SUBJECT: Judge as legal commentator for
Canon 2B, Canon 3B, Canon 5A
The inquiring judge wishes to enter into an arrangement with a television station. Under this arrangement he would, for compensation, appear on various segments to "comment about, explain to, and educate the public concerning diverse legal matters including explaining and clarifying the proceedings during high publicity trials such as the O.J. Simpson civil trial." He believes that such a news forum would serve to educate the public and explain the procedures and workings of the court system. He therefore asks for an opinion as to whether he may do this, and if so, whether there are any special cautionary parameters. He further asks whether he may accept compensation for such "public service," whether the station may reference his credentials and title, and whether the station may reference his appearance in any pre-news promotional spots or other promotional materials. Because the Committee concludes that Code of Judicial Conduct prevents the arrangement the judge has suggested, the Committee does not address the additional questions.
This inquiry implicates, at least, Canon 2B, Canon 3B(8), and Canon 5A. Canon 2B is a general prohibition against a judge from lending the prestige of judicial office to advance the private interests of the judge or others. Under Canon 3D(8), a judge shall not, while a proceeding is pending or impending in any court, make public comment that might reasonably be expected to affect its outcome or impair it fairness. Canon 5A provides that a judge's extrajudicial activities must be conducted in such a manner so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties.
The Committee concludes that the inquiring judge's proposed arrangement with a local television station would lend judicial prestige to the commercial interests of that station. Accordingly,the regular appearances he proposes would violate Canon 2B. In Opinion 14-1991 of the South Carolina Advisory Committee on Standards of Conduct, the South Carolina Committee considered the request of a family court judge to participate in a local radio talk show. In addressing the application of Canon 2B, the South Carolina Committee concluded that by associating himself with the radio talk show on a regular basis, the judge would clearly lend the prestige of his office to the advancement of the radio station in an area where the public perceives the judge to be an expert. In Opinion 89-22, the New York Advisory Committee on Judicial Ethics concluded that a judge may not be a paid consultant for a weekly television series about the court system. Recognizing that such consultation might be beneficial to the administration of justice, the New York committee nonetheless cautioned that the acceptance of a consulting fee would constitute participation in a prohibited commercial enterprise organized for profit. Accordingly, and in the context of a commercial endeavor such as local broadcast news, Canon 2B would be violated by the proposal now before this Committee.
Canon 3B(8) is also implicated because the inquiring judge's sole purpose in proposing this activity is to appear on television in order to comment about and explain proceedings in high publicity legal matters. In Florida Opinion 91-5, a judge inquired whether he may "produce and broadcast a weekly radio show on divorce and family law for pay." Although a divided committee was unable to reach a majority position, the opinion does note that it would be almost impossible to avoid the hazards of giving legal advise or commenting on a pending case under the situation described. In West Virginia Opinion 92-25, the West Virginia Judicial Investigation Commission considered an inquiry very similar to that before us now. In that case the inquiring judge wished to serve as a legal correspondent for a local television station. The judge proposed to cover matters involving property law, domestic relations, employment law, personal injury, products liability, criminal law and insurance. The commission determined it would not be appropriate for the judge to serve as a legal correspondent. Citing Canon 3 and its prohibition concerning comments about pending or impending proceedings, the commission concluded that the endeavor would be "fraught with potential dangers for a sitting judge." In New York Opinion 93-133, the inquiring judge wanted to appear as an unpaid commentator for Court Television. The New York Committee declined to approve the proposed activity and observed "while the activity contemplated may be of educational value, such appearances cannot be deemed to constitute quasi-judicial activities designed to improve the law, the legal system and the administration of justice." In considering the exception in Canon 3 that allows a judge to comment or explain for public information the procedures of court, the New York committee felt that this provision is limited to "procedures of the court in which the judge sits."
In the recent case of Inquiry of Evan W. Broadbelt, J.M.C., 146 N.J. 501, 683 A. 2d 543 (N.J. 1996), the New Jersey Supreme Court has construed Canon 2B and Canon 3B(8) [3A(8) in New Jersey] in a manner consistent to that suggested here. The inquiring judge in Broadbelt had appeared regularly on Court Television and occasionally as o commentator on the "Geraldo Live" show on CNBC. In New Jersey, the Supreme Court has jurisdiction to review opinions of the Advisory Committee on Extrajudicial Activities. Accordingly, the court found a violation of Canon 3. The court also found a violation of Canon 2B. This violation was based largely upon the judge's regular appearances: "Because of the frequency of Judge Broadbelt's appearances, Judge Broadbelt became regularly identified with the program, thereby lending it the prestige of his judicial office." 146 N.J. at 515, 683 A. 2d at 550. Although observing that not every television appearance by a judge on commercial television would be improper, the New Jersey (sic) concluded that a judge's regular weekly appearance on a television program, whether commercial or non commercial, to comment on recent court decisions in that state clearly would be improper. The court in Broadbelt also rejected the inquiring judge's argument that his activities should be permitted because they constituted teaching about the judicial system.
Based upon the virtually unanimous authority construing Canon 3B(8), this Committee finds that the proposal before us would violate that Canon. One responding member of this Committee, however, suggests that the Committee leave "an avenue open for judges to educate the public via television or any other media in the 'true spirit' of public service." This judge would find that the proposal now before the Committee is clearly contrary to that goal.
Canon 5A concerns itself directly with extrajudicial activities. Under this rule, a judge's extrajudicial activities must be conducted in such a manner so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; (3) interfere with the proper performance of judicial duties. The Committee finds reason for concern that each of these considerations under Canon 5A is implicated by the present inquiry.
A judge must ensure that extrajudicial activities do not cast reasonable doubt on the judge's capacity to act impartially as a judge. Here the inquiring judge proposes to comment extensively on issues arising, and have actually arisen in other courts around the United States. In this context, it would be nearly impossible for the judge to avoid injecting his own legal opinion or foreshadowing how he might rule on a contested legal issue.
On the question of demeaning the judicial office, the Committee recognizes that, in view of many, television news is largely a commercial endeavor. As recent experience with several high publicity legal proceedings has demonstrated, issues that come before courts are often not conducive to exposition in the "soundbyte" format of television news. Unfortunately, the extremely limited time available to a commentator on a television news show is not conducive to full and fair explanation of complex legal proceedings. Accordingly, the Committee has serious concerns that the commercial and entertainment aspects of a regular judicial appearance on a television news show might well outweigh the legitimate public information aspects.
Finally, with regard to the third consideration under Canon 5A, an extrajudicial activity must not interfere with the proper performance of judicial duties. Here, the judge proposes regular appearances on a local television news broadcast. Such an arrangement could well lead to a public perception that the judge has priorities other than proper performance of judicial duties. Moreover, article V, section 13 of the Florida Constitution mandates that all judges shall devote full time to their judicial duties. Again, the very real risk is the perception that the inquiring judge would be viewed as devoting a substantial amount of his productive time to a very public commercial endeavor unrelated to judicial duties.
In addition to the canons discussed above, Canon 5D(1)(b) may well be implicated. Members of the electronic media are frequently litigants in the courts of this state. Under this portion of the Code of Judicial conduct (sic), a judge must avoid engaging in continuing business relationships with persons likely to come before the court.
In conclusion, the Committee finds that Canons 2, 3, and 5 of the Florida Code of Judicial Conduct prohibit the inquiring judge from entering into the arrangement he proposes.
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 So.2d 5 (Fla.1976).
Dated this 23rd day of December, 1996.
Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
Participation Members: Judges Cardonne, Dell, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Tolton and Attorney Novicki
cc: All Committee Members
Office of the State Courts Administrator (name of judge deleted from this copy)