FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-18
Date of Issue: November 3, 2017

ISSUES


1. May a judge continue to serve in an advisory role for a nonprofit cultural organization when the organization takes public positions on pending legislation?

ANSWER: No.

2. May a judge who serves in an advisory role of a nonprofit cultural organization sign a confidentiality agreement concerning matters learned while serving in that role?

ANSWER: No.

 

FACTS

The inquiring judge has served for years as an advisory committee member for a nonprofit 501(c)(3) organization. The inquiring judge has recently been informed that the organization has decided to engage in advocacy by taking a public position on pending legislation. Additionally, the organization has begun to take public positions regarding the rollback of civil rights legislation. The inquiring judge believes there is a remote possibility that issues concerning this organization will ever be brought before the judge.

 

DISCUSSION

Canon 5 of the Florida Code of Judicial Conduct permits a judge to serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal, or civic organization. The Code restricts a judge from such service 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. Fla. Code Jud. Conduct, Canon 5C(3)(a) (i) & (ii).

It is neither uncommon nor improper for a judge to be a member of a nonprofit organization that at times engages in advocacy. See Fla. JEAC Op. 93-05 (A judge may hold membership in the American Bar Association because the organization was devoted to the improvement of the law, the legal system or the administration of justice); Fla. JEAC Op. 97-19 (A judge may serve on the board of directors of the cutlery collectors’ legislative committee even though the organization was involved in lobbying related to the manufacture, sale, consumption and use of cutlery items); Fla. JEAC Op. 2001-13 (A judge may be a member of the American Israel Public Affairs Committee (AIPAC), a lobbying group that primarily operated in Washington).

However, where that organizations advocacy seeks changes, legislative or otherwise, that could affect the perception of a judge’s independence or neutrality, we have consistently advised against membership or continued membership in such organizations. See Fla. JEAC Op. 82-18 (A judge may not serve on the board of directors for Mothers Against Drunk Drivers);Fla. JEAC Op. 91-14 (A judge should not serve as a member of the Adam Walsh Child Resources Center where the center’s goal was to seek legislation designed to protect children at every level of government and would detract from the judge’s function as a neutral magistrate); Fla. JEAC Op. 93-50 (A judge may not be a member of the Dade County Political Women’s Caucus as the organization is strictly political); Fla. JEAC Op. 01-14 (A judge may no longer serve as a member of a county domestic violence council that has shifted its purpose from advisory to advocacy).

In the commentary to Florida Code of Judicial Conduct, Canon 5C(3)(a) judges are cautioned:

[The] changing nature of some organizations and of their relationship to the law makes it necessary for a judge to regularly reexamine the activities of each organization with which the judge is affiliated in order to determine if it is proper for the judge to continue the affiliation. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past.

Here the nonprofit organization has signaled its intent to become political by either supporting or opposing legislation including legislation that falls under the broad and expansive umbrella of civil rights. What qualifies as civil rights and civil liberties spans an unpredictable spectrum. It has tentacles in both civil and criminal law. The inquiring judge does not alert the committee as to judicial section(s) over which the judge presides. However, Canon 5 prohibits a judge from presiding over adversary matters that would “ordinarily come before the judge” or “in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.” Fla. Code Jud. Conduct, Canon 5 C(3)(a)(i) & (ii). Continued membership in this organization could also call into question the “judge’s capacity to act impartially as a judge” and undermine the judge’s “independence, integrity [and] impartiality.” Fla. Code Jud. Conduct, Canon 5A(1) & (2).

Because of concerns over judicial independence, integrity and impartiality, we also counsel caution when a judge is asked to sign a confidentiality agreement. The inquiring judge is rightly concerned about the public perception of signing such an agreement and the possibility of becoming “entangled in controversies.” Although not all confidentiality agreements arise in circumstances where a judge’s independence, integrity and impartiality might be questioned, we stress that a judge’s fealty is to the law. It is not, and cannot be, to an organization to the detriment of that fealty. Therefore, if a judge discovers an organization practices, for example, unlawful discrimination, the judge cannot allow a confidentiality agreement to prevent the judge from disclosing that fact. In the commentary to Canon 2A, judges are admonished that they “must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and do so freely and willingly.” Signing a confidentiality agreement while serving on the board of an organization that has expressed its intent to engage in advocacy could “create in reasonable minds, with knowledge of all the relevant circumstances … a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Fla. Code Jud. Conduct, Commentary to Canon 2A.

 

REFERENCES

Fla. JEAC Ops. 82-18, 91-14, 93-05, 93-50, 97-19, 2001-13, 01-14
Fla. Code Jud. Conduct, Canons 2A, 5A(1) and (2), 5C(3)(a)(i) & (ii)

_____________


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 Miguel de la O, Chair, Judicial Ethics Advisory Committee, Eleventh Circuit, Richard E. Gerstein Justice Building, 1351 N.W. 12th Street, Room 424, Miami, FL 33125.

Participating Members:
Judge Michael F. Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, 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, and 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