Opinion Number: 97-32
Date of Issue: December 2, 1997
JUDGE ADVISING JURORS OF THEIR OPTION TO DONATE THEIR JURY SERVICE COMPENSATION TO AN ORGANIZATION SPECIFIED BY A GUARDIAN AD LITEM PROGRAM OR TO A DOMESTIC VIOLENCE SHELTER.
May a judge ethically advise jurors of the option to donate their jury service compensation to an organization specified by a guardian ad litem program or to a domestic violence shelter? ANSWER: No. To permit a judge to advise the jurors would lend the prestige of judicial office for the advancement of others, constitute participation in the solicitation of funds, and subject the court to the perception that it is predisposed in particular matters.
Florida Statute §40.24 was amended on May 30, 1997. It permits jurors to donate their jury service compensation to an organization specified by a guardian ad litem program or to a domestic violence shelter. The burden is upon the clerk of the court to ensure that all jurors are given written notice at the conclusion of their service that they have the option to donate their compensation. Florida Statute §40.24(8) provides:
In circuits that elect to allow jurors to donate their jury service fee upon conclusion of juror service, each juror may irrevocably donate all of the juror's compensation to theÖorganization specified by the guardian ad litem program or to a domestic violence shelter as specified annually on a rotating basis by the clerk of the court in the circuit for the juror's county of residenceThe clerk of the court shall ensure that all jurors are given written notice at the conclusion of their service that they have the option to donate their compensation, and that the applicable program specified by the guardian ad litem program or a domestic violence shelter receives all funds donated by the jurorsÖ. [Emphasis added]
The inquiring judge ponders whether he may ethically advise jurors of their options under the statute. Our discussion follows.
Our Committee has addressed many inquiries in which judges have contemplated requiring defendants to contribute (money or community service hours) to various different private/public charities or entities. In each of those instances, we concluded that the Code of Judicial Conduct precluded any such order. See, Opinion 89-10 (A judge may not order a probationer as a condition of probation, to perform Community Service work for a specific charitable/benevolent or non-profit organization. There is no distinction between ordering a probationer to contribute money to a prescribed organization as opposed to physical labor.); Opinion 87-6 (Whether there is a negotiated plea or not, a judge may not require a defendant to contribute to a charitable organization as a condition of probation. The Committee reasoned that by approving a negotiated plea, there may likewise be an appearance that the judge is using his office for the purpose of raising funds for a charity.); Opinion 85-13 (Canons 2B and 5B [currently Canon 5C(3)(b)] prohibit a judge from requiring defendants to donate money to a fund in order for them to receive credit on community service work which is required upon DUI convictions or to withhold adjudication if a defendant makes a donation to a "community service" fund.); Opinion 84-11 (The Code of Judicial Conduct prohibits judges from requiring defendants to pay sums of money directly to a charity named by the judge. One member of the Committee stated, "If a judge exercises this power in such a way as to convey the impression that he is advancing the private interest of a particular charity, he may be improperly lending the prestige of his office to that charity. This may reflect adversely upon the impartiality and integrity of the judge.").
Two applicable Canons of the Code of Judicial Conduct have guided us in our analysis of these issues in the past. They are as equally relevant and applicable to the current inquiry.
Canon 2 is entitled, "A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities." Canon 2B provides, in part, that "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others."
Additionally, Canon 5 is entitled, "A judge Shall Regulate Extrajudicial Activities to Minimize the Risk of Conflict With Judicial Duties." Specifically, Canon 5C(3)(b)(i) provides, "A judgeshall not personally participate in the solicitation of funds or other fund-raising activities." Further, Canon 5C(3)(b)(iii) provides, "A judgeshall not use or permit the use of the prestige of judicial office for fund-raising."
In Opinion 84-11 we addressed the limitations of Canon 5. We noted that the Canon prescribes the charitable activities that a judge may undertake and precludes a judge from soliciting funds or permitting the use of the prestige of office for that purpose. Specifically, we concluded that the Code prohibits a judge from requiring a defendant to pay money to a charity named by the judge. We stated that:
Both Canon 2B and Canon 5B [currently Canon 5C(3)(b)] condemn the use by a judge of the prestige of this office for the advancement of private interests, although Canon 5B [currently Canon 5C(3)(b)] is more specifically directed toward charitable private interests. In this case, it is not the prestige alone which is being used but the power of the judicial office in imposing a charitable contribution requirement as part of a sentence, and the infringement of the Canons is clear.
The matter presently before this Committee is slightly different from those previously addressed. In our prior opinions, we dealt with judges directing benefits to particular organizations or entities. In the current situation, the inquiring judge seeks simply to advise jurors of their options under F.S. ß40.24(8).
This Committee is charged with rendering ethical opinions concerning the propriety of contemplated judicial and non-judicial conduct. Petition of the Committee on the Standards of Conduct Governing Judges, No. 90,133 (Fla. September 4, 1997). Yet, in order for us to render our opinion, we are obliged to review F.S. 40.24(8).
The Statute unequivocally places a duty upon the clerk of the court to advise jurors, in writing, of their options should they desire to donate their compensation. It does not direct nor does it provide judges the option to do so.
Should a judge advise jurors of the option to donate their pay to various different entities or organizations, it would be lending the prestige of the judge's office for the advancement of the organization. Such conduct would constitute participation in fundraising that is proscribed by the Code.
Similarly, if a judge advises jurors of their option to donate to a domestic violence shelter or other designated charities or organization, it may cause future defendants to fear that the judge is predisposed in his or her case. This must be avoided. It appears that the legislature has sought to avert this dilemma by requiring the clerk to address the jurors rather than the judge.
Two members of the Committee specifically concur. They note that if a judge is permitted advise jurors of their option to donate would be tantamount to engaging in fund raising which would unavoidably involve the prestige of their office with respect to contributors over whom they have significant jurisdiction. The judges state that to allow an advisement, "is simply wrong."
Another member of the Committee while also agreeing with this opinion states that allowing a judicial advisement would "[n]ot only Ö lend [the judgeís] prestige for the advancement of a particular organization, or risk signaling a predisposition in certain types of cases, the judgeís statement could also suggest to the jurors that they in fact should donate their compensation or risk the disapproval of the court."
One member of the Committee states, "On one hand, it is proper for a judge to advise the jury on the law. On the other hand, this subject is not relative to case determination and could be construed in the manner [described herein]. I would be inclined to permit the giving of this information to the jury venire as a group when they first report for duty."
Florida Code of Judicial Conduct, Canons 2B and 5C(3)(b)(i) and (iii).
Florida Judicial Ethics Advisory Committee Opinions 89-10 (May 25, 1989); 87-6 (May 29, 1987); 85-13 (September 20, 1985); and 84-11 (May 30, 1984).
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, Green, Charles J. Kahn, Lisa D. Kahn, Patterson, Rushing, Silverman, Smith, Tolten 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)