FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2009-19
Date of Issue: October 8, 2009
Whether a judge may endorse The Sedona Conference Cooperation Proclamation by allowing his or her name to be listed as an endorser, and by promoting, distributing, and speaking at bar association meetings in support of the proclamation and its principles.
In 2008, The Sedona Conference1 published a document entitled The Sedona Conference Cooperation Proclamation (“the Cooperation Proclamation” or “the proclamation”). The Cooperation Proclamation describes its purpose as the launch of a “coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a ‘just, speedy, and inexpensive determination of every action,’” as well as “promoting awareness of the need and advantages of cooperation” in the discovery process and “a call to action.” Cooperation Proclamation at pp. 1, 3 (http://www.thesedonaconference.org).
The Sedona Conference has asked members of the judiciary to endorse the proclamation, and attaches to the proclamation a list of endorsements, including the judge’s name, court, city and state.
The inquiring judge seeks to endorse the Cooperation Proclamation, and authorize the Sedona Conference to include the judge’s name in the endorsements section. The judge also wishes to promote, distribute, and speak at bar association meetings in support of the proclamation and its principles. The judge hopes that endorsement of the Cooperation Proclamation in these ways will assist in improving the quality of the practice of law in the state of Florida. The inquiring judge requests an advisory opinion as to whether such actions are permitted by the Florida Code of Judicial Conduct.2
Canon 4B provides, in pertinent part:
“A judge is encouraged to speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch within our system of government, subject to the requirements of this Code.”
The Commentary to Canon 4B provides that judicial officers are “in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice . . .. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law.” Indeed, Canon 4B was amended in 2003 to clarify that such activities are not only permitted, but are actively encouraged. See Code of Judicial Conduct, 840 So. 2d 1023, 1026, 1030-31 & Appendix (Fla. 2003).
The Committee is of the opinion that endorsement of the Cooperation Proclamation in the manner described by the inquiring judge is a quasi-judicial activity concerning the law, the legal system, and the administration of justice, which is encouraged by the Code of Judicial Conduct.
Other JEAC opinions support this conclusion. See Fla. JEAC Op. 98-31 (opining that judge may be a member of a voluntary bar association that joins a political action committee to support a proposed constitutional amendment); Fla. JEAC Op. 98-14 (opining that judge may advocate a position on proposed constitutional amendments in non-partisan public forums); Fla. JEAC Op. 94-01 (opining that judge may publicly advocate the signing of two petitions to amend the constitution); Fla. JEAC Op. 78-3 (opining that the Code does not proscribe member of the judiciary from expressing personal views in public regarding proposed constitutional amendments); Fla. JEAC Op. 76-16 (opining that judge’s efforts to educate the general public about a constitutional amendment are permissible under the Code). See also In re Inquiry Concerning a Judge, 417 So.2d 950, 954 (1982)(“There is no doubt that a judge in an appropriate forum may express his protest, dissent, and criticism of the present state of the law as long as he does not appear to substitute his concept of what the law ought to be for what the law actually is, and as long as he expresses himself in a manner that promotes public confidence in his integrity and impartiality as a judge.”)
The Committee reminds the judge, however, that while such quasi-judicial activities are encouraged by Canon 4B, they are also subject to other provisions of the Code of Judicial Conduct. For example, a judge “shall not personally or directly participate in the solicitation of funds,” or engage in activities that “cast reasonable doubt on his or her capacity to act impartially as a judge” or “lead to frequent disqualification of a judge.” See Canons 4D(2)(a) and 4A(1). Accordingly, as was recommended by the Committee on Codes of Conduct of the Judicial Conference of the United States, this Committee also recommends that the judge retain some measure of control over the use of the judge’s endorsement, including the right to veto inappropriate use of the endorsement.
Code of Judicial Conduct, 840 So. 2d 1023, 1026 (Fla. 2003); In re Inquiry Concerning a Judge, 417 So.2d 950 (Fla. 1982).
Florida Code of Judicial Conduct: Canons 4, 4A(1), 4B, 4D(2)(a); Commentary to Canon 4B.
Florida Judicial Ethics Advisory Committee Opinions: 98-31, 98-14, 94-01, 78-3, 76-16.
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 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.
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esq., Judge Jose’ M. 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)
1. According to its website, http://www.thesedonaconference.org, The Sedona Conference is a non-profit research and education institution dedicated to the advancement of law and policy. Its stated mission includes allowing “leading jurists, lawyers, experts, academics and others . . . to come together . . . to engage in true dialogue . . . in an effort to move the law forward in a reasoned and just way.”
2. Attached to the inquiring judge’s correspondence is a letter dated July 8, 2008, from the Chairman of the Committee on Codes of Conduct of the Judicial Conference of the United States, advising a federal judge that in the judgment of that Committee, public support of the Cooperation Proclamation is permissible and encouraged under the Code of Conduct for United States Judges.