Opinion 78-3

February 27, 1978

Re: Canons 4 and 7

Dear :

The Committee on Standards of Conduct Governing Judges acknowledges your inquiry as follows:

"As you know, the Constitution Revision Commission is presently meeting to adopt proposals for submission to the voters of Florida at the general election scheduled for November 1978. Any recommendations by the Commission must be filed with the Secretary of State by May 11, 1978, after which they will be available for public discussion and commentary.

I am writing to inquire whether the Committee perceives any impropriety in a member of the judiciary such as myself expressing personal views in public regarding proposed constitutional amendments, and whether in so doing a judicial officer might risk future disqualification in constitutional matters coming before his court. Obviously, no one at this time knows which proposals (if any) will emerge from the Commission for voter consideration. Yet there may well be on the November ballot proposals in which members of the judicial have special interest, such as amendments to the judicial article of the Constitution.

So far as I can determine form our Code of Judicial Conduct, there is no reason why a member of the judiciary could not freely speak out on proposed constitutional amendments. The authority to do so, if not the responsibility, seems clear from Canon 4A and 7A(4). This view of the Canons is supported by their 'legislative history', as reflected in E. Thode, Reporter's Notes to Code of Judicial Conduct (1973). The author there has the following observations as to the intent of these Canons:

[a] judge may...commend the present law or propose legal reform without compromising his capacity to decide impartially the very issue on which he has spoken or written...'(p. 74).

'The Canons were "'designed to encourage...judges to participate actively in improving the law, the legal system, and the administration of justice." (id.)

'A judge may engage in political activity on behalf of measures to improve the law, the legal system, or the administration of justice. The [Special] Committee [on Standards of Judicial Conduct], recognizing that such activities are political in a broad sense, approved them because of the important and sometimes essential role of judges in legal reform.' (p.97).

Please let me have the Committee's view before the time for public commentary arrives, as to whether as a member of the judiciary I am free to support or oppose the Commission's proposals publicly, and if so, without risk to future disqualification in legal controversies arising from their adoption."
Each member of the Committee which has participated is of the view that the anticipated conduct is not proscribed by the Code of Judicial Conduct.

As to the query regarding future disqualification, three members of the Committee are of the view that disqualification is a legal question and therefore beyond the jurisdiction of this Committee.

Three members are of the view that disqualification will not be required, that view being succinctly expressed by one of the members of the Committee as follows:

"It is also my belief that such expressions will not require disqualification in Constitutional matters. A judicial officer will uphold the law regardless of his personal approval or disapproval of a particular law."

One member of the Committee is of the view that such expressions will require future disqualification.

Further with reference to the anticipated activity, two members of the Committee suggest the following caveat"

"There is the caveat however, that he should not make speeches or become involved in controversial matters before partisan political organizations."

We appreciate your inquiry and trust the foregoing will be of assistance to you.

Sincerely yours,

Tyrie A. Boyer, Chairman
Committee on Standards of Conduct Governing Judges


Participating members: Judges Boyer, Carlisle, Haverfield, Hewitt, Murphee, O'Connell, Stephenson and Samuel J. Powers, Attorney