FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 99-24
Date of Issue: October 25, 1999

WHETHER A JUDGE OR GROUP OF JUDGES MAY ORGANIZE A NON-PROFIT ORGANIZATION, THE MAIN OBJECTIVE IS THE PROMOTION OF THE BENEFITS OF MERIT SELECTION AND RETENTION OF CIRCUIT AND COUNTY TRIAL COURT JUDGES?

IF SUCH AN ORGANIZATION IS CREATED INDEPENDENTLY OF THE JUDGES, IS IT PERMISSIBLE FOR A JUDGE TO BECOME A MEMBER? MAY A JUDGE FINANCIALLY CONTRIBUTE TO THE ORGANIZATION? MAY A JUDGE RENDER SPEECHES ON THE ORGANIZATION'S BEHALF? MAY A JUDGE USE OFFICIAL STATIONERY ON BEHALF OF THE ORGANIZATION?

ISSUE

Whether it is permissible for a judge or group of judges to organize a non-profit organization devoted to the improvement of the law, legal system or administration of justice, the main objective is the promotion of the benefits of merit selection and retention of circuit and county trial court judges?
ANSWER: Yes.

If a non-profit organization devoted exclusively to the promotion of the benefits of merit selection and retention of trial judges were created independently of trial judges, is it permissible for a trial judge to become a member of the non-profit organization?
ANSWER: Yes.

If a non-profit organization devoted to the promotion of the benefits of merit selection and retention of Florida trial judges were created independently of judges, would it be permissible for a trial judge to assist the organization by financial contributions?
ANSWER: Yes.

May a trial judge assist the organization by rendering speeches on behalf of the organization?
ANSWER: Yes.

May a trial judge use official stationery on behalf of the organization?
ANSWER: No.

FACTS

The recent passage of Amendment 7 to the Florida Constitution revises Article V and provides that the voters of each judicial circuit or county must be given the opportunity to determine if judges within the circuit or county will be selected through merit selection and retention. The inquiring judge along with other judges in his circuit is interested in appearing before civic and non-partisan groups and organizations to promote the concept of merit selection and retention of circuit and county court judges. The judicial promotional efforts may be under the aegis of a non-profit organization, the activities of which would be devoted exclusively to the promotion of the concept of merit selection and retention of circuit and county court judges. In addition to making speeches on behalf of the non- profit organization, the participating judges would make financial contributions to the organization and would facilitate the activities of the organization through use of official judicial stationery. There would be no personal solicitation of funds nor organization membership solicitation by any participating judge, except as authorized by Canon 4D(2). The judge asks whether such an organization may be created by the judges or another group, and if so, what activities the judges may participate in.


DISCUSSION

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. 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. See also Opinion 76-16, wherein the Committee unanimously found it permissible for a judge to participate in efforts to educate non-partisan groups about Constitutional Amendment No. 2, regarding merit retention of Supreme Court justices and appellate court judges.

Therefore, seven out of the eight responding committee members believe that it would be appropriate for a judge or group of judges themselves to form an organization to promote merit retention and selection. One member wrote:

"...I respectfully suggest that the Code of Judicial Conduct permits judges to organize non-profit organizations devoted to the improvement of the law, legal system or the administration of justice. After all, if we were to adopt such prohibition, we might not have the American Judges Association, Women Judges Association or any judicial organizations for that matter. I have no doubt that some of these organizations take public positions that could prove questionable by some members of the public.

It is wholly appropriate for judges to take active leadership roles in matters that directly affect the judiciary or justice system, i.e. pay raises, benefits, jurisdiction, etc. The public may not welcome some of these positions. Nevertheless, we, as judges, have a unique perspective on many issues, and often times it is our experiences that we relate to the public which prove to be most educational...

The controversial issues that directly impact the administration of justice and the law should not prevent a judge from speaking out (singularly or as a non-profit organization), unless otherwise precluded by the Code of Judicial Conduct... "

One of the responding judges believed that while the concept may be worthwhile, judges should not occupy a leadership role in an activist civic activity which may bring them in conflict with resistance. Someone other than a judge should organize and lead the group. See Opinion 93-22.

All of the responding eight members of the committee agreed that if a non-profit organization was created, it would be appropriate for judges to become members. In Opinion 98-31, the Committee found that a judge could maintain membership in a voluntary bar association that had taken an official stand on a proposed constitutional amendment, even after the bar association had joined a political action committee for the purpose of supporting the proposed constitutional amendment. That Opinion focused on the fact that it is permissible for a judge to belong to a voluntary bar association and permissible for a judge to personally advocate a position on a constitutional amendment.

Seven of the responding committee members also agreed that if a non-profit organization was created to promote merit selection and retention, a judge could make a financial contribution to the organization. Canon 4C allows a judge to involve himself/herself in organizations devoted to the law, the legal system, or the administration of justice including assisting such an organization in raising funds so long as the judge does not personally participate in public fundraising activities. This Canon would allow a judge to make a financial contribution to a non-political fund or activity. Therefore, a judge may make a contribution to a non-profit organization created to endorse merit selection and retention. However, one of the responding members disagreed stating,

"This is not a charitable organization, about which there is no question. Even if the contribution goes to a non-profit PAC, we have no control over the expenditure of the funds. What if PAC decides to use elected officials in an ad campaign, who are clearly identified with a particular political party?

I strongly disagree that we can donate money to this campaign.

... once the money is donated, we will have no control about who becomes the spokesman for the campaign or that persons political affiliation."

Another Committee member shared the dissenting members concern about monetary donations to such an organization. However, this Committee member concluded that monetary contributions would be permissible if the organization in question was clearly non- partisan.

All eight responding members concurred that a judge may render speeches on behalf of the non-profit organization. A judge is free to make speeches to non-partisan groups concerning merit selection and retention.

Finally, all eight responding members were unanimous in their opinion that official stationery may not be used on behalf of a non-profit organization. As stated in Opinion 92- 02, Judicial stationery should be used only for official business, not private purposes.

One Committee member adequately summed up the crux of the concerns that this inquiry engendered within the Committee,

"I'm very concerned about the Court being perceived involved in partisan politics. Although the issue is not, that will be the perception outside the courthouse."

REFERENCES

Florida Code of Judicial Conduct Canons 4, 4B, 4C and 4D(2).

Florida Judicial Ethics Advisory Committee Opinions: 98-31, 98-14, 94- 01, 92-02, 93-22 and 76-16.

_____________

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, 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 C. McFerrin Smith, III, Chairman, Judicial Ethics Advisory Committee, 130 West New York Avenue, DeLand, Florida 33720 .

Participating Members: Judges Cardonne, C. Kahn, L. Kahn, Kotey, Levy, Rodriquez, Silverman, and Smith

Copies furnished to:
Justice Peggy A. Quince
All Committee Members
All Members of the J.Q.C
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)