FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-18
Date of Issue: November 7, 2011

ISSUE

May a judge permit criminal arraignments to be broadcast nationally on television by a regular network?

ANSWER: Yes.

May a judge be paid pursuant to a contract with a television network for a teaching segment which would involve explaining the law, sentencing choices, and interviewing different “players” in the court system?

ANSWER: No.

FACTS

The inquiring judge has been approached by a national production company with a request to broadcast the judge’s criminal arraignments on a regular network. In addition to taping the arraignments, the company would like to contract with the judge to do a teaching segment. The judge would be paid and would explain the law, sentencing choices, and interview different “players” in the court system.

DISCUSSION

Rule 2.450, Florida Rules of Judicial Administration, is dispositive of the first issue. The Florida Supreme Court has mandated that electronic media coverage of public judicial proceedings in the trial courts of the state shall be allowed subject to the presiding judge’s authority to control the proceedings, ensure decorum and prevent distractions, and ensure the fair administration of justice in the pending cause. Furthermore, the Supreme Court has promulgated standards of conduct and technology for the judge to follow when electronic media enters the courtroom. Canon 2A of the Code of Judicial Conduct provides that a judge shall respect and comply with the law. Therefore, the judge has a duty to properly administer the Rules of Judicial Administration.

Whether or not a trial judge may contract with a network, with or without compensation, to broadcast a teaching segment as described above, is a more complex issue. Canon 4A and Canon 4B of the Code of Judicial Conduct apply to quasi-judicial activities and provide as follows:

A. A judge shall conduct all of the judge’s quasi-judicial activities 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 disqualification of the judge; or

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

B. A judge is encouraged to speak, write, lecture, teach and participate in other quasi-judicial activities 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, subject to the requirements of the Code.

This Canon has often been cited by this Committee in opinions which approved judges teaching in a scholastic setting. In Fla. JEAC Op. 75-28 the Committee concluded that there was no ethical impropriety in a Supreme Court Justice teaching in a law school. In Fla. JEAC Op. 97-26 the Committee concluded that there was no ethical impropriety in teaching a leadership or church law course at an accredited religious university. In Fla. JEAC Op. 05-11 the Committee concluded that there was no ethical impropriety in a judge teaching at a local community college in a police academy. Finally, in Fla. JEAC Op. 08-21 the Committee concluded that a judge may teach an educational/trial skills course at a Dependency Court Improvement Summit sponsored by DCF. In all of these opinions, the Committee relied upon Canon 4 and cautioned that the activity would be permitted only if it did not cast reasonable doubt on the judge’s capacity to act impartially.

If the activity is a quasi-judicial activity it is governed by Canon 4. If it is an extrajudicial activity it is governed by Canon 5. Canon 5A and Canon 5B provide as follows:

A. Extrajudicial Activities in General. A Judge shall conduct all of the judge’s extra-judicial activities 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 disqualification of the judge; or

(6) appear to a reasonable person be coercive.

B. Avocational Activities. A judge is encouraged to speak, write, lecture, teach and participate in other extrajudicial activities concerning non-legal subjects, subject to the requirements of this Code.

Whether this is a Canon 4 activity or a Canon 5 activity is of little concern because each Canon contains similar language regulating this type of activity. Whether the judge’s activity is quasi-judicial or extrajudicial, the Code provides that the activity must not cast reasonable doubt on the judge’s capacity to act impartially and that the activity does not lead to frequent disqualifications. In addition to taping the judge’s arraignments, the judge would be discussing the law and sentencing choices. This could lead to frequent disqualification of the judge and could cast reasonable doubt on the judge’s capacity to act impartially in cases discussed publicly by the judge.

Finally, the proposed activity is proscribed by Canon 3(B)(9) which provides in part as follows:

(9) 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 non-public comment that might substantially interfere with a fair trial or hearing.

This Canon prohibits public comment, not only on the inquiring judge’s pending or impending cases, but on pending or impending cases in any court, if the comment might reasonably be expected to affect its outcome or impair its fairness. Teaching segments, such as suggested by the judge, may reasonably be expected to impair the fairness of the tribunal. Therefore, this Committee recommends that no judge should make public comments on pending or impending cases.

The foregoing analysis of Canons 3 and 4 is consistent with this Committee’s most recent consideration of a television commentary inquiry. In Fla. JEAC Op. 98-28 this Committee advised that a judge should not appear in a television documentary discussing the judge’s case that was on appeal. The Committee relied upon Canon 3(B)(9) and cited the Commentary that provides as follows:

Canon 3B(9) and 3B(10). 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.  An impending proceeding is one that is anticipated but not yet begun. The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition.

Likewise, in Fla. JEAC Op. 96-25, the Committee on Standards of Conduct Governing Judges advised that the Code of Judicial Conduct prevented a judge from entering into an arrangement with a television station, for compensation, to “comment about, explain to, and educate the public concerning diverse legal matters including explaining and clarifying the proceedings during high publicity trials such as the O.J. Simpson civil trial.” The Committee concluded that the proposed arrangement with the local television station would lend judicial prestige to the commercial interests of the television station in violation of Canon 2B; the activity would involve improper public comment upon a pending or impending proceeding in violation of Canon 3B; and the activity would cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, and interfere with the proper performance of judicial duties in violation of Canon 5.

For the reasons set forth above, this Committee recommends that the inquiring judge respectfully decline the network’s offer and not appear, as a teacher or commentator, on a television broadcast.

REFERENCES

Fla. Code of Jud. Conduct: Canons 2A, 3(B)(9), 4A, 4B, 5A, and 5B.

Fla. JEAC Ops. 08-21, 05-11, 98-28, 97-26, 96-25, and 75-28.

_____________

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)