In Re AMENDMENTS TO the CODE OF JUDICIAL CONDUCT-CANON 7

Supreme Court of Florida
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No. SC13-1951
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IN RE: AMENDMENTS TO THE CODE OF JUDICIAL CONDUCT—
CANON 7.
[June 11, 2015]
PER CURIAM.
The Court amends Canon 7 of the Florida Code of Judicial Conduct1 to
clarify the scope of permissible joint campaign activities when judges seeking
merit retention to the same judicial office have drawn active opposition.2
Specifically, the amendments we adopt today expressly authorize judges facing
active opposition in a merit retention election for the same judicial office to
campaign together, including to pool campaign resources, in order to conduct a
joint campaign designed to refute the allegations made in opposition to their
1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; see also In re Code
of Jud. Conduct, 675 So. 2d 111 (Fla. 1996) (amending Canon 7 on the Court’s
own motion).
2. As used in this opinion, “active opposition” includes “any form of
organized public opposition,” as explained in the Commentary to Canon 7. See
Fla. Code of Jud. Conduct, Commentary to Canon 7.
continued judicial service, educate the public about merit retention, and express
each judge’s views as to why he or she should be retained in office. These
amendments are intended to remedy, in a narrowly tailored fashion, the Court’s
concern that Canon 7 has been interpreted in an unduly restrictive manner to
preclude judges on the ballot for merit retention for the same judicial office from
conducting a joint campaign and pooling campaign resources when faced with
active opposition.
As this Court has stated, Florida has “a compelling state interest in
preserving the integrity of [its] judiciary and maintaining the public’s confidence in
an impartial judiciary.” In re Kinsey, 842 So. 2d 77, 87 (Fla. 2003). Indeed, the
United States Supreme Court recently recognized this very principle in Williams-
Yulee v. Florida Bar, 135 S. Ct. 1656, 1662 (2015), which affirmed our decision to
uphold Florida’s rule prohibiting judges and judicial candidates from personally
soliciting campaign contributions—a rule grounded in our concern with ensuring
judicial impartiality and the public’s trust in the integrity of the judicial system.
Cognizant of what the Supreme Court has called a “genuine and compelling”
rationale to promote public confidence in judicial integrity, id. at 1667, we have
concluded that the current interpretation of the restrictions on joint campaigning, as
applied to judges on the ballot for merit retention, do not serve a compelling state
interest and actually run contrary to the purposes underlying the Code to promote
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public confidence in the integrity, impartiality, and fairness of the judiciary. Merit
retention elections are unique in this respect, in that the sitting judge does not run
against another candidate as occurs in judicial elections for trial court judges.
We emphasize that even without active opposition, judges are permitted to
speak about merit retention, the legal system, and the administration of justice.
Specifically, in connection to a judge’s obligations under Canon 2 to “promote[]
public confidence in the integrity and impartiality of the judiciary,” Canon 7
actually authorizes judges to engage in political activity “on behalf of measures to
improve the law, the legal system or the administration of justice.” Fla. Code of
Jud. Conduct, Canons 2A, 7D. This authorization includes the important ability to
educate the public about the purposes of the merit selection and retention system
for appointing and retaining appellate judges and Supreme Court Justices in
Florida and why those judges and Justices appear on the ballot without a
competing candidate.3
3. This type of ongoing education both by members of The Florida Bar and
the judiciary is especially critical. Polling conducted in the past has consistently
indicated confusion on the part of the public about numerous aspects of the process
for selecting and retaining appellate judges and Supreme Court Justices in Florida,
including the purposes of the merit selection and retention system. See Scott G.
Hawkins, Perspective on Judicial Merit Retention in Florida, 64 Fla. L. Rev. 1421,
1422 & n.4 (2012) (citing focus group research conducted on behalf of The Florida
Bar and other studies).
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Prohibiting judges in a merit retention election for the same judicial office
from pooling campaign resources to educate the public about merit retention—as
Canon 7 has been interpreted—is inconsistent with judges’ responsibility to
promote public confidence in the judiciary. It also prevents judges from
collectively refuting allegations pertaining to their service in judicial office when
those judges have been collectively attacked or opposed by groups seeking their
removal for political reasons, thus providing an unjustified and unintended
advantage to those groups and preventing the public from learning the relevant
facts. Judges who face active opposition for merit retention to the same judicial
office should be able to collectively respond to allegations against them,
particularly when those judges are collectively attacked for political reasons rather
than based on their integrity or competency to continue in office.
As Justice Ginsburg, joined by Justice Breyer, noted in her concurrence in
Williams-Yulee, “issue-oriented organizations and political action committees
have,” in recent years, “spent millions of dollars opposing the reelection of judges
whose decisions do not tow a party line or are alleged to be out of step with public
opinion.” 135 S. Ct. at 1674 (Ginsburg, J., concurring in part and concurring in the
judgment). When judges are unduly restricted in their ability to refute these types
of politically motivated attacks, the “[d]isproportionate spending to influence court
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judgments threatens both the appearance and actuality of judicial independence.”
Id. at 1675.
Accordingly, we adopt amendments to Canon 7 to expressly authorize joint
campaigning, including the pooling of campaign resources, for judges facing active
opposition in a merit retention election for the same judicial office. Through these
amendments, the Court provides clarity to the types of joint campaign activities
that are permissible when judges in a merit retention election for the same judicial
office have drawn active opposition, while at the same time preserving and
promoting the strict ethical obligations that seek to ensure the fairness and
impartiality of Florida’s judges.
I. THE CODE OF JUDICIAL CONDUCT
The Florida Code of Judicial Conduct establishes standards for ethical
conduct and restrictions on the conduct of judges because, as recognized in the
Preamble, the “role of the judiciary” as an “independent, fair and competent”
branch of government “is central to American concepts of justice and the rule of
law.” Fla. Code of Jud. Conduct, Preamble. As the Preamble to the Code states,
“[i]ntrinsic to all sections of this Code are the precepts that judges, individually
and collectively, must respect and honor the judicial office as a public trust and
strive to enhance and maintain confidence in our legal system.” Id.A. HISTORY OF THE CODE
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This Court adopted the Florida Code of Judicial Conduct in 1973, upon
petition from The Florida Bar, to replace the Canons of Judicial Ethics that had
governed judicial conduct in Florida since 1941. See In re The Fla. Bar—Code of
Jud. Conduct, 281 So. 2d 21, 21-22 (Fla. 1973). Canon 7 of that newly adopted
Code, entitled, “A Judge Should Refrain from Political Activity Inappropriate to
his Judicial Office,” provided that a “judge or judicial candidate for election to
judicial office should not . . . publicly endorse a candidate for public office.” Id. at
31. This Canon remained in effect for two decades and, along with the entire
Code, sought to ensure that Florida’s judiciary maintained its critical role in our
democracy as the independent and non-political branch of state government.
In 1994, after the American Bar Association (ABA) adopted a new Model
Code of Judicial Conduct, this Court unanimously replaced the 1973 Code with a
Code that, according to this Court, was “substantially the same as” the ABA Model
Code. See In re Code of Jud. Conduct, 643 So. 2d 1037, 1040 (Fla. 1994). The
new Code, which as amended remains in effect to this day, “establishes standards
for ethical conduct of judges.” Fla. Code of Jud. Conduct, Preamble. The Code is
comprised of “broad statements called Canons, specific rules set forth in Sections
under each Canon,” and a Commentary section for each Canon, which through
explanation and example “provides guidance with respect to the purpose and
meaning of the Canons and Sections.” Id.-6-
B. OVERVIEW OF CANON 7
Within the Code, Canon 7 sets forth the requirements that govern the extent
to which a judge or candidate for judicial office may engage in “political activity”
and, consistent with the intent of the Code to foster an independent judiciary,
prohibits “inappropriate political activity.” Canon 7, which is now entitled, “A
Judge or Candidate for Judicial Office Shall Refrain from Inappropriate Political
Activity,” provides in part that, except as authorized by certain other provisions of
the Code, “a judge or a candidate for election or appointment to judicial office
shall not . . . publicly endorse or publicly oppose another candidate for public
office.” Fla. Code of Jud. Conduct, Section 7A(1)(b). This Section of the Code is
commonly referred to as the “endorsement ban” and is intended both to prevent
judges from abusing the prestige of judicial office to advance the interests of others
and to ensure that judges avoid “inappropriate” involvement in political activity.
The Commentary to Section 7A(1)(b) provides guiding principles regarding
the purpose and meaning of the endorsement ban. Specifically, the Commentary
explains that this ban “does not prohibit a judge or judicial candidate from
privately expressing his or her views on judicial candidates or other candidates for
public office,” and also states that a candidate “does not publicly endorse another
candidate for public office by having that candidate’s name on the same ticket.”
Fla. Code of Jud. Conduct, Commentary to Canon 7.
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Canon 7 does not, however, ban all public comments by other judges in
support of a judge who is being unfairly attacked. The Commentary specifically
provides that, “[w]here false information concerning a judicial candidate is made
public, a judge or another judicial candidate having knowledge of the facts is not
prohibited . . . from making the facts public.” Fla. Code of Jud. Conduct,
Commentary to Canon 7.
In addition, one of the specified exceptions to the endorsement ban in
Section 7A(1)(b) is Section 7C(2), which authorizes a candidate who has drawn
active opposition in a merit retention election to “campaign in any manner
authorized by law, subject to the restrictions of subsection A(3).” Fla. Code of
Jud. Conduct, Canon 7C(2). Section 7A(3) requires a candidate for judicial office
to, among other things, “maintain the dignity appropriate to judicial office and act
in a manner consistent with the impartiality, integrity, and independence of the
judiciary,” and prohibits a candidate from making pledges or promises of conduct
in office or appearing to commit to issues that are likely to come before the court.
Fla. Code of Jud. Conduct, Canon 7A(3).
This Court has not previously had the occasion to confront whether, as to a
candidate for merit retention facing active opposition, Section 7C(2) would
authorize the types of campaign activities that are prohibited by the endorsement
ban in Section 7A(1)(b). However, past merit retention elections—including the
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1984 merit retention election of Justices Shaw and Ehrlich, in which the Justices
campaigned together after facing joint active opposition, and the more recent 2012
merit retention election where three of the current Justices on this Court faced joint
active opposition aimed collectively at all three Justices—have raised questions
about the scope of permissible joint campaign activities.
Central to these questions is whether the Code, and Canon 7 in particular,
thwarts legitimate joint campaign activities in merit retention elections, where
appellate judges and Supreme Court Justices do not face another opposing
candidate as in elections for trial court judges, and where the active opposition is
aimed not just at an individual judge or Justice but collectively at the continued
service of the judges or Justices as a whole. Indeed, prior advisory interpretations
of Canon 7, as explained in the next section, have led the Court to conclude that
many appropriate and necessary activities under these circumstances may be seen
as impermissible—and therefore that the endorsement ban is being interpreted in a
more expansive manner than intended.
C. INTERPRETATIONS OF CANON 7
In 1976, this Court created the Committee on Standards of Conduct
Governing Judges, renamed as the Judicial Ethics Advisory Committee (JEAC) in
1997, and authorized the Committee to render “written advisory opinions to
inquiring judges concerning the propriety of contemplated judicial and non-judicial
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conduct.” Pet. of Comm. on Standards of Conduct for Judges, 327 So. 2d 5, 5 (Fla.
1976). The opinions issued by the JEAC in response to requests from judges or
judicial candidates, however, are “advisory in nature only” and not binding. Id.Ultimately, it is this Court’s responsibility to interpret the Code and the individual
Canons when that issue comes before the Court—typically when a judge is subject
to discipline for violation of the Code. See, e.g., In re Glickstein, 620 So. 2d 1000(Fla. 1993) (interpreting Canon 7 in the context of a judicial disciplinary
proceeding).
In a series of advisory opinions, the JEAC has broadly interpreted Canon 7
and has concluded that Section 7A(1)(b), the endorsement ban, “absolutely forbids
judges from endorsing any candidate for any office in any way.” Fla. JEAC Op.
2008-11. For example, the JEAC has interpreted the endorsement ban to prohibit
judges on the ballot from publicly endorsing each other, as well as from traveling
together “so frequently that it creates the impression that the judicial candidates are
working together or are endorsing each other.” Fla. JEAC Op. 2011-20. Section
7A(1)(b) has also been broadly “construed to prohibit a judicial candidate from
appearing to run as part of a ‘slate.’ ” Fla. JEAC Op. 2010-14 (citing In re Kay,
508 So. 2d 329 (Fla. 1987)); see also Fla. JEAC Op. 2012-19.
Further, the JEAC has concluded that Section 7A(1)(b) prohibits a sitting
judge from “engag[ing] in public activity on behalf of a member of the judiciary
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when such member is the target of a rejection campaign undertaken by the head of
another branch of government for reasons unrelated to competency or
misconduct.” Fla. JEAC Op. 90-3. The JEAC has also determined that judicial
candidates running for different judicial seats who have the same campaign
consultant may not mail campaign brochures in one envelope, even with a
disclaimer that the candidates are not endorsing each other, because a joint mailing
may give the impression that the candidates are working together and endorse each
other. See Fla. JEAC Op. 2004-29.
While we recognize that the goal of the JEAC is to ensure that judges do not
cross the line between permissible and impermissible activities, we have concluded
that the JEAC has interpreted the endorsement ban in an overly expansive and
therefore unduly restrictive way that does not serve the purposes for which the ban
was created. The primary purposes were twofold: (1) to ensure that judges do not
lend the prestige of their office to advance the private interests of others; and (2) to
ensure that judges maintain their independence and impartiality. So, in the clearest
examples, judges are prohibited from, and should not lend the prestige of their
office by, endorsing a candidate for Governor, the Legislature, or other political
office.
Although this Court has construed the ban on endorsing candidates to apply
to merit retention campaigns for judicial office, see In re Glickstein, 620 So. 2d at
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1002, this Court has not had occasion to interpret the scope of the ban as it relates
to appellate judges or Supreme Court Justices who are on the ballot at the same
time, seeking merit retention to the same judicial office and therefore not running
against each other. As these advisory opinions have been issued by the JEAC in
recent years, however, the Court has become increasingly concerned that, absent
clarifying amendments to Canon 7, these JEAC opinions, as well as certain
opinions from this Court, see, e.g., In re Kay, 508 So. 2d 329, have led to the
conclusion that any type of joint campaigning, even for merit retention candidates
to the same judicial office facing the same active opposition, is prohibited under
the endorsement ban. The Court has also become concerned that this interpretation
of the ban to prohibit joint campaigning by merit retention candidates for the same
judicial office who are facing active opposition does not serve a compelling
interest.
In considering this issue and the Court’s concerns, a review of the major
approaches followed by other jurisdictions is instructive.
II. APPROACHES TO THE ENDORSEMENT ISSUE
The ABA Model Code, upon which Florida’s Code has been fashioned, is a
natural place to start. Indeed, the ABA Model Code contains the identical
prohibitory language regarding endorsements as Florida’s Code, but includes in its
commentary a “same judicial office” exception, which provides as follows:
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Paragraphs (A)(2) and (A)(3) prohibit judges and judicial
candidates from making speeches on behalf of political organizations
or publicly endorsing or opposing candidates for public office,
respectively, to prevent them from abusing the prestige of judicial
office to advance the interests of others. See Rule 1.3. These Rules
do not prohibit candidates from campaigning on their own behalf, or
from endorsing or opposing candidates for the same judicial office for
which they are running.
ABA Model Code of Jud. Conduct, Canon 4.1, Comment 4 (emphasis added).
Accordingly, notwithstanding the prohibitory language of the endorsement
ban, pursuant to the “same judicial office” exception of the ABA Model Code, a
candidate for judicial office may endorse or oppose another candidate, but only if
that candidate is seeking the same judicial office. Among states that utilize merit
selection and retention, at least Arizona, Illinois, Maryland, and South Dakota have
some form of the “same judicial office” exception. See Ariz. Code of Jud.
Conduct, Rule 4.1, Comment 4; Ill. Code of Jud. Conduct, Canon 7(B)(1)(b)(iv);
Md. Code of Jud. Conduct, Rule 4.4(c)(1) & Rule 4.4, Comment 4; S.D. Code of
Jud. Conduct, Section 5(C)(1)(b)(iii). Several states with competitive elections
between multiple candidates also utilize some form of the “same judicial office”
exception, including Kansas and Oklahoma. See Kan. Code of Jud. Conduct, Rule
4.2(D)(3)(c); Okla. Code of Jud. Conduct, Rule 4.1, Comment 4.
At least two states go further than the ABA “same judicial office” approach
and expressly permit judicial candidates to run for office as one “slate” in order to
campaign more effectively. For example, Indiana’s Code of Judicial Conduct—
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which, like Florida’s, prohibits a judge or judicial candidate from publicly
endorsing or opposing a candidate for any public office—includes the following
comment:
Although judicial candidates in nonpartisan public elections are
prohibited from running on a ticket or slate associated with a political
organization, they may group themselves into slates or other alliances
to conduct their campaigns more effectively. Candidates who have
grouped themselves together are considered to be running for the
same judicial office if they satisfy the conditions described in
Comment [6] [if several judgeships on the same court are to be filled
as a result of the election].
Ind. Code of Jud. Conduct, Rule 4.2, Comment 7 (emphasis added). New
Mexico’s Code of Judicial Conduct contains a similar provision, which in addition
to permitting judicial candidates to campaign as a “slate” also permits candidates
to participate in joint fundraising events with other judicial candidates. See N.M.
Code of Jud. Conduct, Rule 21-402C(2) (“[J]udicial candidates may run for
election as part of a slate of judicial candidates and may participate in joint fund-
raising events with other judicial candidates.”).
The “slate” exception broadens the possible types of campaign activity for
which candidates may align, allowing them to group together if it enables the
candidates, including especially those candidates facing opposition, to “conduct
their campaigns more effectively.” Ind. Code of Jud. Conduct, Rule 4.2, Comment
7. However, while the “slate” exception is more permissive than the “same
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judicial office” alternative, it remains more restrictive than the third major
approach—the California model.
California takes a unique approach to the endorsement issue. Under Canon
5 of California’s Code of Judicial Ethics, both judges and judicial candidates are
prohibited from publicly endorsing or publicly opposing only candidates for
nonjudicial office. See Cal. Code of Jud. Ethics, Canon 5A(2). Indeed, the
Commentary to California’s Code makes clear that judges—including sitting
judges not running in an election—are not prohibited from endorsing judicial
candidates. Specifically, the Commentary explains as follows:
Under this canon, a judge may publicly endorse a candidate for
judicial office. Such endorsements are permitted because judicial
officers have a special obligation to uphold the integrity, impartiality,
and independence of the judiciary and are in a unique position to
know the qualifications necessary to serve as a competent judicial
officer.
Cal. Code of Jud. Ethics, Canon 5A, Advisory Comm. Commentary.
Accordingly, although judges and judicial candidates in California are
prohibited by the state’s Code of Judicial Ethics from endorsing or opposing
candidates for nonjudicial offices, such as in state or federal legislative and
executive races, they are explicitly permitted to endorse a candidate for judicial
office due to their “special obligation to uphold the integrity, impartiality, and
independence of the judiciary” and their “unique position to know the
qualifications necessary to serve as a competent judicial officer.” Id. In this way,
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California has chosen to favor greater speech over more restrictive ethical
regulations in balancing the competing interests in impermissibly “lending the
prestige of the judicial office” with the special knowledge and obligation of judges
to promote the welfare of the judicial branch. The California approach is thus the
most permissive of the various alternatives for addressing the endorsement issue.
III. AMENDING FLORIDA’S CODE
In light of the Court’s ongoing concerns, and in consideration of these
various approaches taken by other jurisdictions, the Court began to consider
amendments to Florida’s Code. To address the JEAC’s overly broad interpretation
of the endorsement ban in Canon 7, the Court published proposed amendments to
the Code for public comment. The Court specifically sought comments from the
JEAC and the Conference of District Court of Appeal Judges. In total, seven
comments were filed, which ranged from enthusiastic support for the amendments
from some members of The Florida Bar to opposition by the JEAC. The
Conference indicated that its membership had diverse views, including some
members who supported the proposed amendments as written; other members who
believed that the amendments should apply only to members of the Supreme Court
because members of the District Courts of Appeal do not experience the same
concerns; still other members who expressed no position but believed that the
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Code should be consistent for all judges; and members who opposed the
amendments.
After fully considering the comments filed, the approaches taken by other
jurisdictions, and especially the purposes underlying the Code and Canon 7, we
have concluded that these amendments are necessary to clarify the proper
interpretation of Canon 7 and the scope of permissible joint campaign activities by
judges in a merit retention election for the same judicial office. We therefore adopt
the amendments as proposed, which add a new sentence to Section 7C(2) of the
Code and a new paragraph to the Commentary of Canon 7.4
Specifically, Section 7C(2), which authorizes certain campaign activities for
judges who have drawn active opposition in a merit retention election, is amended
to explicitly authorize judges facing active opposition in a merit retention election
for the same judicial office to campaign together and conduct a joint campaign
designed to educate the public on merit retention and each judge’s views as to why
he or she should be retained in office—and to refute the allegations leveled against
them collectively by active opposition—to the extent not otherwise prohibited by
Florida law. In addition, we amend the Commentary to Canon 7 to clarify that
4. In the publication notice, the Court inadvertently referenced “Section
7C(3),” instead of “Section 7C(2),” in the proposed amendment to the
Commentary of Canon 7. We have corrected this inadvertent error, as reflected in
the appendix to this opinion, but otherwise adopt the amendments exactly as
proposed and published for comment.
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joint campaigning by merit retention candidates for the same judicial office, as
explicitly authorized under the amendment to Section 7C(2), “is not a prohibited
public endorsement of another candidate” under the endorsement ban in Section
7A(1)(b).
These clarifying amendments are consistent with the types of campaign
activities authorized and contemplated by the ABA Model Code, upon which
Florida’s Code is based, which contains the same prohibitory language regarding
endorsements as Section 7A(1)(b) of Florida’s Code but sets forth an explicit
exception to the endorsement ban with respect to candidates for the same judicial
office. See ABA Model Code of Jud. Conduct, Rule 4.1, Comment 4 (providing
that, notwithstanding the prohibition on judges and judicial candidates “publicly
endorsing or opposing candidates for public office,” judicial candidates are not
prohibited “from campaigning on their own behalf, or from endorsing or opposing
candidates for the same judicial office for they which are running”). Indeed, while
Florida’s Code was modeled after the ABA Model Code, the JEAC’s broad
interpretation of the endorsement ban has taken Florida’s Code in a more
restrictive direction than the construction of the ban expressed in the Commentary
to the ABA Model Code.
The amendments we adopt today bring Florida’s Code back into closer
alignment with the ABA Model Code. However, these amendments apply only to
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judges seeking merit retention to the same judicial office who have drawn active
opposition, rather than also to candidates in a competitive election for a seat on a
trial court. Florida’s Code, therefore, continues to remain stricter than either the
ABA Model Code or the approach taken in many other states, including California
and Indiana. See, e.g., Cal. Code of Jud. Ethics, Canon 5A(2), Advisory
Committee Commentary (providing that judges and judicial candidates are
prohibited from publicly endorsing or opposing only candidates for nonjudicial
office); Ind. Code of Jud. Conduct, Rule 4.2, Comment 7 (providing that, although
judges and judicial candidates may not publicly endorse or oppose a candidate for
any public office, judicial candidates may group themselves into “slates” or “other
alliances” in order “to conduct their campaigns more effectively”).
Further, in authorizing each judge to express his or her own views “as to
why he or she should be retained in office,” these amendments still remain stricter
than the ABA approach, which explicitly authorizes candidates to “endorse[]” or
“oppose[]” other candidates “for the same judicial office.” See ABA Model Code
of Jud. Conduct, Canon 4.1, Comment 4. We do not decide at this time, and these
amendments therefore do not address, whether judges seeking merit retention to
the same judicial office may explicitly express support for each other.
Not only are these amendments more consistent with the interpretation set
forth in the ABA Model Code, but they are also more consistent with the “broad
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statement” that forms the basis for the rules that comprise Canon 7 itself—that is,
“A Judge or Candidate for Judicial Office Shall Refrain From Inappropriate
Political Activity.” (Emphasis added.) In other words, it is the avoidance of
inappropriate political activity, combined with the need to prevent judges from
abusing the prestige of judicial office to advance the interests of others, that form
the basis for the endorsement ban in Section 7A(1)(b). Neither of these
justifications supports the JEAC’s broad interpretation of the ban as prohibiting
joint campaigning and the pooling of campaign resources under the limited
circumstances outlined in these amendments.
The current, overly broad interpretation of the endorsement ban also creates
tension with Canon 2 of the Code, which provides that a judge “shall act at all
times in a manner that promotes public confidence in the integrity and impartiality
of the judiciary.” Fla. Code of Jud. Conduct, Canon 2A. In this regard, Section
7C(2), which we amend today, already states that a judge with active opposition in
a merit retention election may campaign “in any manner authorized by law,”
subject only to the restrictions of subsection A(3) of the Code, which requires,
among other things, that judges act in a manner “consistent with the impartiality,
integrity, and independence of the judiciary.” Fla. Code of Jud. Conduct, Canon
7A(3)(b). These amendments remove the unduly restrictive impediment under the
current interpretation of Canon 7 on a judge’s ability to conduct a joint campaign
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with another judge seeking merit retention to the same judicial office, thereby
enabling judges to more effectively educate the public about merit retention and to
refute the allegations against them raised by the opposition.
Although we have considered the comments filed by the JEAC and the
Conference, which have assisted in our review of this issue, we have ultimately
concluded that none of the concerns raised in the comments provide a valid basis
to reject these amendments. First, despite the JEAC’s suggestion, the amendments
do nothing to undermine the “separation between the judiciary and politics.”
We wholeheartedly agree with Chief Justice Roberts, writing for the
Supreme Court in Williams-Yulee, that “[j]udges are not politicians, even when
they come to the bench by way of the ballot.” 135 S. Ct. at 1662. Unfortunately,
the reality of experience with those judges on the ballot for merit retention who
face active opposition is that it is the opponents who are attempting to inject
politics into the judiciary through their attacks. By explicitly permitting judges
seeking merit retention for the same judicial office to run a joint campaign, judges
who face active opposition are more likely to be able to effectively respond to
outside attacks than when they are prohibited from pooling campaign resources,
particularly when being attacked by those who have a political agenda.
In fact, these amendments actually further the interests of Canon 7 in
separating judges from politics by enabling judges to collectively refute allegations
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of active opposition that are based on politics, rather than a judge’s competency or
integrity. The amendments apply only to judges for merit retention, seeking the
same judicial office, who have drawn active opposition. In other words, they are
limited in scope and tailored to remedy a concern that arises in a specific context.
Indeed, these amendments merely clarify that joint campaigning and the pooling of
campaign resources, under certain circumstances, is a permissible campaign
activity for this limited group of judges—who are already authorized by Section
7C(2) of the Code to engage in other limited campaign activities.
Moreover, as explained in In re Code of Judicial Conduct (Canons 1, 2, &
7(A)(1)(b)), 603 So. 2d 494, 498-99 (Fla. 1992), Canon 7 authorizes judges to
engage in political activity “on behalf of measures to improve the law, the legal
system or the administration of justice.” Fla. Code of Jud. Conduct, Canon 7D.
Permitting a judge who is running for merit retention to conduct a joint campaign
with another judge for the same judicial office “designed to educate the public on
merit retention and each candidate’s views as to why he or she should be retained
in office” is consistent with the Code’s authorization of political activity to
“improve the law, the legal system or the administration of justice.”
These amendments also do not impact the other Canons that prohibit a judge
from becoming improperly involved in politics except as authorized, nor do they
permit a judge to accept an endorsement from a political party. See, e.g., Fla. Code
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of Jud. Conduct, Canon 7D (providing that a judge shall not engage in any political
activity except as authorized under the Code; by law; or on behalf of measures to
improve the law, the legal system, or the administration of justice); Fla. Code of
Jud. Conduct, Canon 7A(1) (providing that a judge or candidate for judicial office
shall not act as a leader in a political organization, make speeches on behalf of a
political organization, attend political party functions, or make a contribution to a
political organization or candidate). Nor do the amendments remove or alter the
other ethical obligations and campaign restrictions already contained in the Code.
See, e.g., Fla. Code of Jud. Conduct, Canon 7A(3) (requiring any candidate for a
judicial office to be faithful to the law and maintain professional competence in it,
and to maintain the dignity appropriate to judicial office and act in a manner
consistent with the impartiality, integrity, and independence of the judiciary).
Finally, several members of the Conference of District Court of Appeal
Judges expressed a concern with the proposed amendments related not to the
merits of the proposal itself, but to its scope. Specifically, some district court
judges stated that they supported the proposed amendments but believed that they
should apply only to Justices of the Supreme Court, rather than also to judges of
the District Courts of Appeal. Other members stated that they neither supported
nor opposed the amendments but believed that the Code should be consistent for
all judges, including trial court judges.
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We have considered the views of the Conference but have ultimately
concluded that these amendments strike the right balance as to their scope. The
Code already contains different restrictions and provisions for judges seeking merit
retention and candidates or incumbent judges seeking election to an office filled by
public election between competing candidates. Compare Fla. Code of Jud.
Conduct, Canon 7C(1), with Fla. Code of Jud. Conduct, Canon 7C(2)-(3). Indeed,
different considerations may be relevant in a campaign between competing
candidates, especially if neither is a sitting judge, and a campaign involving a
“yes” or “no” vote to retain a sitting judge in office. There are not, however, any
distinctions made in Canon 7 between Justices of the Supreme Court and other
appellate court judges.
IV. CONCLUSION
We thank the JEAC, the Conference, and all other parties who submitted
comments regarding the amendments for their valuable input. Through the
amendments we adopt today, we have endeavored to clarify provisions of Canon 7
regarding merit retention elections, while also furthering our unwavering goal to
maintain public trust and confidence in the judiciary and to promote the essential
need for a fair and impartial judiciary.
Accordingly, for all the reasons set forth in this opinion, we adopt the
amendments as proposed and amend the Florida Code of Judicial Conduct as
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reflected in the appendix to this opinion. New language is indicated by
underscoring. The amendments shall become effective immediately upon the
release of this opinion.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.
CANADY, J., concurs in result only.
POLSTON, J., concurs in result.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – The Code of Judicial Conduct
John Scarola, Laurie J. Briggs, Christian Dietrich Searcy and Forrest Gregory
Barnhart of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach,
Florida; Cameron Michael Kennedy of Searcy Denney Scarola Barnhart &
Shipley, P.A., Tallahassee, Florida; Judge Roberto Arias, Chair, Judicial Ethics
Advisory Committee, Duval County Courthouse, Jacksonville, Florida; and Judge
Melanie Given May, President of the Florida Conference of District Court of
Appeal Judges, Fourth District Court of Appeal, West Palm Beach, Florida,
Responding with Comments
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APPENDIX
Canon 7. A Judge or Candidate for Judicial Office Shall Refrain From
Inappropriate Political Activity
A. All judges and Candidates.
(1) Except as authorized in Sections 7B(2), 7C(2) and 7C(3), a judge or a
candidate for election or appointment to judicial office shall not:
(a) act as a leader or hold an office in a political organization;
(b) publicly endorse or publicly oppose another candidate for public
office;
(c) make speeches on behalf of a political organization;
(d) attend political party functions; or
(e) solicit funds for, pay an assessment to or make a contribution to a
political organization or candidate, or purchase tickets for political party dinners or
other functions.
(2) - (3) [No Change]
B. [No Change]
C. Judges and Candidates Subject to Public Election.
(1) A candidate, including an incumbent judge, for a judicial office that is
filled by public election between competing candidates shall not personally solicit
campaign funds, or solicit attorneys for publicly stated support, but may establish
committees of responsible persons to secure and manage the expenditure of funds
for the candidate’s campaign and to obtain public statements of support for his or
her candidacy. Such committees are not prohibited from soliciting campaign
contributions and public support from any person or corporation authorized by law.
A candidate shall not use or permit the use of campaign contributions for the
private benefit of the candidate or members of the candidate’s family.
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(2) A candidate for merit retention in office may conduct only limited
campaign activities until such time as the judge certifies that the judge’s candidacy
has drawn active opposition. Limited campaign activities shall only include the
conduct authorized by subsection C(1), interviews with reporters and editors of the
print, audio and visual media, and appearances and speaking engagements before
public gatherings and organizations. Upon mailing a certificate in writing to the
Secretary of State, Division of Elections, with a copy to the Judicial Qualifications
Commission, that the judge’s candidacy has drawn active opposition, and
specifying the nature thereof, a judge may thereafter campaign in any manner
authorized by law, subject to the restrictions of subsection A(3). This includes
candidates facing active opposition in a merit retention election for the same
judicial office campaigning together and conducting a joint campaign designed to
educate the public on merit retention and each candidate’s views as to why he or
she should be retained in office, to the extent not otherwise prohibited by Florida
law.
(3) A judicial candidate involved in an election or re-election, or a merit
retention candidate who has certified that he or she has active opposition, may
attend a political party function to speak in behalf of his or her candidacy or on a
matter that relates to the law, the improvement of the legal system, or the
administration of justice. The function must not be a fund raiser, and the invitation
to speak must also include the other candidates, if any, for that office. The
candidate should refrain from commenting on the candidate’s affiliation with any
political party or other candidate, and should avoid expressing a position on any
political issue. 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. Conduct limited to that described
above does not constitute participation in a partisan political party activity.
D. – F. [No Change]
COMMENTARY
Canon 7A(1). A judge or candidate for judicial office retains the right to
participate in the political process as a voter.
Where false information concerning a judicial candidate is made public, a
judge or another judicial candidate having knowledge of the facts is not prohibited
by Section 7A(1) from making the facts public.
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Section 7A(1)(a) does not prohibit a candidate for elective judicial office
from retaining during candidacy a public office such as county prosecutor, which is
not “an office in a political organization.”
Section 7A(1)(b) does not prohibit a judge or judicial candidate from
privately expressing his or her views on judicial candidates or other candidates for
public office.
A candidate does not publicly endorse another candidate for public office by
having that candidate’s name on the same ticket.
Section 7A(1)(b) prohibits judges and judicial candidates from publicly
endorsing or opposing candidates for public office to prevent them from abusing
the prestige of judicial office to advance the interests of others. Section 7C(2)
authorizes candidates facing active opposition in a merit retention election for the
same judicial office to campaign together and conduct a joint campaign designed
to educate the public on merit retention and each candidate’s views as to why he or
she should be retained in office, to the extent not otherwise prohibited by Florida
law. Joint campaigning by merit retention candidates, as authorized under Section
7C(2), is not a prohibited public endorsement of another candidate under Section
7A(1)(b).
Canon 7A(3)(b). Although a judicial candidate must encourage members of
his or her family to adhere to the same standards of political conduct in support of
the candidate that apply to the candidate, family members are free to participate in
other political activity.
Canon 7A(3)(e). Section 7A(3)(e) prohibits a candidate for judicial office
from making statements that commit the candidate regarding cases, controversies
or issues likely to come before the court. As a corollary, a candidate should
emphasize in any public statement the candidate’s duty to uphold the law
regardless of his or her personal views. Section 7A(3)(e) does not prohibit a
candidate from making pledges or promises respecting improvements in court
administration. Nor does this Section prohibit an incumbent judge from making
private statements to other judges or court personnel in the performance of judicial
duties. This Section applies to any statement made in the process of securing
judicial office, such as statements to commissions charged with judicial selection
and tenure and legislative bodies confirming appointment.
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Canon 7B(2). Section 7B(2) provides a limited exception to the restrictions
imposed by Sections 7A(1) and 7D. Under Section 7B(2), candidates seeking
reappointment to the same judicial office or appointment to another judicial office
or other governmental office may apply for the appointment and seek appropriate
support.
Although under Section 7B(2) non-judge candidates seeking appointment to
judicial office are permitted during candidacy to retain office in a political
organization, attend political gatherings and pay ordinary dues and assessments,
they remain subject to other provisions of this Code during candidacy. See
Sections 7B(1), 7B(2)(a), 7E and Application Section.
Canon 7C. The term “limited campaign activities” is not intended to permit
the use of common forms of campaign advertisement which include, but are not
limited to, billboards, bumperstickers, media commercials, newspaper
advertisements, signs, etc. Informational brochures about the merit retention
system, the law, the legal system or the administration of justice, and neutral,
factual biographical sketches of the candidates do not violate this provision.
Active opposition is difficult to define but is intended to include any form of
organized public opposition or an unfavorable vote on a bar poll. Any political
activity engaged in by members of a judge’s family should be conducted in the
name of the individual family member, entirely independent of the judge and
without reference to the judge or to the judge’s office.
Canon 7D. Neither Section 7D nor any other section of the Code prohibits a
judge in the exercise of administrative functions from engaging in planning and
other official activities with members of the executive and legislative branches of
government. With respect to a judge’s activity on behalf of measures to improve
the law, the legal system and the administration of justice, see Commentary to
Section 4B and Section 4C and its Commentary.
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