Court applies more of the judicial code to candidates: those running for the bench now prohibited from criticizing jurors for their verdicts.

Current prohibitions preventing sitting judges from being "swayed by partisan interests" and "criticizing jurors" for their verdicts have now been extended to judicial candidates as well.

While the Supreme Court was unanimous in amending the Code of Judicial Conduct to place those restrictions on judicial candidates, two justices nevertheless expressed concern that limiting a judicial candidate's ability to criticize jurors' verdicts may run afoul of the First Amendment.

Acting July 3 at the request of the Judicial Ethics Advisory Committee in case no. SC07-1133, the court added two new subdivisions to Canon 7A.

New subdivision (3)(a) states that a judicial candidate "shall be faithful to the law and maintain professional competence in it, and shall not be swayed by partisan interests, public clamor, or fear of criticism." New subdivision (3)(e)(iv) prohibits judicial candidates from commending or criticizing jurors for their verdicts, "other than in a court pleading, filing, or hearing in which the candidate represents a party in the proceeding in which the verdict was rendered."

The amendments are effective immediately.

However, Justice Raoul Cantero--in a specially concurring opinion in which Justice Kenneth Bell concurred--said that prohibiting judicial candidates from criticizing jurors for their verdicts may violate the First Amendment.

Cantero noted that the United States Supreme Court emphasized in Republican Party of Minnesota v. White, 536 U.S. 765, 787-88 (2002), that regulation of judicial campaign speech must conform to the First Amendment.

In White, Cantero said, the USSC held the "announce clause" in Minnesota's judicial code--which prohibited judicial candidates from stating their views on disputed legal or political issues--did not withstand strict scrutiny analysis, commenting that "[T]he First Amendment does not permit [the State] to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about. '[T]he greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process ... the First Amendment rights that attach to their roles.'"

Cantero said Florida, like Minnesota, selects its trial court judges by election and therefore any content-based restriction on such candidates' speech must conform to the First Amendment.

"The Judicial Ethics Advisory Committee has not offered, and the court does not provide, a commentary explaining the scope of, necessity for, or compelling interest served by prohibiting judicial candidates from criticizing a jury's verdict," Cantero said. "Nor is the purpose readily apparent from the text."

One possibility is what the court held to be the compelling government interest in "[m]aintaining the impartiality, the independence from political influence, and the public image of the judiciary as impartial and independent," Cantero said, citing In re Code of Judicial Conduct (Canons 1, 2, and 7A(1)(b)), 603 So. 2d 494, 497 (Fla. 1992) (citations omitted), and In re Kinsey, 842 So. 2d 77, 87 & n.7 (Fla. 2003) (citing cases and stating that "preserving the integrity of our judiciary and maintaining the public's confidence in an impartial judiciary" is a compelling interest).

He said the only stated purpose of adopting Canon 7A(3)(e)(iv), however, is to conform Canon 7A--which applies to judicial candidates--to Canon 3--which applies to judges sitting in a case.

The commentary to Canon 3B(11) offers that "[c]ommending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial in a subsequent case."

"While this purpose may constitute a compelling interest when applied to a judge speaking to jurors serving on a particular case, the same concerns do not necessarily apply to a judicial candidate--judge or otherwise--who is uninvolved in the case," Cantero said, noting the provision in Canon 3 prohibiting a judge sitting in a case from criticizing the jury stems from the ABA's Model Code of Judicial Conduct, which, however, does not extend the prohibition to judicial candidates.

"Nor, to my knowledge, has any other state done so," Cantero said. "Thus, our new speech restriction apparently is unprecedented. While the absence of any stated rationale for the drastic change, or precedent suggesting one, is not conclusive of the amendment's constitutionality, it certainly calls its necessity into question."

Cantero said in adopting rules amendments, the court normally does not comment on their constitutionality.

"I therefore concur in the adoption of Canon 7A(3)(e)(iv)," Cantero said. "Because this amendment restricts the campaign speech of candidates seeking election to Florida's judiciary, however, I remain concerned that it may unconstitutionally restrict protected speech."

By Mark D. Killian

Managing Editor