FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2009-07
Date of Issue: April 9, 2009

ISSUE

Whether the inquiring judge may attend and receive an award at ORT America’s Jurisprudence Award Tribute event which is a fundraiser for an organization that is mainly involved in education programs both domestically and internationally?

ANSWER: No.

FACTS

The inquiring Judge has been nominated to receive a prestigious award from a regional branch of ORT America.  ORT is described as a 125 year old international development organization with extensive global experience.  ORT America is the domestic fundraising arm of World ORT.  ORT’s primary mission is education.  Additionally, the organization believes that “through education, people lead productive lives, breaking the cycle of poverty and lawlessness, in turn creating more jobs and less crime.”

The Jurisprudence Award is this organization’s “highest national award presented to members of the legal community who’s [sic: whose] professional and personal lives have substantially improved the quality of life for their fellow human beings; created role models for others to emulate; and established new directions for the enhancement of their profession and their community”. This Region of ORT America is intending to make this award at its inaugural Jurisprudence Award Tribute Event.  This event will be a fundraiser for the organization and any proceeds in excess of the operating costs of the event, if any, will be set aside for its International Cooperation Project in Montenegro and ORT’s general account.

The inquiring judge’s name and position will be used in the pre-event announcements and program.

DISCUSSION

Prior to May 22, 2008, judges were prohibited from personally participating in fundraising activities under Canons 4 and 5 of the Code of Judicial Conduct.  These Canons prohibited the judges from personally participating in soliciting funds except from other judges over whom they did not exercise supervisory or appellate authority.  Judges were not permitted to personally participate in membership solicitation if it could be perceived to be coercive or if such was essentially a fundraising mechanism, nor were judges allowed to use or permit the use of the prestige of judicial office for fundraising or membership solicitation.  Pursuant to those prohibitions, this committee has previously issued opinions which have consistently held that judges are not allowed to be guests of honor, be guests or feature speakers or attend events to receive awards where these events were also fundraisers.  See, JEAC Ops. 90-20 and 99-09, 99-15 and 01-09.  Even when the judge’s name and position would not be advertised, the committee has opined that the canons prohibited the judge from accepting an award at a fundraiser.  See, JEAC Op. 96-3. The inquiring judge has submitted his inquiry in view of the amendment to the Code of Judicial Conduct regarding fundraising and seeks guidance on whether ORT America’s fundraiser event concerns the law, the legal system or the administration of justice.

On May 22, 2008 the Supreme Court of Florida amended Canon 4D

“…to permit a judge to 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 devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice.  However, if the event serves a fund-raising 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.  In re AMENDMENTS TO THE CODE OF JUDICIAL CONDUCT-LIMITATIONS ON JUDGES’ PARTICIPATION IN FUND-RAISING ACTIVITIES, 983 So.2d 550, 552 (Fla. 2008).

ORT America is not an organization or governmental entity devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice as required by Canon 4D.  While an indirect result or by-product of its core goal of promoting better education may indeed be that those who are better educated will be less likely to break the law and thus lead to less crime, the inescapable conclusion is that this type of organization is not a law-related organization as contemplated by the amendments to Canon 4D.  Furthermore, the event described herein, even if ORT could be said to fit the definition of a law-related organization contemplated by Canon 4D, would not concern the law, the legal system nor the administration of justice and the funds raised would not be used for a law related purpose, as required by Canon 4D(2)(b). Instead, the organization will be using any funds raised to fund or underwrite an international project and/or be deposited in the organization’s general funds account. Therefore, the judge would still be prohibited from participating under Canon 4.

Additionally, we note that Canon 5C(3)(b)(iii) provides that a judge “shall not use or permit the use of the prestige of judicial office for fund raising...” by a governmental, civic or charitable organization.   Therefore, the judge is required to decline this invitation under Canon 5 as well. 

The committee commends the inquiring judge for making the necessary inquiries of the organization and providing us with the information necessary to determine if the criteria set forth in Canon 4D(2)(b) were met. It is regretful that the judge will not be able to receive this honor due to the fund-raising aspect of this event.  However, the amendments to Canon 4 do not allow the judges participation and to do so would allow this organization to use the prestige of the judicial office for fund-raising, in contravention of Canon 5C(3)(b)(iii).

REFERENCES

Florida Code of Judicial Conduct: Canons 4D, 5C, 4D(2)(b), 5C(3)(b)(iii).
Florida Judicial Ethics Advisory Committee Opinions: 90-20, 96-3, 99-09, 99-15, and 01-09.

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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 a 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. See 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. See Id.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code. 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 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)