FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2008-01
Date of Issue: January 8, 2008
(1) Whether the Inquiring Judge may serve on a mortgage fraud task force established by a city’s mayor.
(2) Whether a Judge presiding in an adversarial probate case may recommend a mediator when asked for suggestions where both sides are present in open court.
3) Whether a Judge may continue to serve on a university’s regional planning council whose previous efforts were designed to raise the profile of the university in the community and which is now trying to raise substantial funds.
ANSWER: Yes, so long as the judge does not participate in fund-raising activities.
The Inquiring Judge has been asked to serve on a mortgage fraud task force that the mayor of the city where the Judge sits has established. The task force is organized into subcommittees. The mission statement of the task force indicates that there will be five separate committees, with each committee responsible for a portion of the mission. The task force is a public private partnership created to reduce mortgage fraud and to prevent victimization of individuals and businesses through effective education, legislation, regulation, law enforcement, and prosecution. The Judge anticipates assignment to the education committee, which will be responsible to create public awareness through printed literature, newspaper articles, and television reports. The Inquiring Judge asks whether it is permissible to serve on this commission.
The second question posed by the Inquiring Judge who sits in the probate division is whether in an adversarial probate case, when both sides are present in open court, and ask the Judge for a recommendation of a mediator, the Judge can make recommendations.
The Judge’s final question is whether the Judge may continue to serve on the regional planning council for a state university. The efforts of the university’s regional planning council have been to raise the profile of the university in the area where the judge sits. Now the university is committed to raising more than one billion dollars in a seven-year effort.
(1) The purpose of the mortgage fraud task force is to reduce mortgage fraud and prevent victimization of individuals and businesses through effective education, legislation, regulation, law enforcement, and prosecution. It is anticipated that the Judge will work on the education committee.
Canon 4D states in pertinent part that a judge may serve as a member, officer, director, trustee, or non-legal advisor of an organization or governmental agency devoted to improvement of the law, the legal system, or the administration of justice. Canon 5C(2) provides that a judge may accept appointment to a governmental commission or committee that is concerned with the improvement of the law, the legal system, or the administration of justice.
Previous Committee opinions have determined that it is proper for a judge to serve on an advisory council or task force. The Committee has in the past approved service of judges on alcohol, drug abuse, and mental health planning councils. See Fla. JEAC Ops. 88-24; 88-30. The Committee has approved service on the board of a DUI counter-measures school, Florida JEAC Opinion 93-23; in an advisory capacity on the regional juvenile detention center advisory board, Florida JEAC Opinion 94-04; as a member of a district juvenile justice board, Florida JEAC Opinion 94-31; as a member of the victims assistance advisory council, Florida JEAC Opinion 98-26; and on a task force on gang-related activities, Florida JEAC Opinion 00-05.
In Florida JEAC Opinion 89-14, the Committee addressed an inquiry from a judge who had been asked to chair a task force or committee composed of business and civic leaders that intended to enhance community efforts to fight drugs and crime. In that opinion, the inquiring judge indicated that the committee’s purpose would be confined to the evaluation of resources and programs, both governmental and private, with the hope of expanding their efficacy. The inquiring judge in that opinion further stated that the judge’s presence would not advance any private interest. In advising the judge that service on the task force was acceptable under the Code of Judicial Conduct, this Committee specifically observed that the task force would not be responsible for raising funds, initiating legislation, enforcement of the law, or prosecution of crimes. The same observation is applicable to this inquiry. If the task force were to be involved in activities such as fund raising, initiation of legislation, law enforcement, or crime prosecution, the Committee’s decision on this issue would be altered.
The task force on mortgage fraud falls within the appropriate bounds of Canons 4D and 5C(2). Thus, the Committee unanimously agrees that the judge may serve on the task force.
(2) The second question is whether it is appropriate for a judge, at the request of the parties, to recommend a mediator in an adversarial probate proceeding.
Judges are not to use their public office to promote the private interests of others. Accordingly, if both sides request the Judge to recommend a mediator, the Judge may proceed to do so but with great caution. The Committee suggests that the Judge recommend at least three persons and not reflect any preference. If the Judge is asked on more than one occasion by both sides of a contested matter for a recommendation, the Judge should be careful not to repeatedly recommend the same mediator(s).
One Committee member dissents and advises against the Judge making any recommendations.
(3) The final question is whether the Judge can continue to serve on the regional planning council for a state university.
The Inquiring Judge presently serves on the regional planning council of a large state university. Past efforts of the planning council have been to raise the profile of the university in the county where the Judge sits. Now the university intends to raise more than one billion dollars in a seven-year time frame. The Judge asks whether it is permissible for the Judge to continue serving on the regional planning council.
Canon 5 permits a judge to participate in extra-judicial functions that do not reflect adversely upon the judge’s impartiality nor interfere with performance of the judge’s judicial duties. The Canon prohibits a judge from soliciting funds for any educational, religious, charitable, fraternal, or civic organization and prohibits the use of the prestige of judicial office for that purpose.
Since it now appears that the regional planning council’s activities will be geared towards fund-raising, the Judge’s continued service would be improper if the Judge would be engaged in solicitation of funds or if such service would be to use the prestige of office for a fund-raising purpose. Fla. JEAC Op. 78-9. In Florida JEAC Opinion 97-28, the Committee opined that a judge may authorize the judge’s college alma mater to feature the judge in an advertising campaign that is not used to generate funding, but that simply profiles successful alumni in order to inspire others to higher education.
In this case, the Inquiring Judge does not state whether the Judge is a graduate of the university. Nonetheless, the rationale of this Committee in Florida JEAC Opinion 97-28 is pertinent. There, the Committee cautioned the judge not to permit use of the judge’s name, photograph, or prestige of office for the solicitation of funds.
Five members of the Committee dissent, citing Florida JEAC Opinions 07-08 and 03-21. In Opinion 07-08, the Committee addressed an issue regarding whether a judge could accept a position on the Board of Trustees for a branch campus of a state university. The Committee responded “no,” relying on Florida JEAC Opinion 03-21, where the Committee addressed virtually the same question regarding a public community college and recommended that the judge decline the appointment. In that opinion, the Committee concluded that the proposed service would violate Canon 5C(2), which forbids a judge from accepting appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, the judicial branch, or the administration of justice.
Fla. Code Jud. Conduct, Canons 4D and 5C(2)
Fla. JEAC Ops. 78-9, 88-24, 88-30, 89-14, 93-23, 94-04, 94-31, 97-28, 98-26, and 00-05.
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 Judge Lisa Davidson, Chair, Judicial Ethics Advisory Committee, The Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, FL 32940.
Judge Robert T. Benton, II, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Judge Michael Raiden, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, Judge, Judge Richard R. Townsend, Judge Dorothy Vaccaro, Marjorie Gadarian Graham, Esquire & Patricia E. 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)