FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2007-07
Date of Issue: May 8, 2007

ISSUE

Whether a photograph of a judge wearing a judicial robe and identifying the judge as a judge can be used on billboards and other campaign materials in a public relations campaign conducted by a county library system?

ANSWER: No.

FACTS

A county library system is conducting a public relations campaign to promote resources that are available in the public library. The campaign is entitled “Take ‘Know’ for an Answer.” The library system asked local celebrities in the business, athletic, and arts community, as well as the inquiring judge to participate in the campaign.

The library system wishes to place a photograph of the inquiring judge in a judicial robe on one or two billboards, and use the image in one or two television spots that will be aired in the county, in printed materials, and on the library system’s website. The various materials will refer to the inquiring judge as a “judge.”

The inquiring judge asks whether it is ethically permissible to permit a picture of the judge wearing a judicial robe to be used in these various materials that will refer to the judge as a judge.

It does not appear from the inquiry that any fund-raising activities would be involved, nor does it appear that the purpose of the campaign is to raise funds. Rather, the purpose of the campaign is to promote the county library as an institution of learning that is of value to the community and to the people who live in the community.

DISCUSSION

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 interests of the judge or others.” Fla. Code Jud. Conduct, Canons 2A and 2B.

Canon 4A limits a judge’s quasi-judicial activity to activities 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.  Similarly, Canon 5B also limits a judge’s extra-judicial activities in this same regard.

In JEAC Opinion 78-09, the judge asked whether it was ethically permissible to become a member of the Florida State University alumni association and to authorize use of the judge’s name and photograph by the association to assist in promoting membership in the association. While the Committee found no impropriety in publishing the judge’s name and photograph in the alumni roster, the majority of the Committee believed that the judge’s name or prestige of office should not be used for the solicitation of funds, including solicitation of membership dues.

Eight members of this Committee opine that the proposed activity would violate Canon 5C(3)(b)(iii)1 if any fund-raising or membership solicitation was involved. Even in the absence of any explicit fund-raising or membership solicitation goal of the proposed conduct, the majority of this Committee finds that the proposed activity would violate Canons 2A, 2B, and possibly 5A.

The inquiry reveals that the activity is part of a public relations campaign "to educate . . . county residents of the abundant resources available at the library." It will use "local leaders and celebrities" on billboards and a dedicated portion of the library’s website "to promote the library as a learning institution that adds value to the community and to the people who live there."

While Canon 5B provides that a judge is encouraged to participate in extrajudicial activities concerning non-legal subjects and Canon 5C(2) states that a judge may represent a locality in connection with educational or cultural activities, this must be done in conformance with the other requirements of the Code of Judicial Conduct.

The essential difference between the majority and dissent is their differing view on whether the judge’s gavel-wielding, robe-adorned, photographic promotion of a discrete entity constitutes the impermissible promotion of the private interests of another in contravention of Canon 2B. A majority of the Committee believes this activity violates Canon 2B because it inescapably lends the prestige of judicial office to advance the private interests of another, albeit a publicly funded entity. Such would not be the case if the public awareness campaign promoted only literacy, the value of education, or a similar concept, rather than a particular library.  For example, in JEAC Opinion 97-28, the Committee determined that a judge could authorize the judge’s undergraduate alma mater to feature the judge in an advertising campaign that would not be used to generate funding, but which profiled successful alumni in order to inspire others to consider higher education.

A majority of the Committee is also concerned that the proposed activity may violate Canon 2A which specifies that a judge "shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." By participating so overtly in the county library’s public relations campaign, some may see the judge as aligning with the interests of the county, no doubt a frequent litigant before a state trial judge, and thus, the activity might "cast reasonable doubt on the judge’s capacity to act impartially as a judge" in violation of Canon 5A(1).

It should be noted that a number of Committee members expressed concerns that the judge’s larger-than-life appearance in a judicial robe on a billboard for the library’s public relations campaign would "demean the judicial office," in violation of Canon 5A(2). However, the consensus of the committee was that this is a matter of taste, rather than ethics.

Four Committee members find that the proposed conduct by the inquiring judge is not only ethically permissible, but is in fact encouraged by the Code of Judicial Conduct. As the majority pointed out, Canon 2B prohibits a judge from lending the prestige of judicial office to advance the private interests of the judge or others. The Commentary to Canon 2B is instructive on the meaning of the phrase “to advance the private interests of others,” and uses the following as an example of this: “[A] judge must not use the judge’s judicial position to gain advantage in a civil suit involving a member of the judge’s family.” The inquiring judge’s public promotion of the use of a county public library, its resources, and reading are all activities that advance a public interest, not a private interest.  The example given in the Commentary to Canon 2B to explain the phrase “advanc[ing] the private interests of . . .  others” is much narrower than the majority of the Committee is defining it.  Using one’s judicial position to help a family member in a civil suit is a glaring example of the misuse of the prestige of judicial office for the advancement of others’ private interests. However, a judge who is promoting a community endeavor which has no fund-raising or membership solicitation component is significantly different than a judge who is helping a family member in a contract dispute.

Canon 2 is titled: “A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities.” It is well accepted that a judge is a judge twenty-four hours a day, seven days a week, whether the judge is wearing a judicial robe or not in any activity. Under the majority’s broad interpretation of “private interests of others,” it could be argued that any extra-judicial or personal activity of a judge entails using the prestige of judicial office to benefit either the judge or the private interest(s) of others. Four members of the Committee infer from the example in the Commentary that the Canons proscribe conduct in which there is a benefit to a person or entity that the public would view as “inappropriate use” of the judicial office. They find it hard to imagine that the public would view a judge’s participation in a publicity campaign to promote use of a public library, its resources, and reading as a misuse of a judge’s position. 

Canon 5B was amended in 2003 by the Florida Supreme Court to specifically encourage judges to participate in extrajudicial activities concerning non-legal subjects.  Code of Jud. Conduct, 840 So. 2d 1023, 1034 (Fla. 2003).  The Commentary to Canon 5 states in pertinent part:

Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. For that reason, judges are encouraged to participate in extrajudicial community activities.

The proposed activity of the inquiring judge comports with Canon 5B, in the view of the four Committee members in the minority.

The majority also has concerns that the inquiring judge may be seen as aligning herself or himself with the interests of the county which could be or become a litigant before the inquiring judge. This in turn, according to the majority might “cast reasonable doubt on the judge’s capacity to act impartially as a judge” in violation of Canon 5A(1). 

The opposing minority view is that this concern involves speculation at this point. The inquiring judge did not disclose to which division the judge is presently assigned or whether the county is a litigant in the inquiring judge’s division. If the county is a litigant in the trial judge’s specific division, then pursuant to the commentary to Canon 3E(1), the trial judge should disclose the inquiring judge’s participation with the public library’s project and the parties can then decide whether to file a motion to disqualify pursuant to Rule 2.330, Florida Rules of Judicial Administration. and section 38.10, Florida Statutes.  If the motion is legally sufficient, then the inquiring judge would grant the motion.  At this juncture, the minority points out, the Committee is not addressing whether disqualification would be required due to the inquiring judge’s association with the county’s public library publicity campaign.

REFERENCES

Fla. Stat.: section 38.10.

Fla. Case: Code of Jud. Conduct, 840 So. 2d 1023 (Fla. 2003).

Fla. R. Jud. Admin.: 2.330.

Fla. Code Jud. Conduct, Canons 2A, 2B, 4A, 5A, 5A(1), 5A(2), 5B, 5C(2), and 5C(3)(b)(iii) and Commentary to Canons 2B, 3E(1) and 5.

Fla. JEAC Opinions:  97-28 and 78-09.

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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.

Participating Members:
Judge Robert T. Benton, II, Judge Lisa Davidson, Judge T. Michael Jones, Judge Michael Raiden, Judge Jose Rodriquez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Judge Dorothy Vaccaro, Patricia E. Lowry, Esquire, and 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)

1. Proscribing a judge from using or permitting the use of the prestige of judicial office for fund-raising or membership solicitation.