FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-15
Date of Issue: June 15, 2018

ISSUE

May a senior judge serve on the judicial council of a church of which he/she has been an active member for several decades?

ANSWER: No.

FACTS

The inquiring judge is a senior judge who seeks guidance regarding whether the judge may serve on the judicial council of a church of which the judge has been an active member for many years. According to the bylaws of the church, the position will not be salaried. The members receive a $60.00 per diem as well as mileage for travel expenses. The members of the judicial council are elected by the church body/general conference. The judicial council is composed of lay persons of the church, at least three of whom are required to be either a lawyer or judge, and there must be four members who are elders of the church. The inquiring judge states that the judicial council only addresses matters within the church body and is amenable to the general conference. The Doctrine and Discipline of the church provides that the judicial council may not become involved in civil action/litigation brought by any member or department of the church.

Section XVI(A) of the church’s Doctrine and Discipline provides that the jurisdiction of the judicial council shall relate to and be restricted to “all final appeals from any adverse decision by any bishop, board, commission, group, pastor or any other regularly constituted party or body empowered to make a decision that affects the right of any member or Church body of [said] Church.”

 

DISCUSSION

Canon 5 of the Code of Judicial Conduct is directed toward the regulation of extrajudicial activities in order to minimize the risk of conflict with the judge’s judicial duties. Although a judge is encouraged to participate in extrajudicial activities that involve not-for-profit religious organizations, Canon 5 appears to limit such activities.

Canon 5C(3) provides as follows:

A judge may serve as an officer, director, trustee or non-legal advisor of [a] . . . religious . . . organization not conducted for profit, subject to the following limitations and other requirements of this Code.

(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization

(i) will be engaged in proceedings that would ordinarily come before the judge, or

(ii) will be engaged frequently in adversary proceedings 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 (emphasis added).

Canon 5C(3) specifically allows judges to act as non-legal advisors for religious organizations. Based upon the description of the duties of the judicial council provided in the Doctrine and Discipline of the church, it appears that the judge would be acting as a legal advisor for the organization by participating in “all final appeals from any adverse decision by any bishop, board, commission, group, pastor or other regularly constituted party or body empowered to make a decision that affects the right of any member or Church body of [said] Church.”

This committee has in the past issued opinions that a judge could not give legal advice or perform legal services for a non-profit organization. See Fla. JEAC Op. 04-16 (judge may serve as trustee of a non-profit philanthropic trust, where the judge will not be asked to provide legal advice or services for the trust); and Fla. JEAC Op. 03-07 (judge may not serve on a hospital’s ethics committee, when the county in which the hospital is located, and the county for which the judge serves, are in the same judicial circuit).

Even if it is determined that the judge’s participation in the judicial council would be as a non-legal advisor, the language in the church’s Doctrine and Discipline suggests that the church or its members could become engaged in proceedings that would ordinarily come before the judge, and the same is prohibited by Canon 5C(3)(a)(i).

It is impossible to know all of the potential claims and issues that could come before the judicial council of the church. It appears, however, from the church’s Doctrine and Discipline that such issues could arise in a court of law.

Section XVI(I)(8) of the Doctrine and Discipline of the church provides as follows:

Members of the [] church are hereby required to seek a final determination of any dispute arising between said members and the Church and/or any department thereof by exhausting all legal remedies provided in The Doctrine and Discipline of the [church] before civil proceedings are engaged in by the said member in his or her own behalf or anyone similarly situated (emphasis added).

Due to the nature of the duties and responsibilities of someone serving on the judicial council of the church, it cannot be said that such activities are those of a non-legal advisor. Even if it is determined that the duties of the judicial council would be considered non-legal, it appears that it is possible that such issues could come before the court in the inquiring judge’s jurisdiction. As such, the committee is of the opinion that such service would be in violation of Canon 5 of the Code of Judicial Conduct.

 

REFERENCES

Fla. Code of Jud. Conduct, Canon 5C(3)
Fla. JEAC Ops. 03-07 and 04-16
The Doctrine and Discipline of the AME Church, 2016

_____________


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, Miami-Dade County Courthouse, 73 W. Flagler Street, Room 1407, Miami, FL 33130.

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, Charles Reynolds, Esquire, Judge Michael Raiden, Judge David Green, Melissa Hamilton, Esquire.


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