FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2016-03
Date of Issue: February 29, 2016

ISSUES

May a judge appear in a documentary concerning a case that the judge prosecuted as an assistant state attorney and that has reached final disposition where the judge will not be identified as a current, sitting judge?

ANSWER: Yes, as long as the matter on which the inquiring judge has been asked to speak has reached final disposition in both the state and federal appellate process.

FACTS

The inquiring judge has been contacted by a television producer about participating and possibly appearing in a documentary concerning a murder case which the judge prosecuted as an assistant state attorney in 2005. The Defendant was convicted and sentenced to thirty-five years in prison. The judge advises that the most recent appellate activity concluded in 2014, and that there are currently no pending appeals. The judge also advises that the judge will be identified in the documentary only as the prosecutor in the case, and will not be referred to as a current, sitting judge. Additionally, the judge will not appear in the documentary wearing a judicial robe or in judicial chambers, but rather, in both a casual setting and clothing.

 

DISCUSSION

Florida Code of Judicial Conduct, Canon 3(B)(9) prohibits a judge from making any public comment in any pending or impending proceeding that might reasonably be expected to affect its outcome or impair its fairness. The Committee stated in Florida Judicial Ethics Advisory Committee Opinion 11-16 that nothing in the Code prohibits a judge from commenting on a case once it has reached final disposition. From a reading of that opinion, as well as Florida Judicial Ethics Advisory Committee Opinion 98-28, this Committee emphasizes that the term “final disposition” means the complete absence or termination of any pending appeal or post-conviction motion in state or federal court. The fact that the inquiring judge prosecuted the case as an assistant state attorney and did not serve as the presiding judge over the case is a distinction without a difference. Florida Judicial Ethics Advisory Committee Opinion 11-16 makes clear that “nothing in the Code of Judicial Conduct prohibits [a] judge [who presided over a case] from commenting on a high profile case once the matter has reached a final disposition.”  Opinion 11-16 also acknowledges that “the only analysis that applies . . . is the fact that the matter on which the inquiring judge has been asked to speak has not fully concluded as an appeal remains pending.”

We caution, however, that Florida Code of Judicial Conduct, Canon 2(B) states that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” For this reason, the inquiring judge would not be permitted to appear in the documentary, in order to discuss the judge’s prior role in the case as the prosecutor, were the judge to be identified as a current, sitting judge, because that appearance would lend the prestige of the judicial office to the private interests of the documentary producers, and their particular point of view, if any, presented in the documentary. See Fla. JEAC Op. 07-07. As such, the fact that the inquiring judge will not be identified as a current, sitting judge, nor appear in the documentary wearing a judicial robe or in the setting of judicial chambers, is also relevant to this Committee’s opinion that the judge’s appearance would not be prohibited under the Code.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 2(B), 3(B)(9).
Fla. JEAC Ops. 11-16, 07-07, and 98-28.

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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 Judge Barbara Lagoa, Chair, Judicial Ethics Advisory Committee, Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami, FL 33175.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Miguel de la O, Judge Jack Espinosa, Jr., Judge K. Douglas Henderson, Judge Barbara Lagoa, Judge Spencer D. Levine, Patricia E. Lowry, Esquire, Judge Michael Raiden.


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