FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-35
Date of Issue: November 13, 2012

ISSUE

May a judge, as chair of the local Juvenile Justice County Council and chair of the local Children’s Services Council, write a letter on judicial letterhead in support of a district school board’s federal grant application when a portion of the grant funds will be used by the district school board to fund a delinquency prevention program being developed by the joint efforts of the two councils?

ANSWER: Yes, as long as (1) the grant funds will be used solely for the delinquency prevention program and other programs and projects which concern the law, the legal system and the administration of justice;   (2) these programs do not cast doubt on the judge’s impartiality; and (3) the judge discloses the judge’s role in writing the support letter in cases before the judge which involve issues or persons associated with the delinquency prevention program or other programs funded by the grant.

FACTS

A district school board representative asked the inquiring judge to write on judicial letterhead a letter in support of the district school board’s federal grant application for the Race to the Top District Competition.  The inquiring judge serves as chair of the local Juvenile Justice County Council and chair of the local Children’s Services Council.  The grant request is for several million dollars.  A portion of the grant funds will be used by the district school board to fund a juvenile delinquency prevention program being developed by the joint efforts of the two councils. The remainder of the grant funds will be used for various other programs.

DISCUSSION

Canon 4D(2)(c), Florida Code of Judicial Conduct, provides that “[a] judge as an officer, director, trustee, or non-legal advisor, or as a member or otherwise . . . 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, unlike the requirement in Canon 4B which allows a judge to participate in fundraising only if the organization is law-related and the funds are used for a law-related purpose, Canon 4D(2)(c) does not require the organization seeking funds to be a law-related organization. The only requirement is that the funds be used for a purpose related to the law, the legal system, or the administration of justice.

In Fla. JEAC Op. 11-06, the Young Women’s Christian Association (“YWCA”) administered, managed, and staffed a free supervised childcare program for parents or guardians to utilize while they attended court-related matters in the domestic violence, criminal, or family divisions.  That circuit’s administrative office provided the space needed for the program’s operation.  The inquiring judge was asked to write a recommendation to public and private fund-granting organizations on behalf of this program. Although the childcare program was law-related, it was nevertheless under the umbrella of the YWCA, an organization which was not solely devoted to the law, the legal system, or the administration of justice.  The Committee opined, however, that Canon 4D(2)(c) does not limit judges to making recommendations for organizations seeking grants to only those organizations solely devoted to the law, the legal system, or the administration of justice, but also to any project or program concerning the law, the legal system, or the administration of justice. The Committee found that the supervised childcare program, which aids the court system, fell into this category. 

Similar to the court childcare program in Fla. JEAC Op. 11-06, the delinquency prevention program for which a grant is being sought in the subject inquiry would be channeled to improve the law, the legal system, or the administration of justice.
           
However, the Committee explained in Fla. JEAC Op. 02-09 that the inquiry must not end with the determination that the request for a letter of support falls within the permissible boundaries of Canon 4D(2)(c). The judge also must examine whether writing the proposed letter could affect the perception of a judge’s impartiality.  In Fla. JEAC Op. 02-09, the inquiring judge proposed to write a letter to a grant provider encouraging the funding of a local non-profit organization that provided victims of domestic violence with advocates, both criminal and civil, as the victims’ cases proceeded through the court system.  The Committee found that while the proposed grant would be channeled to improve the law, the legal system, or the administration of justice, it could cast a reasonable doubt on the judge’s capacity to act impartially because the grant would be indirectly assisting litigants or witnesses (alleged victims) who could appear before the court.  The Committee ultimately opined in Fla. JEAC Op. 02-09 that the judge could not ethically write the letter.  Canons 4A(1) and 5A(1) require a judge to conduct all of the judge’s quasi-judicial and extrajudicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially. See Fla. JEAC Ops. 98-8, 97-31. Writing a letter of support for an organization that represents alleged victims would cast reasonable doubt on the judge’s capacity to act impartially in a domestic violence case. 

The grant for the delinquency prevention program is not for the benefit of one type of litigant over the other, but rather would aid in preventing juvenile delinquency altogether, a common goal for all of society.  Therefore, it would be ethically permissible under Canon 4D(2)(c) for the inquiring judge to write a letter in support of the grant application as long as the grant was solely for the delinquency prevention program.

The inquiring judge states that school board personnel rarely appear in juvenile proceedings, but they do appear in the truancy proceedings over which the inquiring judge presides. The inquiring judge should disclose to the parties and their attorneys the inquiring judge’s role in writing the letter of support for the delinquency prevention program in cases which involve persons or issues associated with the delinquency prevention program or other programs funded by the grant.  See Fla. Code Jud. Conduct, Canon 3E(1) Commentary (“A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”).

Only a portion of the grant funds will be used for the juvenile delinquency prevention program.  If the inquiring judge determines that any of the remaining funds are going to be used for projects or programs which are not pertaining to the law, the legal system, or the administration of justice, then the inquiring judge ethically may not write the letter of support for the federal grant application.  Therefore, the inquiring judge must examine:  (1) how the remaining funds are going to be used to determine if they will be used for the law, the legal system, or the administration justice as required by Canon 4D(2)(c); and (2) whether the other programs for which the grant will be used will cast reasonable doubt on the judge’s capacity to act impartially contrary to Canons 4A(1) and 5A(1).  If the inquiring judge believes that Canons 4D(2), 4A(1), and 5A(1) are satisfied, then the inquiring judge may write a letter in support of the district school board’s application for the Race to the Top District Competition.

REFERENCES

Fla. Code Jud. Conduct Canons 3E(1) Commentary, 4A(1), 4B, 4D(2)(c), and 5A(1).

Fla. JEAC Ops. 97-31, 98-8, 02-09, 11-06

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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 Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The 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 the Committee Chair: Judge Jonathan D. Gerber, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michelle T. Morley, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator