May 29, 1987

Opinion No. 87/6
Canon 2B and 5B(2)
Contribution to a charitable organization as a condition of probation

Dear Judge

A majority of the Committee has responded to the question that you posed in your letter of April 27, 1987. You asked (a) whether a judge may, as a condition of probation, require a defendant to contribute a sum certain to a charitable organization, which, among other things, provides a valuable drug education and awareness program, (b) whether a judge handling a drug related case may accept a negotiated plea between the state and the defendant requiring the defendant as a condition of probation to contribute a sum certain to a charitable foundation, provided the judge does not suggest the organization or set the amount of the contribution.

The responding members unanimously agreed that a judge may not require a defendant to contribute to a charitable organization as a condition of probation. See Canon 5B(2).

The Committee also concluded that a judge should not place his approval on probationary arrangements requiring a defendant to contribute to a charitable organization. Canon 5B(2) provides that, "A judge should not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of his office for that purpose..." The Committee reasoned that approval of such a negotiated plea may create the appearance that the judge is using his office for the purpose of raising funds for a charity. One member expressed the view that approval of such a probationary arrangement provides a "substantial potential for the belief that the contribution is the product of unexpressed, but nonetheless present, judicial power." Two members suggested that such a negotiated plea may be accepted if the plea colloquy contains a statement from both the state and defendant that the charitable contribution condition is not the result of any suggestion or promises by the court and is entirely the result of negotiations between the state and/or victims of the defendant.

Briefly summarized, a majority of the Committee concluded that the answer to both questions posed by your inquiry must be answered in the negative.

We have based our opinion on the information furnished in your letter. The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges 327 So2d 5 (Fla. 1976).

We appreciate your inquiry and trust that the foregoing information will be of some assistance to you.

Very truly yours,

John W. Dell

cc: All Committee Members

Participating members: Judges Blanchard, Booth, Dell, Frank, Goldstein,
Green, Shutter, Tedder and Attorney F. Shields McManus

All reference to the inquiring judge is deleted from the copies sent to the following individuals.

Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Kathleen T. Phillips, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida