FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2016-19
Date of Issue: November 4, 2016

ISSUES

May a judge apply to the Governor of the State of Florida for a seat on the Constitution Revision Commission, and if appointed, serve as a gubernatorial appointee?

ANSWER: Yes.

FACTS

The inquiring judge is a sitting judge interested in applying to the Governor of the State of Florida for an appointment to the Florida Constitution Revision Commission.

 

DISCUSSION

In 1968, Florida became the only state that allows for its state constitution to be revisited and changed through a regularly scheduled commission called the Constitutional Revision Commission (“CRC”). The CRC, which meets every twenty years, is a group of thirty-seven commissioners who examine and review Florida’s Constitution. This inquiry focuses on a judge’s gubernatorial appointment, but of the thirty-seven appointments to the CRC, the Governor appoints fifteen, the Florida Senate President and Speaker of the Florida House of Representatives each appoints nine, the Chief Justice of the Florida Supreme Court  appoints three, and the Florida Attorney General is automatically appointed. Appointments will be made no later than March 6th, 2017.

The Florida Constitution provides that the CRC will do its work of “adopt[ing] its rules of procedure, examin[ing] the constitution of the state, hold[ing] public hearings, and…fil[ing] …its proposal, if any, of a revision of this constitution or any part of it” until its constitutionally appointed deadline in May 2018, 180 days before the next regular election. See Art. XI, § 2, Fla. Const. CRC is a nonpolitical, nonpartisan Commission.

The CRC is one of five ways Florida can amend the state constitution. In February 2017, Florida will name its third CRC. The Commission meets for approximately one year, traveling the State of Florida, identifying issues, performing research, and possibly recommending changes to the Constitution. The Commission’s proposed recommendations are then presented to the Florida voters for approval. The last comprehensive review of Florida's Constitution occurred in 1997-1998.

The CRC is not a part of either the executive or legislative branch of government. It is an independent Constitutional Commission. Therefore, a judge’s membership on the Commission would not be an intrusion on the separation of powers, as prohibited by Article II, Section 3, Florida Constitution.

The Florida Constitution specifically addresses whether an appointment of a judge to the CRC would cause a violation of the rule that a judge not hold two offices. There is no dual-office holding prohibition on a judge serving on the CRC pursuant to Article II, Section 5(a), Florida Constitution. This section provides:  “No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers.” (Emphasis added).

Canons 4 and 5 of the Code of Judicial Conduct govern this inquiry, but Canon 7 will also be reviewed. The Florida Code of Judicial Conduct was adopted to preserve the integrity and independence of the Judiciary. The Code clearly endeavors to maintain the separation of powers in Canon 5C, which provides in part:

  1. A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system, or the administration of justice
  2. A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, the judicial branch, or the administration of justice.

(emphasis added).
Both of these canons encourage judges to engage in activities that relate to improving the law, the legal system, the judicial branch, or the administration of justice. As noted in the commentary to Canon 4B, judges are in a unique position, by virtue of their training and experience, to make valuable contributions to boards and commissions charged with carrying out the public’s business. While engaging in such activities, however, judges must comply with other provisions of the Code and must specifically avoid conduct or words that cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, or interfere with the proper performance of judicial duties. See Fla. Code Jud. Conduct, Canons 4A; and 5A. Canon 4D(1) prohibits appointment if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge, or be engaged frequently in adversary proceedings in the courts.

There are no prior JEAC opinions specifically related to a judge applying for a gubernatorial appointment to the CRC. However, prior committee opinions are instructive. JEAC opinion 76-26, for instance, is an inquiry about whether it would be permissible for a judge to file an amicus brief if an advisory opinion is requested of the Supreme Court about the CRC. The Committee opined that the filing of an amicus brief was permissible under the Canons, in particular Canon 4, recognizing that “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 revision of substantive and procedural law.”

Canon 4B of the Code of Judicial Conduct encourages judges to speak; write; lecture; and teach and participate in other quasi-judicial activities concerning the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch within our system of government, subject to the requirements of the Code.

Generally, judges are allowed to serve as a member; officer; director; trustee; or non-legal advisor of a governmental agency devoted to improvement of the law, the legal system, or the administration of justice. See, e.g., Fla. JEAC Op. 00-09 (approving service on the Board of Directors for the Collins Center for Public Policy); Fla. JEAC Op. 07-03 (approving appointment of the inquiring judge by the Speaker of the Florida House of Representatives to membership on the Taxation and Budget Reform Commission which was created in Article XI, Section 6 of the Florida Constitution). The JEAC found the Commission’s purpose directed toward improving the law and its administration, that it was not part of the executive or legislative branches of government, but rather was an independent constitutional commission, and that the judge’s proposed appointment would ensure that the judiciary had input on the issues that would come before the Commission. As such, the JEAC found that there was nothing prohibiting the inquiring judge from accepting the appointment, nor would there be an intrusion upon the separation of powers, as prohibited by Article II, Section 3, Florida Constitution, which provides, “The powers of the state government shall be divided into legislative, executive, and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

Similarly, the purpose of the CRC, as stated in the Florida Constitution, is to improve the law and its administration, and what Canon 5C(2) describes as approved for judges. Canon 5C(2) provides, “[a] judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, the judicial branch, or the administration of justice.”

This committee does not find that Canon 7 would be conflicted by a gubernatorial appointment of the inquiring judge to the CRC. Under Canon 7 governing political activity, judges are prohibited from addressing partisan groups regardless of the subject matter, (with exceptions for judicial candidates not pertinent here.). See Fla. JEAC Ops. 07-20 and 98-14. The following opinions found potential conflicts for the inquiring judge. In Florida JEAC Opinion 81-06, the committee expressed the opinion that a judge could not properly serve on the state’s Parole and Probation Commission. One JEAC member advised in that opinion, “these appointments are political in nature and would involve a judge in the political process of the Executive Department, which could prove to be controversial.”Nor was it advised, for similar reasons, for judges to participate as members of a county fireboard; an advisory board overseeing a federal block grant; or an advisory commission on alcohol and tobacco. See Fla. JEAC Ops. 99-11, 97-24, and 94-19. See also Fla. JEAC Op. 82-11 (opining that a judge appointed by the mayor could not ethically serve on the mayor's charter revision committee). The opinion noted that a statewide gubernatorial appointment would be far further removed than a local government appointment, which are “more virulent and deadly” than state politics, lessening questions of impartiality.

This committee does not find similar conflicts under Canon 7 exist in this inquiry regarding the Governor’s appointment of the inquiring judge to the CRC. Additionally, Canon 7 would be inapplicable to service on the CRC based on its constitutional charge as a nonpolitical, nonpartisan Commission. This conclusion is not changed by the fact that the Governor would be making the appointment to the CRC.

In conclusion, the Governor appointing a judge to the CRC does not appear to pose the risk of conflict described in Canon 4D(1) or Canon 7. We conclude that the inquiring Judge may seek and accept an appointment to the CRC, being careful not to allow the work of the CRC to interfere with the performance of the judge’s judicial duties, because the work of the Commission meets the requirements of Canon 5(C)(2), involving “improvement of the law, the legal system and the administration of justice.

 

REFERENCES

Art. II, §§ 3, 5(a), Fla. Const.; Art. XI, §§ 2, 6, Fla. Const..
Fla. Code of Jud. Conduct, Canons 4, 4A, 4B, 4D(1), 5, 5A, 5C, 5C(2), and 7.
Fla. JEAC Ops. 07-20, 07-03, 00-09, 99-11, 98-14, 97-24, 94-19, 82-11, 81-06, 76-26.
The Constitution Revision Commission, The Florida Bar, http://www.floridabar.org/crc

_____________


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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Spencer D. Levine, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Blvd., West Palm Beach, FL 33401

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Lisa Davidson, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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