Florida Supreme Court
Judicial Ethics Advisory Committee


Opinion Number: 98-14

Date of Issue: July 13, 1998

 

JUDGE ADDRESSING ELECTORATE ABOUT PROPOSED CONSTITUTIONAL AMENDMENTS AT PARTISAN AND NON-PARTISAN PUBLIC FORUMS

AN INDIVIDUAL JUDGE OR A CIRCUIT (AS AN ENTITY) PUBLICLY ADVOCATING A POSITION ON PROPOSED CONSTITUTIONAL AMENDMENTS

ISSUE

May a judge address the electorate about proposed constitutional amendments at partisan and non-partisan public forums? ANSWER: A judge may speak, write, lecture, or teach the electorate at public forums about issues concerning proposed constitutional amendments if they involve the law, the legal system, and the administration of justice. However, subject to the exceptions delineated in Canon 7A(1) (which are not applicable to the current inquiry), a judge is ethically prohibited from addressing a partisan group regardless of the subject matter of the presentation.

May an individual judge or a circuit (as an entity) publicly advocate a position on proposed constitutional amendments? ANSWER: Subject to the exceptions delineated in Canon 7A(1) (which are not applicable to the current inquiry), an individual judge may address public forums about the proposed constitutional amendments by speaking, writing, lecturing, or teaching so long as the amendments concern the law, the legal system, and the administration of justice. This permits an individual judge to advocate or take a position regarding the amendments. However, it is inappropriate for a judicial circuit (as an entity) to publicly advocate a position on any proposed constitutional amendments.

FACTS

The inquiring judge notes that several proposed constitutional amendments will appear on the November 1998 ballot. Several issues directly impact the law, the legal system, and the administration of justice.

The judge poses two questions. First, whether it is ethically permissible for a judge to address the electorate about the proposed amendments at partisan and non-partisan forums; and finally, whether an individual judge or the circuit (as an entity) may publicly advocate a position on the proposed amendments.

DISCUSSION

Canon 4 of the Code of Judicial Conduct authorizes 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."

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. However, Canon 7A(1)(d) prohibits judges from doing so at party functions.

In Opinion 76-16, this 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.

Canon 7 mandates that judges and candidates for judicial office refrain from inappropriate political activities. Specifically, Canon 7A(1)(d) provides, in part, that "[e]xcept as authorized in Sections 7B(2), 7C(2) and 7C(3),...a judge...shall not...attend party functions." The exceptions set forth in Canon 7A(1) are inapplicable to this inquiry.

Since this committee's inception, we have addressed similar inquiries. Once again we assert the general principle that it (sic) judges are ethically precluded from appearing 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 concluded that Canon 7 would be violated if a judge speaks at a partisan event, in spite of the fact that the judge plans to discuss 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 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 this 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 related 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.").

There are, however, recognized exceptions to the general rule. Those exceptions (and the limitations upon them) are specified in Canon 7A. They pertain to candidates who are 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 judge's 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.).

With reference to the current inquiry, this committee finds that the inquiring judge may address public forums about the proposed constitutional amendments by speaking, writing, lecturing, or teaching so long as the amendments concern the law, the legal system, and the administration of justice. However, subject to the exceptions delineated in Canon 7A(1) (which are not applicable to the current inquiry), the inquiring judge is prohibited from addressing partisan groups regardless of the subject matter.

The inquiring judge also seeks this committee's opinion on the ethical proprietary of a circuit (as an entity) or an individual judge publicly advocating a position on proposed constitutional amendments. As we previously noted, subject to the exceptions defined in Canon 7A(1) (which are not applicable to the current inquiry), an individual judge may address public forums about the proposed constitutional amendments by speaking, writing, lecturing, or teaching so long as the amendments concern the law, the legal system, and the administration of justice. This permits the judge to advocate or take a position regarding the amendments.

This committee stated in Opinion 93-23 that, "[J]udicial ethics require personal decisions by a judge." [emphasis added]. It is therefore, inappropriate for a judicial circuit (as an entity) to publicly advocate a position on any proposed constitutional amendments.

REFERENCES

Florida Code of Judicial Conduct: Canons 4, 4B, 7, 7A, 7A(1), 7A(1)(d), 7B(2), 7C(2), 7C(3)

Florida Judicial Ethics Advisory Committee Opinions: 93-7, 88-9, 87-16, 84-8, 83-13, 78-6, 76-16, 74-3,

__________________

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, Charles Kahn, Lisa Kahn, Patterson, Rodriguez, Rushing, Silverman, and Tolton.

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)