FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-07
Date of Issue: April 9, 2010

ISSUE

Whether a circuit judge presiding in a criminal division may continue to serve as a member of the board of directors for a non-profit organization which provides a pre-trial diversion program as well as social services for juveniles.

ANSWER: Yes.

FACTS

The inquiring judge is a circuit judge serving in an adult criminal division.  The judge inquires as to whether it is appropriate to serve as a board member of a non-profit organization which provides a pre-trial diversion program as well as social services to juveniles who are at risk for dropping out of school.  The organization has assured the inquiring judge that all of the juveniles in the program are diverted from juvenile court.  The organization also provided assurances that if the juveniles reject the diversion program or are otherwise expelled from the program, then the juveniles would be referred to juvenile court and not the criminal court where the inquiring judge presides.

DISCUSSION

Canon 4D of the Florida Code of Judicial Conduct provides that:

A judge is encouraged to serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental entity devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice, subject to the following limitations and the 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 ordinarily 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.

Canon 5, Fla. Code Jud. Conduct places identical restrictions on judges who serve in educational, religious, charitable, fraternal, sororal or civic organizations not conducted for profit.  See Canon 5C(3)(a), Fla. Code Jud. Conduct. 

Adherence to these rules serves several purposes, including protecting a judge’s impartiality and avoiding any interference with the proper performance of judicial duties.  See Canons 4A and 5A, Fla. Code Jud. Conduct.

Previous opinions of the Committee addressing the question of whether a judge may serve as a board member of an organization have looked primarily to the likelihood that the organization’s activities will cause it to be engaged in proceedings that will come before the judge or the court in which the judge presides. 

For example, in Fla. JEAC Op. 04-10, the Committee advised a senior judge to resign as vice president and member of the board of a homeowners’ association because the “homeowners’ association is engaged in litigation before the court of which that judge is a member, and is likely in the future to be frequently involved in such litigation.” 

In Fla. JEAC Op. 97-31, the Committee opined that it would be improper for county and circuit judges to serve on a board of a D.U.I. program because the program also established probation services and “[p]robation violations are a frequent occurrence before criminal court judges.” 

Similarly, in Fla. JEAC Op. 93-40, the Committee advised a judge in the felony division of a circuit court to resign from the board of directors of a mental health center because the judge “frequently order[s] defendants to comply with the instructions of this mental health center as a condition of probation . . ..”  Notably, however, the Committee opined that the judge would be free to rejoin the board  upon transfer to the civil division. 

The facts here presented are that the juveniles participating in the organization’s pre-trial diversion program are diverted from or referred back to the juvenile court, as opposed to the adult criminal division in which the inquiring judge presides.  Under these facts, it is not likely that the organization or the participants in the organization’s programs will be engaged in proceedings that would ordinarily come before the inquiring judge or the court of which the judge is a member.

Accordingly, it is the opinion of the Committee that the inquiring judge may serve on the board of the non-profit organization.

REFERENCES

Fla. Code Jud. Conduct, Canons 4A, 4D, 5, 5A, 5C(3)(a)

Fla. JEAC Ops., 93-40, 97-31, 04-10

_____________

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 T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge José Rodriguez, Judge C. McFerrin Smith III, Judge Richard R. Townsend, 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)