FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-31
Date of Issue: November 4, 2019

ISSUE

May a judge to serve as a member of the House of Deputies at the 2021 General Convention of the Episcopal Church?

ANSWER: Yes.

FACTS

The inquiring judge is a member of the Episcopal Church. The judge has been invited to be considered for service as a member of the church’s House of Deputies. If appointed, membership will be conferred at the 2021 General Convention of the Episcopal Church. The judge was advised that the members of the House of Deputies participate in the governance of the National Episcopal Church. “The Deputy votes on resolutions that affect the Episcopal Church.” The inquiring judge included in the inquiry a description of the duties of the House of Deputies from the Church’s website. The duties are described as follows:

Each diocese of The Episcopal Church appoints up to four clergy and four lay leaders as deputies to attend the General Convention, which is the governing body of the church. Just as the governing body of the United States is comprised of the House of Representatives and the Senate, the General Convention is comprised of two houses: the House of Bishops and the House of Deputies. They meet and act separately, and both houses must concur to adopt legislation. The House of Deputies has over 900 members (including alternates), and at each General Convention, the House of Deputies elects a president to serve a three-year term.

 

DISCUSSION

In Fla. JEAC Op. 19-10 we recognized “[t]he 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 also Fla. Code Jud. Conduct, Canon 5C(3)(a)(i)(ii). As the inquiry has been presented, after much debate we see no reason why the inquiring judge could not serve as a member of the House of Deputies. However, we are not in complete unison. The vast majority of JEAC members agree that the inquiring judge may participate in the House of Deputies. However, of that majority, there is disagreement as to when and under what circumstances the judge’s participation is circumscribed. One member of this body does not believe that the judge should participate or serve as a member of the House of Deputies at all. We articulate our thoughts below:

1. Full Participation in the House of Deputies:

Six of the JEAC members believe that the inquiring judge should be allowed to participate fully without any limitations on the judge’s ability to debate the issues presented in the House of Deputies. We recognize that there is no way for the inquiring judge to know, prior to the acceptance of the appointment, whether any legislation will be discussed or adopted that in some way could call into question the judge’s impartiality. Churches, temples and other religious bodies often publicly espouse positions on contentious matters. Such positions are usually espoused after considerable deliberation and vocal consternation from the membership. As a matter of ethical direction, the judge should not have to recuse himself/herself from participating as a member of the church’s legislative body because a vote might concern some political or social issue of the day that the larger church chooses to discuss or debate. At the end of the day, it would be the Church and not the judge that would be espousing positions on the issues that give rise to concern. If a judge is proscribed from voting or even simply debating the church’s discernment of the issue, it would necessarily follow that the judge must also refrain from expressing, even as a member of the church, his or her opinion as to any potentially controversial issue. We do not think the canons prohibit a judge from this kind of participation in his or her religion.

Taken to its furthest extreme, it is possible that any organization that a judge has membership in, (e.g. the Boy Scouts, Audubon Society, American Legion etc.,) might discuss, debate or adopt controversial positions that the judge did not or could not anticipate. The Canons contemplate the possibility that during a judge’s membership the nature of organizations may change. Judges are called upon to self-police their involvement in religious or community based activities and if there is a change, to re-evaluate the judge’s association. See Commentary to Canon 4D(1), (“The changing nature of some organizations and their relationship to the law makes it necessary for a judge to regularly re-examine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation.”). See also Commentary to Canon 5C(3)(a). The possibility that the House of Deputies could discuss controversial issues should not preclude a judge from rendering service to his or her church, synagogue or other religious affiliation. Until there is the actual adoption of a particular position that calls into question a judge’s ability to comply fully with the Canons, there is no reason for a judge to shy away from full participation in religious or civic activities.

2. Limited Participation in the House of Deputies:

Three of the members of this body believe that with limitations, the inquiring judge may participate in the House of Deputies if appointed. While we encourage every judge to participate in religious and civic organization, the Commentary to Canon 2A reminds us, “A judge must . . . accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. Examples are the restrictions on judicial speech imposed by Sections 3B(9)1 and (10)2 that are indispensable to the maintenance of the integrity, impartiality, and independence of the judiciary.” The ability to participate is tempered by the requirement that the judge not engage in or participate in discussions, debate or vote for legislation as a member of the House of Deputies that will or even may (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 duties; (5) lead to frequent disqualification of the judge. See Fla. Code of Jud. Conduct, Canon 5A(1)-(5). See also Commentary to Canon 5C(2) (The appropriateness of accepting extrajudicial assignments must be assessed in light of the need to protect courts from involvement in extrajudicial matters that may prove controversial). Nor may the judge, while serving as a member of the House of Deputies render legal advice. See Code of Judicial Conduct, Canon 5C(3)(“A judge may serve as an officer, director, trustee or non-legal advisor of [a], religious . . . organization not conducted for profit . . . .”); See also Fla. JEAC Op. 18-15 (A judge may not serve on the church’s judicial counsel where based upon description of the duties of council members the judge would be acting as a legal advisor for the organization in violation of Canon 5C(3)); 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).  The defined duties of the House of Deputies is to act as a legislative body for the purpose of adopting church related legislation and to elect a president. The defined duties do not run afoul of the Canons of Judicial Ethics.

3. Participation in the House of Deputies not Recommended:

One member of the Committee respectively dissents from the opinions expressed herein. The Committee member notes that the inquiring judge’s conduct goes well beyond mere membership in “religious and ethnic clubs.” The Comment to Canon 2C notes:

“This Canon is not intended to prohibit membership in religious and ethnic clubs, such as Knights of Columbus, Masons, B’nai B’rith, and Sons of Italy; civic organizations, such as Rotary, Kiwanis, and The Junior League; young people’s organizations, such as Boy Scouts, Girl Scouts, Boy’s Clubs, and Girl’s Clubs; and charitable organizations, such as United Way and Red Cross.”

The inquiring judge seeks to participate as a member of the governing body of a religious organization. The governing body takes position on a number of religious and secular issues. The dissenting member views that the inquiring judge’s participation as a member of the governing body of a religious organization would cast reasonable doubt on the inquiring judge’s capacity to act impartially, potentially creating a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence would be impaired. The dissenting member would answer the inquiring judge’s inquiry in the negative.

 

REFERENCES

Fla. Code of Jud. Conduct, Canon 3B9-10, 5A(1)-(5), 5C2, 5C(3), 5C(3)(a)(i)(ii)
Commentary to Canons 2A, 2C, 4D(1), 5C(2), 5C(3)(a)
Fla. Judicial Ethics Advisory Opinion Ops. 19-10, 18-15, 04-16

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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 W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

Participating Members:
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)
Chief Justice Charles T. Canady, Justice Liaison
John Tomasino, Supreme Court Clerk
All Committee Members
General Counsel of the JQC
Melissa Hamilton, Staff Counsel

 

1. Fla. Code Jud. Conduct, Canon 3B(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.

2. Fla. Code Jud. Conduct, Canon 3B(10) A judge shall not, with respect to parties or classes of parties, cases, controversies or issues likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.