FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2008-17
Date of Issue: September 8, 2008

ISSUE

May a judge be a speaker at a fundraiser dinner for drug court?

ANSWER: Yes, as long as the judge makes reasonable and continuous efforts to ensure that the judge’s participation in the event falls clearly within the parameters of Canon 4D(2) (b), Florida Code of Judicial Conduct, and that the judge’s participation does not violate Canon 4A(1)-(6), Florida Code of Judicial Conduct.

FACTS

The Inquiring Judge’s local drug court has a tax exempt non-profit corporation component, pursuant to section 501(c)(3) of the Internal Revenue Code, in order to help raise money and maintain the program’s viability. Drug court in the Inquiring Judge’s county is comprised of participants who have been identified as non-violent substance abusers. The Board of the 501(c)(3) organization is planning a fundraiser. There will be a silent auction, a dinner, and a live auction at the fundraiser. The Inquiring Judge has been asked to speak at the dinner about the drug court program. The money raised at this fundraiser will be used to help adults in drug court with their addiction problems.

 

DISCUSSION

On May 22, 2008 the Florida Supreme Court amended Canons 4 and 5, Florida Code of Judicial Conduct, in In Re: Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008).1 Canon 4 addresses judges’ quasi-judicial activities and is titled:  “A Judge is Encouraged to Engage in Activities to Improve the Law, the Legal System and the Administration of Justice.”

In its opinion, a majority of the Florida Supreme Court justices lifted the blanket prohibition in Canon 4 which prevented a judge from engaging in fundraising activities in the judge’s quasi-judicial activities.  Canon 4D(2) was amended to permit a judge to “appear or speak at, receive an award or other recognition at, be featured on the program of, and permit the judge’s title to be used in conjunction with an event...” of an organization or governmental entity that is devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice.  “…[B]ut, if the event serves a fundraising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice.” Fla. Code Jud. Conduct, Canon 4D(2)(b).  The majority opinion states that “[t]his change is intended to allow judges to participate in a law-related organization’s fundraiser only where the particular event serves a law-related purpose and the funds raised will be used for a law-related purpose.”  983 So. 2d at 552.

The amended commentary to Canon 4D(2)(b) states that “judges may not participate in or allow their titles to be used in connection with fund-raising activities on behalf of an organization engaging in advocacy if such participation would cast doubt on the judge’s capacity to act impartially as a judge.” Further, the commentary to Canon 4D(2) prohibits a judge from “personal or direct solicitation of funds for an organization” since there is a “danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is a person of influence or control.”

The amendment to Canon 4 also brings responsibilities to judges who engage in fundraising activities pursuant to Canon 4D(2). The Florida Supreme Court stated that it will be the responsibility of the judge who wants to participate in a fundraising event to determine that the event meets the criteria of this Canon and that the organization intends to  use the funds in a manner consistent with Canon 4D(2).  983 So. 2d at 552.  Prior to agreeing to participate in such events, the JEAC urges judges who wish to engage in fundraising to make extensive and comprehensive inquiries to those person(s) responsible for the fundraising event and those person(s) who are intimately knowledgeable about the current mission of the organization to determine if the criteria set forth in Canon 4D(2)(b) are met.  The JEAC also urges judges to determine that the money collected from the fund-raising event is used for law-related purposes as required by Canon 4D(2)(b) and not commingled in an account used for other purposes.  

The Florida Supreme Court’s Amendment to Canon 4 further imposes obligations on a judge who undertakes any activities pursuant to Canon 4, including Canon 4D(2)(b),  to ensure that the activity does not violate the proscriptions in Canon 4A(1)-(6).

A. A judge shall conduct all of the judge’s quasi-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) undermine the judge’s independence, integrity or impartiality;
(3)  demean the judicial office;
(4) interfere with the proper performance of judicial activities;
(5) lead to frequent disqualification of the judge; or
(6) appear to a reasonable person to be coercive.

The onus is on the judge who agrees to participate in a fundraiser pursuant to Canon 4D(2)(b) to determine that none of the prohibitions in Canons 4A (1)-(6) exist. The judge also has a continuing obligation to remain vigilant that none of the prohibitions in Canon 4A(1)-(6) are violated.  If the judge becomes aware that any of these prohibitions are being violated, then the judge must take corrective action which may include withdrawing from participation in the event.

The Committee strongly encourages all judges who undertake fundraising activities pursuant to Canon 4D(2)(b) to read Chief Justice Peggy A. Quince’s dissent in In Re: Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550, 553 (Fla. 2008).  Chief Justice Quince addresses the “pitfalls” for judges who agree to participate in fundraising activities pursuant to amended Canon 4D(2)(b).

Although it appears from the facts submitted that the inquiring judge may speak at the fundraising dinner, this Committee emphasizes that it is difficult to give conclusive advisory opinions to future inquiring judges without knowing all of the relevant facts and circumstances surrounding the event. The facts and circumstances surrounding an organization’s purpose and mission, and how funds will be used, along with the prohibitions set forth in Canon 4A(1)-(6) place the onus on the judge to assess whether the fundraising activity is permissible under Canon 4.

REFERENCES

Fla. Code Jud. Conduct, Canon 4, 4A(1)-(6), 4D(2), 4D(2)(b), and Commentary to Canon 4D(2).

In Re: Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008).

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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: Judge C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 101 N. Alabama Avenue, Suite 437, Deland, FL 32724.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge Jose Rodriguez, Judge Leslie B. Rothenberg, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.


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. Since the Inquiring Judge’s inquiry concerns only activities pertaining to Canon 4, Canon 5 will not be addressed in this Opinion.