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-Remind all candidates and others to sign the roll, copies of which will be submitted to the JQC and Florida Bar upon request

-Order of presentation:

1.Chief Judges: welcome and introductions

2. Florida Bar representatives: rules applicable to non-incumbent candidates and the Bar’s role in ensuring compliance, also Judicial Candidate Voluntary Self-Disclosure Statements and, where applicable, local judicial campaign practices committees.

3.JEAC members: requirements imposed by Canon 7, potential sanctions for elections misconduct, and availability of resources including An Aid to Understanding Canon 7 and written advisory opinions

4.Questions and Answers

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I am _________________________________ and a member of the Judicial Ethics Advisory Committee. From this forum you should (list learning objectives – read slide).

In 2002, the Supreme Court of the United States decided the case of Republican Party of Minnesota vs. White. The Court generally held the announce clause of Canon 7 was unconstitutional because it had a chilling effect upon political speech and did not pass the strict scrutiny test. The announce clause that was held unconstitutional generally prohibits candidates from stating their views on disputed legal issues.

Upon remand to the Eighth Circuit Court of Appeals, the Court held that the Canons prohibiting partisan political activities and solicitation of partisan support was also unconstitutional (this was a 2005 case).

In 2002, there was another landmark case in the Eleventh Circuit known as Weaver v. Bonner. In this case, the Court held that the Georgia Canon which prohibited direct solicitation of campaign contributions by judges, and required the solicitation be through committee, was unconstitutional. The Court further held that the Canon that precluded false or negligent statements by a candidate was also unconstitutional. It adopted an actual malice standard and required that in order to be actionable any statement must be made with actual knowledge of its falsity or reckless disregard to its truth.

Caveat: None of Florida’s Code has been declared unconstitutional. Williams-Yulee v. Florida Bar, 135 S.Ct. 1657 (2014) (upholding the constitutionality of Canon 7C(1)’s limitation on the solicitation of funds).

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(Read slide)

1) Judges are vested with a public trust and the public needs to trust us. 2) We have an obligation to promote the integrity, impartiality, and independence of the judicial system. 3) You must avoid behavior demeaning to the office to which you aspire.

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“If you are not willing to lose, you have to be willing to do anything it takes to win. To be ethical, you have to be willing to lose.” Michael Josephson

“An ethical person often chooses to do more than the law requires and less than the law allows.” Professor Christopher Stone

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The JQC doesn’t care what your opponent does – it is looking at yourconduct. You need to be looking in the mirror during the campaign –regulate yourself in conformity with the Code.

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The Code tells us what you can do – and what you cannot do.

“Inappropriate Political Activity” includes involvement with political organizations as well as endorsing other candidates.

JEAC Opinion 07-13 describes limitation on a judge whose spouse is a candidate for office.

JEAC Opinion 04-31 makes clear that leaving campaign literature at a political party’s headquarters is inappropriate political activity.

Receiving endorsements from public officials is not improper as long as the official’s political party is not involved and there is no appearance of creating a “slate” of candidates. Officials, however, cannot be up for reelection. JEAC Opinion 06-21.

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Shortly you will learn about Judge Angel – he was disciplined, in part, for improper political activity by his wife and family.

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A candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of his or her personal views. Commentary to Code.

-A candidate may pledge to make improvements in court administration. Commentary to Code.

Examples of PROHIBITED PLEDGES AND PROMISES resulting in discipline in various jurisdictions:

--Plea bargains, suspend sentences, experiment with alternative sentencing, and place criminals on probation.

--To be a tough judge who supports the death penalty and isn’t afraid to use it.

--To impose mandatory incarceration for violent crimes and drug dealing.

But consider that a promise to be “tough on crime” is arguably no more than a promise to strictly adhere to the law, see In re Kaiser, 758 P.2d 392 (Washington 1988), or a promise that is so general as to define no specific predisposition to treat anyone more harshly than another, see Texas Advisory Opinion 212 (1998). More specific candidate statements, however, such as promises to be tough on drunk driving, may be problematic because they single out a special class of defendants and suggest they are to be held

to a higher standard. In re Kaiser. See also Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (U.S. 7th Cir. 1993).

FURTHER NOTES

Examples of IMPLIED PROMISES also violating the prohibition on pledges and promises of conduct in office:

-Ad by an incumbent showing the judge as a “tenant” and his opponent as a “landlord.” The judge also used photographs and laudatory statements by tenants who had appeared before him. HOLDING: Judges actions gave the unmistakable impression he would favor tenants over landlords in housing matters, and, by selecting, soliciting, and using the testimonials, the judge compromised his impartiality and failed to maintain the dignity expected of a judicial officer. In the Matter of Birnbaum, Determination (N.Y. Commission on Judicial Conduct, Sept. 29, 1997).

-Candidate using the campaign slogan, “Do the Crime – Do the Time” impermissibly stated he had “a special place called jail [for] thieves, burglars, stick-up artists, spouse beaters, and repeat drunk drivers.

-Nor may the candidate imply every defendant charged with violating a protective order will go to jail. The candidate’s TV ad stated: “[Defendants] know they violated the protective order. I’ll ask them, ‘You know what’s going to happen, don’t you?’ And they say, ‘Yes, judge, I’m going to jail.’ And they do.”

Examples of prohibited recounting of past cases, implying predisposition to rule similarly in the future:

-A candidate “should not recount actions taken in DWI cases, domestic violence cases, and noise and public nuisance cases because to do so implies what the judge would do in future cases of the same nature.” New York State Ethics Committee, Opinion 93-101.

-Reference to incumbent candidate’s previous judicial decisions improperly implied that he would jail all those charged with similar crimes, rather than rule on the merits of individual cases. In the Matter of Maislin, Determination (N.Y.

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State Commission on Judicial Conduct Aug. 7, 1998).

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This is an area where a lot of candidates get into trouble!

- Candidate may make truthful statements about his or her opponent. JEAC Opinion 94-16; and American Civil Liberties Union v. The Florida Bar, No. TCA 90-40163-WS (N.D. Fla. Mar. 22, 1995)

- A candidate may respond to personal attacks on his or her record, so long as the candidate refrains from knowingly misrepresenting the identity, qualifications, present position, or other fact concerning the candidate or an opponent.

Though the Code proscribes “knowing” misrepresentation, a “person’s knowledge may be inferred from circumstances,” or if it is a reckless disregard of the truth.

Remember the “actual malice” standard set forth in Weaver v. Bonner?

FURTHER NOTES

Examples of misrepresentations about Endorsements:

• A candidate may not falsely imply that she, not her opponent, had been endorsed by a newspaper. See In re Alley. See also In re Kinsey.

• Be careful about using prior endorsements for current candidacy. See In re Kim Shepherd (currently pending).

Representations about incumbency:

1. Don’t forget to use the words, “Elect” or “for” if you are not an incumbent.

2. Don’t wear a judicial robe if you are not a judge. THIS IS A NO BRAINER.

3. If appointed by Governor, use “Elect” or “Retain” but not “Re-elect”

Other Misrepresentations:

General [magistrate] may not claim to have circuit judicial experience unless the individual has previously served on the circuit bench. See In re Alley.

Criticizing Your Opponent

Generally, if you are going to criticize an opponent, you will be permitted to do so if

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the criticism is:

• fair and truthful;

• pertinent and material to the judicial office;

• based on factual, not personal, grounds;

• not about a pending case; and

• does not bring the candidate’s impartiality or that of the judiciary into question.

Generally, if you are going to criticize an opponent, you are prohibited from:

• denouncing a judge candidate’s decision in a case (implying a commitment or promise the candidate, if elected, will reach a different decision when presented with a similar case);

• misrepresenting the facts;

• making statements creating a false impression otherwise withholding information which explains a negative statement;

• unfairly blaming an opponent for someone else’s actions; or

• using general or inflammatory terms.

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Generally judges cannot attend political events – period.

The only exception is during a campaign – it cannot be a fundraiser and your opponent must be invited. You must be there to speak on behalf of your candidacy, not just to mingle or “meet and greet.”

JEAC Op. 14-8

JEAC Op. 06-15

JEAC Op. 06-17

JEAC Op. 06-25

JEAC Op. 03-13

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Let’s get to the heart of this program and discuss the last learning objective first. Today is the nuts and bolts discussion. What happens if you violate the Code? 1) removal 2) fine 3) public reprimand.

Judge Kinsey is a county judge in the panhandle. Remember the federal cases speaking of political free speech? Judge Kinsey was post-White and post Bonner and was fined and reprimanded as a result of her comments in a campaign. The Florida Supreme Court held that her speech was not protected free speech. Florida’s Canon 7 passed the strict scrutiny test because 1) it is narrowly tailored (does not include announce clause) and 2) serves a compelling state interest by preserving the integrity of the judiciary and promoting public confidence in an impartial judiciary.

Take a look: Show Angel or Kinsey video here or alternatively at the end of the PowerPoint.

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Frank Kaney, former circuit judge and former member of the JQC, has offered the following advice: “Never, never, never, do anything stupid on a slow news day.” All days are slow news days for the media that catches a judicial candidate violating the Code.

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•Similar to a grand jury indictment issued by the investigatory panel of the JQC.

• Refers it for trial with the JQC.

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Show cause order – why Judge McMillan should not be immediately suspended pending further hearing.

Judge McMillan and the JQC stipulated to a suspension. This was rejected by the Supreme Court and sent back to the JQC for further proceedings.

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Every candidate for judicial office signs this statement - Please do not sign until you have read and understood Canon 7.

Since your campaign workers are acting on your behalf, they should also be familiar with the rules.

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That is only if you are reprimanded.

If you are removed – the travel to Tallahassee is not necessary.

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Don’t forget – Gavel to Gavel on the Internet – both live and recorded – can be seen by all.

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The Florida Bar may impose sanctions on you for violating the Code if you are subject to their jurisdiction. See In re: McMillan (a later slide)

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(1 slide) Discuss Alley – public reprimand

Read quote from Alley (if desired):

“We agree with the JQC that Alley’s actions were improper. However, we find it difficult to allow one guilty of such egregious conduct to retain the benefit of those violations and remain in office. Yet we are constrained by the JQC’s recommendation.” See 1996 revision to Constitution.

Important to note that at the time that Alley opinion was issued, FSC was bound by the JQC’s recommendation. 1996 revisions to the Constitution changed it so that the FSC is no longer required to accept the JQC’s recommendation.

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(3 slides)

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Also disbarred for misconduct as judge.

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(2 slides)

The J.Q.C. found, “The Commission regards campaign finance violations such as those here involved to be very serious because they present significant impediments to an orderly and truthful electoral process, and because they raise serious questions of personal and professional integrity.”

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(6 slides)

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(3 slides)

Possibly show reprimand on video (time permitting).

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(3 slides)

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1. Not only did he go to Tallahassee for a public reprimand

2. He 1) hired a lawyer

2) spent two years and countless hours and money in litigation with the JQC

3) and will forever be a part of election ethics law of this state.

Is it worth it?

1. Remember the slide: Unclean Hands Not A Defense. Seven of 32 candidates were involved in same type of misconduct – he was the only judge reprimanded.

2. In the reprimand the Court stated:

a. This Court takes misconduct actions to election violations very seriously.

b. We will treat a second breach far more severely.

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(1 slide)

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In re Schwartz, 174 So. 3d 987 (2015) (reprimanding a judge for swearing at a store owner who refused to display the judge’s campaign sign).

The store owner complained and the media picked up the story.

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Who makes up the JEAC?

Three Appellate Judges

Four Circuit Judges

Three County Judges

Two attorneys

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What is an expedited opinion? An aspirational goal of the elections subcommittee is to have a draft opinion within three days and a final opinion five days later. In the last election, one-half of our opinions were out in less than nine days.

This information is available on the Supreme Court’s website at www.floridasupremecourt.org, first selecting Public Information and Court Documents, then Judicial Conduct. It also appears in the booklet, “An Aid to Understanding Canon 7.”

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This information is available on the Supreme Court’s website at www.floridasupremecourt.org, first selecting Public Information and Court Documents, then Judicial Conduct. It also appears in the booklet, “An Aid to Understanding Canon 7.”

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Website has an excellent search engine.

You may search by year, category, or word search.

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-Call attention to Aid to Understanding Canon 7-Guidelines to Assist Judicial Candidates in Campaign and Political Activities. Note that it contains answers to 39 frequently asked questions concerning compliance with ethics rules governing judicial elections.

You all have ready access to “An Aid to Understanding Canon 7” which is posted on the Supreme Court’s website at www.floridasupremecourt.org, first selecting Public Information and Court Documents, then Judicial Conduct.

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