FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2013-10
Date of Issue: April 17, 2013

ISSUES

1.  May a judge create and allow to be broadcast public service announcements (PSAs) soliciting volunteers to serve as foster parents or adoptive families for children in the dependency system?

ANSWER: Yes, if the judge’s conduct does not appear to a reasonable person to be coercive or cast reasonable doubt on the judge’s capacity to act impartially as a judge.

2.  May the judge use the circuit’s technology department to produce the PSAs? 

ANSWER: Yes, so long as the use is merely incidental based on the factors outlined in this decision, and the request is made in a non-coercive manner as discussed herein.

3.   If the circuit’s technology department is not able to produce the PSAs, may the judge solicit media outlets or a public university to produce the PSAs?

ANSWER: No, unless the media outlet or university provides such services to anyone who requests it.   

4. May the judge or the circuit’s court administrator request media outlets to broadcast the PSAs?

ANSWER: No.

5. May the judge provide PSAs to the Florida Department of Children and Families to allow the Department to request media outlets to broadcast the PSAs?

ANSWER: Yes, if the judge’s conduct does not appear to a reasonable person to be coercive or cast reasonable doubt on the judge’s capacity to act impartially as a judge. 

FACTS

The inquiring judge is assigned to the dependency court in the judge’s circuit.  The judge reports that the  circuit suffers from a significant lack of foster parents for children in the dependency system, and that many children in the dependency system need a loving, caring family to adopt them. The judge would like to create two PSAs for television and radio.  The PSAs would seek to:  (1) enlarge the pool of volunteers to serve as foster parents in order to avoid splitting up siblings, sending children to new schools, or placing children in group homes or foster placements located a considerable distance from their parents; and (2) solicit adults to volunteer to serve as adoptive families for children who have no parents due to either the termination of their parents’ parental rights or their parents’ deaths.

The PSAs would involve using the judge’s image, name, and voice.  The judge is of the understanding that media outlets such as television and radio stations and cable companies make time available for such PSAs. 

DISCUSSION

As an initial matter, the committee notes that the judge has provided the committee with the PSAs’ contemplated scripts.  As with requests to vet judges’ campaign literature, the committee declines to vet judges’ contemplated public statements.  See, e.g., Fla. JEAC Ops. 11-04 (PSA); 06-30 (presentation to community group); and 06-18 (responses to questionnaires).  Accordingly, our advice to the inquiring judge will address only the propriety of the contemplated conduct. 

Canon 2 of the Code of Judicial Conduct requires judges to avoid impropriety and the appearance of impropriety in all of the judge’s activities.  The Commentary to Canon 2A provides:

A judge must expect to be the subject of constant public scrutiny.  A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.  Examples are the restrictions from judicial speech imposed by Sections 3B(9) and (10) that are indispensable to the maintenance of the integrity, impartiality, and independence of the judiciary.

The restrictions on conduct and speech, whether professional or personal, do not prohibit all forms of speech.  Judges are allowed, and in certain areas encouraged, to speak, write, lecture, teach, and otherwise participate in quasi-judicial activities.  For example, Canon 4B encourages judges to speak, write, lecture, and teach about the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch within our system of government.  Canon 5B likewise encourages judges to speak, write, lecture, and teach about non-legal subjects.

However, both of these types of speech and conduct always are limited by, and subject to, the requirements of the Code.  The Commentary to both Canon 4B and 5B note that the phrase “subject to the requirements of this Code” is included to remind judges that the use of the permissive language, in various sections of the Code, does not relieve a judge from the other requirements of the Code which apply to the specific conduct.

This committee has dealt with numerous inquiries in which contemplated conduct involved the judge’s appearance, speech, writing or lectures.  Some opinions have concluded that the Code prohibited the judge’s conduct when the conduct could be interpreted as constituting endorsements of business products and services, thereby lending the prestige of the office to advance the private interests of others.  See Fla. JEAC  Ops. 07-21, 97-29 and 97-16.  Another opinion has concluded that judges may participate in panel discussions at seminars sponsored by private organizations, as long as the judge’s participation is educational in nature.  Fla. JEAC Op. 07-09.  

Likewise, the committee consistently has opined that a judge does not violate the Code by lecturing or writing articles on the law or law-related topics.  See Fla. JEAC Ops. 07-21, 06-30, 04-27, 00-05, 99-14, 95-37, 82-05, 78-12 and 76-17.  For example, in Fla. JEAC Op. 07-21, the committee opined that a judge could write an informative article about the divorce process, as long as the article was educational in nature and did not imply the judge’s endorsement of any products, persons, services or materials.  In Fla. JEAC Op. 06-30, the committee opined that a judge could address community groups regarding the dangers of online predators.  In Fla. JEAC Op. 82-05, the committee opined that a judge privately could publish a book to help parents teach their children about the consequences of crime.

On a non-legal subject, the committee recently opined in Fla. JEAC Op. 11-01 that a judge privately could create and maintain a website primarily designed to focus high school students on colleges or trade school preparation.  In that opinion, we cautioned the judge to ensure that the website not be of a commercial nature and to avoid including links to commercial sites.  The committee also  cautioned the judge not to use the site as a “forum for discussion of pending legal matters or otherwise be maintained so as to cast reasonable doubt on the judge’s capacity to act impartially as a judge,” citing to Canons 3B(9) and 5A(1).

The Commentary to Canon 4B suggests that the inquiring judge’s contemplated activity fits squarely within the scope of quasi-judicial activities discussed in Canon 4.  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 criminal and juvenile justice, and the improvement of justice in the areas of     . . . juvenile dependency . . . . 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.”).  See alsoIn re Amendments to the Code of Judicial Conduct – Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008); Fla. JEAC Ops. 13-09 (judge may solicit from the community volunteers to serve as guardians ad litem); 12-26 (judge may solicit attorneys to volunteer for appointment as pro bono attorneys ad litem for children in dependency cases); 08-21 (judge may teach an educational/trial skills course at a DCF-sponsored Dependency Court Improvement Summit).

Further, in In re: Report of The Family Court Steering Committee, 794 So. 2d 518 (Fla. 2001), the Supreme Court addressed and adopted certain recommendations regarding the characteristics of a model family court.  This model included juvenile delinquency and dependency cases, termination of parental rights and other cases of children or families in need of judicial intervention.  Id. at 525.  Within the recommendations adopted were that “courts must coordinate and maximize court resources and establish linkages with community resources,” (id. at 522), and “each circuit [is encouraged] to provide regular public information through the Internet and any other media that is easily accessible to the community about . . . what services are available, what the public can expect from the legal system, and any limitations on the court’s authority and resources.”  Id. at 534-35.  Accordingly, educating the public about the need for and the shortage of foster and adoptive parents in the dependency system appears to be consistent with the Supreme Court’s objectives, as well as the type of activity designed to improve the legal system and the administration of justice which the Court encourages.

Based on the foregoing, the committee concludes that the inquiring judge may create, appear in, and allow to be broadcast the proposed PSAs.  However, the committee cautions the inquiring judge to examine the Code carefully to ensure that the Code does not otherwise prohibit the PSAs’ content.

In particular, the inquiring judge should exercise great care so that the judge’s conduct does not appear to a reasonable person to be coercive or cast reasonable doubt on the judge’s capacity to act impartially as a judge.  As we have noted many times, while Canon 4 permits and encourages judges to engage in quasi-judicial activities designed to improve the legal system and the administration of justice, it also contains admonitions regarding the manner in which a judge engages in a quasi-judicial activity.  Canon 4A states, in pertinent part:  “A judge shall conduct all of the judge’s quasi-judicial activities so that they do not . . . cast reasonable doubt on the judge’s capacity to act impartially as a judge; undermine the judge’s independence, integrity or impartiality;   . . . [or] appear to a reasonable person to be coercive.” Fla. Code Jud. Conduct Canon 4A (1), (2) & (6). 
 
It is difficult to define with specificity the type of conduct which may appear to a reasonable person to be coercive in this context.  Thus, the inquiring judge must be cautious that the PSAs’ tone or nature of delivery of the educational information or solicitation for volunteers does not appear to a reasonable person to be coercive.

Further, the inquiring judge’s inquiry regarding the use of court personnel and other resources to assist the judge in creating the PSAs has the potential to be coercive or to be considered an abuse of judicial office.  For that reason, the inquiring judge must be cautious in the manner in which the judge requests and uses those services.  See Annotated Model Code of Judicial Conduct (2d ed. 2011), Rule 3.1(E) (prohibiting use of  court premises, staff, stationery, equipment or other resources for extrajudicial activities, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law); Fla. Code Jud. Conduct, Canon 4D(2)(e) (as a member, officer, director, trustee or non-legal advisor of an organization or governmental entity, a judge shall not make use of court premises, staff, stationery, equipment, or other resources for fund-raising purposes, except for incidental use for activities that concern the law, the legal system, or the administration of justice).  The general restriction’s rationale is that favoring a particular charity or other extrajudicial event by providing access to facilities that are closed to others is an abuse of judicial office.  See Annotated Model Code of Judicial Conduct (2d ed. 2011), 1990 Code Comparison.  The exception’s rationale is that certain activities, such as opening a real courtroom for use in a moot court competition or using a court’s conference room for a bar association task force meeting which includes the judge, are not abuses of judicial office.  Id.

Because the inquiring judge’s contemplated mission does not involve fundraising, and is concerned with the law, the legal system, and the administration of justice, the committee believes that use of court resources is permissible as long as the use is merely “incidental.”  Considerations which determine whether the use of the court resources is incidental likely vary from circuit to circuit, and include whether the necessary space and equipment are available, the size and experience of the circuit’s technology department, the amount of time and resources necessary to create the PSAs, other judges’ demands on the technology department, and other factors which may or may not be unique to the judge’s circuit.  

Further, any direct request by the inquiring judge to court personnel to perform extraordinary duties may well appear to a reasonable person to be coercive and an abuse of the judicial office.  In order to avoid conduct prohibited by the Code, the committee recommends that the inquiring judge   consult with the circuit’s chief judge (and, if applicable, the dependency division’s administrative judge), as well as any other administrative personnel who oversee the technology department, to ensure consensus that such use is merely incidental in concept and actuality, and that the request to perform the services be made in keeping with the usual practices of assigning work and with minimal impact on the court personnel’s regular duties and performance.

Likewise, the committee opines that the inquiring judge’s direct solicitation of other facilities, including television and radio stations, cable companies, and public universities, may appear to a reasonable person to be coercive or an abuse of judicial office.  See Fla. JEAC Op. 13-05 (solicitation for donation of items for children in dependency program prohibited).  Unless it is the policy of any such facility to make its resources available to anyone who makes such a request, the committee believes that the Code prohibits any such solicitation. 

For similar reasons, the committee opines that the Code prohibits the inquiring judge – either directly or through court personnel – from soliciting media outlets to broadcast the PSAs.  See Fla. JEAC Op. 13-05 (neither judge nor court personnel may solicit donations).  However, the committee does not believe that the Code prohibits the inquiring judge from offering the PSAs to the Department of Children and Families for its own use or solicitation of media outlets to broadcast the PSAs, if the Department so desires.  Again, the inquiring judge must exercise caution to ensure that this gesture could not appear to a reasonable person to be coercive or an abuse of judicial office.

It is more difficult to define with specificity the type of conduct which may appear to cast reasonable doubt on the judge’s capacity to act impartially as a judge in this context.  As an example, however, prohibited conduct would exist if it appears to a reasonable person that the judge intends to give favorable treatment to potential foster or adoptive parents who volunteer as a result of the judge’s efforts, or to juveniles who are placed with them.  The committee counsels the inquiring judge to act cautiously in this regard, as well as with respect to any other portion of the Code which this activity may implicate.

Two members of the committee question whether the inquiring judge should be the promoter, director, and featured actor in the PSA.  These members suggest that the PSA likely would be a better product if the inquiring judge would turn over its production to professionals, or those who are able to solicit the help of professionals.

 

REFERENCES

In re: Amendments to the Code of Judicial Conduct – Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008)

In re: Report of The Family Court Steering Committee, 794 So. 2d 518 (Fla. 2001).

Fla. Code Jud. Conduct Canons 2, 3, 4A(1) & (6), 4B, 5B & Commentary to Canons 4B and 5B.

Annotated Model Code of Judicial Conduct (2d ed. 2011), Rule 3.1(E) & 1990 Code Comparison.
 
Fla. JEAC Ops. 13-09, 13-05, 12-26, 11-04, 11-01, 08-21, 07-21, 07-09, 06-30, 06-18, 04-27, 00-05, 99-14, 97-29, 97-16, 95-37, 82-05, 78-12, 76-17.

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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