Opinion Number: 99-6
Date of Issue: February 12, 1999
WHETHER A RETIRED JUDGE ELIGIBLE FOR RECALL MAY WRITE A LETTER TO A UNITED STATES SENATOR AND EXPRESS HIS VIEWS ON THE IMPEACHMENT TRIAL OF THE PRESIDENT OF THE UNITED STATES?
Whether a retired judge eligible for recall may write a letter to the Florida United States Senators and express his views on the impending impeachment trial of the President of the United States?
The inquiring judge is a retired judge eligible for recall to judicial service. He wishes to write a letter to the Florida United States Senators and express his views on the impeachment trial of the President of the United States.
As a retired judge eligible for recall to judicial service, the inquiring
judge should comply with all the provisions of the Code except for Sections
5C(2), 5E, 5F, and 6A. Application of the Code of Judicial Conduct, Section
Canon 7D directs that a judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law, the legal system or the administration of justice, or (iii) as expressly authorized by law. Canon 4B allows 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. Pursuant to Canon 4C, a judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge's interests.
Previous opinions of the Committee have found it permissible for a judge pursuant to Canon 4 to communicate with legislators on matters concerning the law, the legal system and the administration of justice. In Opinion 98-13, the Committee found that a judge could 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 further, the opinion permitted the judge to discuss proposed statutory amendments that would accomplish those ends. In Opinion 94-14 the Committee found it permissible for a judge to give his/her opinion on certain pending legislation regarding how fault was to be apportioned in civil negligence suits. The judge felt that the current status of the law would inhibit settlements and increase litigation. In Opinion 94-31 a judge asked in part whether he/she could serve on the district Juvenile Justice Board since the board was going to be lobbying for legislative changes. The Committee found that this conduct was ethically permissible. In Opinion 88-22 the Committee found that the Judge could communicate with a legislator regarding salary increases for judicial assistants. Opinion 75-14 permitted the inquiring judge to communicate with members of the legislature on the appropriation and distribution of funds deemed necessary to operate and finance the court system.
All of these opinions have permitted judges to have contact with the executive branch of state government on matters that dealt with the improvement of the court system in which the inquiring judge was directly involved. The inquiring judges in these Opinions were not advocating personal opinions about political matters.
The Committee has prohibited judges from publicly advocating their personal opinions about political matters. In Opinion 93-64 all Committee members responding to the inquiry concluded that it would be a violation of the Code of Judicial Conduct to actively advocate for handgun control. "The Committee perceives this to be a political issue not involved in the administration of justice." In Opinion 94-05 the inquiring judge asked whether as a private citizen he could sign a petition calling for a proposed constitutional amendment banning gill netting in state waters. A majority of the Committee found that there may be ethical problems in the judge signing this petition.
The impeachment trial of the United States President is a political issue not involving the "administration of justice," as that term has been construed in prior Committee opinions. Eight (8) of the participating members of the Committee believe that it would be improper for the inquiring judge to write United States Senators with his views on the impeachment trial of the President of the United States.
However, two (2) of the participating members of the Committee disagreed with this conclusion. One of the dissenting members stated:
"The impeachment trial, at least in constitutional theory, is not a political matter. There is little precedent as to how the trial should be conducted and what conduct of the president, if any, rises to the level of 'high crimes and misdemeanors' required for removal.
It seems to me that Judge's hould be permitted to express his opinions as to those matters in an attempt to better the administration of justice."
Florida Code of Judicial Conduct: Canons 4A, 4B, 4C, 7D, and Application of the Code of Judicial Conduct, Section B.
Florida Judicial Ethics Advisory Committee Opinions: 75-14,
94-31 and 98-13
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, The Harry T. and Harriette V. Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.
Participating Members: Judges Cardonne, C. Kahn, L. Kahn, Patterson, Rodiquez, 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)