Opinion Number: 98-13
Date of Issue: July 7, 1998
JUDGE SPEAKING TO AND SUBMITTING PROPOSED LEGISLATION TO LEGISLATORS IN AN EFFORT TO IMPROVE THE LAW
May a judge speak to and submit proposed legislation to members of the legislature in an effort to improve the law? ANSWER: Yes. A judge may communicate with member of the legislature on matters concerning the law, the legal system and the administration of justice. However a judge must be mindful that he or she may do only so long as the judge's activities 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 inquiring judge is presently assigned to the Domestic Violence Division of the court. Upon reviewing the current law, the judge took note of several matters that, in the judge's opinion, should be brought to the attention of Florida's legislature and amended in order to improve the law.
Specifically, the judge desires to submit proposed legislation to members of the legislature that would increase the maximum periods of incarceration and probation for guilty defendants in domestic violence cases, and/or discuss proposed statutory amendments that would accomplish those ends.
The judge seeks this committee's advisory opinion on the ethical propriety of undertaking such conduct.
Canon 4B of Florida's Code of Judicial Conduct permits a judge to "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." The commentary to that provision provides, in part:
As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. [emphasis added]
In addition, Canon 4A mandates that a judge conduct his or her quasi-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.
In Opinion 94-31 (September 2, 1994), a judge asked, in part, whether he/she could lobby for legislative changes while serving on the district Juvenile Justice Board. In advising the judge that the proposed conduct was ethically permissible, this committee wrote:
As to the propriety of lobbying efforts of the Board for proposed legislative changes, in Opinion 75-14, this Committee held that judicial officers may communicate with members of the legislature on matters concerning the administration of justice, including the appropriation and distribution of funds deemed necessary to operate and finance the court system and Opinion 88-22 stated that judicial support of salary increases for judicial assistants is not prohibited. [emphasis added]
See also, Opinion 76-26 (December 2, 1976) (A judge may file an amicus brief, if an advisory opinion is requested of the supreme court, about the Constitutional Revision Commission.).
Accordingly, pursuant to Canon 4 of the Code of Judicial Conduct, a judge may communicate with members of the legislature on matters concerning the law, the legal system and the administration of justice. This would include speaking to members of the legislature and submitting proposed legislation concerning changes to improve the law, the legal system, and the administration of justice. However the judge must be mindful that he or she may do only so long as the judge's activities 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.
One member of the committee cautions that the inquiring judge when "making such presentation, must make it clear [he or she] has no predisposition or prejudice in domestic violence cases generally."
Florida Code of Judicial Conduct: Canons: 4, 4A, 4B.
Florida Judicial Ethics Advisory Committee Opinions: 94-31 (September 2, 1994); 88-22 (November 10, 1988); 76-26 (December 2, 1976); 75-14 (May 29, 1975).
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, Lisa D. Kahn, Patterson, Rodriguez, Rushing, Silverman, 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)