The Unclose Father-In-Law

The Florida Judicial Ethics Advisory Committee opines

Opinion Number: 2020-07
Date of Issue: March 25, 2020

Whether a candidate may permit the candidate’s father-in-law to write letters and emails to professional acquaintances in support of the candidate’s candidacy (while refraining from asking for contributions).

ANSWER: Yes, subject to appropriate precautions.

The inquiring judicial candidate would like to permit the candidate’s father-in-law to write letters soliciting support of the candidate’s candidacy. The letter would include a reference to the candidate’s web page. The candidate informs us that the candidate is not “close by any means” to the father-in-law, nor are they on especially friendly terms (apparently, the father-in-law is nevertheless willing to offer this support). It does not appear that the candidate would request the father-in-law to serve on the candidate’s campaign committee. The candidate asks whether this would be permissible under Canon 7.

Two subsections of Canon 7 form the framework for our consideration of this issue. Florida Code of Judicial Conduct, Canon 7C(1) provides that “[a] candidate . . . for a judicial office . . . shall not personally solicit campaign funds . . ., 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. Canon 7A(3)(b) extends that prohibition insofar as it requires a judicial candidate to “encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate[.]” The Code of Judicial Conduct defines a member of a candidate’s family to include “a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship.” (emphasis supplied).

Unfortunately, this definition necessarily imposes a potentially awkward (and inherently ambiguous) query that candidates must be prepared to answer: which family members are sufficiently “close” such that the candidate should “encourage” their adherence to Canon 7’s various restrictions?¹ In Fla. JEAC Op. 10-16, we gave this precautionary advice:

In the current inquiry, the relatives (brothers, mother-in-law, and cousins) are not within the definition a judge’s family provided in the Code. However, if the judge “maintains a close familial relationship” with any of the persons identified, then that person would also fall within the admonition of Canon 7A(3)(b).

Therefore, if the judge maintains a close familial relationship with the family member identified, the judge must encourage that person to refrain from soliciting contributions and endorsements. If the judge does not maintain a close familial relationship with the family member identified, then the judge is not required to encourage that person to refrain from soliciting contributions and endorsements.

The peril of the situation, as is evident from the distinction drawn in the previous paragraphs, is that whether or not a relative (who is not within the definition of “family”) maintains a close familial relationship with a judge is question of fact. Therefore, if it were determined that the relative did have a close familial relationship with the person soliciting support, and if it were determined that the judge had failed to encourage that person to abstain from solicitation of contributions or support, then the judge would have committed a violation of the Code. See Inquiry Concerning a Judge, re Angel, 867 So. 2d 379 (Fla. 2004) (The Supreme Court of Florida publicly reprimanded a judicial candidate for, among other improprieties, permitting the judge’s spouse and family members to attend and campaign at partisan political gatherings.)

The inquiring candidate states that the father-in-law is not close. Insofar as the candidate is satisfied that “the peril of the situation” – that is, that a finder of fact might deem otherwise – is sufficiently minimal, then the candidate need not “encourage” the father-in-law to refrain from sending a letter soliciting support.

The inquiring candidate here also tempers any potential violation of Canon 7 in that it does not appear that the letter the candidate’s father-in-law contemplates sending would solicit financial contributions or endorsements, but would simply ask for “support” in a more generic sense. Cf. Fla. JEAC Op. 16-13 (“Nothing in Canon 7 prohibits a judicial candidate from asking the electorate to vote for him or her – whether on Facebook, in person, or through the mass media.”). However, we would caution the inquiring candidate that if the father-in-law were deemed a “member of the candidate’s family,” and if the letter he sends refers the reader to the candidate’s campaign website, and if the website includes a feature that facilitates financial contributions or endorsements, then this solicitation (although admittedly somewhat attenuated) could potentially run afoul of Canon 7A(3)(b). See Fla. JEAC Op. 19-22 (“Likewise, a candidate may not ‘share’ the candidate’s campaign website, as doing so would be re-directing the recipient of the ‘share’ to the actual campaign’s website where contributions and support are being solicited.”).

(Mike Frisch)