FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2008-23
Date of Issue: November 24, 2008
Whether the inquiring judge may purchase an advertisement that congratulates the recipient of an award in program materials to be distributed at a fundraising luncheon for the Anti-Defamation League, where the advertisement would include the inquiring judge’s name.
ANSWER: Yes. Based on the information provided, a majority of the Committee answers this question in the affirmative.
The Anti-Defamation League is hosting a fundraising luncheon to honor the accomplishments of two members of the Florida legal community. The inquiring judge would like to purchase and place an advertisement in the event’s program materials (“brochure”). The advertisement would simply congratulate the recipient on receiving the award and state the names of the inquiring judge and the judge’s spouse. The purpose of the luncheon and the brochure in which the advertisement will appear is to raise funds for the organization and to honor the recipients of the two awards.
In Fla. JEAC Op. 05-07, this Committee considered the interplay between the Code of Judicial Conduct and a sitting judge’s ability to be involved in fundraising activities. That opinion noted that “there is a perception that the Code is out of touch with the reality of community perception and judicial politics, especially in light of recent amendments to the Code which encourage participation in extrajudicial activities.” Shortly thereafter, the Florida Supreme Court requested that this Committee advise the Court whether these concerns should result in an amendment of the Code. See In re Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550, 550-52 (Fla. 2008) (detailing discussions between the Court and this Committee regarding whether the Code’s limitations on a judge’s fundraising activities should be amended).
On May 22, 2008, the Florida Supreme Court did, in fact, “carve out a limited exception for judges’ participation in certain fundraising activities.” Id. at 551. However, these amendments were carefully worded to remain consistent with other provisions of the Code. Those limited amendments are particularly instructive in this inquiry:
Canon 4D(2) is amended to permit a judge to “speak at, receive an award or other recognition at, be featured in the program of, and permit the judge’s title to be used in conjunction with an event of [an organization or governmental entity devoted to the improvement of law, the legal system, the judicial branch, or the administration of justice].” However, 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.” This 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.
Id. at 552 (emphasis added). The Anti-Defamation League is not a “law-related organization.” The purpose of the luncheon is to raise funds and honor certain individuals’ accomplishments, not to serve a law-related purpose.
The purchase of a public congratulatory piece in a brochure to be used at a non-law related event is not per se improper. Whether the advertisement will run afoul of the Code of Judicial Conduct depends on the purpose of the function, the purpose of the brochure, the content of the advertisement, and the effect upon the proper performance of the judge’s judicial duties.
Canon 5 regulates a judge’s extrajudicial activities to minimize the risk of conflict with his or her judicial duties.
Canon 5. A Judge Shall Regulate Extrajudicial Activities to Minimize The Risk of Conflict with Judicial Duties
A. Extrajudicial Activities in General. A judge shall conduct all of the
Judge’s extra-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 duties;
(5) lead to frequent disqualification of the judge; or
(6) appear to a reasonable person to be coercive.
Additionally, Canon 5(c)(3)(b)(iii) provides that with regard to governmental, civic, or charitable activities, a judge “shall not use or permit the use of the prestige of judicial office for fund-raising or membership application.”
Although the Anti-Defamation League is a civic organization and the purpose of the luncheon is, in part, to raise funds for the organization, a majority of the Committee concludes that as long as the purpose and ultimate use of the brochure will be solely congratulatory, and neither the contribution by the judge nor the content of the advertisement will cast reasonable doubt on the judge’s impartiality, interfere with the performance of judicial duties, or lead to frequent disqualification of the judge, the inquiring judge may purchase the proposed advertisement.
A sizable minority of the Committee, however, concludes that because the luncheon will serve a fundraising purpose and the brochure will also serve a fundraising purpose (the cost of the ads range from $200 to $1500, which is the cost for a full page ad, and the inquiring judge wishes to purchase a full page ad), the conduct would be in conflict with Canons 4 and 5 of the Code.
Fla. Code of Jud. Conduct, Canons 4D(2)(b), 5(A), and 5(c)(3)(b)(iii)
(Amended May 22, 2008); In re Amendments to the Code of Judicial Conduct - Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550; (Fla. 2008); JEAC Op. 05-07.
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.
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, 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)