FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-36
Date of Issue: December 10, 2012

ISSUE

Whether the inquiring judge may attend a religious organization’s fundraising dinner, after the organization mailed invitations listing the inquiring judge as one of several “hosts” without notifying the judge before the mailing?

ANSWER: No.

FACTS

The inquiring judge and the judge’s spouse have attended a religious organization’s gala dinner over the years.  The gala dinner serves a fundraising purpose for restoring, preserving and supporting the religious organization’s continued success.  The inquiring judge’s spouse purchased an eight-person table for a considerable amount of money before the invitations went out.  The invitations which were mailed by the gala planning committee, of which the inquiring judge is not a member, clearly were soliciting funds.  Included with the invitation was a list of ten donors labeled as “hosts.”  The inquiring judge was listed as one of the “hosts” with an abbreviated designation of title for Honorable (“Hon.”), along with the inquiring judge’s spouse’s name.  Neither the inquiring judge nor the judge’s spouse authorized the committee to send the invitations including the inquiring judge’s name.

The inquiring judge quickly notified the committee of the mistake.  The inquiring judge directed the committee to discontinue using the judge’s name in any further mailings for solicitation of funds.

The inquiring judge asks if the Code of Judicial Conduct would prohibit the judge’s attendance at the gala dinner given the invitation’s listing of the judge as one of the “hosts.

DISCUSSION

Canon 2B states that a “judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”   Although the inquiring judge had no idea that the committee would include the judge’s name in the mailer for soliciting funds, the fact remains that the inquiring judge’s name was used.  The recipients who respond to the mailer naturally could conclude that the inquiring judge’s name is being used for solicitation of funds for the dinner.  Therefore, the judge’s attendance at such an event would be lending the prestige of judicial office to advance the private interests of this religious organization. 

In addition, Canon 5C(3)(b)(iii) states in pertinent part that a “judge . . . as a member or otherwise [of an educational, religious, charitable, fraternal, sororal, or civic organization not conducted for profit], shall not use or permit the use of the prestige of judicial office for fund-raising or member solicitation.”  Several opinions have addressed the issue of lending the prestige of judicial office to advance the private interests of charitable organizations.   Whether the inquiring judge knew of the mailer in advance is not where the inquiry ends.  If the judge’s participation in any way involves the solicitation or gives the appearance of the solicitation of funds, then the judge may not attend the dinner.

Furthermore, by using the judge’s name in the event mailer as a “host,” the organization essentially has made the inquiring judge a featured participant.  The judge’s presence at the gala dinner would be lending the prestige of the judge’s office to further advance the interests of the religious organization.  See Fla. JEAC Op. 95-25 (judge was prohibited from making presentation to church officials concerning resignation of pastor since it appeared it could lend prestige of office to advance private interests); Fla. JEAC Op. 88-5 (judge could not participate in an exhibition basketball game to raise scholarship money where participation implicated the prestige of judge’s office); Fla. JEAC Op. 05-07 receding from Fla. JEAC Op. 00-17 in part (judge can participate in fund-raising activities at the judge’s child’s school sporting events, so long as the judge is not lending prestige of office and is not an implicit solicitation of funds); Fla. JEAC Op. 05-14 (funds received after appointment to bench in response to a solicitation letter sent out prior to applying for judgeship were considered in violation of Code and directed to be returned to donors); Fla. JEAC Op. 11-14 (judge acting as member of wait staff, or “servant,” at a charitable organization’s fund-raising event could not participate since judge would be a featured participant, and presence would enhance the collection of contributions).

The Commentary to Canon 5C(3)(b) states that “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 further relates that “[it] is also generally permissible for a judge . . . to perform similar subsidiary and unadvertised functions at fund-raising events sponsored by educational, religious, charitable . . . organizations, so long as they do not entail direct or personal solicitation” and the judge is not otherwise featured at the organization’s fund-raising event.   Thus, although the inquiring judge normally would have been able to attend the organization’s gala, the gala committee’s unauthorized listing of the inquiring judge as a “host” regrettably has implicated certain sections of the Code.  While inadvertent as that may be, the inquiring judge will be lending the prestige of judicial office to further the private interests of the organization if the judge attends the gala at this point.  Therefore, the Committee opines that the inquiring judge should not attend the gala.

Four committee members dissent because although the inquiring judge’s attendance at the gala may appear to be a ratification of the mailer listing the inquiring judge as a “host,” the inquiring judge was not responsible for the mailer and should not be precluded from attending the gala.

REFERENCES

Florida Code of Judicial Conduct Canons 2B, 5C(3)(b)(iii).

Fla. JEAC Ops. 1988-5, 1995-25, 2000-17, 2005-07, 2005-14, 2011-14.

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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 the Committee Chair: Judge Jonathan D. Gerber, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa,  Patricia E. Lowry, Esquire, Judge Michelle Morley, Judge Richard R. Townsend, Judge Dorothy L. 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