiliation with any political party or other candidate...a judicial candidate attending a political party function must avoid conduct that suggests or appears to suggest support of or opposition to a political party, a political issue, or another candidate." Although you propose to make your statement in response to a questionnaire, these statements would be prohibited were you to make them at a political party function. The Committee can only conclude that the Republican Executive Committee would rely upon these responses in order to arrive at certain judgments about the candidates. Since a candidate could not make these statements were he appropriately addressing a party function, it would be illogical to construe the Canon to allow the candidate to make these statements in a questionnaire response addressed to the political party. The Committee's conclusion is bolstered by Opinion 90-16 which responded in the negative to a candidate's question concerning whether the candidate could respond to the question, "What political party are you registered with?"

Section 105.071, Florida Statutes (1995) provides that a candidate for judicial office shall not publicly represent or advertise herself or himself as a member of any political party. In Concerned Democrats of Florida v. Reno, 358 F. Supp. 60 (S.D. Fla. 1978), the federal court struck down section 105.09, Florida Statutes, which prohibited a political party from supporting, endorsing or assisting any judicial candidate. The court found that the statue violates the first amendment. The court noted, however, in support of its decision to strike down the political party prohibition:

There are certainly less restrictive alternatives available to the state; in fact, it appears that they already exist. The court feels that the state can permissibly achieve its goal of keeping judicial elections non-partisan by regulating the partisan activity of judges and political candidates. This appears to have been accomplished by Fla. Stat. s. 105.71, 458 F. Supp. at 65. (emphasis supplied)

Accordingly, Canon 7 would prohibit you from publicly representing, as part of your campaign, your extensive experience with the Republican party. It appears that Florida is firmly committed to the ideal that insofar as the activities of judicial candidates themselves are concerned, partisan politics will play no role whatsoever in campaigns.

One responding member of the Committee dissents from the majority view. This member points to the use of the term "should" in Canon 7C(3), and concludes that the rule is hortatory, and not mandatory, so the violation of the rule could not subject someone to discipline. This member states:

The Preamble to the Code of Judicial Conduct states, "When 'should' or 'should not' is used the text is intended as hortatory and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined." It is clearly the Florida Supreme Court's desire that judges and judicial candidates refrain from commenting about their political affiliations. By definition, [the candidate's] response to questions pertaining to his political affiliation or support for any political organization is inappropriate under the Code. Nevertheless, these provisions of the Code are not binding. Further, in my opinion, responding to factually based questions such as those posed to [the candidate] about his past political conduct or affiliations without more), is tantamount to conduct suggesting or appearing to suggest support of or opposition to a political party.

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 judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).

Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges

cc: All Committee Members