FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2013-05
Date of Issue: February 7, 2013

ISSUES

May a judge assigned to a dependency division permit groups or persons to donate items for children to play with while the children are in court?

ANSWER: Yes, as long as neither the judge nor the judge’s court personnel solicits the donations.

FACTS

The inquiring judge is assigned to the dependency division in the judge’s circuit.  A non-profit organization whose mission is to provide support to guardian ad litem volunteers and children for whom they advocate has offered to provide the courtroom with items for children to play with while the children are in court.  The courtroom has space inside the entry door to allow groups or persons to donate these items for the children.  The inquiring judge asks whether the judge may permit groups or persons to donate these items for the courtroom.

    
DISCUSSION

We opine that a judge assigned to a dependency division may permit groups or persons to donate items for children to play with while the children are in court.  Allowing such donations likely would improve the administration of justice by aiding the judge’s ability to control the courtroom.  See Fla. Code Jud. Conduct Canon 4B Commentary (“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 justice in the areas of . . . juvenile dependency.”)

However, we opine that neither the judge nor the judge’s court personnel may solicit the donations.  Code of Judicial Conduct Canon 4A states, in pertinent part, that a judge shall conduct all quasi-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially;

(2) undermine the judge’s independence, integrity or impartiality;

. . .

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

Soliciting donations from groups or persons who appear before the judge may convey the impression that the judge will favor those who donate.  Soliciting donations from groups or persons, regardless of whether those groups or persons appear before the judge, also may appear to be coercive to those who are not inclined to donate but who fear the judge’s disfavor if they do not donate.

We distinguish this case from Fla. JEAC Op. 07-05.  There, the inquiring judge asked whether a judge who presides over drug court may solicit or receive “incentive gifts” such as sporting event tickets, movie passes, and gift certificates from lawyers or law firms for use as rewards to drug court participants.  According to the inquiring judge, “These incentive gifts are usually procured by donations from members of the Drug Court team (treatment providers, therapists, and the judges themselves) or directly from a retail establishment.”

We opined that a judge could not solicit or receive such “incentive gifts” pursuant to various canons, including Canon 5D(5)(h), which states:  “A judge shall not accept . . . a gift . . . from anyone except . . . if:  the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge.” (emphasis added).  We reasoned:

[W]hile the inquiring judge asks about gifts to be given Drug Court participants, the canons make no distinction regarding the purpose of the gift.  The acceptance of gifts, for any purpose, from lawyers or law firms who are likely to come before the judge may exploit the judge’s judicial position, provide grounds to question the judge’s impartiality, convey or permit others to convey the impression that they are in a special position to influence the judge and create a potential for disqualification.

Notwithstanding the laudable purpose for which the inquiring judge seeks to acquire incentive gifts for the Drug Court participants, the Committee is of the opinion that the judge may not accept such donations from lawyers or law firms if they have come or are likely to come before the judge.  Further, the judge is ethically obligated to instruct court personnel to act in a manner consistent with the judge’s ethical duties and obligations by directing them not to accept such donations.

We distinguish Fla. JEAC Op. 07-05 from the current inquiry in two respects.  First, in Fla. JEAC Op. 07-05, the inquiring judge and that judge’s court personnel were soliciting the “incentive gifts.”  Here, the inquiring judge has not indicated an intent for the judge or the judge’s court personnel to solicit the donations.  Second, in Fla. JEAC Op. 07-05, the judge was involved in using the “incentive gifts” as rewards to the program’s participants.  Here, it does not appear that the judge will be involved with the children’s use of the donated items; rather, the items simply will be available in the courtroom for the children’s use.   

In rendering this opinion, we take no position on whether a judge who wishes to permit such donations to be made for the courtroom must obtain permission from that circuit’s chief judge or court administrator before doing so.  That issue is beyond the scope of our review.

    
REFERENCES

Fla. Code Jud. Conduct Canons 4A, 5D(5)(h).

Fla. JEAC Op. 07-05.

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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, Judge Robert T. Benton, 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, and 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