FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-03
Date of Issue: January 16, 2004

ISSUES

May a judge participate in a court program involving eviction cases in which the judge refers tenants to receive federally funded rent loans?

ANSWER: Yes.

FACTS

At a legal services meeting in which the inquiring judge was an invited guest, various public and quasi-public agency representatives were present to discuss housing issues. During the discussion on housing issues, the judge who presides over eviction cases, raised the possibility of a program which would loan eligible tenants one to two months rent so that the tenants could remain in their premises. The concept of the proposed pilot program intends to benefit the landlord and tenant as well as to benefit the community as a whole by reducing the number of homeless people and/or the need to house displaced tenants. The initial funding source for the program would come from a federal grant. Other grant sources might come from private foundations. The judge would only be involved in referring cases to the program administrator according to program guidelines.

DISCUSSION

According to Canon 4, "A Judge May Engage In Activities To Improve The Law, The Legal System, And The Administration Of Justice."

Canon 4A states that:

A judge shall conduct all of the judge's quasi-judicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;

(2) demean the judicial office; or

(3) interfere with the proper performance of judicial duties.

The Commentary to Canon 4A recognizes that, "A judge is encouraged to participate in activities designed to improve the law, the legal system, and the administration of justice."

Furthermore, the Commentary to Canon 4B. points out that, "As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including, but not limited to, the improvement of the role of the judiciary as an independent branch of government, the revision of substantive and procedural law, the improvement of criminal and juvenile justice, and the improvement of justice in the areas of civil, criminal, family, domestic violence, juvenile delinquency, juvenile dependency, probate and motor vehicle law. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law."

Canon 4D provides in pertinent part that:

A judge may serve as a member, officer, director, trustee or non-legal advisor of an organization or government agency devoted to the improvement of the law, the legal system or the administration of justice, subject to the following limitations and other requirements of this Code:

(1) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization

(a) will be engaged in proceedings that would ordinally come before the judge, or

(b) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

(2) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:

(b) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice.

(d) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.

The Commentary to Canon 4D(1) counsels that, "The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication."

In Opinion 98-6, involving a judge's directorship of a mental health task force being compromised if a newly created non-profit corporation seeks private funding to support a mental health facility that is connected to the mental health court, the Committee approved of the judge's activities saying that, "being a part of the task force with which he [the judge] has been a member for over four years is permissible since it seeks to improve the administration of justice by addressing issues involving mentally ill defendants. However, the Committee cautioned that "a judge must not solicit funds, participate in fund raising activities, or give investment advice to such organization. The judge must be mindful of any conflicts that may arise and act appropriately in such cases."

In Opinion 99-21, the Committee dealt with the issue of whether a judge may participate in a group organized to lobby the legislature to increase funding for mental health and substance abuse treatment, concluding that, "A judge may directly lobby the legislature on matters concerning the administration of justice including increasing the salary for judicial employees." As a final comment, the Committee advised that "no judge should engage in conduct that the judge is uncomfortable engaging in even if this Committee finds the conduct is ethically permissible." In this opinion, it is noted that the Committee has previously found that a judge could serve on certain boards that are law related and that lobby for legislative changes. (See: Opinion 94-31, permissible for a judge to serve on the District Juvenile Justice Board and associated local councils which planned to lobby for legislative changes; Opinion 88-24, permissible for a judge to serve on HRS Alcohol, Drug Abuse and Mental Health Planning Council; Opinion 88-30, permissible for a judge to serve on HRS District IV Planning Council; Opinion 92-11, permissible for a judge to serve on Children's Service Council, and Opinion 94-04, permissible for a judge to serve on HRS Juvenile Detention Center's Community Advisory Board).

In another prior Committee opinion, 2001-14, involving whether a judge may serve on a county domestic violence council if the council appears to have become an advocacy group, the Committee found that, "A judge may serve on a task force, with the understanding that the activities of the task force are law related and gender neutral." The Committee went on to state that, "A judge, however, cannot be a member of a victim's advocate group. Pursuant to Canon 5A(1), a judge shall conduct all of the judge's extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge."

In conclusion, the inquiring judge may participate in the pilot court program so long as the judge does not serve as an officer, director, trustee or non-legal advisor. As to the extent of participation, the judge may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice. However, the judge should not use or permit the use of the prestige of his judicial office for fund-raising.

REFERENCES

Florida Code of Judicial Conduct, Canons 4A(1)(2)(3), 4D(1)(a)(b)(2)(b)(d) and Canon 5A(1); and, Commentary to Canon 4A, Canon 4B and Canon 4D(1).

Florida Judicial Ethics Advisory Committee Opinions: 98-6, 99-21, 2001-14

_____________

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 Judge Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Lisa Davidson, Judge Phyllis Kotey, Judge Melanie May, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Jeffrey D. Swartz, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, and Marjorie Gadarian Graham, Esquire.


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