FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-15
Date of Issue: August 27, 2014

ISSUES

1.       May a judge serve on the board of directors of a women’s non-profit foundation that engages in fundraising activities?

ANSWER: Yes, as long as the judge does not personally participate in the solicitation of funds or other fundraising activities.

2.       If the judge elects not to serve on the non-profit foundation board, may the judge be involved with the board in an advisory capacity?

ANSWER: Yes.

3.       May a judge serve on the board of the Leukemia and Lymphoma Society that also fundraises?

ANSWER: Yes, as long as the judge does not personally participate in the solicitation of funds or other fundraising activities.

4.       If the judge is unable to serve on the Society’s board, may the judge attend and personally contribute to functions organized by the Society?

ANSWER: Yes.

5.       May a judge be a dues paying member of a women’s non-partisan civic group that also fundraises?

ANSWER: Yes, as long as the judge does not personally participate in the solicitation of funds or other fundraising activities.

6.       May a judge be a dues paying member of the Junior League?

ANSWER: Yes.

 

FACTS

The inquiring judge is newly-elected and asks about the ethical propriety of continuing membership on the board of four specific organizations.

The first is a non-profit, non-partisan foundation which the inquiring judge founded. According to the foundation’s website, its mission is to: “. . . invest in women and girls to encourage leadership and positively affect their economic, political, and social status.” The inquiring judge wishes to remain active, but is concerned due to the board’s fundraising activities including grant applications, solicitations of individual contributions, and the sponsoring of a major fundraising event each year. The inquiring judge would like to remain on the board and/or continue to be involved in an advisory capacity.

The second organization about which the judge inquires is the Junior League. The third is another non-partisan women’s group which also fundraises, with the mission to: “Empower women to success and lead. Our vision is to be the voice that inspires integrity, equality and leadership in the workplace and our community.” The fourth is the Leukemia and Lymphoma Society, which also fundraises.

 

DISCUSSION
Extrajudicial Activities v. Quasi-Judicial Activities: Issues 1-6

The Committee recommends that the inquiring judge carefully review Canon 4A(1)-(6) and Canon 5A(1)-(6). This Committee has rendered a number of opinions addressing the type of organizations and activities in which judges may participate under Canon 5C(3). A judge must analyze each activity a judge intends to engage in, including otherwise ethically permissible fundraising activities, in light of the restrictions set forth in Canons 4A and 5A.

These Canons require judges to evaluate their quasi-judicial activities and extra-judicial activities so that those activities 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 impartiality;
(3) demean the judicial office;
(4) interfere with the proper performance of judicial duties;
(5) lead to frequent disqualification; and
(6) appear to a reasonable person to be coercive.

When judges are evaluating the applicable ethics rules relating to membership in an organization and how far to financially support that organization, the following questions should be asked: Is this organization devoted to improvements of the law, the legal system, or the administration of justice? If so, then membership is regulated by Canon 4, and the express authority for serving is Canon 4D. According to Canon 4D, the judge may not directly participate in soliciting money with one exception - the judge may solicit funds from other judges over whom they do not exercise supervisory or appellate authority. In addition, a judge may not participate personally in membership solicitation if the solicitation is essentially for fundraising purposes. Nor must the judge allow the use of the prestige of judicial office for fundraising or membership solicitation. Canons 4D(2) and 5C(3).

If the organization is not specifically devoted to improving the law, the legal system, or the administration of justice, then membership is governed primarily by Canon 5. Canon 5A requires judges to conduct all extrajudicial activities so as to not cast reasonable doubt on the judge’s impartiality. Canon 2A also requires judges to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Therefore, judges should stay attuned to the nature of and purpose of the organization, and be vigilant in monitoring organizational activities, positions, and objectives.Further, the judge must ensure that commitments to extrajudicial activities do not compromise the judge’s ability to devote their full time to performing judicial duties.

The same letterhead, attendance, and speaking restrictions apply to Canon 5 extrajudicial activities as apply to Canon 4 quasi-judicial activities. A judge may not use court premises, staff, stationery, equipment, or other resources for fundraising purposes, except for incidental use for activities that concern the law, the legal system, or the administration of justice. Canon 4D(2)(e).

Extrajudicial Activity

Except for the inquiring judge’s membership on The Florida Bar’s UPL Committee, the four organizations inquired about are not specifically devoted to improving the law, the legal system, or the administration of justice. Therefore, Canon 5 of the Code of Judicial Conduct is applicable to Issues1-6 of this inquiry, constituting extrajudicial activity.

The Florida Supreme Court's commentary to Canon 5 of the Code of Judicial Conduct states that "a judge should not become isolated from the community in which the judge lives." Canon 5B encourages judges to participate in extrajudicial activities concerning non-legal subjects. This Canon allows a judge to serve as an officer, director, trustee, or non-legal advisor of a not-for-profit charitable or civic organization, subject to certain limitations and requirements of the Code of Judicial Conduct. Specifically, a judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge, or will be engaged frequently in adversary proceedings in the court of which the judge is a member. See, Fla. JEAC Op. 2013-06.

If a fellow board member from one of the organizations appears before the Inquiring Judge as an attorney, litigant, or witness, Canon 3E(1)’s commentary cautions the judge to disclose on the record, information the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. A judge must conduct all such activities so that they do not lead to frequent disqualification of the judge. Canon 4(5) and Canon 5(5).

Fundraising: Issues 1, 3, 4, 5

On May 22, 2008 the Florida Supreme Court amended Canons 4 and 5, Florida Code of Judicial Conduct, in In Re: Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008). The amended Canons allow judicial participation in fundraising in the context of quasi-judicial activities” and “extrajudicial activities” concerning the law, the legal system, and the administration of justice.

The majority opinion in In Re Amendments made it clear that the amendment to Canon 4 is intended to allow judges to participate in a law-related organization’s fundraiser only where the particular event serves a law-related purpose and the funds raised will be used for a law-related purpose.” 983 So. 2d at 552. The opinion placed the responsibility on the judge who wants to participate in a fundraising event to determine if the event meets Canon 4D(2)’s criteria. Id.

Justice Quince, in her dissent, cautioned that a judge who wants to participate in a fundraising event permitted by Canon 4D(2), will have to make a judgment call on whether or not a particular organization or event falls within the ambit of the amendment.” 983 So. 2d at 553. See also Fla. JEAC Op. 11-06; 08-17. If these two criteria are met, then a judge may speak at, receive an award or other recognition at, be featured on the program of and permit the judge’s title to be used in conjunction with [a fundraising] event . . . .” See also Canon 4D(2)(b); Fla. JEAC Op. 09-07. Even where these criteria are met, Canon 4D(2)(a) prohibits judges from personally or directly participating in the solicitation of funds from anyone except from other judges over whom the judge does not exercise supervisory or appellate authority.

Canon 5 allows a judge to serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization. A judge’s service would violate Canon 5 if the Judge engaged in solicitation of funds or if such service would be to use the prestige of office for a fundraising purpose. Fla. JEAC Op. 08-01, 78-9. The Code restricts a judge from such service if it is likely that the organization will be engaged in proceedings that would come before the judge or in adversary proceedings in the court of which the judge is a member. Canon 5D(1)(a) and (b); Fla. JEAC Op. 00-09.

In Fla. JEAC Op. 94-11, for instance, the Committee found that the inquiring judge could serve as the president of the Community Foundation for Palm Beach and Martin counties, with the caveat that “you avoid personally soliciting funds or allowing the prestige of your office to be used for that purpose.” The Community Foundation was a private, non-profit organization providing grants, scholarships, addressing the needs of children, education, art, health, social services and conservation of historical and cultural resources.

In Fla. JEAC Op. 08-20, we found that the inquiring judge could serve on the Executive Committee of a well-known museum of American art, a non-profit charitable organization. In Fla. JEAC Op. 00-09, we found that the inquiring judge could serve on the Board of Directors of the Collins Center for Public Policy, Inc., a not-for-profit corporation, as long as the judge did not personally participate in the solicitation of funds or other fundraising activities. We also previously have held that judges may serve on a Board of Director of a family service bureau, Fla. JEAC Op. 76-21; the American Red Cross, Fla. JEAC Op. 74-16; the Heart Association, Fla. JEAC Op. 74-14; the Anti-Defamation League of B’nai B’rith, Fla. JEAC Op. 75-12; and a community college foundation, Fla. JEAC Op. 77-6.

A judge may also assist a nonprofit organization in planning a fundraiser and perform behind-the-scenes work. Fla. JEAC Op. 01-09. However, the inquiring Judge may not be a speaker, guest of honor, or otherwise be featured at the organization’s fundraising event. Fla. JEAC Op. 09-07. The judge’s name and position cannot be used in any fundraising activities or literature. The judge’s proper role in these activities is essentially to be behind the scenes, so as to insure that the prestige of judicial office is not used to advance the organization’s fundraising goals. Fla. JEAC Op. 05-07 also contains a thorough description of a judge’s proper role in assisting in the fundraising functions of a civic organization. See also Commentary to Canon 2B; Canon 5C(3)(b)(i); Fla. JEAC Ops. 90-20, 99-09, 99-15, 01-09, 05-09, 10-33, and 13-06.

Mere attendance at a fundraising event does not constitute a violation of Canon 5C(3)(b). It is generally permissible to perform subsidiary and unadvertised functions at fundraising events sponsored by educational, religious, charitable, fraternal, or civic organizations so long as they do not entail direct or personal solicitation. See Commentary to Canon 5C(3)(b).

Based on the information which the inquiring judge has provided, the organizations cited do not appear to be organizations which will be appearing before courts on a regular basis. Furthermore, the question posed indicates that the inquiring judge will not participate in the fundraising activities of any of the organizations. The inquiring judge may continue to serve as a member, on the board of directors, or as an officer of each of the organizations, as long as the judge does not participate in fundraising activities, and it does not appear likely that the organization will appear before the judge in court. If the duties of the judge’s position change resulting in conflict with the Code, the involvement of the judge in the organizations must be modified to avoid this conflict. Fla. JEAC Op. 04-26.

Organization as Gender Neutral: Issues 1, 5, 6

The Inquiring Judge asks about continuing to serve as a member or Board member of several women’s groups. The committee was not provided the history of the selection of members or composition of the organizations. The organizations’ websites do not indicate membership is limited to only women, though the photographs and information on the sites reference only women, and all represent that they are organizations of women. Applicable to this inquiry are Canon 2A, 2B, 5A(2), and 5B(1)(a).

Canon 2A provides that a “judge shall...act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary;”

Canon 2B provides that a “judge shall not allow . . . social, political, or other relationships to influence the judge’s judicial conduct or judgment”;

Canon 2C provides that a “judge should not hold membership in an organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” Canon 2C’s Commentary provides: “Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization’s current membership rolls but rather depends on the history of the organization’s selection of members and other relevant factors such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interests to its members.

Canon 2C’s Commentary specifically mentions one of the three women’s groups which are the subject of this inquiry. It states: “This Canon is not intended to prohibit membership in religious and ethnic clubs, such as Knights of Columbus, Masons, B’nai B’rith, and Sons of Italy; civic organizations, such as Rotary, Kiwanis, and The Junior League; young people’s organizations, such as Boy Scouts, Girl Scouts, Boy’s Clubs, and Girl’s Clubs; and charitable organizations, such as United Way and Red Cross.” (emphasis supplied) To the extent that the Junior League is a civic organization, the Code does not prohibit membership. Therefore, Canon 2B specifically allows the inquiring judge’s continued membership in the Junior League.

However, this does not end the inquiry. Canon 5A(2) provides that a judge shall conduct all extrajudicial activities so they do not “undermine the judge’s independence, integrity or impartiality.”

Canon 5B(1)(a)’s Commentary also directs a judge to regularly re-examine the propriety of continued membership in an organization because the “reputation and activism of the leadership or make-up of an organization concerning racial, ethnic and gender issues and the resulting perceived impression of the agenda of the organization within a community are valid and proper factors for a judge to consider in evaluating membership.”

Thus, the inquiring judge must carefully examine each of the organizations as required by the applicable canons. The Committee cautions the inquiring judge about memberships in organizations that appear to benefit a specific gender, ethnic and/or racial group. See Fla. JEAC Op. 93-50; Canon 2C.

Additionally, the inquiring judge must thoughtfully determine whether service on the board or membership would indirectly advance the private interests of the non-profit organization, or would detract from the judge’s role as neutral and impartial. Canons 2, 4 and 5.

For additional guidance, the committee provides the following JEAC opinions where membership or board service was found to cast a reasonable doubt on, or detract from the judge’s role. Also included are opinions where cautions were given to the judge not to be placed in a partisan position, or part of an advocacy group, or act in a manner that may create a perception that a person, party, or group may have advantage before the judge.

Fla. JEAC Op. 01-14: Service on a County Domestic Violence Council would violate the Canons 4B, 5A(1), 5B(1)(a), 5C(3)(a)(i) & (ii), where membership on the Council would cast a reasonable doubt on the judge’s capacity to act impartially as it appeared to have become an advocacy group;

Fla. JEAC Op. 98-08: Distinguishing Fla. JEAC Op. 94-33 and opining that service on a Domestic Violence Task Force was ethically permissible where activities were "law related and gender neutral," while membership on this victim’s rights council would violate Canons 2A, 3, 4, 4A, and 5B, as doing so would cast reasonable doubt on the judge’s capacity to act impartially as a judge;

Fla. JEAC Op. 94-32: Serving on an advisory committee of the Florida Battered Women’s Clemency Project would violate canons where committee work would involve non-neutral gender activities, have significant political ramifications, or may imply commitment to causes or problems that may come before the courts for adjudication.

Fla. JEAC Op. 93-66: Serving as member of the Advisory Council of the Women’s Development Center at Florida International University may present ethical conflicts. Committee pointed out that the changing nature of some organizations and of their relationship to the law makes it necessary for a judge to regularly re-examine the activities of each organization with which the judge is affiliated to determine if it is proper to continue the relationship. The boards of some organizations may make policy decisions that may have political significance or may imply commitment to causes that may come before the courts for adjudication.

Fla. JEAC Op. 91-22: Service on the Florida Battered Women’s Clemency Project is ethically precluded, in part because it was not gender neutral and such service potentially violated the “impartially” requirements of Canon 2A and Canon 5B.

Fla. JEAC Op. 93-50: Advised against membership in the Dade County Political Women’s Caucus because it was political, and one committee member pointed out that when judges join organizations that lobby for the benefit of specific gender, ethnic and/or racial groups, [m]embership in such an organization could signal partiality to such a group.”

Judge as Advisor: Issue 2

The inquiring judge asks the propriety of serving in an advisory capacity in lieu of serving on the Foundation’s board. The inquiring judge does not specify who comprises this board.

The Code of Judicial Conduct does not prohibit the inquiring judge from serving in an advisory capacity unless the unique relationship which existed in Fla. JEAC Op. 97-24 also exists on the Foundation board. In Fla. JEAC Op. 97-24, this Committee opined that a judge could not serve on an advisory board overseeing a federal block grant program secured by a local law enforcement agency. We reasoned that service on such a board would place the judge in a position of advising the local law enforcement agency on how it should spend its money and conduct its operations, thereby converting the judge into an advisor to the law enforcement agency. Additionally, we reasoned that the judge’s service on this advisory committee would lead to many conflicts with the judge’s judicial duties because the law enforcement agency would be engaged in proceedings which would ordinarily come before the judge. But see Fla. JEAC Op. 13-06 (no conflict found where the not-for-profit organization and its board were referred needy children and families by one particular law enforcement agency, but the governance and decisions of the organization and its board were being made independent of the law enforcement agency).

Therefore, subject to compliance with other provisions of the Code, such as Canon 2C, the extrajudicial service contemplated as advisor may be appropriate so long as the judge carefully monitors the work of the Foundation, does not give any legal advice, and avoids associations which may appear as if part of an advocacy effort giving the appearance of bias in favor or against a class of litigants. See Fla. JEAC Op. 03-15; Canon 5C(3) Commentary.

 

REFERENCES

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

Fla. Code Jud. Conduct, Canons 2A-C, 4A, 4A(1)-(6), 4(B), 4D(2), 4D(2)(a), 4D(2)(b), 4D(2)(e), 5A(1)-(6), 5B(1)(a) and 5C(3)(b)(i).

Fla. JEAC Ops. 90-20, 91-22, 93-50, 93-66, 94-11, 94-3297-17, 97-24, 98-08, 99-09, 99-15, 00-09, 01-09, 01-14, 03-15, 05-09, 08-17, 08-20, 09-07, 10-33, 11-06, 13-06.

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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 to 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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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 whether the proposed conduct violates a provision of that Code.

For further information, contact Dean Bunch, Chair, Judicial Ethics Advisory Committee, 3600 Maclay Boulevard, South, Suite 202, Tallahassee, Florida 32312.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, 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 Michael Raiden, and Judge Richard R. Townsend


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A. Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator