Opinion Number: 97-30
Date of Issue: October 28, 1997
JUDGE ENGAGED IN MAKING AN EDUCATIONAL PRESENTATION ON THE JUDICIAL SYSTEM TO AN ORGANIZED POLITICALLY PARTISAN GROUP AT THE JUDGE'S COURTHOUSE, OR IN THE ALTERNATIVE TO A PARTISAN POLITICAL GROUP WHICH ESTABLISHES ITSELF AS A NON-PARTISAN CITIZENS GROUP
1. May a judge ethically present an educational program on the judicial system to an organized political partisan group at the judge's courthouse? ANSWER: No. Subject to the exceptions in Canon 7A(1), which are not applicable to the current inquiry, a judge may not speak to an organized political partisan group at any location. This prohibition applies even if the subject matter of the speech is the judicial system.
Three members of the Committee point out that Canon 7A(1) does not necessarily bar a judge from making an educational presentation to a partisan group at the judge's courthouse, so long as the presentation is not limited to members of the particular partisan group. One of these members further notes that so long as the presentation at the courthouse is not a party function, but is rather a function of the Judicial Management Council to which the partisan group is an invitee, then 7(A)(1) does not prohibit the activity.
2. May a judge ethically present an educational program on the judicial system to an organized political partisan group that establishes a non-partisan citizen group for the purpose of traveling to the courthouse to attend the program? ANSWER: The judge must determine whether the citizens' group was created in good faith and is a bona-fide non-partisan group, or whether it is a subterfuge to the proscriptions of Canon 7A(1)(d). If the citizen's group was created in good faith and is a bona-fide non-partisan group, the judge is permitted to present an educational speech on the judicial system consistent with the provisions of Canon 4. If not, the judge is precluded from making the presentation.
The Judicial Management Council's Communication and Public Information Committee disclosed its key findings and final recommendations regarding its 1996 public opinion research. It is the inquiring judges understanding that the research results will be used by the Judicial Management Council to formulate its long-range plan for the judicial branch. Among its "key findings" from the public opinion research are as follows:
The Communication and Public Information Committee made several recommendations, which include the following:
The inquiring judge recognizes the importance of educating "non-political" groups on those matters recommended by the Communication and Public Information Committee. The judge, however, suggests that the most receptive groups are those whose function and purpose revolve around the body politic. In other words, it is the judge's opinion that political party organizations may be the most appropriate groups to lecture and educate on the substance of the recommendations.
In the event our Committee deems it ethically appropriate for a judge to lecture partisan political organizations on these recommendations, the inquiring judge queries whether the educational presentation may take place at his courthouse. However, if our Committee concludes that an educational presentation on the recommendations is ethically proscribed, the inquiring judge ponders whether our opinion would change if the partisan political group established a non-partisan citizen group for the purpose of traveling to the courthouse to hear the presentation.
Canon 7 of the Code of Judicial Conduct requires judges and candidates for judicial office to refrain from inappropriate political activities. Specifically, Canon 7A(1)(d) provides, in apposite part, that "[e]xcept as authorized in Sections 7B(2), 7C(2) and 7C(3),Öa judgeÖshall notÖattend party functions." The exceptions set forth in Canon 7A(1) are not applicable to the present inquiry.
Canon 4 of the Code of Judicial Conduct permits a judge to engage in activities to improve the law, the legal system, and the administration of justice. Canon 4B provides, "A judge may speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, and the administration of justice, subject to the requirements of this Code." [emphasis added]. The Commentary to Canon 4B notes that the phrase "subject to the requirements of this Code" is used to "remind judges that the use of permissive language in various Sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct." Therefore, while Canon 4B authorizes judges to speak, write, lecture, teach and participate in quasi-judicial activities concerning the law, the legal system, and the administration of justice, Canon 7A(1)(d) prohibits a judge from doing so at party functions. See, Opinion 76-16 (The Committee unanimously held that a judge may appear before "nonpartisan groups and organizations" to discuss the merits of the adoption of a constitutional amendment on the question of merit retention of Supreme Court and appellate court judges. The inquiry related to appearances in public gatherings of all types, except partisan political meetings.).
The inquiring judge's initial issue is not one of first impression. Over the past two decades this Committee has addressed similar inquiries. This Committee has once and again asserted the general principle that it improper for judges to appear before partisan groups, even for educational purposes. See, Opinion 93-7 (Canon 7A of the Code of Judicial Conduct prohibits a judge from appearing and speaking at a local Women's Republican club.); Opinion 88-9 (A majority of the Committee adopted the view that Canon 7 would be violated if a judge speaks at a partisan event, in spite of the fact that the judge would be discussing the judicial system and the need for a new courthouse building which might fulfill a purpose permitted under Canon 4); Opinion 87-16 (The Committee [9 of 10 members] held that Canon 7 of the Code of Judicial Conduct proscribes a judge's appearance before a political function, be it Republican or Democratic, for the purpose of discussing the function of the Courts, and answering any legitimate questions and concerns about the Court system.); Opinion 84-8 (A majority of the Committee held that a judge could not be a speaker or otherwise participate in a gathering of members of a political party where he has been requested to speak about his job and answer questions about the courts and the judiciary.); Opinion 76-16 (It is proper for a judge to address non-partisan groups and organization to discuss the question of merit retention of Supreme Court justices and appellate court judges. The inquiry relates to appearances in public gatherings of all types except partisan political meetings.); Opinion 74-3 (It is unethical for a judge to explain the new judicial system to a "local political party meeting.").
While acknowledging the general rule, this Committee recognizes and notes the exceptions (and the limitations upon them) specified in Canon 7A. Those exceptions pertain to candidates seeking appointment to judicial office or a judge seeking other governmental office, as well as the campaign activities of candidates for merit retention and election or re-election. See, Canon 7B(2), 7C(2) and 7C(3); Opinion 83-13 ("[A] judge who is a candidate may attend and may speak [at a partisan political function]. A judge who is not a candidate may not."); Opinion 79-10 (It is a violation of Canon 7 for a judge, who is not a candidate, to attend partisan political functions for the purpose of socializing, speaking and/or being introduced to the audience.); Opinion 78-6 (A judge may address a Republican Club and speak on his candidacy for re-election. The Committee cautioned that the function not be a fund-raising affair and that the judgeís remarks not be partisan or politically oriented. Also, a judge who is a candidate can attend a partisan function for the purpose of socializing and making himself known.).
Accordingly, subject to the exceptions in Canon 7A(1), which are not applicable to the current inquiry, a judge may not speak to an organized political partisan group at any location. This prohibition applies even if the subject matter of the speech is the judicial system.
As to the first issue in this inquiry three members of the Committee state the following:
[We] note that the judge's inquiry contemplates that the politically partisan group would travel to the courthouse to receive an educational presentation. [We] do not necessarily believe this is barred by Canon 7A(1)'s prohibition against judges attending political party functions. More specifically, [we] don't see why a partisan organization could not attend such a presentation at the courthouse, so long as the presentation was not limited to members of the particular partisan group. This would be particularly true if the presentation is sponsored by the judge and other court personnel, as opposed to the partisan organization itself.
In addition, one of those three Committee members stated that, "[I]f the presentation at the courthouse is not a party function, but is rather a function of the Judicial Management Council to which the partisan group is an invitee, I do not read 7(A)(1) to prohibit such activity."
The inquiring judge presents another question. He now asks whether a judge may ethically present an educational program on the judicial system to an organized political partisan group that establishes a non-partisan citizen group for the purpose of traveling to the courthouse to attend the program.
It is improper to ignore the intent of the Code of Judicial Conduct. Should an organized political partisan group establish a non-partisan citizen's group, before meeting with the group the judge must be satisfied that the new group is a bona fide citizen group and not a mere subterfuge. The judge must ascertain whether the creation of the new non-partisan citizen's group was created in good faith and is not a means of circumventing the Code. Judges should always be wary of wolves in sheeps' clothing, as well as any improper attempts to frustrate the operation of the Code.
Accordingly, if a non-partisan citizen's group is created in good faith and is bona fide, a judge is permitted to present an educational speech on the judicial system consistent with the provisions of Canon 4. If not, a judge is precluded from making the presentation.
Florida Code of Judicial Conduct, Canons 4B, 7A(1)(d), 7B(2), 7C(2), and 7C(3).
Florida Judicial Ethics Advisory Committee Opinions 74-3 (April 11, 1974); 76-16 (October 7, 1976); Opinion 78-6 (March 28, 1978); Opinion 79-10 (September 18, 1979); 83-13 (November 7, 1983); 84-8 (May 9, 1984); 87-16 (November 3, 1987); 88-9 (May 5, 1988); and 93-7 (February 3, 1993).
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 by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, Opinion No. 90,133 (Fla. September 4, 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.
For further information, contact The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th Street #513, Miami, Florida 33125.
Participating Members: Judges Cardonne, Dell, Charles J. Kahn, Jr., Lisa D. Kahn, Patterson, Silverman, Rushing, Tolton, and Attorney Novicki
Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator
(Name of judge deleted from this copy)