FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-07
Date of Issue: May 9, 2011

ISSUE

May a judge publicly identify and explain the potential consequences to the judicial branch of proposed legislation, if enacted into law, or of proposed constitutional amendments, if approved as amendments to the Florida Constitution?

ANSWER: Yes.

FACTS

The inquiring judge has posed the question above and, in a second question, set out particular views on the effects of certain proposed legislation and proposed constitutional amendments.  The Committee addresses only the first question concerning the proper limits on a judge’s expressing the judge’s views on pending legislation and on potential constitutional amendments.

DISCUSSION

The Committee declines to approve or disapprove any particular views on the effect of particular proposed legislation or proposed constitutional amendments.  As a practical matter, such an approach would stretch the Committee’s resources perhaps to the breaking point.  Canon 4B contemplates, moreover, judges’ candid and uncensored views on legal matters about which they have special expertise.  One judge’s views may contradict another’s, and nothing in the canons contemplates this or any other committee’s vetting judges’ insights.

We have very recently said that 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.”  Fla. JEAC Op. 11-04.

Canon 4 also provides that, while such activities are to be encouraged, care should be taken that they be conducted 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 disquali-fication of the judge; or

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

Fla. Code of Jud. Conduct, Canon 4A.  With respect to opinions on pending legislation, we have said that “it should be your own opinion and not one which has been pre-prepared by a politically active group.”  Fla. JEAC Op. 94-14.

We have said that a judge may participate in “a group organized to lobby the legislature for funding substance abuse programs and mental health programs.” Fla. JEAC Op. 99-21. See also Fla. JEAC Op. 09-08 (approving judge’s advocacy as president of an inn of court for judicial funding); Fla. JEAC Op. 88-22 (approving judge’s advocacy for increase in judicial assistants’ salaries) (citing Fla. JEAC Op. 75-14).  On the other hand, a closely divided committee “suggested that there might be a problem with a county judge, assigned to the criminal division, being a member of the board of directors of MADD. The trial of DWI cases i[s] the major stock and trade of the criminal division of the county court.”  Fla. JEAC Op. 82-17.

We have specifically said that “an individual judge may address public forums about . . . proposed constitutional amendments by speaking, writing, lecturing, or teaching so long as the amendments concern the law, the legal system, and the administration of justice. This permits the judge to advocate or take a position regarding the amendments.”  Fla. JEAC Op. 98-14.  We also said that “a judge may make a contribution to a non-profit organization created to endorse merit selection and retention.” Fla. JEAC Op. 99-24.

Canon 4 encourages judges to express themselves on “the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch within our system of government,” not for the benefit of judges, but so that what judges have to offer the community on these subjects can be available to those charged with decision making.  In making public comments, we caution that accuracy and precision are hallmarks of good judges on the bench and off.  Inflammatory language is injudicious.

The commentary to Canon 4B states: “As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including, but not limited to, the improvement of the role of the judiciary as an independent branch of government, [and] the revision of substantive and procedural law . . . .”

REFERENCES

Florida Code of Judicial Conduct: Canon 4A & 4B, and Commentary to Canon 4B.

Florida Judicial Ethics Advisory Committee Opinions:  11-04, 09-08, 99-24, 99-21, 98-14, 94-14, 88-22, 82-17 &75-14.

_____________

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)