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Electronically Filed 11182013 042045 PM ET
RECEIVED 11182013 162346 John A Tomasino Clerk Supreme Court
BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA
SC13-1333 INQUIRY CONCERNING A JUDGE No 12-613
LAURA M WATSON
JUDGE WATSONS REQUEST FOR JUDICIAL NOTICE OF REPORT OF THE JUDICIAL ETHICS ADVISORY COMMITTEE REGARDING
CODE OF JUDICIAL CONDUCT OF OCTOBER 27 2003
Pursuant to Rule 12(a) and Florida Evidence Code sect 90202(6) Judge
Laura M Watson moves this court to take Judicial Notice of In re Report of the
Judicial Ethics Advisory Committee Regarding Code of Judicial Conduct of
October 27 2003 submitted in accordance with the Supreme Courts opinion in
Inquiry Concerning a Judge No 99-09 re Patricia Kinsey 842 So2d 77 (Fla
2003)
Respectfully submitted
The Honorable Laura M Watson Circuit Judge 17th JudiCial CirCuit Room 1005B 201 SE 6th Street Fort Lauderdale Florida 33301 Tel (954) 831-6907 jwatsonl 7thficourtsorg
s Laura M Watson
LAURA M WATSON Florida Bar No 476330
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished by email to Miles A McGrane III Esq milesa meuranelawcom
lisara meuranelawcom The McGrane Law Firm Special Counsel One Datran
Center Ste 1500 9100 South Dadeland Boulevard Miami Florida 333156 Lauri
Waldman Ross Esq RossGirteniacutea Laurilawcom Counsel to the Hearing Panel of
the JQC Ste 1612 9100 South Dadeland Boulevard Miami Florida 333156
Michael L Schneider Esq mschneidern floridaiaccom General Counsel 1110
Thomasville Road Tallahassee Florida 32303 Robert A Sweetapple
Pleadinusrcisweetapplelawcom Co-counsel for Judge Watson 165 East Boca
Raton Road Boca Raton Florida 33432-3911 this 18th day of November 2013
Pursuant to FJQCR Rule 10(b) a copy is furnished by email to The
Honorable Kerry I Evander evanderk uuml ilcourtsoru Chair of the JQC 300 S
Beach Street Daytona Beach FL 32114
s Laura M Watson LAURA M WATSON
IN THE SUPREME COURT OF FLORIDA
Case No
IN RE REPORT OF THE JUDICIAL ETHICS ADVISORY COMMITTEE REGARDING CODE OF JUDICIAL CONDUCT
The Judicial Ethics Advisory Committee (Committee) submits this report in
accordance with this Courts opinion in Inquirv Concerning a Judge No 99-09
re Patricia Kinsey 842 So 2d 77 (Fla 2003) certiorari denied --- SCt ---
2003 WL 2148992 72 USLW 3007 72 USLW 3222 72 USLW 3236 (US Fla
Oct 6 2003)(No 02-1855) The Committee has studied that decision and
concludes that an amendment to Canon 7A(3)(d) is warranted Accordingly the
Committee respectfully requests consideration of certain amendments to the Florida
Code of Judicial Conduct See In re Code offudicial Conduct 643 So 2d 1037
(Fla 1994)(adopting the new Code of Judicial Conduct) In Petition of the
Committee On Standards ofConduct Governing Judges 698 So 2d 834 (Fla
1997) this Court authorized the Committee to submit formal proposals and
recommendations relating to the Code of Judicial Conduct This report is submitted
pursuant to that opinion and the enabling authority conferred on the Committee
The requested changes to the Code of Judicial Conduct and the rationale for these
changes are set out below
L Canon 7A (3)(d)
In Inquiry Concerning a Judge No 99-09 re Patricia Kinsey 842 So
2d 77 (Fla 2003) certiorari denied --- SCt --- 2003 WL 2148992 72 USLW
3007 72 USLW 3222 72 USLW 3236 (US Fla Oct 6 2003)(No 02-1855) the
Florida Supreme Court asked this Committee to study whether it is appropriate for
a judicial candidate to make public comments on pending cases where such
comments could affect the future outcomes of those pending cases
In Kinsey the Judicial Qualifications Commission found that Judge Kinsey
engaged in a pattern of improper conduct during the course of her 1998 election
campaign for the Office of County Court Judge for Escambia County In charge
10 the Judicial Qualifications Commission found that the judge violated Canons 1
2A 3 (B)(5) and (9) and Canon 7A (3)(d)(ii) by making comments that could have
affected the future outcome of three criminal cases two of which were still
pending
Because Canons I 2 and 3 are not applicable to judicial candidates who are
not yet judges the Supreme Court reviewed this charge against Judge Kinsey in
light of Canon 7A (3)(d)(ii) and concluded that there was not clear and competent
evidence to show that Judge Kinsey violated Canon 7A (3)(d)(ii) The court said
Although Judge Kinsey commented on two cases still pending these cases were not likely to come before her if she was elected to the office of county court judge-the two pending cases involved serious felonies which would be heard in circuit court We are concerned however as to whether it is
appropriatefor a judicial candidate to make public
comments on pending cases where such comments could
affect theirfuture outcomes and accordingly refer this
matter to the Judicial Ethics Advisory Committeefor study
[emphasis supplied]
The Committee has studied this request and unanimously recommends that
Canon 7A (3)(d) be amended by adding a new subsection that specifically
incorporates the substance of the first and last sentences of Canon 3B(9) which
provides in pertinent part
(9) A judge shall not while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing
3
This Section does not apply to proceedings in which the judge is a litigant in a personal capacity
This should be done because Canon 3B(9) does not apply to judicial candidates
who are not yet judges The Committee also suggests modification of the
Commentary on Canon 7A (3)(d) to delete the following reference to Section 3B
(9)
See also Section 3B(9) the general rule on public comment by judges
The proposed amendment would create 7A (3)(d)(iv) and provide as follows
(3) A candidate for judicial office
(d) shall not
(iv) while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing This section does not apply to proceedings in which the judicial candidate is a litigant in a personal capacity
The proposed amendments to Canon 7 and its commentary are included in the
appendix attached to this report at pages A l-7 8-12
4
II Canon 7C(1)
This Committee further recommends that a study be undertaken and
comments be solicited by the court regarding whether Canon 7C(l) should be
amended in light of the decision in Weaver v Bonner 309 F3d 1312 (11 Cir
2002)
In Weaver the Eleventh Circuit held that Georgias canon 7(B)(2) which
prohibits judicial candidates from personally soliciting campaign contributions and
publicly stated support is unconstitutional Georgias canon like Florida Canon
7C(l) allows the candidates election committee to engage in these activities
Floridas Canon 7C(l) contains a prohibition like Georgias canon that precludes
personal solicitation by judicial candidates of campaign contributions and publicly
stated support The Weaver decision may render unenforceable the provisions of
Floridas Canon 7C(l) that prohibit a candidate for judicial office including an
incumbent judge from personally soliciting campaign funds or soliciting attorneys
for publicly stated support Neither party to Weaver sought review by the United
States Supreme Court
There are three possible courses of action in response to the Weaver
decision
5
tamend canon 7C(l) to delete the prohibition 2do nothing 1do not amend the canon pending further development of the law
It should be noted that the ABAs recent revisions of the Model Code of
Judicial Conduct made no change in corollary canon 5(B)(1) which precludes
candidates for judicial office or judges from personally soliciting funds to support
the judges candidacy See pages 13-16 of the appendix accompanying this report
Georgia has now proposed amendments to its Code of Judicial Conduct that delete
the prohibition against judicial candidates personally soliciting campaign funds See
pages 17-21 of the appendix attached to this report
The Committee makes no recommendation except to suggest that the court
solicit comment regarding Weaver v Bonner and possible amendment of Canon
7C(l) to provide as follows
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 3hall not puounally 3ulich canipaign
fundo ui solicit attuinop fui publicly 3tated 3uppuu but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidates 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
6
of the candidate or members of the candidates family
III Revision of Canon 7 in view of the Republican Partv decision
The committee also considered whether additional changes to Canon 7
should be made in view of the decision of the United States Supreme Court in
Republican Party ofMinnesota v White 536 US 765 122 SCt 2528 153 L
Ed 2d 694 (2002) There the United States Supreme Court held that the
announce clause of the Minnesota Code of Judicial Conduct was unconstitutional
because it violated the First Amendment
In discussing Canon 7 and the decision in Republican Party ofMinnesota v
White this Court in Kinsey stated as follows
In contrast to White Florida does not have an announce clause but instead adopted a more narrow canon which
provides as follows
A candidate for judicial office shall not
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] (ii) make statements that commit or appear to commit the candidate with respect to cases controversies or issues that are likely to come before the court
Fla Code Jud Conduct Canon 7A (3)(d)(i)-(ii) The commentary to the canon stresses the concept that a candidate
7
should emphasize in any public statement the candidates duty to uphold the law regardless of his or her personal views
[FN6]
It is beyond dispute that Canon 7A (3)(d)(i)-(ii) serves a compelling state interest in preserving the integrity of our judiciary and maintaining the publics confidence in an impartial judiciary [FN7] A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens Likewise it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give
more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which is headed to court
In reviewing the narrowly tailored prong of the test we
conclude that the restraints are narrowly tailored to protect the states compelling interests without unnecessarily prohibiting protected speech As is clear from the canons and related commentary a candidate may state his or her personal views even on disputed issues However to ensure that the voters understand a judges duty to uphold the constitution and laws of the state where the law differs from his or her personal belief the commentary encourages candidates to stress that as judges they will uphold the law
The Committee is aware that the ABA has just approved revisions to the Model
Code of Judicial Conduct See pages 13-16 of the appendix attached to this report
The Committee has not had the opportunity to study those changes in depth and
makes no recommendation at this time regarding additional changes to the Code of
8
Judicial Conduct
9
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11
LAURA M WATSON Florida Bar No 476330
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished by email to Miles A McGrane III Esq milesa meuranelawcom
lisara meuranelawcom The McGrane Law Firm Special Counsel One Datran
Center Ste 1500 9100 South Dadeland Boulevard Miami Florida 333156 Lauri
Waldman Ross Esq RossGirteniacutea Laurilawcom Counsel to the Hearing Panel of
the JQC Ste 1612 9100 South Dadeland Boulevard Miami Florida 333156
Michael L Schneider Esq mschneidern floridaiaccom General Counsel 1110
Thomasville Road Tallahassee Florida 32303 Robert A Sweetapple
Pleadinusrcisweetapplelawcom Co-counsel for Judge Watson 165 East Boca
Raton Road Boca Raton Florida 33432-3911 this 18th day of November 2013
Pursuant to FJQCR Rule 10(b) a copy is furnished by email to The
Honorable Kerry I Evander evanderk uuml ilcourtsoru Chair of the JQC 300 S
Beach Street Daytona Beach FL 32114
s Laura M Watson LAURA M WATSON
IN THE SUPREME COURT OF FLORIDA
Case No
IN RE REPORT OF THE JUDICIAL ETHICS ADVISORY COMMITTEE REGARDING CODE OF JUDICIAL CONDUCT
The Judicial Ethics Advisory Committee (Committee) submits this report in
accordance with this Courts opinion in Inquirv Concerning a Judge No 99-09
re Patricia Kinsey 842 So 2d 77 (Fla 2003) certiorari denied --- SCt ---
2003 WL 2148992 72 USLW 3007 72 USLW 3222 72 USLW 3236 (US Fla
Oct 6 2003)(No 02-1855) The Committee has studied that decision and
concludes that an amendment to Canon 7A(3)(d) is warranted Accordingly the
Committee respectfully requests consideration of certain amendments to the Florida
Code of Judicial Conduct See In re Code offudicial Conduct 643 So 2d 1037
(Fla 1994)(adopting the new Code of Judicial Conduct) In Petition of the
Committee On Standards ofConduct Governing Judges 698 So 2d 834 (Fla
1997) this Court authorized the Committee to submit formal proposals and
recommendations relating to the Code of Judicial Conduct This report is submitted
pursuant to that opinion and the enabling authority conferred on the Committee
The requested changes to the Code of Judicial Conduct and the rationale for these
changes are set out below
L Canon 7A (3)(d)
In Inquiry Concerning a Judge No 99-09 re Patricia Kinsey 842 So
2d 77 (Fla 2003) certiorari denied --- SCt --- 2003 WL 2148992 72 USLW
3007 72 USLW 3222 72 USLW 3236 (US Fla Oct 6 2003)(No 02-1855) the
Florida Supreme Court asked this Committee to study whether it is appropriate for
a judicial candidate to make public comments on pending cases where such
comments could affect the future outcomes of those pending cases
In Kinsey the Judicial Qualifications Commission found that Judge Kinsey
engaged in a pattern of improper conduct during the course of her 1998 election
campaign for the Office of County Court Judge for Escambia County In charge
10 the Judicial Qualifications Commission found that the judge violated Canons 1
2A 3 (B)(5) and (9) and Canon 7A (3)(d)(ii) by making comments that could have
affected the future outcome of three criminal cases two of which were still
pending
Because Canons I 2 and 3 are not applicable to judicial candidates who are
not yet judges the Supreme Court reviewed this charge against Judge Kinsey in
light of Canon 7A (3)(d)(ii) and concluded that there was not clear and competent
evidence to show that Judge Kinsey violated Canon 7A (3)(d)(ii) The court said
Although Judge Kinsey commented on two cases still pending these cases were not likely to come before her if she was elected to the office of county court judge-the two pending cases involved serious felonies which would be heard in circuit court We are concerned however as to whether it is
appropriatefor a judicial candidate to make public
comments on pending cases where such comments could
affect theirfuture outcomes and accordingly refer this
matter to the Judicial Ethics Advisory Committeefor study
[emphasis supplied]
The Committee has studied this request and unanimously recommends that
Canon 7A (3)(d) be amended by adding a new subsection that specifically
incorporates the substance of the first and last sentences of Canon 3B(9) which
provides in pertinent part
(9) A judge shall not while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing
3
This Section does not apply to proceedings in which the judge is a litigant in a personal capacity
This should be done because Canon 3B(9) does not apply to judicial candidates
who are not yet judges The Committee also suggests modification of the
Commentary on Canon 7A (3)(d) to delete the following reference to Section 3B
(9)
See also Section 3B(9) the general rule on public comment by judges
The proposed amendment would create 7A (3)(d)(iv) and provide as follows
(3) A candidate for judicial office
(d) shall not
(iv) while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing This section does not apply to proceedings in which the judicial candidate is a litigant in a personal capacity
The proposed amendments to Canon 7 and its commentary are included in the
appendix attached to this report at pages A l-7 8-12
4
II Canon 7C(1)
This Committee further recommends that a study be undertaken and
comments be solicited by the court regarding whether Canon 7C(l) should be
amended in light of the decision in Weaver v Bonner 309 F3d 1312 (11 Cir
2002)
In Weaver the Eleventh Circuit held that Georgias canon 7(B)(2) which
prohibits judicial candidates from personally soliciting campaign contributions and
publicly stated support is unconstitutional Georgias canon like Florida Canon
7C(l) allows the candidates election committee to engage in these activities
Floridas Canon 7C(l) contains a prohibition like Georgias canon that precludes
personal solicitation by judicial candidates of campaign contributions and publicly
stated support The Weaver decision may render unenforceable the provisions of
Floridas Canon 7C(l) that prohibit a candidate for judicial office including an
incumbent judge from personally soliciting campaign funds or soliciting attorneys
for publicly stated support Neither party to Weaver sought review by the United
States Supreme Court
There are three possible courses of action in response to the Weaver
decision
5
tamend canon 7C(l) to delete the prohibition 2do nothing 1do not amend the canon pending further development of the law
It should be noted that the ABAs recent revisions of the Model Code of
Judicial Conduct made no change in corollary canon 5(B)(1) which precludes
candidates for judicial office or judges from personally soliciting funds to support
the judges candidacy See pages 13-16 of the appendix accompanying this report
Georgia has now proposed amendments to its Code of Judicial Conduct that delete
the prohibition against judicial candidates personally soliciting campaign funds See
pages 17-21 of the appendix attached to this report
The Committee makes no recommendation except to suggest that the court
solicit comment regarding Weaver v Bonner and possible amendment of Canon
7C(l) to provide as follows
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 3hall not puounally 3ulich canipaign
fundo ui solicit attuinop fui publicly 3tated 3uppuu but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidates 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
6
of the candidate or members of the candidates family
III Revision of Canon 7 in view of the Republican Partv decision
The committee also considered whether additional changes to Canon 7
should be made in view of the decision of the United States Supreme Court in
Republican Party ofMinnesota v White 536 US 765 122 SCt 2528 153 L
Ed 2d 694 (2002) There the United States Supreme Court held that the
announce clause of the Minnesota Code of Judicial Conduct was unconstitutional
because it violated the First Amendment
In discussing Canon 7 and the decision in Republican Party ofMinnesota v
White this Court in Kinsey stated as follows
In contrast to White Florida does not have an announce clause but instead adopted a more narrow canon which
provides as follows
A candidate for judicial office shall not
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] (ii) make statements that commit or appear to commit the candidate with respect to cases controversies or issues that are likely to come before the court
Fla Code Jud Conduct Canon 7A (3)(d)(i)-(ii) The commentary to the canon stresses the concept that a candidate
7
should emphasize in any public statement the candidates duty to uphold the law regardless of his or her personal views
[FN6]
It is beyond dispute that Canon 7A (3)(d)(i)-(ii) serves a compelling state interest in preserving the integrity of our judiciary and maintaining the publics confidence in an impartial judiciary [FN7] A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens Likewise it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give
more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which is headed to court
In reviewing the narrowly tailored prong of the test we
conclude that the restraints are narrowly tailored to protect the states compelling interests without unnecessarily prohibiting protected speech As is clear from the canons and related commentary a candidate may state his or her personal views even on disputed issues However to ensure that the voters understand a judges duty to uphold the constitution and laws of the state where the law differs from his or her personal belief the commentary encourages candidates to stress that as judges they will uphold the law
The Committee is aware that the ABA has just approved revisions to the Model
Code of Judicial Conduct See pages 13-16 of the appendix attached to this report
The Committee has not had the opportunity to study those changes in depth and
makes no recommendation at this time regarding additional changes to the Code of
8
Judicial Conduct
9
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11
IN THE SUPREME COURT OF FLORIDA
Case No
IN RE REPORT OF THE JUDICIAL ETHICS ADVISORY COMMITTEE REGARDING CODE OF JUDICIAL CONDUCT
The Judicial Ethics Advisory Committee (Committee) submits this report in
accordance with this Courts opinion in Inquirv Concerning a Judge No 99-09
re Patricia Kinsey 842 So 2d 77 (Fla 2003) certiorari denied --- SCt ---
2003 WL 2148992 72 USLW 3007 72 USLW 3222 72 USLW 3236 (US Fla
Oct 6 2003)(No 02-1855) The Committee has studied that decision and
concludes that an amendment to Canon 7A(3)(d) is warranted Accordingly the
Committee respectfully requests consideration of certain amendments to the Florida
Code of Judicial Conduct See In re Code offudicial Conduct 643 So 2d 1037
(Fla 1994)(adopting the new Code of Judicial Conduct) In Petition of the
Committee On Standards ofConduct Governing Judges 698 So 2d 834 (Fla
1997) this Court authorized the Committee to submit formal proposals and
recommendations relating to the Code of Judicial Conduct This report is submitted
pursuant to that opinion and the enabling authority conferred on the Committee
The requested changes to the Code of Judicial Conduct and the rationale for these
changes are set out below
L Canon 7A (3)(d)
In Inquiry Concerning a Judge No 99-09 re Patricia Kinsey 842 So
2d 77 (Fla 2003) certiorari denied --- SCt --- 2003 WL 2148992 72 USLW
3007 72 USLW 3222 72 USLW 3236 (US Fla Oct 6 2003)(No 02-1855) the
Florida Supreme Court asked this Committee to study whether it is appropriate for
a judicial candidate to make public comments on pending cases where such
comments could affect the future outcomes of those pending cases
In Kinsey the Judicial Qualifications Commission found that Judge Kinsey
engaged in a pattern of improper conduct during the course of her 1998 election
campaign for the Office of County Court Judge for Escambia County In charge
10 the Judicial Qualifications Commission found that the judge violated Canons 1
2A 3 (B)(5) and (9) and Canon 7A (3)(d)(ii) by making comments that could have
affected the future outcome of three criminal cases two of which were still
pending
Because Canons I 2 and 3 are not applicable to judicial candidates who are
not yet judges the Supreme Court reviewed this charge against Judge Kinsey in
light of Canon 7A (3)(d)(ii) and concluded that there was not clear and competent
evidence to show that Judge Kinsey violated Canon 7A (3)(d)(ii) The court said
Although Judge Kinsey commented on two cases still pending these cases were not likely to come before her if she was elected to the office of county court judge-the two pending cases involved serious felonies which would be heard in circuit court We are concerned however as to whether it is
appropriatefor a judicial candidate to make public
comments on pending cases where such comments could
affect theirfuture outcomes and accordingly refer this
matter to the Judicial Ethics Advisory Committeefor study
[emphasis supplied]
The Committee has studied this request and unanimously recommends that
Canon 7A (3)(d) be amended by adding a new subsection that specifically
incorporates the substance of the first and last sentences of Canon 3B(9) which
provides in pertinent part
(9) A judge shall not while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing
3
This Section does not apply to proceedings in which the judge is a litigant in a personal capacity
This should be done because Canon 3B(9) does not apply to judicial candidates
who are not yet judges The Committee also suggests modification of the
Commentary on Canon 7A (3)(d) to delete the following reference to Section 3B
(9)
See also Section 3B(9) the general rule on public comment by judges
The proposed amendment would create 7A (3)(d)(iv) and provide as follows
(3) A candidate for judicial office
(d) shall not
(iv) while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing This section does not apply to proceedings in which the judicial candidate is a litigant in a personal capacity
The proposed amendments to Canon 7 and its commentary are included in the
appendix attached to this report at pages A l-7 8-12
4
II Canon 7C(1)
This Committee further recommends that a study be undertaken and
comments be solicited by the court regarding whether Canon 7C(l) should be
amended in light of the decision in Weaver v Bonner 309 F3d 1312 (11 Cir
2002)
In Weaver the Eleventh Circuit held that Georgias canon 7(B)(2) which
prohibits judicial candidates from personally soliciting campaign contributions and
publicly stated support is unconstitutional Georgias canon like Florida Canon
7C(l) allows the candidates election committee to engage in these activities
Floridas Canon 7C(l) contains a prohibition like Georgias canon that precludes
personal solicitation by judicial candidates of campaign contributions and publicly
stated support The Weaver decision may render unenforceable the provisions of
Floridas Canon 7C(l) that prohibit a candidate for judicial office including an
incumbent judge from personally soliciting campaign funds or soliciting attorneys
for publicly stated support Neither party to Weaver sought review by the United
States Supreme Court
There are three possible courses of action in response to the Weaver
decision
5
tamend canon 7C(l) to delete the prohibition 2do nothing 1do not amend the canon pending further development of the law
It should be noted that the ABAs recent revisions of the Model Code of
Judicial Conduct made no change in corollary canon 5(B)(1) which precludes
candidates for judicial office or judges from personally soliciting funds to support
the judges candidacy See pages 13-16 of the appendix accompanying this report
Georgia has now proposed amendments to its Code of Judicial Conduct that delete
the prohibition against judicial candidates personally soliciting campaign funds See
pages 17-21 of the appendix attached to this report
The Committee makes no recommendation except to suggest that the court
solicit comment regarding Weaver v Bonner and possible amendment of Canon
7C(l) to provide as follows
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 3hall not puounally 3ulich canipaign
fundo ui solicit attuinop fui publicly 3tated 3uppuu but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidates 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
6
of the candidate or members of the candidates family
III Revision of Canon 7 in view of the Republican Partv decision
The committee also considered whether additional changes to Canon 7
should be made in view of the decision of the United States Supreme Court in
Republican Party ofMinnesota v White 536 US 765 122 SCt 2528 153 L
Ed 2d 694 (2002) There the United States Supreme Court held that the
announce clause of the Minnesota Code of Judicial Conduct was unconstitutional
because it violated the First Amendment
In discussing Canon 7 and the decision in Republican Party ofMinnesota v
White this Court in Kinsey stated as follows
In contrast to White Florida does not have an announce clause but instead adopted a more narrow canon which
provides as follows
A candidate for judicial office shall not
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] (ii) make statements that commit or appear to commit the candidate with respect to cases controversies or issues that are likely to come before the court
Fla Code Jud Conduct Canon 7A (3)(d)(i)-(ii) The commentary to the canon stresses the concept that a candidate
7
should emphasize in any public statement the candidates duty to uphold the law regardless of his or her personal views
[FN6]
It is beyond dispute that Canon 7A (3)(d)(i)-(ii) serves a compelling state interest in preserving the integrity of our judiciary and maintaining the publics confidence in an impartial judiciary [FN7] A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens Likewise it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give
more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which is headed to court
In reviewing the narrowly tailored prong of the test we
conclude that the restraints are narrowly tailored to protect the states compelling interests without unnecessarily prohibiting protected speech As is clear from the canons and related commentary a candidate may state his or her personal views even on disputed issues However to ensure that the voters understand a judges duty to uphold the constitution and laws of the state where the law differs from his or her personal belief the commentary encourages candidates to stress that as judges they will uphold the law
The Committee is aware that the ABA has just approved revisions to the Model
Code of Judicial Conduct See pages 13-16 of the appendix attached to this report
The Committee has not had the opportunity to study those changes in depth and
makes no recommendation at this time regarding additional changes to the Code of
8
Judicial Conduct
9
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11
pursuant to that opinion and the enabling authority conferred on the Committee
The requested changes to the Code of Judicial Conduct and the rationale for these
changes are set out below
L Canon 7A (3)(d)
In Inquiry Concerning a Judge No 99-09 re Patricia Kinsey 842 So
2d 77 (Fla 2003) certiorari denied --- SCt --- 2003 WL 2148992 72 USLW
3007 72 USLW 3222 72 USLW 3236 (US Fla Oct 6 2003)(No 02-1855) the
Florida Supreme Court asked this Committee to study whether it is appropriate for
a judicial candidate to make public comments on pending cases where such
comments could affect the future outcomes of those pending cases
In Kinsey the Judicial Qualifications Commission found that Judge Kinsey
engaged in a pattern of improper conduct during the course of her 1998 election
campaign for the Office of County Court Judge for Escambia County In charge
10 the Judicial Qualifications Commission found that the judge violated Canons 1
2A 3 (B)(5) and (9) and Canon 7A (3)(d)(ii) by making comments that could have
affected the future outcome of three criminal cases two of which were still
pending
Because Canons I 2 and 3 are not applicable to judicial candidates who are
not yet judges the Supreme Court reviewed this charge against Judge Kinsey in
light of Canon 7A (3)(d)(ii) and concluded that there was not clear and competent
evidence to show that Judge Kinsey violated Canon 7A (3)(d)(ii) The court said
Although Judge Kinsey commented on two cases still pending these cases were not likely to come before her if she was elected to the office of county court judge-the two pending cases involved serious felonies which would be heard in circuit court We are concerned however as to whether it is
appropriatefor a judicial candidate to make public
comments on pending cases where such comments could
affect theirfuture outcomes and accordingly refer this
matter to the Judicial Ethics Advisory Committeefor study
[emphasis supplied]
The Committee has studied this request and unanimously recommends that
Canon 7A (3)(d) be amended by adding a new subsection that specifically
incorporates the substance of the first and last sentences of Canon 3B(9) which
provides in pertinent part
(9) A judge shall not while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing
3
This Section does not apply to proceedings in which the judge is a litigant in a personal capacity
This should be done because Canon 3B(9) does not apply to judicial candidates
who are not yet judges The Committee also suggests modification of the
Commentary on Canon 7A (3)(d) to delete the following reference to Section 3B
(9)
See also Section 3B(9) the general rule on public comment by judges
The proposed amendment would create 7A (3)(d)(iv) and provide as follows
(3) A candidate for judicial office
(d) shall not
(iv) while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing This section does not apply to proceedings in which the judicial candidate is a litigant in a personal capacity
The proposed amendments to Canon 7 and its commentary are included in the
appendix attached to this report at pages A l-7 8-12
4
II Canon 7C(1)
This Committee further recommends that a study be undertaken and
comments be solicited by the court regarding whether Canon 7C(l) should be
amended in light of the decision in Weaver v Bonner 309 F3d 1312 (11 Cir
2002)
In Weaver the Eleventh Circuit held that Georgias canon 7(B)(2) which
prohibits judicial candidates from personally soliciting campaign contributions and
publicly stated support is unconstitutional Georgias canon like Florida Canon
7C(l) allows the candidates election committee to engage in these activities
Floridas Canon 7C(l) contains a prohibition like Georgias canon that precludes
personal solicitation by judicial candidates of campaign contributions and publicly
stated support The Weaver decision may render unenforceable the provisions of
Floridas Canon 7C(l) that prohibit a candidate for judicial office including an
incumbent judge from personally soliciting campaign funds or soliciting attorneys
for publicly stated support Neither party to Weaver sought review by the United
States Supreme Court
There are three possible courses of action in response to the Weaver
decision
5
tamend canon 7C(l) to delete the prohibition 2do nothing 1do not amend the canon pending further development of the law
It should be noted that the ABAs recent revisions of the Model Code of
Judicial Conduct made no change in corollary canon 5(B)(1) which precludes
candidates for judicial office or judges from personally soliciting funds to support
the judges candidacy See pages 13-16 of the appendix accompanying this report
Georgia has now proposed amendments to its Code of Judicial Conduct that delete
the prohibition against judicial candidates personally soliciting campaign funds See
pages 17-21 of the appendix attached to this report
The Committee makes no recommendation except to suggest that the court
solicit comment regarding Weaver v Bonner and possible amendment of Canon
7C(l) to provide as follows
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 3hall not puounally 3ulich canipaign
fundo ui solicit attuinop fui publicly 3tated 3uppuu but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidates 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
6
of the candidate or members of the candidates family
III Revision of Canon 7 in view of the Republican Partv decision
The committee also considered whether additional changes to Canon 7
should be made in view of the decision of the United States Supreme Court in
Republican Party ofMinnesota v White 536 US 765 122 SCt 2528 153 L
Ed 2d 694 (2002) There the United States Supreme Court held that the
announce clause of the Minnesota Code of Judicial Conduct was unconstitutional
because it violated the First Amendment
In discussing Canon 7 and the decision in Republican Party ofMinnesota v
White this Court in Kinsey stated as follows
In contrast to White Florida does not have an announce clause but instead adopted a more narrow canon which
provides as follows
A candidate for judicial office shall not
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] (ii) make statements that commit or appear to commit the candidate with respect to cases controversies or issues that are likely to come before the court
Fla Code Jud Conduct Canon 7A (3)(d)(i)-(ii) The commentary to the canon stresses the concept that a candidate
7
should emphasize in any public statement the candidates duty to uphold the law regardless of his or her personal views
[FN6]
It is beyond dispute that Canon 7A (3)(d)(i)-(ii) serves a compelling state interest in preserving the integrity of our judiciary and maintaining the publics confidence in an impartial judiciary [FN7] A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens Likewise it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give
more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which is headed to court
In reviewing the narrowly tailored prong of the test we
conclude that the restraints are narrowly tailored to protect the states compelling interests without unnecessarily prohibiting protected speech As is clear from the canons and related commentary a candidate may state his or her personal views even on disputed issues However to ensure that the voters understand a judges duty to uphold the constitution and laws of the state where the law differs from his or her personal belief the commentary encourages candidates to stress that as judges they will uphold the law
The Committee is aware that the ABA has just approved revisions to the Model
Code of Judicial Conduct See pages 13-16 of the appendix attached to this report
The Committee has not had the opportunity to study those changes in depth and
makes no recommendation at this time regarding additional changes to the Code of
8
Judicial Conduct
9
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11
pending
Because Canons I 2 and 3 are not applicable to judicial candidates who are
not yet judges the Supreme Court reviewed this charge against Judge Kinsey in
light of Canon 7A (3)(d)(ii) and concluded that there was not clear and competent
evidence to show that Judge Kinsey violated Canon 7A (3)(d)(ii) The court said
Although Judge Kinsey commented on two cases still pending these cases were not likely to come before her if she was elected to the office of county court judge-the two pending cases involved serious felonies which would be heard in circuit court We are concerned however as to whether it is
appropriatefor a judicial candidate to make public
comments on pending cases where such comments could
affect theirfuture outcomes and accordingly refer this
matter to the Judicial Ethics Advisory Committeefor study
[emphasis supplied]
The Committee has studied this request and unanimously recommends that
Canon 7A (3)(d) be amended by adding a new subsection that specifically
incorporates the substance of the first and last sentences of Canon 3B(9) which
provides in pertinent part
(9) A judge shall not while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing
3
This Section does not apply to proceedings in which the judge is a litigant in a personal capacity
This should be done because Canon 3B(9) does not apply to judicial candidates
who are not yet judges The Committee also suggests modification of the
Commentary on Canon 7A (3)(d) to delete the following reference to Section 3B
(9)
See also Section 3B(9) the general rule on public comment by judges
The proposed amendment would create 7A (3)(d)(iv) and provide as follows
(3) A candidate for judicial office
(d) shall not
(iv) while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing This section does not apply to proceedings in which the judicial candidate is a litigant in a personal capacity
The proposed amendments to Canon 7 and its commentary are included in the
appendix attached to this report at pages A l-7 8-12
4
II Canon 7C(1)
This Committee further recommends that a study be undertaken and
comments be solicited by the court regarding whether Canon 7C(l) should be
amended in light of the decision in Weaver v Bonner 309 F3d 1312 (11 Cir
2002)
In Weaver the Eleventh Circuit held that Georgias canon 7(B)(2) which
prohibits judicial candidates from personally soliciting campaign contributions and
publicly stated support is unconstitutional Georgias canon like Florida Canon
7C(l) allows the candidates election committee to engage in these activities
Floridas Canon 7C(l) contains a prohibition like Georgias canon that precludes
personal solicitation by judicial candidates of campaign contributions and publicly
stated support The Weaver decision may render unenforceable the provisions of
Floridas Canon 7C(l) that prohibit a candidate for judicial office including an
incumbent judge from personally soliciting campaign funds or soliciting attorneys
for publicly stated support Neither party to Weaver sought review by the United
States Supreme Court
There are three possible courses of action in response to the Weaver
decision
5
tamend canon 7C(l) to delete the prohibition 2do nothing 1do not amend the canon pending further development of the law
It should be noted that the ABAs recent revisions of the Model Code of
Judicial Conduct made no change in corollary canon 5(B)(1) which precludes
candidates for judicial office or judges from personally soliciting funds to support
the judges candidacy See pages 13-16 of the appendix accompanying this report
Georgia has now proposed amendments to its Code of Judicial Conduct that delete
the prohibition against judicial candidates personally soliciting campaign funds See
pages 17-21 of the appendix attached to this report
The Committee makes no recommendation except to suggest that the court
solicit comment regarding Weaver v Bonner and possible amendment of Canon
7C(l) to provide as follows
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 3hall not puounally 3ulich canipaign
fundo ui solicit attuinop fui publicly 3tated 3uppuu but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidates 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
6
of the candidate or members of the candidates family
III Revision of Canon 7 in view of the Republican Partv decision
The committee also considered whether additional changes to Canon 7
should be made in view of the decision of the United States Supreme Court in
Republican Party ofMinnesota v White 536 US 765 122 SCt 2528 153 L
Ed 2d 694 (2002) There the United States Supreme Court held that the
announce clause of the Minnesota Code of Judicial Conduct was unconstitutional
because it violated the First Amendment
In discussing Canon 7 and the decision in Republican Party ofMinnesota v
White this Court in Kinsey stated as follows
In contrast to White Florida does not have an announce clause but instead adopted a more narrow canon which
provides as follows
A candidate for judicial office shall not
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] (ii) make statements that commit or appear to commit the candidate with respect to cases controversies or issues that are likely to come before the court
Fla Code Jud Conduct Canon 7A (3)(d)(i)-(ii) The commentary to the canon stresses the concept that a candidate
7
should emphasize in any public statement the candidates duty to uphold the law regardless of his or her personal views
[FN6]
It is beyond dispute that Canon 7A (3)(d)(i)-(ii) serves a compelling state interest in preserving the integrity of our judiciary and maintaining the publics confidence in an impartial judiciary [FN7] A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens Likewise it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give
more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which is headed to court
In reviewing the narrowly tailored prong of the test we
conclude that the restraints are narrowly tailored to protect the states compelling interests without unnecessarily prohibiting protected speech As is clear from the canons and related commentary a candidate may state his or her personal views even on disputed issues However to ensure that the voters understand a judges duty to uphold the constitution and laws of the state where the law differs from his or her personal belief the commentary encourages candidates to stress that as judges they will uphold the law
The Committee is aware that the ABA has just approved revisions to the Model
Code of Judicial Conduct See pages 13-16 of the appendix attached to this report
The Committee has not had the opportunity to study those changes in depth and
makes no recommendation at this time regarding additional changes to the Code of
8
Judicial Conduct
9
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11
This Section does not apply to proceedings in which the judge is a litigant in a personal capacity
This should be done because Canon 3B(9) does not apply to judicial candidates
who are not yet judges The Committee also suggests modification of the
Commentary on Canon 7A (3)(d) to delete the following reference to Section 3B
(9)
See also Section 3B(9) the general rule on public comment by judges
The proposed amendment would create 7A (3)(d)(iv) and provide as follows
(3) A candidate for judicial office
(d) shall not
(iv) while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing This section does not apply to proceedings in which the judicial candidate is a litigant in a personal capacity
The proposed amendments to Canon 7 and its commentary are included in the
appendix attached to this report at pages A l-7 8-12
4
II Canon 7C(1)
This Committee further recommends that a study be undertaken and
comments be solicited by the court regarding whether Canon 7C(l) should be
amended in light of the decision in Weaver v Bonner 309 F3d 1312 (11 Cir
2002)
In Weaver the Eleventh Circuit held that Georgias canon 7(B)(2) which
prohibits judicial candidates from personally soliciting campaign contributions and
publicly stated support is unconstitutional Georgias canon like Florida Canon
7C(l) allows the candidates election committee to engage in these activities
Floridas Canon 7C(l) contains a prohibition like Georgias canon that precludes
personal solicitation by judicial candidates of campaign contributions and publicly
stated support The Weaver decision may render unenforceable the provisions of
Floridas Canon 7C(l) that prohibit a candidate for judicial office including an
incumbent judge from personally soliciting campaign funds or soliciting attorneys
for publicly stated support Neither party to Weaver sought review by the United
States Supreme Court
There are three possible courses of action in response to the Weaver
decision
5
tamend canon 7C(l) to delete the prohibition 2do nothing 1do not amend the canon pending further development of the law
It should be noted that the ABAs recent revisions of the Model Code of
Judicial Conduct made no change in corollary canon 5(B)(1) which precludes
candidates for judicial office or judges from personally soliciting funds to support
the judges candidacy See pages 13-16 of the appendix accompanying this report
Georgia has now proposed amendments to its Code of Judicial Conduct that delete
the prohibition against judicial candidates personally soliciting campaign funds See
pages 17-21 of the appendix attached to this report
The Committee makes no recommendation except to suggest that the court
solicit comment regarding Weaver v Bonner and possible amendment of Canon
7C(l) to provide as follows
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 3hall not puounally 3ulich canipaign
fundo ui solicit attuinop fui publicly 3tated 3uppuu but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidates 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
6
of the candidate or members of the candidates family
III Revision of Canon 7 in view of the Republican Partv decision
The committee also considered whether additional changes to Canon 7
should be made in view of the decision of the United States Supreme Court in
Republican Party ofMinnesota v White 536 US 765 122 SCt 2528 153 L
Ed 2d 694 (2002) There the United States Supreme Court held that the
announce clause of the Minnesota Code of Judicial Conduct was unconstitutional
because it violated the First Amendment
In discussing Canon 7 and the decision in Republican Party ofMinnesota v
White this Court in Kinsey stated as follows
In contrast to White Florida does not have an announce clause but instead adopted a more narrow canon which
provides as follows
A candidate for judicial office shall not
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] (ii) make statements that commit or appear to commit the candidate with respect to cases controversies or issues that are likely to come before the court
Fla Code Jud Conduct Canon 7A (3)(d)(i)-(ii) The commentary to the canon stresses the concept that a candidate
7
should emphasize in any public statement the candidates duty to uphold the law regardless of his or her personal views
[FN6]
It is beyond dispute that Canon 7A (3)(d)(i)-(ii) serves a compelling state interest in preserving the integrity of our judiciary and maintaining the publics confidence in an impartial judiciary [FN7] A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens Likewise it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give
more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which is headed to court
In reviewing the narrowly tailored prong of the test we
conclude that the restraints are narrowly tailored to protect the states compelling interests without unnecessarily prohibiting protected speech As is clear from the canons and related commentary a candidate may state his or her personal views even on disputed issues However to ensure that the voters understand a judges duty to uphold the constitution and laws of the state where the law differs from his or her personal belief the commentary encourages candidates to stress that as judges they will uphold the law
The Committee is aware that the ABA has just approved revisions to the Model
Code of Judicial Conduct See pages 13-16 of the appendix attached to this report
The Committee has not had the opportunity to study those changes in depth and
makes no recommendation at this time regarding additional changes to the Code of
8
Judicial Conduct
9
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11
II Canon 7C(1)
This Committee further recommends that a study be undertaken and
comments be solicited by the court regarding whether Canon 7C(l) should be
amended in light of the decision in Weaver v Bonner 309 F3d 1312 (11 Cir
2002)
In Weaver the Eleventh Circuit held that Georgias canon 7(B)(2) which
prohibits judicial candidates from personally soliciting campaign contributions and
publicly stated support is unconstitutional Georgias canon like Florida Canon
7C(l) allows the candidates election committee to engage in these activities
Floridas Canon 7C(l) contains a prohibition like Georgias canon that precludes
personal solicitation by judicial candidates of campaign contributions and publicly
stated support The Weaver decision may render unenforceable the provisions of
Floridas Canon 7C(l) that prohibit a candidate for judicial office including an
incumbent judge from personally soliciting campaign funds or soliciting attorneys
for publicly stated support Neither party to Weaver sought review by the United
States Supreme Court
There are three possible courses of action in response to the Weaver
decision
5
tamend canon 7C(l) to delete the prohibition 2do nothing 1do not amend the canon pending further development of the law
It should be noted that the ABAs recent revisions of the Model Code of
Judicial Conduct made no change in corollary canon 5(B)(1) which precludes
candidates for judicial office or judges from personally soliciting funds to support
the judges candidacy See pages 13-16 of the appendix accompanying this report
Georgia has now proposed amendments to its Code of Judicial Conduct that delete
the prohibition against judicial candidates personally soliciting campaign funds See
pages 17-21 of the appendix attached to this report
The Committee makes no recommendation except to suggest that the court
solicit comment regarding Weaver v Bonner and possible amendment of Canon
7C(l) to provide as follows
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 3hall not puounally 3ulich canipaign
fundo ui solicit attuinop fui publicly 3tated 3uppuu but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidates 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
6
of the candidate or members of the candidates family
III Revision of Canon 7 in view of the Republican Partv decision
The committee also considered whether additional changes to Canon 7
should be made in view of the decision of the United States Supreme Court in
Republican Party ofMinnesota v White 536 US 765 122 SCt 2528 153 L
Ed 2d 694 (2002) There the United States Supreme Court held that the
announce clause of the Minnesota Code of Judicial Conduct was unconstitutional
because it violated the First Amendment
In discussing Canon 7 and the decision in Republican Party ofMinnesota v
White this Court in Kinsey stated as follows
In contrast to White Florida does not have an announce clause but instead adopted a more narrow canon which
provides as follows
A candidate for judicial office shall not
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] (ii) make statements that commit or appear to commit the candidate with respect to cases controversies or issues that are likely to come before the court
Fla Code Jud Conduct Canon 7A (3)(d)(i)-(ii) The commentary to the canon stresses the concept that a candidate
7
should emphasize in any public statement the candidates duty to uphold the law regardless of his or her personal views
[FN6]
It is beyond dispute that Canon 7A (3)(d)(i)-(ii) serves a compelling state interest in preserving the integrity of our judiciary and maintaining the publics confidence in an impartial judiciary [FN7] A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens Likewise it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give
more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which is headed to court
In reviewing the narrowly tailored prong of the test we
conclude that the restraints are narrowly tailored to protect the states compelling interests without unnecessarily prohibiting protected speech As is clear from the canons and related commentary a candidate may state his or her personal views even on disputed issues However to ensure that the voters understand a judges duty to uphold the constitution and laws of the state where the law differs from his or her personal belief the commentary encourages candidates to stress that as judges they will uphold the law
The Committee is aware that the ABA has just approved revisions to the Model
Code of Judicial Conduct See pages 13-16 of the appendix attached to this report
The Committee has not had the opportunity to study those changes in depth and
makes no recommendation at this time regarding additional changes to the Code of
8
Judicial Conduct
9
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11
tamend canon 7C(l) to delete the prohibition 2do nothing 1do not amend the canon pending further development of the law
It should be noted that the ABAs recent revisions of the Model Code of
Judicial Conduct made no change in corollary canon 5(B)(1) which precludes
candidates for judicial office or judges from personally soliciting funds to support
the judges candidacy See pages 13-16 of the appendix accompanying this report
Georgia has now proposed amendments to its Code of Judicial Conduct that delete
the prohibition against judicial candidates personally soliciting campaign funds See
pages 17-21 of the appendix attached to this report
The Committee makes no recommendation except to suggest that the court
solicit comment regarding Weaver v Bonner and possible amendment of Canon
7C(l) to provide as follows
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 3hall not puounally 3ulich canipaign
fundo ui solicit attuinop fui publicly 3tated 3uppuu but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidates 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
6
of the candidate or members of the candidates family
III Revision of Canon 7 in view of the Republican Partv decision
The committee also considered whether additional changes to Canon 7
should be made in view of the decision of the United States Supreme Court in
Republican Party ofMinnesota v White 536 US 765 122 SCt 2528 153 L
Ed 2d 694 (2002) There the United States Supreme Court held that the
announce clause of the Minnesota Code of Judicial Conduct was unconstitutional
because it violated the First Amendment
In discussing Canon 7 and the decision in Republican Party ofMinnesota v
White this Court in Kinsey stated as follows
In contrast to White Florida does not have an announce clause but instead adopted a more narrow canon which
provides as follows
A candidate for judicial office shall not
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] (ii) make statements that commit or appear to commit the candidate with respect to cases controversies or issues that are likely to come before the court
Fla Code Jud Conduct Canon 7A (3)(d)(i)-(ii) The commentary to the canon stresses the concept that a candidate
7
should emphasize in any public statement the candidates duty to uphold the law regardless of his or her personal views
[FN6]
It is beyond dispute that Canon 7A (3)(d)(i)-(ii) serves a compelling state interest in preserving the integrity of our judiciary and maintaining the publics confidence in an impartial judiciary [FN7] A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens Likewise it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give
more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which is headed to court
In reviewing the narrowly tailored prong of the test we
conclude that the restraints are narrowly tailored to protect the states compelling interests without unnecessarily prohibiting protected speech As is clear from the canons and related commentary a candidate may state his or her personal views even on disputed issues However to ensure that the voters understand a judges duty to uphold the constitution and laws of the state where the law differs from his or her personal belief the commentary encourages candidates to stress that as judges they will uphold the law
The Committee is aware that the ABA has just approved revisions to the Model
Code of Judicial Conduct See pages 13-16 of the appendix attached to this report
The Committee has not had the opportunity to study those changes in depth and
makes no recommendation at this time regarding additional changes to the Code of
8
Judicial Conduct
9
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11
of the candidate or members of the candidates family
III Revision of Canon 7 in view of the Republican Partv decision
The committee also considered whether additional changes to Canon 7
should be made in view of the decision of the United States Supreme Court in
Republican Party ofMinnesota v White 536 US 765 122 SCt 2528 153 L
Ed 2d 694 (2002) There the United States Supreme Court held that the
announce clause of the Minnesota Code of Judicial Conduct was unconstitutional
because it violated the First Amendment
In discussing Canon 7 and the decision in Republican Party ofMinnesota v
White this Court in Kinsey stated as follows
In contrast to White Florida does not have an announce clause but instead adopted a more narrow canon which
provides as follows
A candidate for judicial office shall not
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] (ii) make statements that commit or appear to commit the candidate with respect to cases controversies or issues that are likely to come before the court
Fla Code Jud Conduct Canon 7A (3)(d)(i)-(ii) The commentary to the canon stresses the concept that a candidate
7
should emphasize in any public statement the candidates duty to uphold the law regardless of his or her personal views
[FN6]
It is beyond dispute that Canon 7A (3)(d)(i)-(ii) serves a compelling state interest in preserving the integrity of our judiciary and maintaining the publics confidence in an impartial judiciary [FN7] A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens Likewise it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give
more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which is headed to court
In reviewing the narrowly tailored prong of the test we
conclude that the restraints are narrowly tailored to protect the states compelling interests without unnecessarily prohibiting protected speech As is clear from the canons and related commentary a candidate may state his or her personal views even on disputed issues However to ensure that the voters understand a judges duty to uphold the constitution and laws of the state where the law differs from his or her personal belief the commentary encourages candidates to stress that as judges they will uphold the law
The Committee is aware that the ABA has just approved revisions to the Model
Code of Judicial Conduct See pages 13-16 of the appendix attached to this report
The Committee has not had the opportunity to study those changes in depth and
makes no recommendation at this time regarding additional changes to the Code of
8
Judicial Conduct
9
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11
should emphasize in any public statement the candidates duty to uphold the law regardless of his or her personal views
[FN6]
It is beyond dispute that Canon 7A (3)(d)(i)-(ii) serves a compelling state interest in preserving the integrity of our judiciary and maintaining the publics confidence in an impartial judiciary [FN7] A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens Likewise it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give
more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which is headed to court
In reviewing the narrowly tailored prong of the test we
conclude that the restraints are narrowly tailored to protect the states compelling interests without unnecessarily prohibiting protected speech As is clear from the canons and related commentary a candidate may state his or her personal views even on disputed issues However to ensure that the voters understand a judges duty to uphold the constitution and laws of the state where the law differs from his or her personal belief the commentary encourages candidates to stress that as judges they will uphold the law
The Committee is aware that the ABA has just approved revisions to the Model
Code of Judicial Conduct See pages 13-16 of the appendix attached to this report
The Committee has not had the opportunity to study those changes in depth and
makes no recommendation at this time regarding additional changes to the Code of
8
Judicial Conduct
9
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11
Judicial Conduct
9
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11
WHEREFORE the Judicial Ethics Advisory Committee respectfully requests
this Court to consider and adopt the amendments proposed in this report
DATED this 27th day of October 2003
Respectfully submitted
Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545
-and-
Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204
By
10
Marjorie Gadarian Graham Florida Bar No 142053
11