FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2011-19
Date of Issue: November 7, 2011

ISSUE

May a retired judge who wishes to preside as a senior judge in the future be a board member of the Innocence Project of Florida?

ANSWER: No, unless the judge elects to enter the practice of law.

FACTS

The Inquiring Judge retired from the bench and, due to the statutory prohibition of compensation to retired judges, has not sought to be assigned to preside over any cases.  The judge wishes not to jeopardize the option to be assigned to judicial service and be able to so preside in the future. 

The inquiring judge has been invited to join the board of directors of the Innocence Project of Florida (Project).  This not-for-profit organization’s mission is to investigate cases where it is believed the person has been wrongfully convicted. The organization’s website lists as its mission, to:

•     Screen and investigate cases in which meritorious innocence claims are identified;
•     Secure DNA testing when biological evidence exists;
•     Advocate for the release of each inmate excluded from criminal responsibility by this highly critical analysis;
•     Provide transitional and aftercare services to exonerees; and
•     Advocate for necessary criminal justice reform to avoid wrongful incarcerations in the future.                              

The Inquiring Judge asks for guidance from the Committee as to whether service on the Project would be prohibited by the Code of Judicial Conduct thereby jeopardizing the judge’s ability to preside as a senior judge. 

DISCUSSION

Initially, it should be noted that the inquiry is being made by a judge who has begun receiving retirement compensation but has not applied or been otherwise assigned to any court for which the judge is qualified to serve, under Rule 2.205(3)(A), Florida Rules of Judicial Administration.  However, under Subsection (D) of the above rule, the Inquiring Judge would be considered a “senior judge” unless the judge has engaged in the practice of law, as the judge would be “eligible to serve on assignment to temporary judicial duty.”  And, while not having done so, the Inquiring Judge could have applied and presided as a volunteer senior judge, so long as there was no compensation from the State. 

Florida’s Code Of Judicial Conduct applies to “[a] retired judge eligible to serve on assignment to temporary judicial duty, ....[a] ‘senior judge’.”  See Application of The Code of Judicial Conduct, Section B (Retired/Senior Judge), located after Canon 7 in the Code of Judicial Conduct.  Therefore, the Committee will answer the inquiry.

The mission of the Project has a lot of similarities to that of The Florida Innocence Commission established by the Florida Supreme Court pursuant to  Administrative Order No. AOSC 10-39.  There, the Supreme Court established a commission “to conduct a comprehensive study of the causes of wrongful conviction and of measures to prevent such convictions.”  Its mandate requires the Commission to “make recommendations designed to prevent the conviction of the innocent ... and propose reforms to address the sources of ” common errors leading to wrongful convictions.  Additionally, the Commission is authorized to propose statutory changes and “amendments to rules of court procedure on issues directly related the wrongful conviction of the innocent.”  The Supreme Court has appointed several judges as members of the committee.

The most significant difference relevant to this inquiry is that the Project’s  mission includes actively engaging in litigation to secure and test evidence and to set aside convictions of those it believes scientific evidence shows were wrongfully convicted.

Canon 2A states, “[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  Canon 4, in relevant part provides:

            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 impartially;
                        (3)        demean the judicial office;
                        (4)        interfere with the proper performance of judicial duties;
                        (5)        lead to the frequent disqualification of the judge; or
                        (6)        appear to a reasonable person to be coercive.

            D.        A judge is in encouraged to serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental entity devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice, subject to the following limitations and the other requirements of this Code. 

                        (1) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization

                                    (a)        will be engaged in proceedings that would ordinarily come before the judge, or

                                    (b)        will be engaged frequently in adversary proceedings in the court in which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

The Committee considers the Project to be an organization “devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice,” as contemplated by Canon 4 of the Code of Judicial Conduct.  While the Committee finds the mission of this not-for-profit court organization to be similar to that of the Supreme Court’s Florida Innocence Commission, the Committee believes the Code of Judicial Conduct prohibits a judge from serving as a board member.  In order to carry out its mission, the Project necessarily will be involved in litigation throughout Florida in its attempt to exonerate those wrongfully convicted.  The Commentary to Canon 4D(1) provides “[t]he changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.”  This warning is applicable here in that the Project’s opinions, positions and advocacy for its clients may cast reasonable doubt on the Inquiring Judge’s capacity to act impartially as required by Canon 4A and 2A.  Likewise, when a client is identified in the Inquiring Judge’s circuit, it is likely that the Project will frequently be involved in adversary proceedings in the court of which the judge is a member, requiring the judge’s resignation from the Project, under Canon 4D.

This Committee has dealt with many circumstances involving organizations that may be involved in advocacy activities, including litigation. In JEAC Op. 09-13, the Committee noted that “[t]his committee has consistently cautioned judges against lending the prestige of the judicial office to further the interest of advocacy groups and it has specifically opined that judges cannot be personally involved in any lobbying activities for such organizations.  However, the Committee has historically taken the position that mere membership in an organization which is well-known for its positions on political or controversial issues or promotes a particular legislative agenda is not prohibited by the Code of Judicial Conduct.”  In JEAC Op. 08-01 the Committee found that the Code did not prohibit the judge from serving on a mortgage fraud task force created to reduce mortgage fraud and to prevent victimization of individuals and businesses via effective education, legislation, regulation, law enforcement, and prosecution.  There, the Committee found that the task force on mortgage fraud fell within the appropriate bounds of Canon 4D and opined that the Judge could serve as a member on the fraud task force.  The finding was based upon the Committee’s determination that the task force was not responsible for raising funds, initiating legislation, enforcement of the law, or prosecution of crimes, and the Committee noted that if the task force were to be so involved, the Committee’s decision on the issue would be different. 

Similarly, in JEAC Op. 86-16, the Committee advised that the judge could continue to be a trustee of a Legal Aid Society, but warned that if the Society engaged in litigation directly or represented clients through the use of staff counsel, such service would be prohibited by the Code of Judicial Conduct.  And, in JEAC Op. 04-10, the Committee opined that a retired judge should resign from the board of a homeowners’ association because of pending litigation and the likelihood of future litigation. 

In JEAC Op. 03-07, the Committee dealt with the issue of whether a newly appointed judge to the county court could continue to serve on a hospital’s ethics committee. This Committee advised that the judge’s involvement would violate Canon 2A and pointed out that the Commentary to the Code noted that judges must avoid all appearance of impropriety.  The Committee considered the likelihood of future litigation as a factor which mandated the judge’s resignation from the ethics committee, even though the judge was presiding in a different county as that of the hospital.  Likewise, while opining that the Canons allow a judge to belong to the ABA, in JEAC Op. 93-05, this Committee cautioned that “if the ABA actively intervenes in court cases or involves itself in high profile political issues and controversies that impair the perception of impartiality, continued membership in the ABA may be properly questioned.”  Likewise, in JEAC Op. 86-16, while concluding that the judge could continue to serve as a trustee of a Legal Aid Society based on the facts of that inquiry, this Committee held that such would not be the case “if the Legal Aid Society engages in litigation ....” Finally, in JEAC Op. 86-06, the Committee expressed the opinion that the judge should not accept chairmanship of Students against Drunk Drivers (SADD) in part because of the possibility that the organization would take great interest in judicial proceedings.

All of the above opinions illustrate the problem the Inquiring Judge faces herein: that the Project’s litigation on behalf of individual clients will cast doubt on the judge’s impartiality.  Additionally, the likelihood of litigation will require the judge's resignation from the board under Canon 4D(1). Therefore, as required by Canons 2A, 4A and D, the judge should decline the invitation. However, if the Inquiring Judge enters the practice of law the judge would not be considered a Retired or Senior judge.  See Fla. R. Jud. Admin. 2.205(a)(3).  As such, the Inquiring Judge would not be subject to the Canons of Judicial Conduct and would be able to be a member of this board until such time as the judge would want to be eligible to return to Retired or Senior status, “upon cessation of the private practice of law and approval of the judge’s application to the court.” See Fla. R. Jud. Admin., Rule 2.205(a)(3)(A)-(D).

REFERENCES

Fla. Code of Jud. Conduct:  Canons 2A, 4A, 4D, and Application of The Code of Judicial Conduct.

Fla. R. Jud. Admin., Rule 2.205.

Fla. JEAC Ops. 09-13, 08-01, 04-10, 03-07, 93-05, 86-16, and 86-06.

_____________

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)