FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-01
Date of Issue: January 19, 2011

ISSUE

May a judge create and privately maintain a website designed primarily to focus high school students on college or trade school preparation?

ANSWER: Yes.

FACTS

The inquiring judge intends to launch and maintain a website, primarily intended to focus high school students on college or trade school preparation.  The home-page would have several potential sources of scholarship information which was provided by the local school system.  The site would also have a page dedicated to linking those who suffer from domestic violence with assistance.  This domestic violence page would suggest counseling and treatment for those who may need treatment at any of the state certified Batterer’s Intervention Programs. The site would have links on the main page to the Army, Navy, and Air Force recruiting offices. Finally the website would have a biographic page and briefly mention a domestic violence case that the inquiring judge was recused from because the violence occurred in front of the judge.

Included in the judge’s Inquiry is the request that we review the information on this site and let the judge know if anything needs to be changed. As in the case of requests to vet campaign literature, we decline to do so.  This Committee has previously concluded that its charge does not (and logistically cannot) include the obligation to screen, upon request, any and all contemplated public statements of Florida's judges.   Therefore, our advice to the inquiring judge will address only the concepts of the contemplated conduct.

DISCUSSION

Since our 1999 introduction to judges and web sites, this committee has consistently advised judges that nothing in the Code of Judicial Conduct suggests that maintenance of a web site would give the appearance of impropriety, as long as the judge’s web site complies with all provisions of the Code. Fla. JEAC Op. 99-26.  In that opinion, the committee sug-gested that a web site may well be of assistance to the public in understanding the law, the legal system and the administration of justice. See also Fla. JEAC Op. 04-17.

A web site may be used for campaign purposes, subject to the requirements and restrictions of Canon 7. A judge’s personal web site may not be used to solicit campaign support or contributions, Fla. JEAC Op. 08-11, but the judge’s campaign committee may create a web site for lawful purposes described in Canon 7C(1). Fla. JEAC Ops. 09-20, and 10-28.

A judge’s web site must not be of a commercial nature, and the judge establishing a site should avoid links to commercial sites.  See Fla. JEAC Op. 07-21.  Indeed, the judge needs to exercise caution in linking to other web sites because of the potential that it will be perceived as an endorsement of the contents and/or creator of such other web site.  Furthermore, a judge's web site may not be used as a forum for the discussion of pending legal matters or otherwise be maintained so as to cast reasonable doubt on the judge's capacity to act impartially as a judge.  See Canon 3B(9), Canon 5A(1).  It may not be used as a forum for the discussion of pending legal matters. See Canon 3B(9).

It is not practicable to list all the provisions of the Code that could apply to a judge’s web site. So, before publishing material on a web site, the judge should carefully examine all provisions of the Code that relate to the site and its topics, to insure that the judge is not doing on the web something the judge could not ethically do in person.

As stated in the Commentary to Canon 2A:

A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct…that are indispensible to the main-tenance of the integrity, im-partiality, and independence of the judiciary.

A minority of the committee believes that the committee should not have an absolute rule declining to review judges’ inquiries on website content.  The minority believes that the committee should consider such inquiries on a case-by-case basis depending upon whether the inquiring judge has provided enough information to allow the committee to render an opinion in an efficient manner without further investigation.

The minority believes that, here, the inquiring judge has provided enough information to allow the committee to render an opinion regarding his intent to include links on his website for: (1) assistance for domestic violence victims and batterers, and (2) description of a domestic violence case from which the inquiring judge was recused.

As for the link for assistance for domestic violence victims and batterers, the minority is circumspect of the inquiring judge’s motive for including such a link because the inquiring judge’s stated intent for the website is “to focus high school students on college or trade preparation.”  Nevertheless, such a link may be acceptable given the Florida Supreme Court’s adoption of certain recommendations for a model family court in In re: Report of the Family Court Steering Committee, 794 So. 2d 518 (Fla. 2001).  Domestic violence cases were expressly included in a model family court.  Id. at 525.  Among the recommendations which the Court adopted:  “Trial courts must . . . establish linkages with community resources.”  Id. at 522.  Also, a model family court should include “a front-end intake process to provide information [and] make referrals to legal and social services.”  Id. at 529.  Domestic violence programs were identified as one of the type of social services for which the court should provide information and/or make referrals.  Id. at 546.  Thus, merely providing a link for assistance for domestic violence victims and batterers would not appear to cast doubt on a judge’s capacity to act impartially as a judge in domestic violence cases.   

As for the link describing a domestic violence case from which the inquiring judge was recused, however, the minority believes that such a link may cast doubt on the inquiring judge’s capacity to act impartially as a judge in domestic violence cases depending upon the circumstances of those cases.   Again, such a link would be wholly irrelevant to the inquiring judge’s stated intent of maintaining a website “to focus high school students on college or trade school preparation.”  More importantly, the fact that the inquiring judge was recused from the case suggests that the judge sua sponte believed, or a party alleged with legal sufficiency, that the judge could not be impartial on that case.  For the inquiring judge, on his own volition, to publicize a case resulting in the inquiring judge’s recusal may provide reasons for other litigants to seek the inquiring judge’s recusal, depending upon the circumstances involved.

Based on the minority’s positions expressed above, the minority believes that the committee should rephrase the inquiring judge’s question as “May a judge create and privately maintain a website designed primarily to focus high school students on college or trade school preparation to the extent the judge also intends to include links for:  (1) assistance for domestic violence victims and batterers, and (2) description of a domestic violence case from which the inquiring judge was recused?”  The minority believes that the committee should answer the rephrased question as follows:  “Yes, to the extent the inquiring judge intends to include a link for assistance for domestic violence victims and batterers.  No, to the extent the inquiring judge intends to include a link describing a domestic violence case from which the inquiring judge was recused.  As to the remainder of the inquiry, the committee does not have enough information to render an opinion.”

REFERENCES

Florida Code of Judicial Conduct: Canons 2A, 3B(9), 5A(1), 7, and 7C(1).
Florida Judicial Ethics Advisory Committee Opinions: 99-26, 04-17, 07-21, 08-11, 09-20, and 10-28.

_____________

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 Kerry I. Evander, Chair, Judicial Ethics Advisory Committee, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida  32114-5002.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, 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)