Opinion Number: 98-31
Date of Issue: November 30, 1998
WHETHER A JUDGE MAY BELONG TO A VOLUNTARY BAR ORGANIZATION THAT ADVOCATES
PASSAGE OF A CONSTITUTIONAL AMENDMENT?
Whether a judge may maintain membership in a voluntary bar association that has taken an official position on a proposed constitutional amendment which involves the law, the legal system and the administration of justice? YES.
Whether a judge may maintain membership in the organization if the organization has joined a political action committee (PAC) for the purpose of supporting the proposed constitutional amendment? YES.
Whether a judge may maintain membership in the organization if the organization plans to solicit contributions on behalf of a PAC for the purpose of supporting the proposed constitutional amendment, as long as the judge does not personally participate in the solicitation of funds or have his/her name placed on any letterhead or solicitation letter? YES.
Whether the judge may attend a fund-raising event sponsored by the organization
for the purpose of supporting the proposed constitutional amendment?
Whether the judge may attend the fund-raising event sponsored by the organization for the purpose of raising funds to give to a PAC established to support the proposed constitutional amendment?
The inquiring judge is a member of the Florida Association of Women Lawyers (F.A.W.L.). F.A.W.L. is a voluntary bar association, open to all attorneys. The organization plans to hold a fund-raiser to support proposed Constitutional Amendment 9.
The organization has joined a political action committee for the purpose of supporting the proposed constitutional amendment. The fund-raiser will be held to raise money to fund the PAC formed to support proposed Constitutional Amendment 9.1
Canon 4D allows a judge to serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice, subject to additional limitations and other requirements of the Code. Membership in voluntary bar organizations has consistently been viewed by the Committee as permissible. In Opinion 93-5 the Committee held that Judicial membership in the ABA is proper because the ABA is an organization devoted to the cited goals of Florida Code Jud. Conduct Canon 4C (now renumbered (4D) , even though the organization actively espouses or promotes positions on political issues. The Committee added a caveat that the judge consider the commentary to Florida Code Jud. Conduct Canon 5B(1), now renumbered as Canon 5C(3)(a), which states that the changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to re-examine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation.
In previous opinions, the Committee has found that a judge may serve as Chairman-Elect of the Family Law Section of the Florida Bar, a section that had been actively filing amicus briefs in Florida appellate courts. Opinion 84-13. A judge may also serve as an appointed chair of a local bar association committee, because Canon 4 encourages judges to engage in activities to "improve the law, the legal system and the administration of justice." Opinion 94-44. Additionally, it is permissible for a judge to belong to the American Academy of Matrimonial Lawyers. Opinion 80-8.
Canon 7 mandates that judges and candidates for judicial office refrain from inappropriate political activities. However numerous Committee opinions have found that it is proper for a judge to advocate constitutional amendments. These opinions have relied on Canon 4 of the Code of Judicial Conduct which authorizes a judge to engage in activities to improve the law, the legal system and the administration of justice. Canon 4B states that, "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."
Relying on Canon 4 the Committee in 98-14 stated that it was permissible for a judge to address the electorate about proposed constitutional amendments at non-partisan public forums. The Committee reasserted its position in Opinion 98-14 that judges are ethically precluded from appearing before partisan groups, even for educational purposes. In Opinion 94-01, the Committee found a judge could publicly advocate the signing of two petitions to amend the State Constitution. The first petition proposed a one percent sales tax to be used for criminal justice, the other proposed that prisoners serve 85 percent of the sentence imposed. In Opinion 76-16, the Committee unanimously found it permissible for a judge to participate in efforts to educate the general public about Constitutional Amendment No. 2 on the question of merit retention of Supreme Court justices and appellate court judges. See, also, Opinion 78-3, wherein the Committee discerned no reason why a member of the judiciary could not freely speak out on proposed constitutional amendments.
Therefore, the Committee finds that since it is permissible for a judge to belong to a voluntary bar association, and it is permissible for a judge personally to advocate the passage of constitutional amendments designed to improve the law, the legal system or the administration of justice, then it is permissible for a judge to belong to a voluntary bar association that advocates the passage of such constitutional amendments. The Committee perceives no problem with the bar organization joining a political action committee devoted to passage of the constitutional amendment.
The judge may maintain membership in the organization, even though the organization plans to solicit contributions on behalf of the PAC formed to support the proposed constitutional amendment, as long as the judge does not personally participate in the solicitation of funds or have his/her name placed on any letterhead or solicitation letter. Canon 4D(2)(d) prohibits a judge from using or permitting the use of the prestige of judicial office for fund-raising or membership solicitation. In accord, see Canon 5C(3)(b)(iii).
A judge may attend the fundraising event sponsored by the organization to raise funds to support the constitutional amendment, regardless of whether the funds are earmarked for the organization or for the political action committee. The commentary to Canon 4D(2) states that "A judge must not be a speaker or guest of honor at an organization's fund-raising event, but mere attendance at such an event is permissible if otherwise consistent with this Code."
Three Committee Members stated that the inquiring judge could maintain her membership in F.A.W.L. under the circumstances enumerated in her questions. However they reached their conclusion based upon Canon 5. Specifically Canon 5 requires a judge to regulate his or her extrajudicial activities to minimize the risk of conflict with judicial duties. These three committee members did not find that active promotion of Amendment Nine was an activity to improve the law, the legal system and the administration of justice.
In summary, the judge may maintain membership in F.A.W.L. even though the organization has joined a political action committee to support proposed Constitutional Amendment 9. The judge may also attend the fund-raising event, as long as the judge is not a speaker or a guest of honor.
Florida Code of Judicial Conduct Canons 5, 4, 4B, 4D, 4D(2)(d), 5C(3)(a), 5C(3)(b)(iii), 7.
Florida Judicial Ethics Advisory Committee Opinions: 76-16, 78-3, 80-8, 84-13, 93-5, 94-1, 94-44, 98-14.
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, 698 So.2d 834 (Fla. 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 Lisa D. Kahn, Chair, Judicial Ethics Advisory Committee, Harry T. & Harriette V. Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.
Participating Members: Judges Cardonne Dell, C. Kahn, L. Kahn, Patterson, Rodriquez, Rushing, Smith, Swartz, 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 inquiring judge deleted from this copy)
1 Revision 9 amends Article I, s. 2 of the Florida Constitution, Basic Rights. The proposed amendment defines "natural persons," who are equal before the law and who have inalienable rights, as "female and male alike"; provides that no person shall be deprived of any right because of national origin; changes "physical handicap" to "physical disability" as a reason that people are protected from being deprived of any right.