FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2008-19
Date of Issue: October 7, 2008

ISSUE

May a judge accept an invitation to hunt with a former litigant’s husband on land that the former litigant’s family controls?

ANSWER: No.

FACTS

The inquiring judge states that the judge knew all five siblings in a certain family, even before they ended up in litigation involving a family trust, litigation over which the inquiring judge presided.

The parties eventually reached a settlement in mediation, although a sister opposed the trustee’s motion to enforce the settlement agreement, which resulted in a four-day hearing before entry of an order giving the settlement effect.

On February 14, 2003, the District Court of Appeal denied rehearing in an appeal from the inquiring judge’s order on the settlement agreement, and in April of 2004, the case was closed in the Circuit Court.  As far as the inquiring judge is aware, none of the parties is currently involved in any litigation.

In April of 2008, the husband of one of the prevailing sisters invited the inquiring judge and others to join him on a two-day turkey hunt on one of the family ranches, which is technically owned by a corporation members of the family control.  Hunters are never asked or expected to pay for the privilege of hunting on the ranch.

The inquiring judge declined the invitation but is informed that the hunt is an annual event and inquires whether there would be any impropriety in accepting an invitation if one is extended next year, as he anticipates. 

DISCUSSION

Initially, the Committee unanimously concludes that the hunting trip should be viewed as a gift or favor within the meaning of Canon 5D(5).  See Fla. JEAC Op. 97-02 (deeming free admission to theme parks and special events they sponsor gifts); Fla. JEAC Op. 92-16 (deeming tickets “to various social and civic affairs” gifts).

Canon 5D(5), governing gifts and favors, provides in pertinent part:

A judge shall not accept, and shall urge members of the judge's family residing in the judge's household not to accept, a gift, bequest, favor or loan from anyone except for:
                .   .   .

(c) ordinary social hospitality;

(d) a gift from a relative or friend, for a special occasion, such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship;

(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Canon 3E;
                .   .   .
(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if its value, or the aggregate value in a calendar year of such gifts, bequests, favors, or loans from a single source, exceeds $100.00, the judge reports it in the same manner as the judge reports gifts under Canon 6B(2).

By process of elimination, the inquiring judge’s question turns on whether the hunting trip amounts to “ordinary social hospitality” within the meaning of 5D(5)(c).

The 5D(5)(d) exception does not apply because there has been no suggestion that the hunting trip would have been or would be a gift “for a special occasion, such as a wedding, anniversary or birthday,” as contemplated by 5D(5)(d). 

The inquiring judge does not state that the person who extended the invitation is a “close personal friend whose . . . interest in a case would in any event require disqualification under Canon 3E,” as contemplated by 5D(5)(e).  After all, the inquiring judge was not disqualified in the trust litigation on account of the inquiring judge’s relationship either with the person offering the hunting trip or with that person’s wife.  Accordingly, the 5D(5)(e) exception does not apply.

Since his wife’s rights as a trust beneficiary came “before the judge,” albeit four years earlier, the husband, while not a party in the trust litigation himself, is an “other person . . . whose interests have come . . . before the judge,” which renders the exception in 5D(5)(h) inapplicable.  

We therefore return to the question whether a hunting trip on land the host has or shares control of can properly be considered “ordinary social hospitality.”   A majority of the Committee concludes that an overnight hunt like the one described, which includes  multiple meals, lodging, and recreation, is not an ordinary social hospitality within the meaning of the canons.

In any and all cases, moreover, Canon 2 requires that a judge should avoid the appearance of impropriety, should “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” Fla. Code Jud. Conduct, Canon 2A, and should not “permit others to convey the impression that they are in a special position to influence the judge.”  Fla. Code Jud. Conduct, Canon 2B.  A judge must also abide by Canon 3A, which requires that “judicial duties of a judge take precedence over all the judge’s other activities.” 

A minority of the Committee concludes that, subject to the overarching requirements of Canons 2 and 3, a judge may accept an invitation to go hunting, even from a former litigant’s spouse, where the hunting trip does not entail more than ordinary social hospitality within the meaning of Canon 5D(5)(c); and that an overnight hunting trip may qualify as ordinary social hospitality in that event.

The precise interest in land is not determinative, in the minority’s view: a hunting trip on leased land could present substantially the same question.   The minority emphasizes that the particular facts of each case have to be considered.  In the case of a hunting lease, for example, in the absence of the landowner’s participation in the hunt, and where all other hunters are asked to bear part of the expense of the lease, an invitation to hunt without payment might not constitute ordinary social hospitality, even in the minority’s view.

That the 5D(5)(h) exception is unavailable does not, however, automatically make the 5D(5)(c) exception unavailable, in the minority’s view.  The 5D(5)(c) exception may apply if the relationship between the former litigant’s husband and the inquiring judge is such that his extending ordinary social hospitality to the inquiring judge creates no appearance of impropriety. 

The minority is of the opinion that including a hunter in the party on an annual hunt like the one described may well amount to no more than ordinary social hospitality, and see no reason to exclude that possibility in the present circumstances.

REFERENCES

Florida Code of Judicial Conduct: Canons 2, 2A, 2B, 3, 3A, 5D(5) & 5D(5)(c),(d), (e) & (h).

Fla JEAC Ops.  97-02 & 92-16.

_____________

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 Leslie B. Rothenberg, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and 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)