FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2015-13
Date of Issue: November 3, 2015

ISSUES

May a judge, who is facing re-election, attend a political rally sponsored by a local Chamber of Commerce when there is a minimum $50.00 charge for all invitees and the event is intended as a fundraiser for the Chamber?

ANSWER: Yes.

FACTS

The inquiring judge is facing re-election in 2016. One of the municipal Chambers of Commerce in the judge’s circuit hosts an annual event to which all announced candidates for office are invited. Those who attend are permitted to mingle with other guests and distribute campaign literature. The event brochure states that at some point during the function candidates’ names will be announced, along with the office they are seeking, but gives no indication the candidates will be called upon to speak.

The inquiring judge’s primary concern is that there is a minimum $50.00 charge for the event (more if attendees wish to engage in a shooting contest). In return for the $50.00 the purchaser will receive a barbecue dinner. The event brochure also notes that several local businesses - plus the local Member of Congress - have signed on as sponsors, although the extent of those contributions is not disclosed. The judge has determined that the event is a fundraiser for the Chamber - that is, that the $50.00 contribution is not simply for defraying the Chamber’s expenses - and is therefore concerned whether the Code of Judicial Conduct permits the judge’s attendance.

 

DISCUSSION

At the outset we note that it is clear this event is not a partisan function. Thus, the Code of Judicial Conduct, Canon 7C(3), which severely restricts judicial candidates’ attendance of such events including a total proscription if the function is a fundraiser, does not apply. Rather, the controlling provision of the Code is Canon 5C(3)(b), which governs judges’ civic and charitable activities.

This is not the first time this Committee has been called upon to debate the propriety of judges’ campaign activities as they dovetail with sponsored public events. At first glance the Committee’s recommendations might be perceived as inconsistent. The facts of Florida Judicial Ethics Advisory Committee Opinion 96-19 are substantially similar to the present inquiry. The judge in that case had been invited to an “Ole Fashioned Political Rally,” sponsored by a local civic organization and open to all candidates. Attendees were required to contribute $50.00, which the sponsors assured would go to defray the cost of the event. The Committee saw no impediment to the judge’s attendance “so long as the funds are used to pay for an otherwise legitimate matter,” but cautioned that “no actual fundraising [should be] involved and ...all money [should] in fact [be] spent to defray the cost of the rally.” A similar result was reached in Florida Judicial Ethics Advisory Committee Opinion 88-23, where the admission charge was $100.00. Cf. Fla. JEAC Op. 98-10 (judge may be guest of honor at a function even though the charge was $50.00, because it was described as a “non-fundraising event”).

A different conclusion was reached for attendance at events, even if nonpartisan, where the price of admission went above and beyond recovery of the cost of the event. In Florida Judicial Ethics Advisory Committee Opinion 04-23, we considered the request of a judge/candidate who was considering the purchase of a table (for $200.00) at a nonpartisan political event. Just as in Opinion 96-19 the Committee expressed the opinion that the judge could attend so long as the event was not a fundraiser, and provided that all candidates were assessed the same amount to participate. See also Fla. JEAC Op. 04-27.

Were our analysis to end here the answer to the judge’s inquiry would be quite clearly “no.” However, a series of events beginning in 2008 persuades us that a different answer is now appropriate. In Florida Judicial Ethics Advisory Committee Opinions 10-23 and 10-30, we considered requests by judicial candidates who were not sitting judges regarding attendance at non-partisan fundraising campaign events. The Committee concluded that, at least in this instance, those candidates could attend even though a sitting judge up for election could not. Even though Opinion 04-27 had made reference to “judges and judicial candidates” the Committee chose to clarify that language, restricting it to judges who were seeking election. We did so because non-incumbent judicial candidates’ conduct is governed only by Canon 7, not Canon 5.

The issue was last revisited in Florida Judicial Ethics Advisory Committee Opinion 11-15, in which the Committee receded from Opinions 10-23 and 10-30 to the extent they were inconsistent with the holding of the new opinion. Opinion 11-15, which was not unanimous, involved an incumbent judge/candidate who wished to be a “hole sponsor” at a charity golf tournament hosted by the local bar association’s young lawyers section. By so doing the judge would be permitted to appear at the hole and display campaign materials. The tournament’s program would reveal that the judge was a sponsor, and the judge would be recognized along with all other sponsors.1 

The Committee’s analysis began by noting that the Supreme Court, in In re Amendments to the Code of Judicial Conduct - Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008), had amended Canons 4 and 5 to allow for judicial fundraising under certain carefully delineated circumstances. Primarily these involved activities “devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice.” Canon 4D. The golf tournament in Opinion 11-15, notwithstanding its sponsorship by attorneys, did not meet those requirements and thus Canon 4 could not be relied upon by the judge when making the decision whether to appear.

Turning to Canon 5, which governs judges’ “extra-judicial activities,” the Committee noted that judges, since 2008, have enjoyed greater freedom in this sphere than in the political, though they are still cautioned not to lend the prestige of their office to civic or charitable institutions. Among other things judges, with only minor exceptions, still may not engage in personal solicitations on behalf of a charity. As for those exceptions the Commentary to Canon 5C(3)(b) speaks of passing a collection plate in church, service as a food server or preparer, and “similar subsidiary and unadvertised functions.”2  On the other hand judges may attend charitable events including fundraisers but cannot do so as a speaker, guest of honor, or “otherwise be featured” at such events. Commentary to Canon 5C(3)(b).

A majority of the Committee in Opinion 11-15 determined that the inquiring judge would not be a speaker or guest of honor at the golf tournament and would not engage in “any pre-event advertising or direct fundraising/solicitation” for the event. The minority expressed the belief that the extent of the judge’s participation in the event went beyond the “subsidiary” and “unadvertised” restrictions of the Commentary. Instead, the minority argued that the extent of the judge’s proposed involvement made the judge a “feature” of the event. However, the majority position was that Canon 5’s prohibition against being “‘featured’. . . refers to conduct by the event sponsor, not by the participating judge.” Instead the judge’s proposed activity was better described as “self-featuring,” that is, advertising in the judge’s own interest, which is “normal conduct for any public official who is required to run for office.” If so the judge’s participation in the tournament would not violate Canon 5’s prohibition against improper fundraising for a charity.

In view of the 2008 revisions as interpreted by Opinion 11-15, it is clear that the older opinions discussed herein should be deemed as rendered obsolete. Thus in conclusion we return to the facts of the present inquiry to see whether attendance at the Chamber of Commerce event would be permissible. As we have already noted, none of the invited candidates, including the judge, will actually speak at the event. We do not perceive the invitees to be “guests of honor” as that term is used in the Code. They are afforded no special status or endorsement by virtue of their attendance, and their names are not in any way employed to promote the event (since the Chamber does not have advance notice of which candidates may attend).

In view of Opinion 11-15, it is no longer relevant that the judge’s relatively small price of admission may inure to the benefit of the Chamber of Commerce. The Chamber is appropriately described as a civic organization. There is no indication that profits from the event will go to any cause other than the betterment of the Chamber itself, whose stated goal we presume is to attract business to and promote the community in which it operates. A different result might be reached if the Chamber were to use these funds to make political contributions to selected candidates, but there is no indication it plans to do so.

The Committee also does not believe that an exception should be carved out because of the fact a Member of Congress is one of the sponsors of the rally. We do not believe this transforms the event into one of a partisan nature, since all candidates regardless of party affiliation are invited to attend. Neither should a reasonable person conclude that this sponsorship in any way equates to an endorsement of the candidacy of the inquiring judge or anyone else.

 

REFERENCES

In re Amendments to the Code of Judicial Conduct – Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008).

Fla. Code Jud. Conduct, Preamble, Canons 4, 5C(3)(b), and 7C(3).

Fla. JEAC Ops. 11-15, 10-30, 10-23, 04-27, 04-23, 98-10, 96-19, and 88-23.

_____________


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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Barbara Lagoa, Chair, Judicial Ethics Advisory Committee, Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami, FL 33175.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Miguel de la O, Jack Espinosa, Jr., Judge Barbara Lagoa, Judge Spencer D. Levine, Patricia E. Lowry, Esquire, Judge Michael Raiden.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator

 

1. Opinion 11-15 does not state whether all other political candidates were provided with the same opportunity. Indeed, the opinion notes that “[l]imited holes are available to be sponsored.”  This does not appear to have made a difference in the outcome. In the present case, however, as noted above the ability of other candidates to participate in the event is unrestricted.

2. As noted in Opinion 11-15, the Preamble to the Florida Code of Judicial Conduct states that the text of the Canons and their various sections is authoritative, whereas the Commentary is not intended as a statement of additional rules but instead provides guidance, through explanation and example, for interpreting the Canons.