FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-04
Date of Issue: January 28, 2019

ISSUE

May a judge respond to a Supreme Court request for comments concerning a proposed rule change?

ANSWER: Yes.

 

FACTS

The inquiring judge has expressed an interest in commenting upon proposed new Fla. R. Jud. Admin. 2.570. The inquiry states that the Supreme Court has solicited comments on the proposal. Whether judges may make such comments is a question that does not appear to have been previously addressed by this committee.

 

DISCUSSION

Under our state constitution the Florida Supreme Court enjoys the exclusive authority to promulgate rules for our court system. See Art. V, §2, Fla. Const. Fla. R. Jud. Admin. 2.140 sets forth the procedure for amending those rules. Typically, but not always, suggested amendments to existing rules or proposals for new rules originate in one of several Florida Bar committees; there is such a committee for the Rules of Judicial Administration. Rule 2.140(a)(3). Proposals regarding the adoption, abolition, or modification of a court rule may be submitted to those committees “by any person.” Rule 2.140(a)(1). During the regular cycle, as defined in Rule 2.140(b)(1), the relevant committee submits proposals to the individuals and entities identified in Rule 2.140(b)(2), and “any person” may submit comments to the appropriate committee chair within the time frame established in that same subsection. Following a vote by the Florida Bar’s Board of Governors the proposed changes are sent to the Supreme Court utilizing the guidelines in Rule 2.140(b)(4). The Supreme Court may, but is not required to, schedule oral arguments. Rule 2.140(b)(5). The Supreme Court may solicit public comments and when it does so, again, “any person” may submit them. Rule 2.140(b)(6). The proposal in this case was made out-of-cycle at the Supreme Court’s request. See Rule 2.140(f).1 See In re Amendments to the Florida Rules of Judicial Administration - Parental Leave Continuance, Fla. Sup. Ct. Case No. SC18-1554 (pending).

The docket in Case No. SC18-1554 indicates that the Supreme Court has already received several comments, including at least one from a sitting or retired judge. Some of those comments have been stricken but only because they were not submitted in compliance with rules regarding proper service of those comments. See Fla. R. Jud. Admin. 2.520.

This committee sees no reason why the inquiring judge would be barred from offering comments. We reach this conclusion for three reasons. First, as noted, the relevant rules repeatedly state that “any person” may comment. Second, Rule 2.140(a)(4) specifically provides that judges may sit on the various rules committees. This is a clear indication that input from judges - who, after all, must operate by the Rules of Court - can be of great value in the rulemaking process. Third, Canon 4B of the Florida Rules of Judicial Conduct permits - encourages - judges to “speak, write, lecture, 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.” The Canon does include the caveat that the judge’s activities occur in compliance with the Code. Canon 4A provides clear guidelines.2

We do not interpret Canon 3B(9), which forbids judges from publicly commenting on “a proceeding . . . pending in any court . . . that might reasonably be expected to affect its outcome or impair its fairness,” as extending to commentary of the sort contemplated by Fla. R. Jud. Admin. 2.140 although, technically, SC18-1554 may be considered a “pending case.”

 

REFERENCES

Art. V, §2, Fla. Const.

Fla. R. Jud. Admin. 2.140, 2.140(a)(1), 2.140(a)(3), 2.140(a)(4), 2.140(b)(1), 2.140(b)(2), 2.140(b)(4), 2.140(b)(5), 2.140(b)(6), 2.140(e), (2.140(f), 2.520, 2.570 (proposed)

In re Amendments to the Florida Rules of Judicial Administration - Parental Leave Continuance, Fla. Sup. Ct. Case No. SC18-1554 (pending)

Fla. Code of Judicial Conduct, Canons 3B(9), 4A, 4B

Fla. JEAC Op. 2012-07

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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, Justice 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

 

1. Rule 2.140(e) governs out-of-cycle proposals.

2.The judge’s proposed comments have not been furnished to the committee, nor is that necessary. The committee does not “screen, comment on or approve the content of written material or speech.” Fla. JEAC Op. 2012-07.