Judges: The Next Generation
A recent opinion from the Florida Judicial Ethics Advisory Committee
May a sitting judge, who is not up for election in the current cycle, and whose adult child is running for an open judicial position, attend the adult child’s post-election gathering after all polls close in the relevant voting area?
ANSWER: Yes.
The adult child of a sitting judge is running for an open judicial seat. The inquiring judge would like to attend the adult child’s post-election gathering. The inquiring judge states that, in an attempt to avoid the appearance of influencing potential voters, the judge would not attend the gathering until all relevant polls are closed. The inquiring judge adds that the post-election gathering will be comprised of people who previously knew the judge as the candidate’s parent.
The majority’s rationale
The intent of Canon 7 is to separate judges and judicial candidates from political activity, including partisan activities and, more relevant to the present inquiry, endorsement of other candidates for public office. See Fla. JEAC Ops. 07-13, 06-13. Canon 7A(1)(b) quite specifically states that a judge shall not “publicly endorse or publicly oppose another candidate for public office.” Canon 7D also states: “A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law, the legal system or the administration of justice, or (iii) as expressly authorized by law.” Accordingly, the dispositive question is whether the inquiring judge’s proposed conduct constitutes a public endorsement for purposes of Canon 7.
The majority view is that it does not but, as noted, their position has taken into account four unusual and very specific facts included within the inquiry. First, the Committee assumes this function is intended as a typical victory party following the completion of the election. If so, it is difficult to conceive how the judge’s personal appearance could influence any voters given that the act of voting was accomplished hours before the event commenced. A different conclusion would have been drawn if the inquiring judge’s child were in a multi-candidate race with the prospect of a runoff.
Second, the majority’s determination is limited to judicial races only, in which partisanship is not a factor and the candidates themselves do not make endorsements. In other words, this will not be a combination of celebration and “rallying the troops” such as may be experienced in partisan or issue-oriented politics. A post-election gathering can easily become a political event based on what occurs, which will not be known until the event is in progress. See, e.g., Fla. JEAC Op. 10-20: “[C]aution is strongly advised when attending these types of events, since the purpose is for the citizens to voice their opinions on varying issues and their expectation of receiving a pledge or commitment on particular issues from the public figures and/or elected officials.” See also Fla. JEAC Op. 98-17 (judicial candidates should be cautious that their presence, remarks, and/or actions are not construed by others to be political or partisan).
Third, it is important that the inquiring judge not be up for election or retention during the same cycle as the judge’s child, lest the event be perceived as participation in a slate of candidates rather than an event limited to honoring a specific and successful individual candidate. Conceivably a different conclusion might be drawn if both the judge and the judge’s child had won their respective races, but for purposes of this opinion we limit ourselves to the actual facts.
Fourth and finally, the majority have placed considerable weight on the fact the candidate is the inquiring judge’s child. It is difficult to imagine that any voter would not assume that the judge supports the child’s electoral efforts even if the judge cannot personally say so during the campaign.
The minority view is expressed in the opinion. (Mike Frisch)