FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-16
Date of Issue: October 6, 2011

ISSUE

May a judge speak to a conference of judges, court administrators, and others interested in the administration of justice, concerning a trial presided over by the judge, the result of which is being appealed.

ANSWER: No.

FACTS

The inquiring judge has been invited to speak at a conference sponsored by a national organization organized to improve the administration of justice at the state court level.  The judge has been invited to speak concerning a trial over which the judge presided.  The trial was concluded, and a final judgment was entered.   That final judgment is currently being appealed.

DISCUSSION

The proposed conduct of the inquiring judge is prohibited by Canon 3(B)(7), which provides that "a judge shall not initiate … ex parte communications … concerning a pending or impending proceeding… ." 

Although ex parte communications are most often considered in the context of communications by others to a judge, Canon 3(B) also applies to communications made by a judge to others.   In this case, the proposed communications would consist of remarks made by the judge to the participants at the conference.

Canon 3(B)(7) contains several exceptions, none of which is applicable to the current inquiry.   In the absence of the applicability of these exceptions, the prohibition against ex parte communications by the judge concerning a case over which the judge presided is absolute, and not limited in any way by the specific subject matter of the remarks.   For example, the inquiring judge in this case indicates that the comments contemplated at the conference would pertain to procedural and logistical matters and not the merits of the case.   This distinction is not contemplated in the ex parte rule. If the remarks concern the pending proceeding, the judge is prohibited from engaging in communication outside the presence of all parties and counsel in the matter.

Although the trial presided over by the inquiring judge has been concluded and a final judgment entered, the final judgment is being appealed.  The Commentary to Canons 3(B)(9) and 3(B)(10), states that "The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition." 

Canon 3(B)(9) prohibits any public comment by any judge, whether that judge presided over the case about which the statements are made or not, if the comments might reasonably be expected to affect a matter's outcome, impair its fairness, or substantially interfere with a fair trial or hearing.

Canon 3(B)(10) restricts "pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties" of a judge.

Thus, the Commentary which provides that a pending proceeding continues until all appeals are concluded expressly pertains to Canons 3(B)(9) and 3(B)10, and not to the ex parte rule in Canon 3(B)(7).

The Committee concludes, however, that the logic of the Commentary, providing that a "pending proceeding" continues until the conclusion of all appeals, applies with equal force, if not more so, to the ex parte prohibition in Canon 3(B)(7).   The case which was presided over by the inquiring judge, while it is on appeal, is subject to being returned to the trial judge for further proceedings.   Therefore, the case, although it does not reside at the present time in the inquiring judge's court, is clearly a "pending proceeding" for purposes of Canon 3(B)(7). 

In JEAC Op. 98-28, this committee responded to a request from an inquiring judge who asked if it would be permissible to appear on a television documentary to discuss a case over which the judge had presided.  The committee cited the ex parte provision in Canon 3(B)(7), in answering the question in the negative.

The Committee went on to address Canon 3(B)(9) and its proscription against speech by any judge which might  reasonably be expected to affect a matter's outcome, impair its fairness, or substantially interfere with a fair trial or hearing.

Although the audience contemplated in Op. 98-28 (the public in a television documentary) and in this inquiry (judges, court administrators, and others interested in the administration of justice) are very different, the rule against ex parte communication applies to any communications made by the judge outside the presence of the parties and counsel in the matter.  Therefore, the fact that the judge's contemplated speech, in the forum proposed by the inquiring judge here, might not violate Canon 3(B)(9), does not interfere with the conclusion that the speech would violate Canon 3(B)(7).

The speech contemplated by the inquiring judge in this inquiry appears intended to improve the legal system and the administration of justice.  Judges are encouraged by Canon 4 to engage in this type of conduct.  However, the encouragement in Canon 4 does not abrogate the express prohibition against ex parte communication in Canon 3(B)(7).

Five members of the Committee agree that the inquiring judge should decline this invitation, but disagree with the Committee’s conclusion that “[t]he proposed conduct of the inquiring judge is prohibited by Canon 3B(7).” This minority of the Committee believes that Canon 3B(9) is the only canon that is appropriate for concluding that the proposed conduct is prohibited.  Indeed, the commentary to Canon 3 specifically states:

Sections 3B(9) and (10) restrictions on judicial speech are essential to the maintenance of the integrity, impartiality, and independence of the judiciary. A pending proceeding is one that has begun but not yet reached final disposition. . . . The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate proceeding and until final disposition.

(Emphasis added.)  Respectfully, the minority concludes that by relying on Canon 3B(7), the majority’s opinion expands the law in an erroneous manner. Moreover,  the majority’s analysis is unnecessary when the same result can and should be reached by relying solely on Canon 3B(9).

The majority cites to Fla. JEAC Op. 98-28 as authority for its conclusion that Canon 3B(7) applies to the issue before this Committee and therefore that the proposed speech by the inquiring judge constitutes an “ex parte” communication.   While Fla. JEAC Op. 98-28 does cite to both Canons 3B(7) and 3B(9) in response to the following inquiry:  “Whether a judge may appear in a television documentary concerning a case he recently tried when the case is currently on appeal,” it is clear from a review of Opinion 98-28 that the JEAC did not opine that Canon 3B(7) applied because the speech in question constituted an “ex parte communication.”  Indeed, Fla. JEAC Op. 98-28 is based on the fact that the action for which the judge was asked to speak about was a pending case on appeal.  The Committee stated that “[t]he Code of Judicial Conduct specifically forbids a judge from commenting on a pending case in Canon 3B(9), which states:

A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.

The Committee further noted that “[a]ccording to the Code comments, ‘the requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition.’”

Significantly, the Committee concluded Opinion 98-28 by noting that “it would be a violation of the Code of Judicial Conduct for the inquiring judge herein to appear on Court TV and discuss his case which is on appeal.” 

Moreover, in Opinion 98-28, the Committee referenced Fla. JEAC Op. 96-18, another opinion that is factually similar to the issue before us and one based solely on Canon 3B(9).  In Opinion 96-18, the inquiring judge asked whether he could speak to the ACLU regarding a case where a recalcitrant witness had been arrested but where a motion for post conviction relief was impending.  Opinion 96-18 does not mention Canon 3B(7), and instead solely and correctly relies on Canon 3B(9) in concluding that the inquiring judge was prohibited from having a discussion with either the ACLU or any group regarding the case.  The opinion, however, did state that the judge was not prohibited from explaining procedures of court, including those in which a witness who refuses to obey a subpoena may be detained. 

Turning to the issue here, nothing in the Code of Judicial Conduct prohibits the inquiring judge from commenting on a high profile case once the matter has reached a final disposition.  Indeed, as one committee member noted in Fla. JEAC Op. 96-18, an inquiring judge could appear in a TV documentary after the case was closed.  Hence, the only reason that this inquiring judge or any other judge is prohibited from giving a speech given the factual scenario before us is the stated prohibition in Canon 3B(9) that no judge can comment on any proceeding – in this case a trial over which the judge has presided – until final disposition of the appellate process.  Once that occurs, no prohibition exists on a judge providing his or her views or thoughts on handling a high profile case.  Accordingly, the only analysis that applies to the issue here is the fact that the matter on which the inquiring judge has been asked to speak has not fully concluded as an appeal remains pending.  The focus on “ex parte” communications is extraneous, unwarranted, and legally incorrect.  

Indeed, taken to its natural conclusion, the majority’s view of Canon 3B(7) would, in most situations, displace Canon 3B(9).  While the minority can certainly imagine situations where both canons would apply, each canon should be given separate meaning and effect, and applying Canon 3B(7) to the facts presented here glosses over differences between the two canons that should give us pause before we do so. 

Canon 3B(7) begins:  “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.”  It is from that affirmative duty to provide litigants and interested parties the right to be heard that the Canon’s prohibition on “ex parte” communications follows.  Unlike Canon 3B(9), Canon 3B(7) contains no qualification that an “ex parte” communication is prohibited only if it “might reasonably be expected to affect its outcome or impair its fairness … or substantially interfere with a fair trial or hearing.”   

In contrast, Canon 3B(9) expressly applies to public and nonpublic comments made by a judge that might interfere with the outcome or the fairness of a proceeding, and expressly encompasses public statements made by a judge outside of a judicial proceeding.  In order to give each canon independent meaning, the public comment encompassed by Canon 3B(9) must be something different in kind from the communications prohibited by Canon 3B(7).  While this necessarily requires a case-by-case approach, the facts presented here unquestionably fall within the parameters of Canon 3B(9) and are an uncomfortable “fit” with Canon 3B(7).  The minority members would therefore base our opinion solely on Canon 3B(9) – not only because it more naturally applies to the facts presented to us, but also because it is more consistent with the substantive analysis that the Committee has provided in prior opinions and therefore provides greater predictability for future inquiries.

The minority acknowledges that if the inquiring judge has handled other high profile cases, the inquiring judge could speak generically about the topic of handling an interesting or high profile case – such as dealing with the media, the courtroom set-up, cameras in the courtroom – without discussing the particular case at issue here.  The minority is of the opinion, however, that the invitation here was to speak about the particular case that is currently on appeal, and the judge is prohibited by Canon 3(b)(9) from commenting on that case. 

Accordingly, while the minority agrees with the conclusion reached by the majority, the minority disagrees to the extent the majority’s opinion concludes that the proposed speech would constitute an “ex parte” communication pursuant to Canon 3B(7).  

REFERENCES

Fla. Code Jud. Conduct, Canons (3)(B)(7); (3)(B)(9); and (3)(B)10; and Canon 4.
Fla. JEAC Op. 98-28.

_____________

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 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, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, 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)