FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2001-03
Date of Issue: March 13, 2001

ISSUES

May a county judge participate as a spokesperson in an advertising campaign by the Florida Department of Highway Safety and Motor Vehicles encouraging the use of child restraint seats and seat belts and advising as to the law regarding the mandatory use of same?

ANSWER: No.
FACTS

The Florida Department of Highway Safety and Motor Vehicles (Department) has planned and is implementing an advertising campaign called "Judges Love Kids Too!" The announced purpose of the campaign is to advance public education through a program instituted by the Department known as "Child Restraint Offender Program" (CROP). The Department has solicited the inquiring county judge to allow the use of his name and photograph on printed cards to be circulated by the judges themselves at "community events, kept in your office or use them as an education tool to inform your constituents about the Florida child passenger safety law and the [CROP] option." 1

The cards would have a picture of the individual judge as well as information regarding the penalties for failure to comply with the law.

DISCUSSION

The Judicial Ethics Advisory Committee (Committee) believes that Canon 2 and 2A apply to these facts.

Canon 2 states:

A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.

(emphasis added).

Canon 2A reads in part:

A. A judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(emphasis added).

The Committee is initially concerned that the contemplated activity would provide judges with state-funded literature, portraying the judges in a very favorable pro-enforcement posture. Judges could then distribute this literature to promote themselves particularly at election time. Such a scenario would not promote the integrity and independence of the judiciary.

Next, an appearance of impropriety would arise if a judge participated in the contemplated activity and thereafter presided over a trial involving a person who has been issued a ticket for failing to protect a child in a seat restraint. Such a defendant could easily have a reasonable concern about receiving a fair trial before the same judge who has personally appeared in a photo ad singling out this particular law for special emphasis.

The same concern discussed above could be a problem in cases where drivers have had their licenses revoked or suspended by the Department and now seek relief in the courts against the Department. Such a driver could learn that the judge presiding over the case is personally benefitting from an arrangement between the judge and the Department. That arrangement involves the expenditure of tax dollars to produce and distribute literature portraying the judge in a favorable light.

Moreover, the Committee notes that Department employees appear regularly as witnesses (Highway Patrol Officers) or litigants (the Department in certain petitions). A judge must be particularly careful, then, to avoid the appearance that the judge is partial toward representatives of the Department. The appearance of partiality is of the greatest concern to the Committee. The public must be assured when litigating against a governmental agency that the fact finder (in most cases the judge) is impartial.

A minority of the Committee dissents from this opinion. They believe that the announced goals of the program are sufficient to avoid the concerns announced herein. They believe that the use of public funds and the educational nature of the project are sufficient to assuage any concerns the public may have regarding the impartiality of the judge(s) involved in the program.

The minority believes that the Code of Judicial Conduct encourages judges to participate in the education process where it promotes an understanding of the law and assists in the administration of justice. Canon 4 states:

A judge may engage in activities to improve the law, the legal system and the administration of justice.

Canon 4B goes on further to state:

A judge may speak, write, lecture, teach and participate in other quasi- judicial activities concerning the law, the legal system, and the administration of justice, subject to the requirements of this Code.

(emphasis added).

The minority understands and appreciates the position of the majority as set forth above; however, the purpose of the program outlined above is to educate the public and to heighten awareness of the law and the need for the public to protect children from harm. The Department is not in the business of soliciting funds nor is it a charitable organization likely to obtain support from the use of this or any other judge's image or name.

The Committee finds that Canon 2 and 2A control this inquiry and must advise the inquiring judge not to participate in the Department's program.

REFERENCES

Florida Code of Judicial Conduct Canons 2, 2A, 5, and 5B.

_____________

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 Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members:
Judge Charles J. Kahn, Jr.
Judge Lisa D. Kahn
Judge David Levy
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Jeffrey D. Swartz
Judge Emerson Thompson
Judge Richard R. Townsend
Marjorie Gadarian Graham

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)

1 Letter of December 12, 2000, from Barbara Lauer, Chief of the Bureau of Driver Education and Driving Under the Influence Programs, to the inquiring judge with attachments.