FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-06
Date of Issue: May 3, 2011

ISSUES

(1) Whether a Judge may assist in planning fundraising activities for a childcare program which provides supervised childcare to parents and guardians who are attending court-related matters.

ANSWER: Yes.

(2) Whether a Judge may speak and be featured on a program and permit the Judge’s title to be used for a fundraiser for a program which provides supervised childcare to parents and guardians who are attending court-related matters.

ANSWER: No.

(3) Whether a Judge may make a recommendation to public and private fund-granting organizations on behalf of a program that provides supervised childcare to parents and guardians who are attending court-related matters?

ANSWER: Yes.

(4) To what extent may a judge be involved in fundraising for a program which provides supervised childcare to parents and guardians who are attending court related matters if the program is under the umbrella of an organization that has an advocacy component?

ANSWER: This inquiry is too broad to be answered.

FACTS

The Young Women Christian Association (“YWCA”) in the Inquiring Judge’s circuit administers, manages, and staffs a free supervised childcare program for parents or guardians to utilize while they attend court-related matters in the domestic violence, criminal, or family divisions. The circuit’s administrative office provides the space needed for the program’s operation. YWCA does not operate this program as a separate incorporated entity; rather, it is one of the many YWCA’s programs in the Inquiring Judge’s circuit. Traditionally, this supervised childcare program has been funded directly by YWCA and through donations made by voluntary bar associations.

Pursuant to Rule 12.407, Florida Family Law Rules of Procedure, a litigant or witness may not bring a minor child into the courtroom during court proceedings. Therefore, the childcare program provides a supervised drop-in childcare facility for litigants and witnesses when childcare issues might otherwise create an obstacle for court participants to attend court proceedings. According to the Inquiring Judge, this program improves the administration of justice by decreasing continuances due to childcare issues and by making the courts more accessible to parents who would not otherwise be able to attend court proceedings because of a lack of childcare options.

On or around July 2011, the program will suffer a funding loss and may even be required to cease its services. The judiciary in the Inquiring Judge’s circuit received a request from the program to assist it in its fundraising efforts in order for the program to continue to operate and provide the services it has to the court system.  The Inquiring Judge was requested to make a presentation to potential donors regarding how the program benefits the court.

The Inquiring Judge’s local YWCA maintains all its donated funds in one general bank account; however, it gives funds donated for a specific purpose a code within the account. The YWCA agreed that it will keep donated funds for the supervised childcare program in a segregated account, if doing so would permit judges to be involved in efforts to assist in raising funds for the program’s continued operation.

The Inquiring Judge has sought guidance from the Committee on specific issues dealing with fundraising for this supervised childcare program.  The Inquiring Judge has also asked a very broad question about whether a judge is prohibited from participating in fundraising activities for this program because it is under the umbrella of the YWCA which has an advocacy component.

DISCUSSION

In 2008, the Florida Supreme Court in In re Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008) amended Canons 4 and 5 of the Florida Code of Judicial Conduct to allow for judicial participation in fundraising in the context of “quasi-judicial activities” and “extrajudicial activities” concerning the law, the legal system, and the administration of justice. Canon 4D(2) was amended to permit a judge to participate in a fundraising event if the event met two criteria: (1) the event is sponsored by an organization or governmental entity that is devoted to the improvement of the law, the legal system, the judicial branch or the administration of justice, and (2) the event concerns the law, the legal system, or the administration of justice and the funds raised will be used for a law-related purpose. If these two criteria are met, then a judge may “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 [a fundraising] event….” Fla. Code Jud. Conduct, Canon 4D(2)(b).  Even if these criteria are met, Canon 4D(2)(a) prohibits judges from personally or directly participating in the solicitation of funds from anyone except from other judges over whom the judge does not exercise supervisory or appellate authority.

The majority opinion in In Re Amendments made it abundantly clear that the amendment to Canon 4 “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.” 983 So. 2d at 552.  The opinion placed the responsibility on a judge who wants to participate in a fundraising event to determine if the event meets the criteria of Canon 4D(2). Id.  Justice Peggy Quince, in her dissent cautioned that a judge who wants to participate in a fundraising event permitted by Canon 4D(2) “will have to make a  judgment call on whether or not a particular organization or event falls within the ambit of the amendment.”  In re Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550, 553 (Fla. 2008) (Quince, J., dissenting).

The first JEAC opinion that addressed amended Canon 4D(2)(b) was Opinion 08-17.  The opinion found that it was ethically permissible for the inquiring judge to be a speaker at a fundraiser for drug court. Fla. JEAC Op. 08-17.  The opinion found the fundraiser fell within the parameters of Canon 4D(2)(b). Id.  The Committee reasoned that drug court is a law-related organization which serves a law related purpose. Id.  The funds would be used for a law-related purpose, for example to help adults in drug court with their addiction problems. Id.

YWCA is a world-wide 501(c)(3) not for profit organization of the Internal Revenue Code.  YWCA, http://www.ywca.org.  It claims to be the oldest and largest multicultural women’s organization in the world. Id. It has over three hundred associations in the United States. Id. YWCA describes its mission as:

[T]o eliminate racism and empower women. We provide safe places for women and girls, build strong women leaders, and advocate for women’s rights and civil rights in Congress.

Women come to us in times of crises, as survivors of rape or domestic violence. They come for job training and career counseling. They come for childcare. They come for health and fitness. They come for a variety of reasons….

YWCA, http://ywca.org/site/pp.asp?c =djISI6PIKpG&b=281387 (last visited Apr. 18, 2011).

The supervised childcare program for court participants is only one of the numerous programs sponsored by the local YWCA in the Inquiring Judge’s circuit. Although this program is law-related, it is nevertheless under the umbrella of the YWCA, an organization that is not solely devoted to the law, the legal system, or the administration of justice.  To permit judges to fundraise for a nonprofit organization which is not solely law-related, but which develops programs that are law-related would undermine the intention of the Supreme Court when it amended Canon 4D in 2008. 

In Florida Judicial Ethics Advisory Committee Opinion 09-07, we opined that the inquiring judge was prohibited from attending and receiving ORT America’s Jurisprudence Award Tribute. ORT America is a nonprofit organization. Fla. JEAC Op. 09-07.  Its primary mission is education. Id.  The organization believes that “through education, people can lead productive lives, breaking the cycle of poverty and lawlessness, in turn creating more jobs and less crime.” Id. However, ORT America is not an organization or governmental entity devoted to the law, the legal system, the judicial branch, or the administration of justice as required by Canon 4D. Id.  The Committee stated that “[w]hile 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.”  Id.

The questions posed by the Inquiring Judge regarding whether a judge may assist in planning a fundraising activity for this supervised childcare program and whether the Inquiring Judge may be used as a “draw” for a fundraiser must be answered using the authority of Canon 5 which governs a judge’s extra-judicial activities1. These questions do not fall under the ambit of Canon 4 which addresses a judge’s quasi-judicial activities since YWCA is not a law-related organization.

The Inquiring Judge may attend a fundraising event for this childcare program since mere attendance at a fundraising event is permissible.  Fla. Code Jud. Conduct, Commentary to Canon 5C(3)(b). A  judge may also assist a nonprofit organization in planning a fund-raiser and perform “behind the scenes work.” Id.  However, a judge may not be a speaker, guest of honor, or otherwise be featured at an organization’s fundraising event. Fla. Code Jud. Conduct, Canon 5C(3)(b); see also Fla. JEAC Ops. 90-20, 99-09, 99-15, 01-09, 05-09, 10-33.

The Inquiring Judge asks whether a judge may make a recommendation to a public or private fund-granting organization for the court’s childcare program.  Canon 4D(2)(c) permits a judge to make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system, or the administration of justice. This Canon does not limit judges to only seeking grants for organizations solely devoted to the law, the legal system, or the administration of justice, but also to any project or program concerning the law, the legal system, or the administration of justice. The supervised childcare program, which aids the court system, certainly falls into this category.

Social action and advocacy are among the cornerstones of the YWCA as stated on the Inquiring Judge’s local YWCA’s website. The Inquiring Judge asks to what extent a judge may be involved in fundraising for a program which provides supervised childcare to parents and guardians who are attending court-related matters if the program is under the umbrella of an organization that has an advocacy component. The Committee is unable to give a definitive answer to this question since the question contains a multitude of unknowns including what specific advocacy YWCA is engaging in internationally, nationally, and locally.  However, the Committee recommends that the Inquiring Judge carefully review Canon 4A(1)-(6) and Canon 5A(1)-(6). A judge must analyze each activity a judge intends to engage in, including otherwise ethically permissible fundraising activities, in light of the restrictions set forth in Canons 4A and 5A. These Canons require judges to evaluate their quasi-judicial activities and extra-judicial activities so that those activities 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; and

(6) appear to a reasonable person to be coercive.

Fla. Code Jud. Conduct, Canons 4A and 5A.

REFERENCES

In re Amendments to the Code of Judicial Conduct – Limitations on Judges’ Participating in Fundraising, 983 So. 2d 550 (Fla. 2008)

Fla. Code Jud. Conduct, Canons 4A(1)-(6), 4D(2), 5A(1)-(6), 5C(3)(b)

Fla. Fam. L. R. P. 12.407

Fla. JEAC Ops. 90-20, 99-09, 99-15, 01-09, 05-09, 08-17, 09-07, 10-33

_____________

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)

1. Canon 5 addresses non-profit organizations, such as, an educational, religious, charitable, fraternal, sororal or civic organization not conducted for profit.