FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2007-04
Date of Issue: March 14, 2007
Whether a judge may provide items to be sold at auction at a fundraiser held by the sheriff of the county in which the judge holds office, when the items are readily identifiable as items made by the judge?
Whether a judge may donate auction items to fundraisers held by other community organizations, when the items are readily identifiable as items made by the judge?
For many years the inquiring judge has been a professional, part-time custom knifemaker. The inquiring judge’s knives are sold primarily at trade shows, with some made and sold per customer order and some sold on the Internet. The judge has become moderately well known in custom knifemaking and collecting circles, and is one of a small group of makers who has received an invitation to participate in a mini-show being held in conjunction with a local event, as described below.
The sheriff of the county where the judge lives and presides holds an annual fundraiser. As part of that event, about six knifemakers have been invited to bring and display work that they currently have for sale. The items are to be displayed with the maker’s customary price. People participating in the event will be given an opportunity to enter silent bids. At the end of the event, the knives will be sold to the highest bidder, and the makers will be paid their customary sales price. The judge’s name would not be used to advertise the event nor in any promotional materials. The judge states, however, that all knives the judge makes are clearly marked with the judge’s logo and “are identifiable,” although no reference is made to the judge being a member of the judiciary.
The judge is also frequently asked by local organizations to donate knives to be auctioned at their various fundraisers.
The Sheriff’s Fundraiser
Canon 2 of the Florida Code of Judicial Conduct broadly guides judges, and teaches that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and “shall not lend the prestige of judicial office to advance the private interest of the judge or others . . . .” Fla. Code of Jud. Conduct, Canon 2(A), (B).
Canon 4 of the Florida Code of Judicial Conduct has historically permitted judges to participate in activities designed to improve the law, the legal system, and the administration of justice. In February 2003, the Supreme Court of Florida made a more definitive statement in this regard by amending the Commentary to Canon 4A of the Code of Judicial Conduct to state that judges are “encouraged” to participate in such activities. Code of Judicial Conduct, 840 So. 2d 1023, 1031 (Fla. 2003).
Canon 4(A) limits quasi-judicial activities that a judge is permitted to engage in, however, to those that 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.
Canon 4 also prohibits judges from soliciting funds or lending the prestige of their office for fund-raising, even if the activity falls within the parameters of activities that improve the law, the legal system or the administration of justice. Canon 4(D)(2)(a) of the Florida Code of Judicial Conduct specifically states that a judge shall not personally participate in the solicitation of funds or other fund-raising activities, except a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority. Moreover, Canon 4(D)(2)(d) expressly states that a judge shall not use or permit the use of the prestige of judicial office for fund-raising.
In Fla. JEAC Opinion 03-16, the Committee opined that a judge may not participate in a voluntary bar association’s fundraising event by providing goods (including artwork or crafts made by the judge) for sale or auction. In that opinion, however, the Committee noted that there are many ways that judges may ethically participate in activities sponsored by voluntary bar associations, such as planning fund-raisers, decorating or helping set up for a fund-raising event, speaking at a continuing legal education seminar, or serving on committees. (Citing Fla. JEAC Ops. 01-09, 99-27.) The Committee also noted that judges may donate items to a voluntary bar association’s fund-raiser as long as the items do not specify that the item was donated by a judge. (Citing Fla. JEAC Op. 01-09.)
The inquiring judge does not describe the logo marked on the knives to be provided to the sheriff’s fundraiser; however, the Committee assumes from the statement that the knives “are identifiable,” as well as the other facts stated above, that one can readily determine who made the knives, and so ascertain that the source is a judge. The Committee also assumes that the highest bid is frequently in excess of the maker’s usual price, and that the excess amount is retained as part of the funds raised by the sheriff. Accordingly, the Committee believes that providing these knives to the sheriff’s fundraiser violates the canons because it can reasonably be viewed as both a personal solicitation of funds on behalf of the sheriff’s office as well as using the prestige of judicial office for fund-raising.
Further, although the judge does not state the division to which the judge is currently assigned, because the fundraiser at issue is for the benefit of the office of the sheriff, an entity appearing frequently in court, the Committee believes that providing items for auction to this particular fundraiser may also cast reasonable doubt on the judge’s capacity to act impartially with respect to matters that may involve the office of the sheriff either as a prosecuting agency or as a witness, and be prohibited by the canons for this additional reason. Accordingly, the Committee believes that the judge must decline to provide items for auction at the sheriff’s fundraiser.
Other Community Events
Canon 5(C) of the Florida Code of Judicial Conduct provides that a judge may serve as part of an educational, religious, charitable, fraternal, sororal or civic organization and may assist such organization in planning fund-raising, but shall not personally participate in solicitation of funds or other fund-raising activities. Fla. Code of Jud. Conduct, Canon 5(C)(3)(b)(i). Further, a judge “shall not use or permit the use of the prestige of judicial office for fund-raising.” Fla. Code of Jud. Conduct, Canon 5(C)(3)(b)(iii).
As with Canon 4, the Commentary to Canon 5(A) encourages judges to participate in extrajudicial community activities, but also specifies that a judge must not engage in direct individual solicitation of funds except in very limited circumstances that are not pertinent to this inquiry. Canon 5(A) also contains the limitation that judges may participate in civic charitable activities so long as 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. Fla. Code of Jud. Conduct, Canon 5(A).
This Committee has said that a judge cannot be a model in a charity fashion show, Fla. JEAC Op. 88-31, or even participate in such an event “by announcing the winning tickets and describing the items won.” Fla. JEAC Op. 98-32. The Committee has also said that a judge cannot solicit the donation of coats and gloves to be distributed by the Salvation Army, Fla. JEAC Op. 92-38, ring a bell at a Salvation Army kettle (although disguised as a holiday character), Fla. JEAC Op. 04-36, or play in an exhibition basketball game intended to raise money for scholarships. Fla. JEAC Op. 88-05. Further, a judge cannot participate in fund-raising if the judge’s participation “lends the prestige of the office and is an implicit solicitation of funds.” Fla. JEAC Op. 00-17 (amended in part by Fla. JEAC Op. 05-07).
On the other hand, the Committee has found no ethical prohibition against participation in a Habitat for Humanity build, Fla. JEAC Op. 96-27, or helping referee and checking press credentials at a fund-raising sports event where the public was given no indication that the judges involved held office. Fla. JEAC Op. 89-19. A judge may also help plan fund-raising activities for educational, charitable or civic organizations, Fla. JEAC Op. 04-36, decorate a hall where a fund-raising event is to be held, donate items to be auctioned for charity, and help value such items. Fla. JEAC Op. 01-09. In general, a judge may help with fund-raising activities for an educational, charitable or civic organization, so long as the prestige of judicial office is not used to advance the organization’s interests. Fla. JEAC Op. 05-07.
In Fla. JEAC Opinion 01-09 the Committee further opined, however, that if a judge elects to donate items to be auctioned at a charity event, the source of the donation should not be revealed by the organization. See also Fla. JEAC Op. 91-06 (judge may anonymously donate funds to college even if matching funds to be solicited). As with Issue I, because the knives at issue bear the judge’s logo and are “identifiable,” the Committee believes that the judge must decline to donate the knives to other community fundraising events.
Florida Case: Code of Judicial Conduct, 840 So. 2d 1023, 1031 (Fla. 2003).
Code of Judicial Conduct: Canons 2, 2(A), 2(B), 4, 4(A), 4(D)(2)(a) & (d); 5(A), 5(C), 5(C)(3)(b)(i) & (iii).
Florida Judicial Ethics Advisory Committee Opinions: 05-07, 04-36, 03-16, 01-09, 00-17, 99-27, 98-32, 96-27, 92-38, 91-06, 89-19, 88-31, 88-05.
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 Robert T. Benton, II, Chair, Judicial Ethics Advisory Committee, 301 S. MLK Jr. Blvd. Tallahassee, FL 32399.
Judge Robert T. Benton, II, 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 & Patricia Lowry, 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)