FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-22
Date of Issue: July 11, 2012

ISSUE ONE

Whether a judge may, with the chief judge’s approval, appear and speak in support of a specific software funding request to the county commission, which provides funding for judicial technology and software in the county where the judge sits.

ANSWER: Yes.

ISSUE TWO

Whether a judge may speak individually to county commissioners in a private setting regarding the judge’s support of a specific software funding request being considered by the county commission, which provides funding for judicial technology and software in the county where the judge sits.

ANSWER: Yes, if such conduct is not prohibited by any provision of law.

FACTS

The inquiring judge, with the chief judge’s approval, wishes to appear before the county commission to speak in support of a specific software funding request.  The county commission provides funding for judicial technology and software in the judge’s county.  The judge’s comments to the commission would be directed to the use of the specific software requested and to how it would improve the administration of justice in the county.  The judge also anticipates speaking privately to individual commissioners in furtherance of the funding request.

DISCUSSION

Canon 4 of Florida’s Code of Judicial Conduct provides, in pertinent part:

A. A judge shall conduct all of the judge’s quasi-judicial activities so that they do not:

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(3) demean the judicial office; … 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 this Code.

C.   A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice.  . . .

The Commentary1 to Canon 4 provides:

Canon 4B.  This canon was clarified in order to encourage judges to engage in activities to improve the law, the legal system, and the administration of justice. 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, the revision of substantive and procedural law, the improvement of criminal and juvenile justice, and the improvement of justice in the areas of civil, criminal, family, domestic violence, juvenile delinquency, juvenile dependency, probate and motor vehicle law. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law….

The phrase “subject to the requirements of this Code” is included to remind judges that the use of permissive language in various sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct.

The Committee has consistently opined that a judge is permitted to lobby a legislative or governmental body with regard to issues concerning the law, the legal system, and the administration of justice.  The Committee concluded in JEAC Op. 75-14 “that a judicial officer may communicate with members of the Legislature on matters concerning the administration of justice, including the appropriation and disbursement of funds deemed necessary to operate and finance the court system. See Canon 4B.”

In JEAC Op. 93-39, the Committee observed, “The majority of the Committee believes that a judge normally should not appear before a county commission or other legislative body on behalf of a nonjudicial advisory committee.  These Committee members believe that Canon 4B only permits public appearances before legislative bodies to ask for funds on matters concerning the legal system and the administration of justice and in particular issues or programs within the judicial budget.” (Emphasis supplied.)

The Committee determined in JEAC Op. 98-13 that a judge was permitted to serve on a law-related board that lobbies for legislative changes.  In JEAC Op. 94-31 the Committee held that a judge was permitted to submit to the legislature proposed legislation regarding sentencing issues, so long as the judge’s behavior did not cast reasonable doubt on the judge’s capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties, as proscribed by Canon 4A.

And in JEAC Op. 09-08, the Committee advised it was permissible for the judge, acting in the capacity of president of the local Inn of Court, to transmit a letter to local legislators concerning legislation pertaining to the funding and duties of the judiciary.  Further, the Committee concluded in JEAC Op. 88-22 that a judge may communicate with a legislator regarding salary increases for judicial assistants.

Thus, a judge is permitted by Canon 4 to appear and speak in support of a specific software funding request to the county commission, which provides funding for judicial technology and software in the county where the judge sits, so long as the judge does not engage in conduct which demeans the judicial office, appears to a reasonable person to be coercive, or violate any other provisions of the Code of Judicial Conduct.  The Code does not prohibit the judge from speaking privately to individual commissioners about this funding request, so long as such conduct is not otherwise prohibited by law.

The Committee notes that its role is limited to addressing the application of Florida’s Code of Judicial Conduct to the judge’s contemplated activity.  Therefore, the Committee specifically declines to address the application of Florida’s Sunshine Law (Chapter 286, Fla. Stat.) or any other laws to the contemplated conduct and recommends the judge independently evaluate the application of any such laws to the proposed activity.

The Committee also notes that the judge’s inquiry refers to a “specific software funding request.”  It is unclear from this inquiry whether the judge intends to support or endorse a particular software provider or software product or intends simply to speak in support of the judiciary’s need for a specific type of software that may be purchased from multiple vendors.  A majority of the Committee would advise the judge not to support or endorse a particular software provider or software product in order to avoid violating Canon 2B’s prohibition against lending the prestige of the judicial office to advance the private interests of another.  Nevertheless, the Committee believes a judge is permitted to address, with the entity responsible for funding  judicial software needs, the pros and cons of disparate software providers and software products, based upon the judge’s experience and expertise regarding those needs.  To provide the funding entity with information to assist it with its budgetary responsibilities, the judge is permitted to discuss and express an opinion on why one provider or one product is more conducive to the judiciary’s needs than another.  Of course, this is dependent upon the judge’s motivation.  That is, if the judge is solely motivated by a desire to act in the best interests of the judiciary, then such discussions are permissible.  But, if the judge is in any way motivated by a desire to lend the prestige of the judge’s office to advance the private interests of a particular vendor, then such discussions are prohibited.

REFERENCES

Fla. Code Jud. Conduct Canons 2B, 4A(3) and (6), 4B, and 4C.
Fla. JEAC Ops. 75-14, 88-22, 93-39, 94-31, 98-13 and 09-08.

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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 which governs any proceeding over which the inquiring judge may preside. 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 33401-6161.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esq., Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esq., Judge C. McFerrin Smith III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator

 

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 of Judicial Conduct