Florida Supreme Court

Judicial Ethics Advisory Committee

 

Opinion Number: 98-7

Date of Issue: May 28, 1998

JUDGES OF A CIRCUIT/COUNTY SIGNING AND CIRCULATING A PETITION TO HAVE VICTIMS IN AN UNRESOLVED MURDER CASE HONORED ON A UNITED STATES POSTAGE STAMP

 

ISSUE

May the judges of a circuit/county ethically sign and circulate a petition in support of an effort to have the victims in an unresolved murder case honored on a United States postage stamp?

ANSWER: No. Judges may not ethically sign and circulate the subject petition.

FACTS

The inquiring judge received a letter from the Mr. and Mrs. Harry T. Moore Stamp Committee seeking signatures from the circuit and county judges on a petition to have Mr. and Mrs. Moore honored on a United States postage stamp. The Stamp Committee is also requesting the judges to circulate the petitions for additional signatures.

The deaths of Mr. and Mrs. Moore are tragic and are of major significance in the civil rights struggle. Mr. and Mrs. Moore were killed when their home was dynamited in Mims, Florida on Christmas night in 1951. According to

In her 1996 Master's Thesis, University of South Florida graduate student Erika Lynise Burroughs writes of Harry T. Moore, as follows:

 

Also as State Conference president, Moore, and many other southern state conference presidents, pushed for increased membership and more local branch charters. Under his leadership, the NAACP chartered the most local branches up until that date. Nationwide, the NAACP increased its membership from 50,000 to 450,000 during the 1940's with most of the new memberships from southern states (Fairclough 1990:387). Moore also lobbied for anti-lynching legislation in the Florida legislature, campaigned to increase voter registration, and was involved in the NAACP's first law suit against the University of Florida's segregated law school. His commitment to civil rights eventually [led] to his and his wife's assassination in 1951.

The murderer or murderers of Mr. and Mrs. Moore have yet to be brought to justice in either the courts of this state or the federal courts. To this day, their cases are unresolved and remain open.

An opinion from this committee is sought on whether the judges may ethically sign and circulate the petitions to have Mr. and Mrs. Moore honored on a United States postage stamp, and whether they may circulate the petition.

DISCUSSION

Canon 3 of the Code of Judicial Conduct mandates that a "Judge Shall Perform the Duties of Judicial Office Impartially and Diligently." Subsection 3 B (9) provides, "A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any non public comment that might substantially interfere with a fair trail or hearing."

Furthermore, Canon 5 provides:

  1. Extrajudicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities 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. [emphasis added]

While almost 50 years have passed since the murders of both Mr. and Mrs. Moore, it remains possible that their killer or killers can be brought to justice. With this possibility in mind, it would be inappropriate for any judge to sign and circulate a petition such as the one currently proposed. Should judges in the applicable circuit/county publicly approve of and circulate the petition, it could impact upon the prosecution of any future defendant or defendants in their courts. Signing and circulating the petition would violate the provision of Canon 5 A(1) by casting a reasonable doubt on the judge's capacity to act impartially as a judge.

Further, 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. See, Opinion 95-42 (A majority of the committee held that a judge may sign a resolution which supports an increase in circuit court filing fees, for the purposes of providing funding to legal aid.); Opinion 94-01 (A judge may publicly advocate the signing of two petitions to amend the State Constitution relating to a criminal justice sales tax and sentences served by convicted prisoners.); and Opinion 80-16 (A judge may petition the Florida Supreme Court to review the Florida Bar Dues Structure.).

In Opinion 94-05, Judge Doughtie, in writing for this committee, stated:

To begin with, we find that judges in general cannot proceed as private citizens in political issues. Certainly judges are permitted to vote but they are prohibited from publicly endorsing candidates. By signing a petition, your vote would become public and could be mis-used without your consent. In the past, our Committee has found no problem with judges taking public position on issues relating to improving the legal system or the administration of justice.

This committee has precluded judges from affixing their signatures on petitions other than those that relate to the improvement of the law, the legal system or the administration of justice. See, Opinion 92-32 (Canons 7A(1)(b) and Canon 2 of the Code of Judicial Conduct prohibit a judge from signing a petition for an individual who wants to qualify for election to a judicial or non judicial office.); Opinion 94-05 (A majority of the Committee concluded that it presents an "ethical problem" for a judge to sign a petition calling for an amendment to the constitution banning gill netting in state waters.).

The question currently presented to this committee clearly falls within the ambit of the previous prohibitions. In finding that the judges may not ethically sign and circulate the subject petition, we want to underscore that the Code of Judicial Conduct precludes them from participating in the Stamp Committee's request, regardless of whatever sympathies there may be for the Committee's goal.

One member of this committee notes as follows:

I agree that the inquiring judge may not be involved in the circulating of the petition for the reasons set out in [this] opinion. I do not, however, find an ethical problem with the judge merely signing the petition. In terms of judges being involved in the organization and circulation of various petition drives, I think the rule is that a judge simply may not do this unless the petition is seeking a result that is directly and non-ideologically related to the improvement of the judicial system or the administration of justice. The desire to bring about a worthwhile result (and the Moore stamp issue certainly seems to fall in this category) would never be enough without the direct nexus to the judicial system and the administration of justice.

REFERENCES

Florida Code of Judicial Conduct: Canons 3; 3B(9); 4; 5; and 5A(1).

 

Florida Judicial Ethics Advisory Committee Opinions: 95-42; 94-05; 94-01; 92-32; and 80-16

__________________

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, Patterson, Rushing, Silverman, Smith, Tolton and Attorney Blanton


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)