FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-10
Date of Issue: March 28, 2019

ISSUES

1. May a judge who has become president of a religious organization meet with potential new members to solicit membership?

ANSWER: Yes, as long as the solicitation cannot reasonably be perceived as coercive, is not essentially a fundraising mechanism, and such potential new members or people with whom they are affiliated are not likely ever to appear before the Court for which the judge serves.

2. May the judge solicit direct donations to the religious organization?

ANSWER: No, unless the solicitation is limited to other judges over whom the judge does not exercise supervisory or appellate authority.

3. May the judge sell tickets to the religious organization’s fundraiser?

ANSWER: No, unless the sales are limited to other judges over whom the judge does not exercise supervisory or appellate authority.

4. May the judge thank donors at fundraisers and receptions for major donors?

ANSWER: No.

5. May the judge “urge” members of the religious organization to attend various organizational fundraisers and other functions?

ANSWER: Yes, for “other functions”, no for “fundraisers”. It is permissible for the judge to urge members to attend functions that are not fundraisers, however “urging” members to attend fundraising events may be reasonably perceived as coercive, utilizing the prestige of the judicial office for fundraising purposes.

6. May the judge announce to the members of the religious organization various upcoming events, including fundraisers occurring at the location of the organization.

ANSWER: Yes.

 

FACTS

The inquiring judge has been asked to become president of a religious organization. As president, the judge would be required to solicit memberships, directly solicit donations for the organization, sell tickets to the organization’s fundraisers, thank donors at fundraisers and receptions for major donors, urge members to attend organizational fundraisers, and announce to the members various fundraisers occurring at the physical location of the organization. The judge inquires whether any of these activities are permissible.

 

DISCUSSION

In general, the Code of Judicial Conduct permits a judge to serve as an officer of a non-profit religious organization as long as the organization (1) will not be engaged in proceedings that would ordinarily come before the judge, or (2) will not 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. See Fla. Code Jud. Conduct, Canon 5C(3)(a)(i)(ii).

However, the judge’s inquiries suggest that he/she may be required to perform duties that might be prohibited by the Code of Judicial Conduct. The inquiring judge will need to make the determination whether these restrictions would be prohibitive of the judge accepting the presidency of the religious organization.

1. The judge inquires as to the propriety of meeting with potential new members of the organization to solicit membership. Canon 5C(3)(b)(ii) and (iii) provides that a judge “shall not personally or directly participate in membership solicitation if the solicitation might reasonably be perceived as coercive;” and further “shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.” The commentary to Canon 5C(3)(b) provides that a judge may solicit membership, endorse, or encourage membership efforts for a non-profit religious organization as long as the solicitation cannot reasonably be perceived as coercive, and is not essentially a fundraising mechanism. “[P]ersonal or direct solicitation of memberships involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control.” See Fla. Code Jud. Conduct, Commentary to Canon 5C(3)(b).

The commentary further provides that “[a] judge must not engage in direct, individual solicitation of funds or memberships in person, in writing or by telephone except in the following cases:  1) a judge may solicit for funds or memberships from other judges over whom the judge does not exercise supervisory or appellate authority, 2) a judge may solicit other persons for membership in the organization . . . if neither those persons nor the persons with whom they are affiliated are likely to appear before the court on which the judge serves and 3) a judge who is an officer of such an organization may send a general membership solicitation mailing over the judge’s signature.”

It is difficult, if not impossible, for this committee to determine whether the membership solicitation by the judge would reasonably be perceived as coercive or whether it would be perceived that the judge was using the prestige of the judicial office for membership solicitation. This committee urges extreme caution so that any such solicitation cannot reasonably be perceived as coercive.

Otherwise, subject to the restrictions mentioned herein, the judge may meet with potential members to solicit membership, as long as the solicitation cannot reasonably be perceived as coercive; the activity is not essentially a fundraising mechanism; and neither those persons solicited nor persons with whom they are affiliated are likely to appear before the court for which the judge serves.

2. and 3. The judge next inquires as to whether he/she may solicit direct donations for the religious organization and/or sell tickets to the organization’s fundraiser. Canon 5C(3)(b)(i) provides that a judge “may assist such an organization in planning fundraising events 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.”

The commentary to Canon 5C(3)(b) provides that it is “generally permissible for a judge to pass a collection plate at a place of worship or for a judge to serve as an usher or food server or preparer, or to perform similar subsidiary and unadvertised functions at fundraising events sponsored by . . . religious . . . organizations, so long as they do not entail direct or personal solicitation.” As such, it would be inappropriate for the judge to solicit direct donations for the religious organization or sell tickets to the organization’s fundraisers, other than to other judges over whom the judge does not exercise supervisory or appellate authority.

4. The judge next inquires as to whether it would be appropriate for the judge to thank donors at various fundraisers and at receptions for major donors. As stated, supra, Fla. Code Jud. Conduct, Canon 5C(3)(b)(i) permits a judge to participate in the planning of fundraising events by religious organizations, but prohibits personal or direct solicitation of funds.

Further, the commentary to Canon 5C(3)(b) provides that “a judge may not be a speaker, guest of honor or otherwise be featured at an organization’s fundraising event, unless the event concerns the law, the legal system, or administration of justice as authorized by Canon 4D(2)(b).”

Although the judge may not be a featured speaker, his/her participation by thanking donors at fundraisers and/or events specifically planned for major donors is prohibited by the Code. The committee has concerns that such conduct crosses the line into direct solicitation and is not considered “planning” as is allowed by Fla. Code Jud. Conduct, Canon 5C(3)(b)(i).

5. and 6. The judge’s final inquiry is whether it is permissible to “urge” members to attend various organizational fundraisers and other functions. Although the judge may participate in the planning of the fundraisers, the judge must be careful not to use or permit the use of the prestige of the judicial office for fundraising purposes. Merely announcing the fundraising event to members would be permissible, although “urging” members to attend may be reasonably perceived as coercive. As such, the judge is discouraged from “urging” the members of the organization to attend and participate in fundraising events.

As far as other events that are not fundraisers, as long as these events are not otherwise prohibited by the Code, the announcement of these events and the urging of participation in them do not appear to be prohibited by the Code.

 

REFERENCES

Fla. Code. Jud. Conduct, Canon 5C(3)(a)(i)(ii)
Fla. Code Jud. Conduct, Commentary to Canon 5C(3)(b)
Fla. Code Jud. Conduct, Canon 5C(3)(b)
Fla. Code Jud. Conduct, Canon 5C(3)(b)(i)
Fla. Code Jud. Conduct, Canon 5C(3)(b)(ii) and (iii).
Fla. Code Jud. Conduct, Canon 4D(2)(b)

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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 Jeffrey T. Kuntz, 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