FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-17
Date of Issue: August 2, 2006

ISSUES

May a judge who has been asked by the local Mothers Against Drunk Driving (MADD) chapter  participate in a panel discussion on the problem of underage drinking.

ANSWER: Yes, provided the event is not a fundraiser and would not risk portraying the judge as a public supporter of the organization.

If not permitted to participate on the panel, may a judge attend the event?

ANSWER: Yes, provided the attendance is discreet and would not risk spotlighting the judge as a public supporter of the organization.

FACTS

The inquiring judge has been asked by the local Mothers Against Drunk Driving (MADD) chapter to participate in a panel discussion (described in promotional literature as a “town hall meeting”) on the problem of underage drinking.  A “meet the dignitaries” reception will precede the panel’s presentation. 

MADD is properly considered an advocacy group.  Its official web site, www.madd.org, provides a wealth of information on the organization’s history, goals, and accomplishments.  As the local chapter’s letterhead reflects, these may be summarized as “activism, victim services, [and] education.”  MADD has been a strong voice for DUI-related legislation, including enhanced penalties for repeat offenders.

DISCUSSION

While Canons 4B and 4D encourage judges to “participate in … quasi-judicial activities concerning the law, the legal system, [and] the administration of justice,” the commentary to Canon 4D(1) also observes:

The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation.  For example, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.

Membership in some organizations or advocacy for some causes may be sufficient to “cast reasonable doubt on [a] judge’s capacity to act impartially as a judge.”  Fla. Code Jud. Conduct, Canon 4A(1).  This Committee has previously advised judges to proceed with caution when interacting with MADD, though we have not called for an absolute prohibition of such involvement.  SeeFla. JEAC Op. 82-17 (holding that service on the board of directors could result in frequent requests for recusal) and Fla. JEAC Op. 95-41 (approving attendance at a candlelight vigil).  And see Fla. JEAC Op. 91-14 (discouraging membership in the Adam Walsh Child Resource Center, among whose primary concerns was seeking such child protective legislation as stiffer sentences for offenders); Fla. JEAC Op. 92-5 (no membership in a countywide police chiefs’ association);  Fla. JEAC Op. 01-14 (no membership in a local domestic violence council which had shifted from a clearinghouse for information to a court-monitoring group sometimes critical of judicial decisions).    

The present case is distinguishable from those precedents in that the inquiring judge is not seeking to join MADD but only to participate in a public event sponsored by that organization.  We are given no reason to believe that MADD plans to dictate the content of the panel discussion, whose theme (“Start Talking Before They Start Drinking”) appears educational in nature and whose premise (underage drinking is a problem) hardly seems controversial.  So long as these impressions are correct, and so long as the judge will not be called upon to proclaim public support for, or be advertised as an endorser of, MADD or any of its legal positions, the Committee concludes that participation in the forum does not amount to lending judicial prestige to a private entity (Fla. Code Jud. Conduct 2B), nor does it seem likely to arouse reasonable concerns about impartiality among lawyers or other persons involved in court cases where underage drinking is the focus (e.g., a dependency or delinquency action). 

Our decision is also based on the judge’s assertion that the panel discussion is not a fundraiser.  No admission fee will be charged.  However, the judge does ask whether MADD “would be permitted to have applications for people to join MADD in the back of the room.”  Of course, MADD is not answerable to this Committee and has not sought our guidance (which we could not offer in any event).  A recent opinion provides thorough analysis of what will and will not likely be considered “fundraising.”  Fla. JEAC Op. 05-02.  The definition does not encompass such things as charges for defraying expenses or “incidental profit.”  Id.  The opinion also encourages careful inquiry by the judge, using the criteria contained therein, before committing to participate in extrajudicial events.  Again, the judge should inquire well beforehand whether, to what extent, and in what manner MADD might seek donations during the event.

Finally, the inquiring judge asks if it would be permissible merely to attend the MADD event if active participation were disallowed.  In Fla. JEAC Op. 05-14 the judge had committed to run in a charity marathon prior to appointment to the bench.  The judge understood that further solicitations of sponsorship were forbidden, but still wanted to participate in the race.  We voiced reservations that the judge might unwittingly be perceived as a “celebrity participant,” but advised that charitable work can be appropriate so long as done “discreetly and without calling attention to the judge’s office.”  Applying these standards to the facts of the present case, if the inquiring judge concludes after further study that the event is a fundraiser or would risk characterizing the judge as an advocate for MADD, the judge could not attend in the capacity of promoted “dignitary.”  Otherwise, a majority of the Committee believes attendance at the event, motivated only by interest in the topic, poses no ethical problem. 

Two members dissent, taking the view that a judge should refrain from attending the event even as a spectator or member of the community, given MADD’s self description as an activist organization.  They believe that mere attendance could lend the prestige of judicial office to an activist advocacy organization and the causes it supports.  They advocate that the committee revisit the opinions in Fla. JEAC Op. 82-17 (regarding service on the board of directors of MADD) and Fla. JEAC Op. 95-41 (approving attendance at a candlelight vigil) and that the committee discourage voluntary attendance by the non-participating judge.

REFERENCES

Code of Judicial Conduct: Canons 2B, 4A(1), 4B, 4D & Commentary to Canon 4D(1).

Florida Judicial Ethics Advisory Committee Opinions: 05-14, 05-02, 01-14, 95-41, 92-5, 91-14 & 82-17.

_____________

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: Judge Robert Benton, Chair, Judicial Ethics Advisory Committee, 301 S. MLK Jr. Blvd., Tallahassee, FL 32399.

Participating Members:
Judge Robert Benton, Judge Michael Raiden, Judge Lisa Davidson, Judge McFerrin Smith, Judge Leslie B. Rothenberg, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro, Judge T. Michael Jones & Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
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)