FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Recedes from Opinions 10-23 and 10-30

Opinion Number: 2011-15
Date of Issue: September 29, 2011

ISSUE

May a judge seeking re-election in 2014 be a hole sponsor at a charity golf tournament hosted by the young lawyers section of the local bar association if the proceeds raised at the event will benefit various non-law related projects?

ANSWER: Yes.

FACTS

The Young Lawyers Section (YLS) of the Inquiring Judge’s local county bar association hosts a charity golf tournament each year. The YLS raises funds from the golf tournament through player entrance fees and hole sponsorships. Hole sponsors will have their company logo displayed on all promotional materials, the hole sign and the electronic screen on the golf cart; and will be given a table and chairs at the designated sponsored hole. According to the flyer and registration form provided by the Inquiring Judge, all proceeds of the YLS charity golf tournament and a raffle held at the event will be applied to fund various YLS charitable projects.  Examples of the charitable projects include college scholarships; providing school supplies; providing homebound seniors with meals; providing opportunities for children who are the subject of abuse, abandonment and neglect to play games with members of YLS; and sponsoring a team in a cancer fundraising event.

The Inquiring Judge, who will be seeking re-election in 2014, inquires whether a judge is allowed to expend campaign contributions to be a hole sponsor at the golf tournament, appear at the golf hole and display campaign literature/logo.  In the Inquiring Judge’s assessment, only paid attendees would know about the judge’s hole sponsorship, and if necessary, the judge would advise the chairperson not to use the judge’s name or title to raise funds.

DISCUSSION

Whether the inquiring judge is allowed to expend campaign funds on a hole sponsorship is a question of statutory interpretation and is outside the scope of this Committee’s authority to answer.

In Fla. JEAC Op. 04-23, this Committee advised that a judge may purchase a table with campaign funds and distribute campaign literature at a county-wide, non-partisan, non-fundraising event.  We are now asked whether a judge may use campaign funds and distribute campaign literature at a fund-raising event of a law-related organization, thus requiring an additional analysis of Canons 4 and 5 of the Florida Code of Judicial Conduct.

In 2008, the Supreme Court of Florida, 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” (Canon 4) and “extrajudicial activities” (Canon 5).

These 2008 changes to the Code have carved out significant exceptions to the prior prohibition on judges participating in fundraising activities on behalf of a specific category of organizations. The new rule in Canon 4 applies only if the following four conditions are met:

1. The organization hosting the fundraising event is devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice, and

2. The fundraising event concerns the law, the legal system, or the administration of justice, and

3. The funds raised will be used for a law related purpose, and

4. Participation in such activities would not cast doubt on the judge’s capacity to act impartially as a judge and is consistent with other provisions of the code.

The pre-2008 restrictions on fundraising still apply to such activities for other organizations or purposes. See Fla. Code Jud. Conduct, Canon 4D(2)(b).

Here, the Young Lawyers Section of the local bar association is an appropriate organization under the new test of Canon 4. However, the facts of this inquiry show that the event does not concern the law, the legal system or the administration of justice, and the funds raised will not be used for a law-related purpose. Therefore, the proposed activity is not a “quasi-judicial” activity permitted under Canon 4.

Canon 5 presents a different test for “extrajudicial” activities.

Canon 5 and its Commentary now permit a judge to attend and participate in a charitable fundraiser if:

1. There is no pre-event advertising of the judge’s attendance and participation, and

2. The judge engages in no direct fundraising or membership solicitation at the event, and

3. The judge is not a speaker, a guest of honor or otherwise “featured” at the event, and

4. The judge complies with all other provision of the Code.

The facts of this inquiry do not suggest any pre-event advertising or direct fundraising/solicitation, and the inquiring judge will not be a guest speaker or a guest of honor. The only question is whether the judge’s sponsoring a hole and campaigning or advertising at the hole constitutes being “featured” in violation of the Code’s Commentary.

A minority of five members of the Committee are of the opinion that the contemplated conduct is not permitted by either Canon 4 or Canon 5.  The minority agrees with the majority that Canon 4 does not permit the judge to be a hole sponsor at the YLS tournament. As the majority observes, the Supreme Court’s amendments to Canons 4 and 5 created “significant exceptions to the prior prohibition on judges participating in fund-raising activities on behalf of a specific category of organizations.”  It is important to note, however, that the exceptions the Court created are quite specific and limited. As the Supreme Court stated regarding Canon 4, “This change is intended to allow judges to participate in a law-related organization’s fund-raiser only where the particular event serves a law-related purpose and the funds raised will be used for a law-related purpose.”  In re Amendments to the Code of Judicial Conduct - Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550, 552 (Fla. 2008) (emphasis supplied).

As the majority observes, “the facts of this inquiry show that the event does not concern the law, the legal system or the administration of justice, and the funds raised will not be used for a law-related purpose.”  Thus, the amendment to Canon 4 does not change the pre-existing prohibition against the contemplated conduct, and the judge may be a hole sponsor only if permitted to do so by Canon 5.

Unlike the majority, the minority believes the conduct is likewise prohibited by Canon 5. The Supreme Court made only minor changes to Canon 5 in 2008.  It amended Canon 5C(3)(b) to clarify that while a judge may assist a charitable organization in planning fund-raising, the judge shall not personally “or directly” participate in the solicitation of funds.  More pertinent to the present inquiry, however, is the following Commentary1 the Supreme Court added addressing Canon 5C(3)(b):

Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of Canon 5C(3)(b).  It is also generally permissible for a judge to pass a collection plate at a place of worship or for a judge to serve as an usher or food server or preparer, or to perform similar subsidiary and unadvertised functions at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations, so long as they do not entail direct or personal solicitation.  However, a judge may not be a speaker, guest of honor, or otherwise be featured at an organization’s fund-raising event, unless the event concerns the law, the legal system, or the administration of justice as authorized by Canon 4D(2)(b) (emphasis supplied).

The majority concludes this Commentary authorizes the judge’s contemplated conduct. The minority believes a more correct reading of the Commentary reveals that the inquiring judge’s participation as a “hole sponsor” is specifically not permitted.

The judge intends to perform far more than a permissible “subsidiary and unadvertised function” at the YLS golf tournament. “Sponsoring the hole” at this fundraising event means the judge is making a significant contribution to the event’s fundraising activities and will be rewarded by having the judge’s campaign logo displayed in all its promotional materials.  Further, the judge will be recognized, along with other event sponsors, at the event. Limited holes are available to be sponsored.  The sponsored hole will have the judge’s name prominently displayed, and the judge will have a table and chairs at the designated sponsored hole. The program/flyer will reveal the judge is a sponsor, and the judge’s name will appear on the electronic screen on each player’s golf cart.

The minority believes the judge’s participation is neither “subsidiary” nor “unadvertised,” and that the judge makes himself or herself a "feature" of the fund-raiser when the judge sponsors a hole with the attendant publicity described above and engages in campaign activities at the event, all of which is expressly prohibited by Canon 5.

The majority cites JEAC Op. 04-23 as authority for the contemplated conduct.  However, in that opinion the Committee approved the purchase of a table with campaign funds only “if the event is not a fund-raiser and the $200 fee is solely to defray the costs for the event.”  (emphasis supplied).  The YLS Golf Tournament is unequivocally a fund-raiser and the hole sponsorship fee is clearly a source of fund-raising, not merely cost defrayment.

A majority of the Committee concludes that Canon 5’s prohibition against being “featured” at the event refers to conduct by the event sponsor, not by the participating judge. Here, the judge may be engaging in self-featuring, or in featuring the judge’s candidacy, but such campaign conduct is permitted by law and is normal conduct for any public official who is required to run for office.  Engaging in such campaign conduct at a YLS Golf Tournament does not violate the prohibitions of Canon 5 against improper fundraising for a charity.

This is one of the first occasions this Committee has had to directly consider the effect of the 2008 amendments on a judge’s ability to properly participate in fundraisers under Canon 5. Our opinion in JEAC Op. 10-23 responded to an inquiry from a non-judge candidate, and JEAC Op. 10-30 dealt with an inquiry concerning attending a candidates’ forum. In those opinions the Committee did not need to directly address the 2008 amendments, and to the extent the Committee used language suggesting contrary advice, we recede from those comments.

REFERENCES

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

Fla.Code Jud. Conduct,  Preamble; Canons 4, 4D(2)(b), 5, 5C(3)(b) & Commentary

Fla. JEAC Op. 10-30, 10-23 and 04-23.

_____________

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 Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law. The 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: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jonathan Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Jose Rodriguez, Judge McFerrin Smith, III,  Judge Richard R. Townsend, and Judge Dorothy L. 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. “The text of the Canons and Sections… is authoritative. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules.”  Preamble, Fla. Code Jud. Conduct.