FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2000-02
Date of Issue: February 2, 2000

MAY A JUDGE IN PUBLISHING AN ARTICLE AS TO THE EFFECT OF NEW LEGISLATION MAKE CONCLUSIONS AS TO THE CONSTITUTIONALITY OF THAT LEGISLATION?

ISSUE

May a Judge in publishing an article as to the effect of new legislation make conclusions as to the constitutionality of that legislation?
ANSWER: No.
FACTS

The inquiring judge proposes to publish an article regarding the effect of amendments to certain statutory language as part of the "Tort Reform Act" of 1999. In that article, the judge sets forth conclusions relating to the constitutionality of certain portions of those amendments. The judge has asked the Committee to render an opinion as to the ethical propriety of reaching such conclusions in the absence of litigation before him or controlling appellate opinion.

DISCUSSION

The Committee has on several occasions opined that it is not only permissible, but encouraged that judicial officers participate in educational activities which aid and assist attorneys and judges in the administration of justice. See Canons 4A and 4B.

The difficulty in this matter is the conclusions reached by the judge that prejudge matters which have yet to be litigated before him or any other court. The Committee has recently dealt with an issue not too dissimilar in Opinion 99-14 (Judge authoring a monthly newspaper column on the judicial system). In citing Opinion 95-37 (the Committee approved the writing of a biweekly column on attorney's fees issues for the Daily Business Review); Opinion 76-17 (Judge could write procedural manual for publication and sale); Opinion 78-12 (Judge could co- author a procedural manual with a lawyer, the manual to be published and sold by a commercial publisher with royalties or compensation to the authors); and Opinion 82-05 (Judge could privately publish a book, the purpose of which is to teach parents to teach their children the consequences of crime), a majority of the Committee approved the monthly newspaper. See Opinion 99-14.

However, the Committee went on to warn the Judge that the Judge "should not intimate how he would rule on matters pending before any court." Id. (emphasis added). This warning was given by referencing Opinion 81-12. In Opinion 81-12, the Committee became concerned with the Judge expressing his own views on certain matters of law as opposed to educating others on the status of the law. (emphasis added).

Lastly, absent appellate opinion on the matters discussed in the proposed article, the Judge clearly leaves himself open to disqualification under the Florida Rules of Judicial Administration. This could lead to widespread reassignment of civil cases in the Judge's jurisdiction until the matters are ruled upon. See Fla. R. Jud. Admin. 2.160(d)(1).

All in all, the Committee feels that, in light of the dictates of the Canons, the precedent cited herein, and the potential for disruption of the administration of justice in the Judge's jurisdiction, it would be improper for the Judge to publish that part of the article he has inquired about.

REFERENCES

Florida Code of Judicial Conduct Canons 4A and 4B.

Florida Judicial Ethics Advisory Committee Opinions: 76-17, 78-12, 81- 12, 82-05, 95-37, and 99-14.

Florida Rule of Judicial Administration 2.160(d)(1).

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The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact The Honorable C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, DeLand Jail Building, 130 West New York Avenue, DeLand, Florida, 32720.

Participating Members: Graham, Attorney at Law, and Judges Cardonne, C. Kahn, L. Kahn, Levy, Rodriguez, Silverman, Smith, and Swartz.

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)