FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2009-08
Date of Issue: May 12, 2009

ISSUE

Whether the inquiring judge, who serves as president of the local Inn of Court, may contact members of legislature on behalf of that organization to suggest passage or defeat of legislation relating to the funding and duties of the judiciary?

ANSWER: Yes.

FACTS

The inquiring judge is the president of a local Inn of Court.  At a recent meeting of that organization, a motion was adopted directing the president to communicate to all legislators representing counties which make up the judicial circuit, suggesting passage or defeat of legislation affecting the funding and duties of the judiciary.   Attached to the judge's inquiry is a legal memorandum from one of the members of the Inn of Court discussing whether the organization can engage in such efforts consistent with its tax exempt status under the Internal Revenue Code.

DISCUSSION

Although the inquiring judge included a memorandum from a member of the organization concerning the propriety of the organization engaging in such conduct in light of its tax exempt status under the Internal Revenue Code, this is an issue beyond the authority of the Judicial Ethics Advisory Committee, and accordingly, this opinion expresses no opinion on that issue.

The sole issue addressed in this opinion is whether the judge, acting in the capacity as president of the organization, may transmit a letter concerning legislation pertaining to the funding and duties of the judiciary to local legislators. 

The Inns of Court are composed of lawyers and judges and are organized primarily to foster education and professional development of lawyers through interaction with members of the judiciary and other lawyers.  Meetings are devoted to demonstrations and discussions related to substantive, procedural and ethical legal issues of interest to the bar and the judiciary.   Typically, one of the groups within the Inn, composed of senior, intermediate, and junior members of the bar and judges will choose a topic and make a presentation concerning that topic, followed by discussion by the entire membership.

Thus, communication with legislators concerning legislation regarding the duties and funding of the judiciary is not in any way a primary purpose of the organization.  However, based on the general purposes for which the Inns of Court are organized, and the subject of the letter which is described in the inquiry, we have concluded that the organization is devoted to the improvement of the law, the legal system and the administration of justice. 

Canon 4D of the Code of Judicial Conduct, encourages a judge to become an officer in such an organization.  However, the Committee has noted that Canon 5A(1), prohibits a judge from engaging in extra-judicial activities, including joining or becoming an officer of an organization, which would "cast reasonable doubt upon the judge's capacity to act impartially as a judge."   The Committee has indicated that joining or becoming an officer in an organization which is an "advocacy group" is impermissible for a judge because such activity would violate Canon 5A(1).  However, the term "advocacy group" has not previously been defined by the Code or by any opinion of this Committee.  In each case, the goals and activities of the organization have been examined and a determination made as to whether the organization which is the subject of the judge's inquiry is an "advocacy group." 

In one of our most recent opinions, Opinion 2006-17, the Committee determined that Mothers Against Drunk Driving was such an advocacy group based on its strong commitment to stronger penalties relating to drunk driving.

Although the absence of an accepted definition of the term "advocacy group" makes it more difficult to determine  whether a particular organization is an "advocacy group," the objectives of the Inns of Court, being generally far removed from advocacy of any particular policy or philosophy, clearly indicate that a chapter of the Inns of Court is not an advocacy group.

The Committee has opined, in Opinions 94-31 and 98-13, that a judge may communicate with members of the legislature on matters concerning the law, the legal system, and the administration of justice.  The subject of the proposed communication from the inquiring judge, on behalf of the Inn of Court, also concerns these subjects.

In Opinion 98-13, quoting from the identical language from Canon5A(1) which is quoted above, the Committee stated: "Accordingly, pursuant to Canon 4 of the Code of Judicial Conduct, a judge may communicate with members of the legislature on matters concerning the law, the legal system and the administration of justice. This would include speaking to members of the legislature and submitting proposed legislation concerning changes to improve the law, the legal system, and the administration of justice. However the judge must be mindful that he or she may do only so long as the judge's activities 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."

Accordingly, we have concluded that the inquiring judge may transmit the proposed letter to legislators on behalf of the Inn of Court of which he is president.

REFERENCES

Florida Code of Judicial Conduct: Canons 4D, 5A(1).

Florida Judicial Ethics Advisory Committee Opinions: 94-31, 98-13 and 2006-17.

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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 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. See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See Id.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 101 N. Alabama Avenue, Suite 437, Deland, FL 32724.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge Jose Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
Inquiring Judge (Name of inquiring judge deleted from this copy)