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What can judges say on the campaign trail?

Florida's canons permit judicial candidates to state their personal views, even on disputed issues, so long as they stress that as judges, they will uphold the law, according to the Judicial Ethics Advisory Committee.

The panel also recently held that judicial candidates who have no opponents may attend and speak at Democratic and Republican club meetings and that judges should not sit on the Florida Worker's Compensation Insurance Guaranty Association or local homeowners association boards. The JEAC also said judges can respond to Florida Parole Commission inquires.

Judicial Free Speech

Judicial candidates may announce their views on disputed legal or political issues, consistent with the ruling in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), provided the candidate also states that he or she will uphold the law. Opinion Number: 2004-09

White invalidated a Minnesota law prohibiting candidates for judicial office from announcing their views on disputed legal or political issues.

The JEAC said the Florida Supreme Court addressed the applicability of White to the Florida Code of Judicial Conduct in In re Kinsey, 842 So. 2d 77 (Fla. 2003). In Kinsey, the Judicial Qualifications Committee alleged that as a judicial candidate, a judge had violated Canons 1, 2, 3, and 7. The judge responded that the campaign was protected by the First Amendment right to free speech and that Canon 7 could not prevent the judge from speaking about issues of interest to the electorate.

"The court noted that the only issue in White was whether the 'announce clause' of the Minnesota Code of Judicial Conduct was constitutional," JEAC said. "The court also wrote that a similar provision in the Florida Code of Judicial Conduct had been removed years earlier."

The Florida Supreme Court held that Florida's Canon 7A(3)(d)(i)-(iii) was narrowly tailored to serve a compelling state interest and met the test articulated by the U.S. Supreme Court, stating: "In reviewing the 'narrowly tailored' prong of the test, we conclude that the restraints are narrowly tailored to protect the state's compelling interests without unnecessarily prohibiting protected speech. As is clear from the canons and related commentary, a candidate may state his or her personal views, even on disputed issues. However, to ensure that the voters understand a judge's duty to uphold the constitution and laws of the state where the law differs from his or her personal belief, the commentary encourages candidates to stress that as judges, they will uphold the law."

The JEAC said while a candidate may state his or her views on constitutional or statutory construction and other controversial issues they must take care not to advocate "opposition to or support of political issues, the candidate makes no pledge or promise of conduct in office other than the faithful and impartial performance of the duties of the office, and the candidate does not make statements which commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court."

The committee also noted Canon 7A(3)(d)(i)-(ii) prohibits a candidate from making pledges or promises of conduct in office, other than the faithful and impartial performance of the duties of the office or make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.

The JEAC said candidates should be cautious when speaking because the "parts of Canon 7 concerning promises, commitments, and pledges will be enforced."

In the same advisory opinion, the JEAC also said a candidate for judicial office may not submit material in writing to a major political party or its executive committee for the purpose of receiving an endorsement or take any affirmative action to obtain an endorsement. Nor can a judicial candidate list extensive partisan activities in a questionnaire received from a major political party.

JEAC said candidates cannot directly or indirectly solicit the endorsement of a major political party because it would violate Canon 7 and F.S. [section] 105.071(1).

"The purpose of the canon is to prevent interjection of partisan politics into a judicial race," JEAC said. "The committee's view is that accepting an endorsement in advance indirectly solicits an endorsement. Further, by accepting an endorsement in advance, the candidate could be perceived to be commenting on an affiliation with a political party or to be a member of a major political party. It could also appear that the candidate is attempting to convey that the candidate is supported by a major political party."

Other Actions

* A judicial candidate who has no opponent may attend and speak at Democratic and Republican club meetings as long as the function was not a fundraiser, and the other candidates, if any, were also invited. The judicial candidate may not, however, attend if the political party function is a social gathering where the candidate would not speak to the body, but would merely have the opportunity to speak with other guests. Opinion Number: 2004-11

* A judge cannot serve as a board member of the Florida Workers' Compensation Insurance Guaranty Association because the group's activities involve the carrying out of executive functions in administering the insurance code. That creates a conflict with the judge's adjudicatory responsibilities, runs afoul of the Canons of Judicial Conduct, and must be avoided. Opinion Number: 2004-08

* A retired judge who presides as a senior judge should resign from the board of the homeowners' association in the judge's community, where the homeowners' association is being sued by a homeowner because it creates the appearance of impropriety in violation of Canon 2. Opinion Number: 2004-10

* A circuit court judge may serve on the Governmental Commission on Marriage and Family Support Initiatives. The group's goals include education on legal matters that affect the needs of families and children as well as the creation of strategies to promote safe family living, violence-free relationships, substance abuse-free families, and nurturing, respectful, and responsible parenting. The panel said participation with the commission is permissible because the work of the commission meets the requirements of Cannon 5(C)(2), as it involves the "improvement of the law, the legal system and the administration of justice." Opinion Number: 2004-12

* A judge who recused himself/herself from a case may respond to the Florida Parole Commission's request for input on a defendant's request for waiver of rules of executive clemency because judges may respond to formal inquiries of the Parole Commission. Opinion Number: 2004-13

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 JQC is not bound by the interpretive opinions of the committee.
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Author:Killian, Mark D.
Publication:Florida Bar News
Date:May 15, 2004
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