Zeller v. The Florida Bar

• Decision Date: 17 April 1995
• Docket Number: No. TCA 95-40073-MMP.,TCA 95-40073-MMP.
• Citation: 909 F. Supp. 1518
• Parties: Ray ZELLER, et al., Plaintiffs, v. THE FLORIDA BAR and The Florida Judicial Qualifications Commission, Defendants.
• Court: U.S. District Court — Northern District of Florida

909 F. Supp. 1518

Ray ZELLER, et al., Plaintiffs, v. THE FLORIDA BAR and The Florida Judicial Qualifications Commission, Defendants.

No. TCA 95-40073-MMP.

United States District Court, N.D. Florida, Tallahassee Division.

Decided April 17, 1995.

Judgement Filed June 16, 1995.

COPYRIGHT MATERIAL OMITTED

Jerry G. Traynham, Patterson & Traynham, Tallahassee, FL, Nina E. Vinik, Pro Hac Vice, American Civil Liberties Union, Foundation of Florida, Miami, FL, for Ray Zeller, Donna Ballman, Jennifer Coberly, Charles Balli, Cynthia Sherr, American Civil Liberties Union, Reginald Richardson.

Barry Richard, Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, Tallahassee, FL, George L. Waas, Attorney General's Office, Department of Legal Affairs, Tallahassee, FL, for The Florida Bar, Florida Judicial Qualifications Commission.

ORDER

PAUL, Chief Judge.

On March 21, 1995, oral argument was heard on Plaintiff's motion for a preliminary injunction (doc. 3) and Defendant Florida Judicial Qualifications Commission's ("JQC") motion to dismiss (doc. 10). Since the hearing, the parties have filed additional memoranda in support of their respective positions (docs. 15, 16, 18).

For the reasons outlined below, Defendant JQC's motion to dismiss (doc. 10) is DENIED and Plaintiff's motion for a preliminary injunction (doc. 3) is GRANTED.

BACKGROUND:

The practice of law and conduct of state judges in Florida are matters solely within the plenary jurisdiction of the Florida Supreme Court. In re The Florida Bar, 316 So.2d 45, 47 (Fla.1975) (specific constitutional authority for adoption of ethical codes unnecessary because such authority is an inherent power of judiciary branch)¹. Pursuant to this power, on September 29, 1994, the Florida Supreme Court adopted a new Code of Judicial Conduct ("Judicial Code") that was more consistent with the American Bar Association's Model Code, and better reflected "present day concerns and responsibilities of Florida judges." In re Code of Judicial Conduct, 643 So.2d 1037, 1038 (Fla.1994). The new Judicial Code had an effective date of January 1, 1995. Id. at 1040.

The new Judicial Code adopted by the Supreme Court contains additional restrictions on the political activity of judges or candidates for judicial office. Specifically, Canon 7(C)(1) provides that:

A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate's campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law. A candidate should not expend funds in furtherance of his or her judicial campaign or establish a committee to solicit contributions or public support earlier than one year before the general election ....

In re Code of Judicial Conduct, 643 So.2d at 1059-60 (emphasis added)². Canon 7A(3)(c) further provides that all judges and judicial candidates "shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon." Id. at 1059.

Three groups of plaintiffs challenge the constitutionality of these provisions. The first group of plaintiffs ("Candidates") include Donna Ballman and Reginald Richardson, licensed Florida attorneys who are candidates for judicial office in the September 1996 election. On December 7, 1994, Candidate Ballman declared her candidacy for Circuit Court Judge in and for Dade County, Florida, and began forming campaign and finance committees. On December 8, 1994, Ballman sought an advisory opinion from the Committee on Standards of Conduct Governing Judges ("Committee on Standards")³ concerning the effect of the new Canon 7 on her candidacy. In a letter dated January 31, 1995, the Committee on Standards advised Candidate Ballman that Canon 7C(1) prohibits her and her campaign committee from

holding meetings prior to November, 1995, accepting contributions prior to November, 1995, holding fundraisers prior to November, 1995, printing and distributing literature, bumperstickers and endorsement cards prior to November, 1995, accepting endorsements prior to November, 1995, adding members to her campaign and finance committees prior to November, 1995, and otherwise expending funds and soliciting support prior to November, 1995.

Amended Complaint, doc. 7 at ¶ 24 (paraphrasing Committee on Standards response, Ex. A to doc. 1). On December 30, 1994, Candidate Richardson similarly declared his candidacy for Circuit Court Judge in and for Dade County, Florida. However, in light of Canon 7 and the Committee on Standards' advisory opinion, since January 1, 1995, Candidates Ballman and Richardson have not expended or solicited for campaign funds, or otherwise developed their campaign and finance committees.

The second group of plaintiffs ("Supporters") include Ray Zeller, Jennifer Coberly, Charles Balli, and Cynthia Sherr, registered voters in Dade County who support Ballman's candidacy and are members of Ballman's campaign committee. Supporters of Ballman seek to raise funds and solicit support for her candidacy, but claim they cannot do so because of the prohibitions contained in Canons 7C(1) and 7A(3)(c).

The third group of plaintiffs ("the Public") is represented by the American Civil Liberties Union of Florida, Inc. ("ACLU"), a nonpartisan organization dedicated, inter alia, to the preservation and advancement of free speech. The ACLU and its members desire to receive information about judicial candidates through flyers, literature and other materials, for which campaign funds would have to be spent. The ACLU claims that the proscriptions contained in Canon 7C(1) prevents its members and the Public from receiving this information.

The Florida Bar ("Bar") and The Florida Judicial Qualifications Commission ("JQC"), both Defendants in this action, are intermediate agencies of the Florida Supreme Court responsible for enforcement of the Judicial Code. See generally McCain, 330 So.2d at 714 (in disciplinary matters, Bar serves as adjunct agency of Supreme Court with authority to make findings of fact and recommendations not binding on the Supreme Court); In re LaMotte, 341 So.2d 513, 516 (Fla.1977) (same rule for JQC). Specifically, Defendant Bar is charged with the responsibility of enforcing the Rules of Professional Conduct, including Rule 4-8.2(b), which provides that lawyers who are candidates for judicial office "shall comply with the applicable provisions of Florida's Code of Judicial Conduct." Similarly, Defendant JQC is vested with jurisdiction to investigate and recommend to the Supreme Court that a member of the judiciary be reprimanded or removed from office for conduct in violation of the Judicial Code. Fla. Const. art. 5, § 12.

Plaintiffs filed the instant action pursuant to 42 U.S.C. § 1983. Plaintiffs request the Court to declare that Canon 7C(1) of the Judicial Code is unconstitutional on its face and as applied to Candidates Ballman and Richardson, and seek permanent injunctive relief prohibiting Defendants from enforcing Canon 7C(1). This Court properly has jurisdiction of this case pursuant to 28 U.S.C. §§ 1343, 2201 and 2202. Venue is appropriate under 28 U.S.C. § 1391.

DISCUSSION:

I. DEFENDANT JQC'S MOTION TO DISMISS (DOC. 10):

Defendant JQC moves to dismiss Plaintiff's complaint because it argues it "has neither constitutional nor statutory jurisdiction or authority over plaintiffs as none of them are now judges or judicial candidates" (doc. 10 at 1). At the hearing, counsel for JQC also contended that Plaintiffs have suffered no actual or imminent injury by JQC, and therefore had no standing to attack the JQC's enforcement of Canon 7C(1). JQC accordingly moved for dismissal on the grounds that it is not a proper, indispensable, or necessary party to the action, citing as authority Florida East Coast Ry. Corp. v. Martinez, 761 F.Supp. 782 (M.D.Fla.1991).

Plaintiffs responded (doc. 15) by pointing out that both Candidates Ballman and Richardson had declared their candidacy for judicial office prior to the effective date of Canon 7C(1). Plaintiffs also distinguish Martinez by pointing out that in that case, the defendants were not found to be proper parties because they were not charged with enforcing the law being challenged. See 761 F.Supp. at 784-85. As already noted above, the JQC has such enforcement authority in this case. See In re LaMotte, 341 So.2d at 516.

The Eleventh Circuit specifically addressed this issue in an earlier challenge to Canon 7B(1), concluding that the JQC is a proper party defendant—even if it has made no attempt to enforce the Judicial Code provision in question—because it is duly empowered to regulate the conduct of the state's judges through enforcement of the Judicial Code. American Civil Liberties Union v. The Florida Bar, 999 F.2d 1486, 1490 (11th Cir.1993). Accordingly, JQC's motion to dismiss (doc. 10) is DENIED.

II. PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION (DOC. 3):

Plaintiffs have moved for a preliminary injunction to enjoin Defendants from enforcing the restrictions on judicial campaigns contained in Canon 7C(1) of the Florida Code of Judicial Conduct (doc. 3).

A preliminary injunction "is an extraordinary and drastic remedy not to be granted unless the movant `clearly carries the burden of persuasion.'" Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.1985) (quoting United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983)). To prevail in their motion for a preliminary injunction, Plaintiffs have the burden of proving: (1) a substantial likelihood of success on the merits; (2) a...