FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-02
Date of Issue: February 1, 2006

ISSUES

1. Whether a senior judge subject to recall may work for a Florida newspaper, investigating and writing only human interest and sports articles.

2. Whether a senior judge subject to recall may work for a non-Florida newspaper, investigating and writing only human interest and sports articles.

3. Whether a senior judge subject to recall may own an interest in a weekly newspaper, either in Florida, or outside it, where that ownership interest will require the judge to manage the newspaper.

ANSWER:

1. Yes.

2. Yes.

3. No.

FACTS

The inquiring judge will soon retire and may elect to remain subject to recall as a senior judge. The judge will spend six months of each year in Florida, serving a part of that time as a senior judge, and will spend the other six months of each year in a small town out of state. During those months spent out of state, the judge would like to own an interest in, and write sports and human interest articles for, a weekly newspaper. The ownership interest would require the judge to be active in the management of the newspaper.

DISCUSSION

Senior judges subject to recall must comply with all provisions of the Code of Judicial Conduct except Sections 5C(2), 5E, 5F, and 6A. See “Application of the Code of Judicial Conduct,” found at the end of the Code of Judicial Conduct (“Code”), and Fla. JEAC Op. 01-04 and 95-33 (senior judge subject to recall bound by Code of Judicial Conduct, except for sections identified above).

Section 5A of the Code states:

Extrajudicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.

So long as the inquiring judge continuously evaluates changing circumstances to ensure compliance with the above restrictions, and is a freelance writer rather than an employee of the newspaper, see section 5(D)3, quoted below, the judge may write sports and human interest stories for either a Florida newspaper or an out-of-state newspaper. See Fla. JEAC Op. 99-14 (judge may write short monthly column on the judicial system for local business newspaper, so long as judge does not intimate how judge would rule on matters which might come before the court), Fla. JEAC Op. 80-14 (judge may write letter to the editor for publication in a local newspaper regarding the method of selecting and retaining judges in Florida), and Fla. JEAC Op. 95-37 (judge may write biweekly column on attorney’s fees for daily business newspaper), and cases cited in the last opinion. But see Fla. JEAC Op. 96-25 (ongoing relationship between judge and television station would result in violation of this Code provision) and Fla. JEAC Op. 96-25 (judge may not enter into arrangement with television station to regularly appear in order to offer comment on diverse legal matters, because, among other reasons, “[m]embers of the electronic media are frequently litigants in the courts of this state,” and the “commercial and entertainment aspects of” the proposed arrangement “might well outweigh the legitimate public information aspects.”)

A judge is prohibited, however, from owning an interest in a newspaper where that interest would require the judge to manage the operation of the newspaper. Section 5(D)3 of the Code, with two exceptions not here applicable, states:

A judge shall not serve as ...[a] manager...or employee of any business entity....

Should the inquiring judge elect not to remain subject to recall, the judge would no longer be subject to the Code, and could be employed by, and manage, a newspaper.

REFERENCES

Section 5A, Code of Judicial Conduct
Section 5(D)3, Code of Judicial Conduct
JEAC Op. 01-04; 95-33; 99-14; 80-14; 95-37; and 96-25

_____________

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, Ervin Gonzalez, Esquire, 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)