FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-14
Date of Issue: September 30, 2005

ISSUES

I. May a judge forward to a charity donations sent in response to a solicitation letter written by the judge prior to seeking appointment to the bench?

ANSWER: Yes, as regards any donations received prior to the judge’s appointment to office. No, as regards any donations received after that date.

II. May the judge, after assuming the bench, run in a marathon race sponsored by this same charity and intended to raise money for the charity?

ANSWER: No, unless there is actually no connection between the race and the raising of funds and the judge can do so without drawing public attention to the judge’s participation.

FACTS

Prior to appointment to the bench the inquiring judge became involved with a well-respected charitable organization. That organization will be sponsoring a marathon to raise funds. The judge had agreed to run in that marathon, something which required an advance financial commitment.

The judge also sent out fund-raising letters. Both these actions occurred before the judge was appointed - in fact, before the judge even applied for the appointment. Funds that came in before the date of the appointment were forwarded to the charity. The judge has held off forwarding or returning any funds received after the appointment, pending receipt of this opinion.

DISCUSSION


The inquiring judge’s first question concerns the proper disposition of the moneys received (a) prior to applying for the judicial appointment; (b) after applying but before receiving the appointment; and (c) after the appointment. It is not clear whether the funds solicited in the letters were intended to help the judge qualify for the marathon, or whether the letters merely asked for donations separate and apart from the cost of entering the race. The fact the money is being sent to the judge, rather than directly to the charity, suggests there may be a connection between the letters and the marathon fee.

The Committee finds no impediment to forwarding the charity all donations received before the appointment by the Governor. The Code of Judicial Conduct imposes fairly strict limits on fund-raising by judges as well as lending the prestige of judicial office to private interests, regardless how praiseworthy. Canon 2(B), Canon 4(D)(2)(a). In this particular instance, however, the solicitation occurred before the judge took office or sought the appointment. This fact distinguishes the present case from other published opinions solicited by judges-elect and candidates for election, who are generally advised to govern themselves as if they had already taken office. See, e.g., Fla. JEAC Ops. 98-25 and 04-37 1 . By contrast, this judge’s conduct was not governed by the Canons at the time the letters were sent.

As for any donations that came in after the judge was appointed to office, there is an additional consideration that must be addressed. It is possible that some of those fund-raising appeals lay unanswered on the recipients’ desks until after the judge was appointed, at which time they attained newfound significance. Some recipients may now perceive an opportunity to curry favor with a judge. The Committee, while regretting the effect on what is unquestionably a worthy cause, considers that the unanswered fund-raising letters may now be perceived as a judicial solicitation and thus that the inquiring judge is better advised to return the donations. The donors are free to turn around and send the contributions directly to the charity if they so desire. Of course, any cover letter should carefully avoid suggesting how the donors should dispose of the funds.

The judge also asks whether it is still permissible to run in the marathon. The Committee concludes that this is likely prohibited by both Canon 2(B) and Canon 4(D)(2)(a). As noted, the race is intended to raise money for the charity, a fact auguring against the judge’s involvement even if no further solicitation of funds will be done by the judge personally. Moreover, there is also the danger that the judge will be perceived by the public as, essentially, a “celebrity participant,” thereby lending the prestige of the office to the charity’s indisputably good works.

The Committee recognizes that the issue of judges’ participation in community affairs is one which seems to be evolving over time. We have recommended against ringing the Christmas bell for the Salvation Army, even in Santa Claus disguise; Fla. JEAC Op. 04-36; but have approved participation in a Habitat for Humanity build (so long as the participating judges “d[id] not call attention to themselves as good citizens” or otherwise imply an “official imprimatur” upon the charity); Fla. JEAC Op. 96-27; and quietly working in the concession stand at a sporting event where the judge’s child attends school, Fla. JEAC Op. 05-07. The distinction is that the first example still involves active solicitation of money, whereas the latter two do not . Nor do they cross the line into “lending prestige” if done discreetly and without calling attention to the judge’s office. Since the marathon is not only a fund-raiser but an event likely to be highly publicized with the judge in a very visible role, the Committee concludes that the judge’s participation would be inappropriate. Only if the Committee has misperceived the true nature of the race, and it is neither a fund-raiser nor an event likely to draw attention to the judge’s supportive role, would the recommendation be otherwise. 2

REFERENCES

Canon 2(B)
Canon 4(D)(2)(a)

Fla. JEAC Op. 96-27
Fla. JEAC Op. 98-25
Fla. JEAC Op. 04-36
Fla. JEAC Op. 04-37
Fla. JEAC Op. 05-07

_____________

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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Michael Raiden, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro, and Marjorie Gadarian Graham, Esquire.


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

1. Because of this distinction, the committee need not consider whether an applicant for nomination by a Judicial Nominating Commission, or one whose name has been submitted to the Governor, is a “candidate” subject to applicable provisions of the Code of Judicial Conduct.

2. Because the question is not before it, the Committee declines to address whether the judge could run in the marathon if all entry fees were paid by the judge personally rather than from donations solicited by the judge.