FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-04
Date of Issue: April 11, 2011

ISSUE

May a Judge appear in a television public service announcement on juvenile needs and issues and encouraging parents to call a parenting help line sponsored and maintained by 2-1-1 Big Bend, a private nonprofit organization that provides confidential counseling and referrals?

ANSWER: Yes.

FACTS

The Inquiring Judge, after presiding over Juvenile Delinquency Court, has become involved in speaking to and working with local groups about the need for focusing on parenting.  The Inquiring Judge wishes to appear in a television public service announcement spot which identifies issues facing juveniles and parents.  Additionally, the announcement will direct parents who want information or help to call Helpline 2-1-1, sponsored by 2-1-1 Big Bend, an independent nonprofit organization which provides confidential counseling, information and referral services.  The persons are also told they can call 1-800-FLA-LOVE (1-800-362-5683), a  parenting help line partially funded by the State of Florida, Department of Children and Family Services, but actually maintained and provided by 2-1-1 Big Bend. 

The Inquiring Judge has submitted a television public announcement spot that has already been produced, as well as transcripts for two other prospective spots.  The proposed messages are:

1.      Did you know that the rate for juvenile crime goes up right after school is over between 2-6 in the afternoon?  And that's the same time period your children are at greatest risk of being a victim of crime.  Keep your children busy.

For information about after school programs or if you are having a parenting emergency and do not know what to do, call the parenting help line day or night.  Because children grow better when their parents grow with them.

2.      Did you know that nearly 1 in 3 children are considered over-weight or obese?  And research shows that the type of food your children eat can affect their ability to learn....and can even affect their overall IQ?

For more information about child nutrition or parenting in general, call the parenting help line.  Because children grow better when their parents grow with them.

3.  To be successful, kids need guidance.  But parenting can be a tough job and the right answers aren't always obvious.  Some-times, you may feel helpless, exhausted, frustrated or angry.... and making decisions under those pressures often turn out disastrous.

If you are having a parenting emergency and don't know what to do, call the parenting help line day or night.  Because children grown better when their parents grow with them.

The committee, as in the case of requests to vet campaign literature, will not screen any and all contemplated public statements of Florida's judges.  Therefore, our advice to the Inquiring Judge will address only the propriety of the contemplated conduct of appearing in a public service spot. 

DISCUSSION

Canon 2 of the Code of Judicial Conduct requires judges to avoid impropriety and the appearance of impropriety in all of the judge's activities. 

Commentary 2A provides that:

A judge must expect to be the subject of constant public scrutiny.  A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.  Examples are the restrictions from judicial speech imposed by Sections 3B(9) and (10) that are indispensable to the maintenance of the integrity, impartiality, and independence of the judiciary.

The restrictions on conduct and speech, whether professional or personal, do not prohibit all forms of speech.  Judges are allowed, and in certain areas encouraged, to speak, write, lecture, teach and otherwise participate in extra judicial activities.  For example, Canon 4B encourages judges to so participate in areas 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.  Also, Canon 5B likewise encourages judges to do so concerning non-legal subjects.  However, both of these types of speech and conduct are always limited by, and subjected to, the requirements of the Code of Judicial Conduct.  The Commentary to both Canon 4B and 5B note that the phrase "subject to the requirements of this Code" is included to remind judges that the use of the permissive language, in various sections of the Code, does not relieve a judge from the other requirements of the Code that apply to the specific conduct.

This committee has, in the past, dealt with several inquiries in which the  contemplated conduct involved the judge's appearance, speech, writing or lectures.  Some of these opinions held the judge's conduct to be prohibited by the Canons where the conduct could be interpreted as constituting endorsements of business products and services and therefore lending the prestige of the office to advance private interest of others.  See, Fla. JEAC  Ops. 07-21; 97-29; 82-01; and 97-16.  However, the committee has allowed judges to participate in panel discussions at seminars sponsored by a private organization, so long as the judge's participation was educational in nature.  Fla. JEAC  Op. 07-09.   Likewise, the committee has consistently held that a judge does not violate the Code by lecturing or writing articles on the law or law related areas.  In Fla. JEAC  Op. 06-30, the Committee found no impropriety in the conduct of the judge addressing community groups regarding the dangers of on-line predators.  Also, this Committee's opinions in Fla. JEAC Ops. 04-27; 00-05; 99-14; 95-37; 82-05; 78-12; and 76-17 have approved judges writing articles on a variety of topics.  In Fla. JEAC Op. 07-21, for example, this committee allowed a judge to write an informative article about the divorce process, so long as the article was educational in nature and did not imply the judge's endorsement of any products, persons, services or materials.  Also, in Fla. JEAC Op. 82-05, this committee approved a judge's private publishing of a book, the purpose of which was to teach parents to teach their children the consequences of crime. 

Lastly, this committee has recently issued Fla. JEAC Op. 11-01, where it approved a judge's creation and private maintenance of a website designed primarily to focus high school students on colleges or trade school preparation.  There, we cautioned the judge to ensure that the website not be of a commercial nature and to avoid including links to commercial sites.  Additionally, the Committee cautioned the judge not to use the site as a "forum for 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)." Therefore, the contemplated conduct herein, subject to the above- referenced cautions, is permitted under the Code.

Additionally, while this committee is declining to screen the proposed language used in the public announcement spots, the referral or suggestion to call the parenting help line seems to be acceptable.  As noted in Fla. JEAC  Op. 11-01, the Florida Supreme Court, in In re: Report of The Family Court Steering Committee, 794 So. 2d 518 (Fla. 2001), adopted certain recommendations and characteristics of a model family court.  This model included juvenile delinquency and dependency cases, termination of parental rights and cases of children or families in need of supervision.  Id. at 525.  Within the recommendations adopted were that "courts must coordinate and maximize court resources and establish links with this community resources," Id. at 522, and "each circuit to provide regular public information through the Internet and any other media that is easily accessible to the community about...what services are available...," Id. at 534. Therefore, urging parents to call the parenting help line run by the Florida Department of Children Family Services would not be prohibited and would not appear to cast doubt on the Inquiring Judge's capacity to act impartially. 

Based upon the foregoing, the Committee feels that the judge's proposed appearance in the public service announcement is not prohibited.  However, the Inquiring Judge is cautioned to carefully examine all the provisions of the Code to ensure that the content of the comments are not otherwise prohibited.         

REFERENCES

Florida Code of Judicial Ethics Canon 2A, 3B(9), 3B(10); 4B, 5A(1), 5B

Fla. JEAC Ops. 11-01; 07-09; 07-21; 06-30; 04-27; 00-05; 99-14; 97-29; 97-16; 95-37; 82-01; 82-05; 78-12; and 76-17

In re: Report of The Family Court Steering Committee, 794 So. 2d 518 (Fla. 2001.

_____________

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)