FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2009-13
Date of Issue: August 28, 2009

ISSUE

Whether the inquiring judge may become a member of a local gun club in order to use its shooting range, where the gun club requires proof of membership in the National Rifle Association as a condition precedent to membership in the club.

ANSWER: Yes.

FACTS

The inquiring judge would like to gain membership in a local rifle and pistol club in order to utilize its shooting range and maintain proficiency with lawful firearms.  As a condition precedent to such membership the gun club requires proof of membership in the National Rifle Association (NRA). The club’s membership application states it is a “100% NRA Member Organization” and provides, “New members must...provide either proof of NRA membership or a completed NRA membership application with payment [of dues].” While the inquiring judge has no interest in lobbying, the judge “is aware that the NRA does engage in lobbying on both the state and national level.”

According to NRA’s website (http://www.nra.org/aboutus.aspx) the organization maintains a variety of programs under its organizational umbrella, including youth and adult shooting competitions and events; gun safety education and training; hunter education; and publication of news, magazines and articles on gun legislation, self defense and recreational firearm use. The NRA’s website also declares, “While widely recognized today as a major political force and as America's foremost defender of Second Amendment rights, the NRA has, since its inception, been the premier firearms education organization in the world. While the NRA concentrates a substantial part of its efforts on Second Amendment issues, it focuses its lobbying and political action through the National Rifle Association Institute for Legislative Action (ILA), which describes itself as “the ‘lobbying’ arm of the National Rifle Association of America.”

The ILA’s website states:

“ILA’s ability to fight successfully for the rights of America’s law-abiding gun owners directly reflects the support of NRA’s nearly 4 million members.... When restrictive ‘gun control’ legislation is proposed at the local, state or federal level, NRA members and supporters are alerted and respond with individual letters, faxes, e-mails and calls to their elected representatives to make their views known.

“Combined with the strong grassroots efforts of NRA members and NRA-affiliated state associations and local gun clubs, the Institute has worked vigorously to pass pro-gun reform legislation at the state level.

“In NRA Headquarters in Fairfax, Va., and in offices in Washington, D.C., and in Sacramento, Calif., the Institute employs a staff of more than 80, with a team of full-time lobbyists defending Second Amendment issues on Capitol Hill, in state legislatures and in local government bodies.

“While NRA is a single-issue organization, the Institute is involved in any issue that directly or indirectly affects firearms ownership and use. These involve such topics as hunting and access to hunting lands, wilderness and wildlife conservation, civilian marksmanship training and ranges for public use, law enforcement-related issues, product liability, trapping, crime victim rights and criminal justice reform.”

(http://www.nraila.org/About/)

DISCUSSION

Canon 2A states, “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 5A provides, in pertinent part, “A judge shall conduct all of the judge’s extrajudicial 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.” Canon 3E(1) requires a judge to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”

This Committee has consistently cautioned judges against lending the prestige of the judicial office to further the interests of advocacy groups, and it has specifically opined that judges cannot be personally involved with any lobbying activities for such organizations. However, the Committee has historically taken the position that mere membership in an organization which is well-known for its positions on political or controversial issues or promotes a particular legislative agenda is not prohibited by the Code of Judicial Conduct. Further, with regard to Second Amendment issues, the Committee has expressly determined it would be a violation of the Code of Judicial Conduct for a judge to actively advocate for handgun control, since the Committee saw this as “a political issue not involved in the administration of justice.” JEAC Op. 93-64.

While this Committee has not previously been asked to determine if membership in the NRA contravenes the Code of Judicial Conduct, in Fla. JEAC Op. 2000-22, the Committee addressed an election inquiry involving the NRA in light of Canon 7, which is entitled, "A Judge or Candidate for Judicial Office Shall Refrain from Inappropriate Political Activity." A judicial candidate, who was a member of the NRA, asked if he could attend an NRA fundraiser and distribute campaign materials. Without addressing the propriety of the candidate’s NRA membership, the Committee responded that the Code of Judicial Conduct did not proscribe the candidate’s attendance at the event or distribution of campaign literature and materials there. The Committee noted, “While the NRA is involved in political matters, it is neither a ‘political party’ nor a ‘political organization’” as defined in the Definitions section of the Code of Judicial Conduct.1

In JEAC Op. 93-05, a judge made an inquiry regarding the propriety of holding membership in the American Bar Association in light of its positions on political or controversial issues that may become subjects for judicial determination. Unaware of any ABA intervention or participation in a law suit at the time, all participating Committee members agreed that judicial membership in the ABA is proper because the ABA is an organization devoted to the goals enunciated in Canon 4C (now 4D), which provided that “a judge may serve as a member, officer or director of an organization devoted to the improvement of the law, the legal system or the administration of justice.” Several members of the Committee cited the commentary to Canon 5B(1) (now found in 5C(3)(a)), which cautions judges to be sensitive to the changing nature and activities of organizations to determine if it is proper to continue a relationship with it, and noted “that, if the ABA actively intervenes in court cases or involves itself in high profile political issues and controversies that impair the perception of impartiality, continued membership in the ABA may be properly questioned.” JEAC Op. 93-05.

A minority of the Committee observed that “a judge may properly belong to a multifaceted organization, although a judge cannot participate in a certain aspect of organizational activity.” One Committee member stated, for example, “a judge could properly belong to the National Rifle Association because of his interest in hunting even though that organization takes a highly public position on gun control.”  Id.

In JEAC Op. 97-19, a majority of the Committee determined that the inquiring judge could serve on the board of directors of a cutlery collectors’ legislative committee which was involved in lobbying efforts intended to influence legislation affecting the manufacture, sale, consumption, or use of cutlery items, finding “no express provision of the Code that would prohibit the judge's service on this board simply because it is the board of a lobbying organization.” The Committee was careful to limit its response to the precise facts stated in the inquiry and particularly relied upon the inquiring judge's representation that the organization’s legislative committee had never engaged in lobbying in Florida, and that if it did so, he would resign. Two members of the Committee believed the judge should not take the position, opining that membership in an organization whose function is to conduct lobbying is not allowed by Canon 5C(3).

In JEAC Op. 2001-13, a majority of the Committee determined that a judge may be a member of an organization called the American Israel Public Affairs Committee (AIPAC), which the Committee assumed, for purposes of the inquiry, to be primarily a lobbying group that conducted its activities in Washington, D.C. The Committee emphasized that the inquiring judge was a mere member of the organization and was not involved in fund-raising activities or membership solicitation, nor personally engaged in lobbying for AIPAC. The judge's participation in AIPAC consisted of paying dues and occasionally attending luncheons. Citing its opinion in JEAC Op. 97-19, the Committee noted it had previously said that a judge may serve on the board of directors of a lobbying organization’s legislative committee, consistent with the requirements of Canon 3C(3) (now in 3E), provided that the judge would not be personally involved with any lobbying activities nor take part in any fund-raising activities.

A four-person minority of the Committee disagreed and pointed out that AIPAC was very actively involved in political activities that did not concern the improvement of the law, the legal system or the administration of justice. The opinion stated, “These members believe that even limited involvement of paying dues and attending occasional luncheon meetings would allow the judge's presence to be ‘observable to all other persons who are also present, thereby indicating to those persons the moral support that the judge is lending to the political causes supported by the organization.’ They are also concerned that the group's membership roster will reflect that the inquiring judge financially supports the goals of the organization by being a dues-paying member.” See JEAC Op. 2001-13.

In JEAC Op. 2003-02, a judge inquired about membership on the Executive Council of the Trial Lawyer’s Section of The Florida Bar. He stated that, in past experience, the officers of the Council were “required to be involved in lobbying issues, but not personally involved in the actual lobbying.” Because it was unclear about what activities comprised being "involved in lobbying issues," the Committee declined comment on this specific component of the judge's query, “other than the judge should avoid involvement in any activity which might reflect on the judge's impartiality or neutrality.”

In JEAC Op. 91-14, the Committee concluded that a judge should not be a member of the Adam Walsh Child Resource Center, an organization which “actively seeks child protective legislation at every level of government,” because it would detract from the judge’s “function as a mutual [sic] and detached magistrate.” The Committee noted, “The National Center is particularly concerned with legislative sentence provisions and sentences within the judiciary. Needless to say, it is their inclination to push for stiff penalties. The Center practices court watching for the purpose of ‘protecting the interest of children.’"

In JEAC Op. 82-17 the Committee advised a county court judge who regularly presided over criminal traffic cases not to accept a position on the board of directors of a local Mothers Against Drunk Drivers organization. Interestingly the Committee observed that a majority of its members found no impropriety in a judge not likely to try DWI cases serving on the board of directors of MADD. The Committee explained:

“MADD seeks to bring about changes in society. In prior opinions, we have found no impropriety with a judge's membership on organizations which actively seek change in society. In Opinion No. 76-21 we held it was proper for a judge to belong to the Family Service Bureau. In Opinion No. 75-26 we stated that a judge could properly be on the board of directors of the B'nai B'rith Anti-Defamation League. In Opinion 79-13 we held it was proper for a county judge to serve on the board of directors of the county commission on alcoholism, which organization operated the DWI counter-attack school. And in Opinion 80-8 we said that a judge could properly belong to the Academy of Matrimonial Lawyers. Unquestionably, judges can belong to the American Bar Association and the Florida Bar. All of those organizations lobby, educate, and attempt to convince courts to do things in a different way.”

Notwithstanding this pronouncement, the Committee subsequently recommended in JEAC Op. 86-6 that the inquiring judge decline an invitation to serve as Honorary Chairperson for a local “Students Against Drunk Drivers” (SADD) organization. The Committee reasoned that acceptance of the position would impermissibly lend the prestige of the judge’s office to advance the private interests of the organization (Canon 2B) and would implicate Canon 3 and Canon 5 provisions requiring a judge’s disqualification where the judge’s impartiality might reasonably be questioned. Further, the Committee believed that because the organization would likely take a great interest in judicial proceedings, the judge’s participation was proscribed by Canon 5B(1) (now 5C(3)(a))which provides, "a judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court."

In JEAC Op. 93-50 the Committee unanimously advised a judge that membership in the Dade County Political Women’s Caucus, “would be clearly prohibited.” The Committee wrote, “Based on the information you furnished, the Dade County Women's Political Caucus is clearly and strictly political. It is more than a forum for discussion of ideas but an activist organization which recruits candidates and helps them get elected and also lobbies for various laws. It operates a PAC to collect and disburse funds for its chosen causes.” JEAC Op. 93-50.

In JEAC Op. 91-3 a majority of the Committee determined that it would not be proper for a judge assigned to the criminal division to have membership in a fraternal organization of Jewish men and women who were, or who had been, involved in law enforcement or public safety. The society had excluded from membership an attorney who had represented a defendant accused of killing a police officer. The majority of the Committee believed that membership in the society was contrary to the Code’s provisions which proscribe participation in civic or charitable activities that reflect adversely upon the judge’s impartiality. See Canon 5A.

In conclusion, eight members of the Committee see no proscription to the judge’s membership in the local gun club where the club requires proof of membership in the NRA as a condition precedent to club membership, so long as the judge does not become personally involved in the NRA’s lobbying or fund-raising efforts and does not participate in the NRA’s Institute for Legislative Action and so long as lobbying on issues likely to come before the judge does not become the primary purpose of the NRA.

The judge is reminded of the commentary to Canon 5C(3)(a) which provides, in pertinent part, “The changing nature of some organizations and their relationship to the law makes it necessary for a judge to regularly reexamine the activities of each organization with which the judge is affiliated in order to determine if it is proper for the judge to continue the affiliation.” This comment has equal relevance to any consideration of Canon 2A’s command that a judge act in a manner that promotes public confidence in the impartiality of the judiciary, Canon 2B’s directive that a judge not lend the prestige of judicial office to advance the private interests of another, Canon 2B’s proscription that a judge not convey the impression that others are in a special position to influence the judge, or Canon 5A’s cautions that a judge be circumspect in the judge’s extra-judicial activities. Thus, the inquiring judge must continually monitor membership in this, or any, organization to ensure that the organization’s activities and the public perception of the organization have not changed to the extent that continued membership implicates any of the various provisions of the Code of Judicial Conduct.

One committee member is unable to distinguish JEAC Op. 91-14 (concluding that a judge should not be a member of the Adam Walsh Child Resource Center) or JEAC Op. 93-50 (advising a judge that membership in the Dade County Political Women’s Caucus, “would be clearly prohibited” because the “Caucus . . . recruits candidates and helps them get elected and also lobbies for various laws [and] operates a PAC to collect and disburse funds for its chosen causes”).  Canon 7 does not pertain, in this member’s view, but this member would advise the inquiring judge against joining the National Rifle Association in order to comply fully with Canon 2A’s command that a judge act in a manner that promotes public confidence in the impartiality of the judiciary, Canon 2B’s directive that a judge not lend the prestige of judicial office to advance the private interests of another, Canon 2B’s proscription that a judge not convey the impression that others are in a special position to influence the judge, and Canon 5A’s cautions that a judge be circumspect in the judge’s extra-judicial activities, all as interpreted in JEAC precedent.

REFERENCES

Fla. Code Jud. Conduct, Canons 2A, 2B, 3E(1), 4D, 5A, 5C(3)(a), 7

Fla. JEAC Ops. 82-17, 86-6, 91-3, 91-14, 93-05, 93-50, 93-64, 97-19, 2000-22, 2001-13, 2003-02

_____________

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 T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

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 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. The Code definition states: “’Political organization’ denotes a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office.”