FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-25
Date of Issue: October 9, 2018

ISSUES

Whether judge members of a Florida Supreme Court committee may solicit funds from The Florida Bar, voluntary bar associations, private for-profit and not-for-profit corporations, law firms, lawyers and other groups for the purpose of defraying the cost of hosting the annual conference of the National Consortium on Racial and Ethnic Fairness in the Courts?

ANSWER: No.

FACTS

The inquiring judge is a member of a Supreme Court Standing Committee. The Committee is composed of judges, attorneys, law enforcement, and a law school representative. The Committee is currently exploring the possibility of hosting a national consortium on racial and ethnic fairness in the courts in Florida. This conference brings together judges and other court officials from around the country for court educational programs regarding fairness and diversity issues. The host state’s members would be responsible for raising the funds necessary through local voluntary bars, law firms, private groups, including for-profit corporations, state courts, and the state bar. The inquiring judge also asks whether the non-judge members may also be precluded from soliciting funds since they serve on a Supreme Court committee. Funds raised would be used solely to support the actual costs associated with hosting the annual conference in Florida.

 

DISCUSSION

The inquiring judge asks about the non-judge members as well as the judge members soliciting funds. Our opinion is limited to only those members of the Supreme Court Standing Committee who serve as judges. Applicable to this inquiry is Fla. Code Jud. Conduct, Canon 4, which provides, in pertinent part:

D. A judge is encouraged to serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental entity devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice, subject to the following limitations and the other requirements of this Code.

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(2) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:

(a) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally or directly participate in the solicitation of funds, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;

(b) . . . but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice and the funds raised will be used for a law related purpose(s);

(c) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice (emphasis supplied).

Before 2008, Canons 4 and 5 of Fla. Code Jud. Conduct contained blanket prohibitions that prevented a judge from engaging in fundraising activities in the judge’s quasi-judicial or extrajudicial activities. In May 2008, the Supreme Court of Florida amended Fla. Code Jud. Conduct, Canons 4 and 5 to allow for 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. See In re Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008).

The Florida Supreme Court’s Amendment to Canon 4 imposes obligations on a judge who undertakes any activities pursuant to Canon 4, including Canon 4D(2)(b), to ensure that the activity does not violate the proscriptions in Canon 4A(1)-(6):

A. A judge shall conduct all of the judge’s quasi-judicial activities so that they 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 activities;
(5) lead to frequent disqualification of the judge; or
(6) appear to a reasonable person to be coercive.

As stated in JEAC Op. 08-17: “The onus is on the judge who agrees to participate in a fundraiser pursuant to Canon 4D(2)(b) to determine that none of the prohibitions in Canons 4A (1)-(6) exist. The judge also has a continuing obligation to remain vigilant that none of the prohibitions in Canon 4A(1)-(6) are violated. If the judge becomes aware that any of these prohibitions are being violated, then the judge must take corrective action which may include withdrawing from participation in the event.”

With the 2008 amendments, Canon 4D(2)(b) permits a judge to participate in a fundraising event, (such as being the event speaker), if it meets two criteria:

(1) the event is sponsored by an organization or governmental entity that is devoted to the improvement of the law, the legal system, the judicial branch or the administration of justice, and

(2) the event concerns the law, the legal system, or the administration of justice and the funds raised will be used for a law-related purpose.

However, even if these two criteria are met, Canon 4D(2)(a) prohibits judges from personally or directly participating in the solicitation of funds from anyone except other judges over whom the judge does not exercise supervisory or appellate authority. See JEAC Op. 12-04.

In JEAC Op. 08-17, this committee concluded that a judge could properly be a guest speaker at a fundraiser for drug court. The organization, the event, and all funds raised were specifically dedicated to drug court – the law, the legal system, and the administration of justice. That opinion further contained detailed references to other provisions of the Code that should be considered by a judge who is considering an invitation to participate in a fundraising event.

In JEAC Op. 09-07, this committee concluded that ORT America, an organization devoted to improving lives through education, is not an organization or governmental entity devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice as required by Canon 4D.

In JEAC 11-12, this committee concluded that the inquiring judge could not attend a veterans’ organizational fundraiser where the inquiring judge was to receive an award. About 50-60% of funds generated were to assist veterans identified in court as needing assistance. Likewise this respected veterans’ organization is devoted to veterans, and so it does not qualify under the 2008 amendments to Canon 4D as being devoted to the law, the legal system, or the administration of justice. We stated: “As with other noble charitable causes, this Committee does not question the value of an event honoring past and present armed forces, veterans and their families, and individuals who continue to fight for veterans. However, such an event does not qualify under the 2008 amendments to the Code as law-related.”

In this inquiry, this committee finds 1) the Supreme Court Standing Committee is devoted to the improvement of the law, the legal system, the judicial branch and the administration of justice, and 2) the focus of the fundraising - to raise funds to defray the costs of hosting the national conference on Racial and Ethnic Fairness in the Courts in Florida will be used towards a law-related purpose. According to the inquiring judge, the purpose of the conference is to bring together judges and other court officials from around the country for court education programs regarding fairness and diversity issues. Even so,  Canon 4D(2)(a) prohibits the judges on this Supreme Court committee from personally or directly participating in the solicitation of funds from anyone except other judges over whom the judge does not exercise supervisory or appellate authority, but they may assist the committee in the fund-raising planning.

 

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 4A(1)-(6), 4D(2)(a), (b).
Fla. JEAC Ops. 12-04, 11-12, 09-07, 08-17.

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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 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 James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, 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