Candidates may answer controversial questions: judicial candidates must, however, be careful not to bind themselves with their answers.

Judicial candidates may respond to questions that cover such subjects as same-sex marriage, parental notification, and school vouchers, and whether the candidate agrees or disagrees with recent court decisions so long as the candidate clearly indicates that the answers do not constitute a promise that the candidate will rule a certain way in a case.

That's the advice the Judicial Ethics Advisory Committee gave to judicial candidates August 7 in Opinion Number: 2006-18.

The ethics panel also said candidates must clearly acknowledge the obligation to follow binding legal precedent anywhere it exists; cannot appear to endorse any other individual who is likely to stand for election or retention in any public office or any platform of a political party; and any commentary on past judicial decisions must be "analytical, informed, respectful, and dignified."

The advice was rendered in response to two recent questionnaires mailed to the state's judicial candidates, one by the Florida Family Policy Council and the other by the Christian Coalition of Florida. The groups plan to use the responses in their respective voter's guides. Both questionnaires seek a combination of personal and political information. (See story in the August 15 Bar News.)

"To the extent the questionnaires seek comment on the Florida Constitution or published judicial decisions, we note that the Code of Judicial Conduct does not impose a blanket proscription on expressions of a general judicial philosophy, including 'views on constitutional or statutory construction,'" the committee said. "The scope of such expression, however, should acknowledge the cardinal duty of a judge to follow the law whether the judge agrees with it or not. Apart from this we know of no ethical impediment to analytical, informed, respectful, and dignified comment on past decisions."

The opinion also noted that a judge or candidate "should rarely, if ever," comment on a pending case.

"The mere expression of an opinion does not necessarily mean the person giving the opinion has researched the issue exhaustively, or that the person would not be amenable to altering the opinion in the face of capable advocacy," the committee said. "That is, expressing an opinion does not automatically indicate closed-mindedness."

The JEAC cautioned that the line between "announcing" and "promising" can be a thin one.

"Despite the fact a judicial candidate's pronouncements may be constitutionally protected speech and in compliance with ethical canons, the dispositive question is still whether the individual 'beholder's' fear of partiality is reasonable, reasonableness being determined by a neutral and objective standard," the committee said.

The JEAC's opinions are advisory, and conduct consistent with an opinion may be evidence of good faith, but the Judicial Qualifications Commission is not bound by the panel's interpretive opinions. The full text of the opinion is available on the Supreme Court's Web site at www.floridasupremecourt.org. Once there, click on "'Clerk's Office," then "Opinion," to find the JEAC link.

By Mark D. Killian

Managing Editor