Court says appellate jurists may coordinate campaigns
Court says appellate jurists may coordinate campaigns
Supreme Court justices and district court of appeal judges up for merit retention can coordinate their campaigns with their fellow jurists for the same office if they face active opposition, according to the Supreme Court.
The court on June 11 clarified Canon 7 of the Florida Code of Judicial Conduct, saying it had to address concerns previously expressed about such conduct.
“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 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,” the court said in its June 11 ruling.
The court added this language to Canon 7(C)(2), which allows that judges and justices up for merit retention may conduct more than limited activities after certifying to the Secretary of State that they face active opposition: “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.”
The comment to the canon was amended by adding this language: “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).”
The court reviewed Canon 7 and its history in the ruling, noting the prohibition against endorsing other judicial candidates created questions when those up for merit retention coordinated campaigns in the face of active opposition. The opinion noted that former Justices Ray Ehrlich and Leander Shaw coordinated their 1984 retention campaigns as did three current justices – Barbara Pariente, Fred Lewis, and Peggy Quince – in 2012 when they faced active opposition.
The opinion looked at the history of Canon 7, ABA standards on which it is based, and interpretations from the Judicial Ethics Advisory Committee, which the justices said had taken a too narrow interpretation of what Canon 7 allows. It also quoted the recent U.S. Supreme Court ruling in Williams-Yulee v. The Florida Bar, which dealt with judicial candidates seeking campaign contributions, agreeing with Chief Justice John Roberts that judges, even when they reach office via election, are not politicians.
“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,” the opinion said. “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 of active opposition that are based on politics, rather than a judge’s competency or integrity.”
The court noted that it received comments that the new language was not needed, that it should apply only to Supreme Court justices and not DCA judges, and that it should apply to elected trial court judges as well as merit-retained appellate judges.
“We. . . 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,” the opinion said. “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.”
Chief Justice Jorge Labarga and Justices Pariente, Lewis, Quince, and James Perry concurred in the per curiam opinion. Justices Charles Canady and Ricky Polston concurred in the result. The changes were effective with the release of the opinion. The court acted in In Re: Amendments to the Code of Judicial Conduct — Canon 7, case no. SC 13-1951.
