FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-04
Date of Issue: March 4, 2020

ISSUE

Whether a judge may attend an event honoring black female judges.

ANSWER: To the extent that the inquiring judge can confirm this event is not also a fundraiser for a non-profit organization where the judge will be specially honored, yes.

 

FACTS

The inquiring judge has been invited to attend an event hosted by the National Congress of Black Women, Broward County Chapter, for the purpose of celebrating Women’s Month and honoring black female judges of Broward County. According to the national website, the National Congress of Black Women (NCBW), is a nonprofit that serves as “a voice of advocacy on issues affecting the appointment of women at all levels of government with a goal to increase the participation of women of color in the educational, political, economic and social arenas.”

Information posted online about the event indicates that tickets will be sold for $55. The judge’s invitation stated that the organization would be “celebrating your achievement and look forward to your presence to accept your award.”

The inquiring judge wishes to know whether attendance at the event would be prohibited by the Code of Judicial Conduct.

 

DISCUSSION

This inquiry is remarkably similar to Fla. JEAC Op. 20-02 just recently published. In that opinion we responded in the negative to a judge asking if it is appropriate under the Code to attend an event hosted by advocacy group, Florida’s Children First, honoring “champions for children” (none of whom were a judge). That opinion provides a road map for responding here in that the present matter also triggers Fla. Code Jud. Conduct, Canon 5C(3)(b)(iii) that states in relevant part “A judge . . . as a member or otherwise . . . shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.” As well as Fla. Code Jud. Conduct, Canon 4D(2)(b), that allows a “judge . . . as a member or otherwise” to “appear or speak at, receive an award or other recognition at, be featured on the program of, and permit the judge’s title to be used in conjunction with an event of . . .” an organization “devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice and the funds raised will be used for a law related purpose.” (emphasis added).

Simply stated, under these circumstances two questions must be asked. First, is the event a fundraiser? Second, is the organization one devoted to the law, legal system, or the administration of justice?  Again, Fla. JEAC Op. 20-02 is instructive in determining the answers. Like the NCBW, Florida’s Children First was a nonprofit advocacy group whose invitation did not label the event as a fundraiser, but sold tickets. The opinion noted that:

Although there is no direct solicitation contained within the materials the inquiring judge has forwarded to our attention, nor does the advertisement for the special event explicitly state that fundraising will occur during the event, it seems very likely that fundraising will at least be a part of this event. The price of the tickets and availability of advertisement space are themselves suggestive of a fundraising component. [……] And in the experience of many members of this committee who have attended similar events, fundraising is frequently a feature (of varying degree) during programs such as these.

The NCBW invitation similarly does not use the word “fundraiser” but the inquiring judge advises the ticket price is to cover the cost of the event with excess funds going back to the organization. This information is more than most judges would likely receive prior to events like this and must, therefore, be on guard as the possibility that such gatherings may not always be clearly recognized as a fundraiser. In the past, some “red flags” have been identified. In Fla. JEAC Op. 10-33 a judge was advised not to attend an event not advertised as a fundraiser but tickets sold covered expenses in addition to ads sold for a program and a silent auction for a scholarship fund. Conversely, a judge was allowed to be featured at a Girl Scout event to honor scouts where there was no admission charge. Fla. JEAC Op. 12-24. With the limited information at hand, it is difficult to conclude whether this particular event should be deemed a fundraiser. Any time ticket sales generate excess funds going to the organization, common sense and caution should be exercised. The fact that ticket sales for the event may result in the organization making an incidental profit does not necessarily make it a fundraiser, unless the purpose of the event was to raise funds. Fla. JEAC Op. 04-27. It is always each judge’s responsibility to confirm whether a non-law related event is a fundraiser, with the guidance of Fla. Code Jud. Conduct, Canon 5C(3)(b) in mind. Certainly, if a judge is able to make reasonably certain that the event is not a fundraiser as contemplated by the rules and is still in keeping with the prestige of the office, then attendance is allowed.

Should, however, the judge determine that the event is or could be seen as a fundraiser, the second question becomes relevant. Again, it is helpful to revisit Fla. JEAC Op. 20-02 which contains lengthy and instructive cites as to the many variations and nuanced comparisons of both events and organizations to determine whether they qualify as one “devoted to the law” under Fla. Code Jud. Conduct, Canon 4D(2)(b). These include, Fla. JEAC Op. 16-20 (serving on committee responsible for raising funds for golf tournament raising funds for Guardian Ad Litem was impermissible because it “casts reasonable doubt on the inquiring [dependency] judge’s capacity to act impartially as a judge,” but attendance at the fundraising event was not prohibited by Fla. Code Jud. Conduct, Canon 5); Fla. JEAC Op. 14-07 (inquiring judge could participate as a model in Association of Women Lawyers’ fashion show event whose proceeds would primarily benefit a free childcare facility inside the courthouse as well as help fund assistance to law students in financial need because the Association was an organization devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice and the courthouse childcare program “improves the administration of justice by decreasing continuances due to childcare issues and by making the courts more accessible to parents who would not otherwise be able to attend required court proceedings because of a lack of childcare options”); Fla. JEAC Op. 11-15 (finding Young Lawyers Section of the inquiring judge’s local bar association was a fund-raising event of a law-related organization but the charity golf tournament at issue was not a “quasi-judicial” activity because the funds would not be used for a law-related purpose and concluding that the judge’s participation as a “hole sponsor” at the event was authorized based on the commentary added by the Florida Supreme Court to Canon 5C(3)(b)); Fla. JEAC Op. 11-06 (determining that the Young Women Christian Association is not solely a law-related organization; “[t]o permit judges to fundraise for a nonprofit organization which is not solely law-related, but which develops programs that are law-related would undermine the intention of the Supreme Court when it amended Canon 4D in 2008”); Fla. JEAC Op. 10-32 (concluding that participation in a program or skit for American Inn of Court competing for an award that included a monetary contribution to a charity of choice was “conduct that concerns the law and the legal system” and noting that the inquiry did not involve participation in fundraising because “[t]he participating judge is not actively involved in a fundraising activity and is not utilizing the prestige of the judge's office to promote fundraising. The judge is merely designating a recipient of funds already in the coffers of the organization.”); Fla. JEAC Op. 10-31 (inquiring judge’s proposed letter of support for the “One Campaign” of The Florida Bar to members of the Florida Bar encouraging donations of pro bono services was permitted under Fla. Code Jud. Conduct, Canon 4(D)(2)); Fla. JEAC Op. 09-15 (“A non-profit legal services corporation which provides legal services to indigent persons is a law-related organization under Canon 4D . . . ”); Fla. JEAC Op. 09-07 (“ORT America 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 Fla. Code Jud. Conduct, Canon 4D. While an indirect result or by-product of its core goal of promoting better education may indeed be that those who are better educated will be less likely to break the law and thus lead to less crime, the inescapable conclusion is that this type of organization is not a law-related organization as contemplated by the amendments to Canon 4D.”); Fla. JEAC Op. 08-23 (concluding that “[a]lthough the Anti-Defamation League is a civic organization and the purpose of the luncheon is, in part, to raise funds for the organization, . .”.)

As noted above, the NCBW describes itself as an advocacy group seeking to increase the participation and appointments of women of color to a variety of positions in several areas of society. Although not specifically listing the law, it would presumably fall under the general category of “government” for purposes of a stated goal of the organization. However, neither the authority cited in Fla. JEAC Op. 20-02, nor the NCBW’s self-description could lead us to conclude that it is a law related organization as envisioned in the Canons. Nor does it appear any proceeds of ticket sales would be used for a law related purpose. Again, this second part of the analysis is relevant only if the event is determined by the judge to be a fundraiser. If that were the case, then attendance would not be recommended.

Admittedly, and as often recognized by this Committee, the price of being a judge can be high. The cautious and conservative interpretation of the aforementioned ethical guidelines is purposeful and not without results that often prevent recognition of judges by groups seeking only to honor and appreciate them. However, given the information at hand the inquiring judge should confirm if the event is, or is not, a fundraiser. If it is not, she is free to attend. If, however, the gathering is a fundraiser, then the stated purpose of this organization would not appear to bring it within the category of events that a judge may attend under the rules.

 

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 5C(3)(b)(iii); 4D(2)(b); 2
Fla. JEAC Ops. 20-02 19-07; 16-20; 14-07; 11-15; 11-06; 10-32; 10-31; 09-15; 09-07; 08-23; 05-02; 12-24; 10-33

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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:
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, Supreme Court Clerk
All Committee Members
General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel