Florida Family Policy Council v. Freeman

Decision Date06 March 2009
Docket NumberNo. 07-14830.,07-14830.
PartiesFLORIDA FAMILY POLICY COUNCIL, Plaintiff-Appellant, v. Thomas B. FREEMAN, in his official capacity as a member of the Florida Judicial Qualifications Commission, Peggy Gehn, in her official capacity as a member of the Florida Judicial Qualifications Commission, Paul L. Backman, in his official capacity as a member of the Florida Commission on Judicial Qualifications, David H. Young, in his official capacity as a member of the Florida Judicial Qualifications Commission, Morris Silberman, in his official capacity as a member of the Florida Judicial Qualifications Commission, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Anita Yvonne Woudenberg, James Bopp, Jr., Josiah S. Neeley, Bopp, Coleson & Bostram, Terre Haute, IN, for Plaintiff-Appellant.

Marie Tomassi, Trenam, Kemker, Scharf, Barkin, Frye, O'Neill, & Mullis, P.A., Saint Petersburg, FL, Michael Keith Green, Marvin E. Barkin, Amy Lea Drushal, Trenam Kemker Attys., Tampa, FL, for Defendants-Appellees.

Michael E. Morris, Orlando, FL, Gregory T. Nevins, Lambda Legal Defense Educ. Fund, Inc., Atlanta, GA, for Amicus Curiae.

Appeal from the United States District Court for the Northern District of Florida.

Before CARNES and MARCUS, Circuit Judges, and DuBOSE,* District Judge.

CARNES, Circuit Judge:

Florida Family Policy Council, Inc. is a nonprofit organization that distributes questionnaires to judicial candidates in order to gather and publish their views on legal and political issues. Florida Family's attempts to gather judicial candidates' views, however, have been hampered in part by Canon 3E(1) and 3E(1)(f) of the Florida Code of Judicial Conduct. Those provisions address situations in which a judge must disqualify himself because his "impartiality might reasonably be questioned," including when he has "made a public statement that commits, or appears to commit, the judge with respect to" a particular party, issue, or controversy. Canon 3E(1), 3E(1)(f). The general disqualification provision in Canon 3E(1), along with the "commits clause" at Canon 3E(1)(f), led some Florida judicial candidates not to respond to the questionnaires because they feared that doing so would require their disqualification from future cases. Florida Family filed a complaint asserting that Canon 3E(1) and subpart (f) unconstitutionally infringed its right to receive speech under the First and Fourteenth Amendments. The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) because it found no merit in Florida Family's constitutional claims. This is Florida Family's appeal.

I.

The Florida Supreme Court has adopted a Code of Judicial Conduct to govern the actions of state court judges and candidates for judicial office. Canon 3E(1) states:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

...

(f) the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to:

(i) parties or classes of parties in the proceeding;

(ii) an issue in the proceeding; or

(iii) the controversy in the proceeding.

The Code defines "impartiality" as the "absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge." Fla.Code of Jud. Conduct, Definitions. Canon 3E(1)(f), which the Florida Supreme Court adopted in January 2006, covers one area in which a judge's "impartiality might reasonably be questioned." See In re Amendment to Code of Judicial Conduct, 918 So.2d 949 (Fla.2006). In addition to the Florida Supreme Court, the Judicial Ethics Advisory Committee (Ethics Committee) and the Judicial Qualifications Commission (JQC) have roles in administering the Code.

The Florida Supreme Court established the Ethics Committee "to render written advisory opinions to inquiring judges concerning the propriety of contemplated judicial and non-judicial conduct." Petition of Comm. on Standards of Conduct for Judges, 327 So.2d 5, 5 (Fla.1976). The Ethics Committee's advisory opinions do not bind the JQC. Id. However, at its discretion the JQC may consider reliance on an advisory opinion as evidence of a judge's good faith effort to comply with the Code. Id. at 5-6.

The Florida Constitution vests the JQC with the authority to investigate and recommend to the state supreme court the discipline of judges. Fla. Const. art. 5, § 12(a)(1). Acting either on its own initiative or in response to a complaint, an investigatory panel of the JQC determines whether there is probable cause to believe that a judge has violated the Canons. If there is probable cause, a JQC panel conducts a trial and submits its findings and recommendations to the Florida Supreme Court. That Court then reviews the JQC's evidence, and while it "gives the findings and recommendations of the JQC great weight, the ultimate power and responsibility in making a determination rests with" the Florida Supreme Court. In re Andrews, 875 So.2d 441, 442 (Fla. 2004) (citations and quotation marks omitted).

In an effort to collect judicial candidates' views, Florida Family mailed a questionnaire to all judicial office primary candidates in Florida in July 2006. An explanatory letter attached to the questionnaire stated that "it is understood that your responses to the questions ... do not constitute any pledge, promise, or commitment or intended to create the appearance of a pledge, promise, or commitment to reach any particular result in a case." The letter also urged candidates to seek an advisory opinion from the Ethics Committee if they remained uncertain whether they could answer the questionnaire without having to disqualify themselves from future cases.

The questionnaire included thirteen questions on a variety of topics. The first five solicited biographical information. The sixth and seventh questions asked the candidate to list which current justices on the United States Supreme Court and the Florida Supreme Court most reflected the candidate's own judicial philosophy. Question eight asked the candidate whether he believed that the Florida Constitution recognizes a right to same-sex marriage. The final five questions asked whether the candidate agreed with judicial decisions regarding parental consent for abortions, assisted suicide, homosexual adoption, voucher programs, and the elements of burglary. For questions eight through thirteen, candidates could select from five responses: "Agree," "Disagree," "Undecided," "Decline to respond," or "Refuse to respond."

On the questionnaire, next to each "Decline to respond" blank, was an asterisk accompanied by a footnote that stated:

This response indicates that I would answer this question but believe that I am prohibited from doing so by Florida Canons of Judicial Conduct 3B(10) and 7A(3)(a) and (d)(1).... In addition, I would answer this question, but believe that if I did so, then I will be required to recuse myself as a judge in any proceeding concerning this answer on account of Florida Canons 3E(1) and 3E(1)(f)....

Before responding to the questionnaire several judicial candidates followed the advice in Florida Family's accompanying letter and sought guidance from the Ethics Committee. On August 7, 2006 the Ethics Committee issued Advisory Opinion 06-18. That opinion advised judicial candidates they could answer the questionnaire so long as:

(1) the candidate clearly indicates that the answers do not constitute a promise that the candidate will rule a certain way in a case; (2) the candidate clearly acknowledges the obligation to follow binding legal precedent anywhere it exists; (3) the candidate does not appear to endorse any other individual who is likely to stand for election to or retention in any public office or any platform of a political party; and (4) any commentary on past judicial decisions is analytical, informed, respectful, and dignified.

However, the advisory opinion "caution[ed] that the line between `announcing' and `promising' can be a thin one." The opinion reminded judicial candidates that with respect to disqualification:

[T]he "eye of the beholder" is the primary focus. Despite the fact a judicial candidate's pronouncements may be constitutionally protected speech and in compliance with ethical canons, the dispositive question is still whether the individual "beholder's" fear of partiality is reasonable, reasonableness being determined by a neutral and objective standard.

Finally the opinion warned that a judicial "candidate must not furnish answers that appear to bind the candidate if such issues arise once the candidate has assumed judicial office."

In the days surrounding the issuance of Advisory Opinion 06-18, Florida Family received sixty-three responses to its questionnaire. Forty-seven of them contained mostly or entirely "Decline to respond" answers to questions six through thirteen. Florida Family itself responded to Advisory Opinion 06-18 and to the answers it had received to the first questionnaire by sending out a new one just three days after the Advisory Opinion was issued.

The revised questionnaire, like the first one, was sent to all judicial candidates. It was accompanied by an explanatory letter stating that the Ethics Committee had recently released a "favorable opinion" regarding the questionnaire. Florida Family informed the judicial candidates that it planned to throw out all of the responses to its initial inquiry and substitute their responses to the new one. The new questionnaire began with a boldface disclaimer that stated:

By answering and signing this Questionnaire, you warrant that you understand that, as a judge, your decisions will follow binding precedents and that your answers do...

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