FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-27
Date of Issue: October 26, 2018

ISSUE

1. May the Florida Conference of Circuit Judges and the Conference of County Court Judges of Florida (collectively “Conferences”) or individual judges seek donations from the Conferences’ members so that the Conferences can directly provide monetary assistance, to fellow judges, judicial assistants, and court staff impacted by Hurricane Michael?

ANSWER: The JEAC is evenly divided on this question. Half believe the fund raising activity is permissible, while the other half believe that it is impermissible.

2. Can the organizations set a matching dollar limit?

ANSWER: This is not primarily a judicial ethics issue; thus no opinion is provided.

3. May the donations be collected using an electronic format including, but not limited to, PayPal, Zelle, Venmo and/or GoFundMe?

ANSWER: This is not primarily a judicial ethics issue; thus, no opinion is provided. However, the inquirers should consider whether these platforms can be relied upon to prevent non-judges from donating if the inquiring parties decide to go forward with the described fund-raising activities.

 

FACTS

In October of 2018, Hurricane Michael ravaged the southeastern United States, primarily areas of the Florida panhandle. Both Circuit and County Courts of that region, along with those who staff them were severely disrupted. Representatives of the Florida Conference of Circuit Judges (FCCJ) and the Conference of County Court Judges (CCCJF) and two individual judges, inquire as to whether they may solicit the Conferences’ members for monetary donations to provide direct monetary assistance to judges, judicial assistants, and court staff who may have been affected by the storm. The inquiry does not suggest that the money raised would be turned over to a recognized charitable organization for processing or distribution. Secondly, the inquirers ask if a matching limit may be set by the organizations. Third, they wish to know if various electronic platforms such as PayPal or GoFundMe may be utilized to collect the donations. Because the last two questions do not present primarily judicial ethics issues, the JEAC expresses no opinion.

 

DISCUSSION

A majority of the JEAC agrees that the answer to the inquiry is controlled by Canon 4. However, after a great deal of consideration, sharing of well-developed arguments, circulation of competing written opinions, and detailed discussions, there is an even split among the twelve members of the Judicial Ethics Advisory Committee as to whether the described fund-raising activity is permitted or not permitted under Canon 4. Accordingly, this opinion will set forth the clearly identified position and reasoning of each group regarding Canon 4. The majority of the JEAC is of the opinion that Canon 5 does not apply because the Conferences are not civic or charitable organizations.

The current inquiry is presented by two individual judges and the two Conferences which the committee is informed are comprised of current and retired judges, and which are categorized as nonprofit organizations. On limited occasions, we have commented on inquiries concerning the actions of judicial organizations as opposed to those of individual judges. The Florida Code of Judicial Conduct (“Code”) addresses the conduct of judges and does not directly address the activities of the Conferences or other organizations. In the present matter, the committee believes the analysis and advice provided to the two individual judges who have joined the inquiry may be considered by to the two Conferences.

Before amendments adopted in 2008, the Code contained blanket prohibitions that prevented a judge from engaging in fund-raising activities in the judge’s quasi-judicial or extra-judicial activities. Both Canons 4 and 5 encourage judges to become involved in their community and permit participation in certain fundraising activities or events by judges within limits set forth in the Code. A judge must analyze each activity a judge intends to engage in, including otherwise ethically permissible fund-raising activities, in light of the restrictions set forth in Canon 4A and 5A to ensure that those activities do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) undermine the judge’s independence, integrity, or impartiality;
(3) demean the judicial office;
(4) interfere with the proper performance of judicial duties;
(5) lead to frequent disqualification; and 
(6) appear to a reasonable person to be coercive.

Because the interpretation of Canon 4D(2)(a) and (b) is critical to this analysis, the title of that Canon and the text of those sections are set forth below.

Canon 4 A Judge Is Encouraged to Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice

D. 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.

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

(a) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally or directly participate in the solicitation of funds, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;

(b) may appear or speak at, receive an award or other recognition at, be featured on the program of, and permit the judge’s title to be used in conjunction with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice and the funds raised will be used for a law related purpose(s);

According to their bylaws, the stated purpose of both Conferences is to improve in the administration of justice in the State of Florida and to make recommendations on the betterment of the judicial system. As such, the majority of the JEAC agrees that the Conferences fit the Canon 4D description of organizations that judges should join and participate in.

The only provision of Canon 4D(2) that mentions or permits direct solicitation of funds by judges is found in subsection (a), which permits judges to solicit funds from other judges as long as there is no supervisory or appellate authority. Subsection (b) makes no mention of judges soliciting funds; instead, it discusses the only circumstances under which a judge may participate in a fund-raising event as a speaker, award recipient, or permit the use of the judge’s title. Subsection (b) permits judges to participate in fund-raising events only if the event concerns law, the legal system or the administration of justice.

Viewpoint that it is impermissible under Canon 4. Six members of the JEAC believe that any such solicitation of judges by judges, described in 4D(2)(a) is permitted only if the funds raised will be used for a “law related” purpose, even though that limitation is not contained within section (2)(a). The basis for their position is that Canon 4, according to its title, concerns “activities to improve the law, the legal system, and the administration of justice.” While the solicited funds would ultimately benefit those who work in law related fields, providing personal financial assistance cannot really be described as a “law related” purpose. Therefore, six members of the JEAC believe that because the funds being raised would not go to a “law related” purpose, the fund-raising activity described by the inquirers is impermissible under Canon 4.

Viewpoint that it is permissible under Canon 4. The six JEAC members who find the proposed activity to be permissible point out that Canon 4D(2)(a) does not contain any limitation on what the funds solicited by judges from other judges may be used for. Because there is no “law related” requirement in (2)(a), the six who believe it is permissible conclude that when it comes to fellow judges soliciting funds from each other, the only specific limitation is to avoid the appearance of coercion by prohibiting judges from soliciting those over whom they have supervisory or appellate authority. The six who feel it is permissible assert that strict construction of subsection (2)(a) supports their position. Those who find it permissible argue that those who believe it is impermissible are inserting by implication a limitation which is not present in (2)(a). The six who find it permissible assert that the Supreme Court acted intentionally when it included the “law related” limitation in (2)(b) while omitting it from (2)(a). Accordingly, six members of the JEAC believe that the fund-raising activity described by the inquiring judges and Conferences is permissible under Canon 4D(2)(a) and that the “law related” limitation concerning participation in fund-raising events, as distinguished from direct solicitation of judges by judges, in 4D(2)(b) is irrelevant.

Majority opinion as to Canon 5. The current version of Canon 5C(3)(b)(i) provides that a judge: may assist a civic or charitable organization in planning fund raising and may participate in the management and investment of the organization’s funds, but shall not personally or directly participate in the solicitation of funds, except that a judge [as officer, director, trustee, non-legal advisor, member or otherwise] may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority. (emphasis added). Again, the group being solicited is appropriately limited, subject to supervisory and appellate authority limitations. The majority of the JEAC believes that the Conferences cannot be considered to be civic or charitable organizations; thus, the desired fund-raising activity is not addressed or approved by Canon 5. A minority of JEAC members believes that one can consider whether the actions of the members of the Conferences or the individual judges in soliciting funds are charitable in nature even though neither Conference is a civic or charitable organization as those terms are typically used, thus permitting the described fund raising under Canon 5. The majority has considered and rejected that position.

There are numerous opinions of this Committee where the burdens of judicial conduct have been deemed to outweigh well intentioned charitable fund raising. See Fla. JEAC Op. 08-22 (judge may not appear as “dignitary guest” in fund-raising ballet, sponsored by ballet company organized as charitable organization, and allow company to use judge’s name and title to advertise event); Fla. JEAC Op. 01-09 (judge may not participate as featured speaker at fundraising roast of prominent local figure); Fla. JEAC Op. 00-31 (judge may not act as chairperson of kickoff event for fund-raising organization); Fla. JEAC Op. 99-15 (judge may not be guest speaker at college alumni banquet, when banquet is main fund raiser for alumni club); Fla. JEAC Op. 98-32 (judge may not participate in charity fashion show by announcing winning tickets and describing items won); Fla. JEAC Op. 90-20 (judge may not participate as guest of honor at charitably-funded institution’s dinner where patrons may purchase journal advertisements dedicated to the judge, and distribution of journal is one of institution’s main fund-raising activities); Fla. JEAC Op. 90-12 (judge may not serve as chairman of golf tournament, even though judge would neither participate in solicitation of funds nor be identified as judge in materials associated with tournament, where entity sponsoring tournament is nonprofit organization which raises funds to support sports activities); Fla JEAC OP 09-07 (judge may not accept award at fundraiser for educational programs); Fla JEAC Op 12-04 (judge may not be a member of a committee that solicits funds from voluntary bar association to defray printing costs for brochure on Florida Courts)

The Committee strongly encourages all judges who undertake fundraising activities pursuant to Canon 4D(2)(b) to read Chief Justice Peggy A. Quince’s dissent in In Re: Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550, 553 (Fla. 2008). Chief Justice Quince addresses the “pitfalls” for judges who agree to participate in fundraising activities pursuant to amended Canon 4D(2)(b).

The remaining questions presented by the inquiring judges and Conferences are not addressed by the Committee as they are not primarily judicial ethics issues; thus, no opinion is provided.

 

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 of Judicial Conduct, Canons 4A, 4D(2), 4D(2)(a), 4D(2)(b), 5A, and 5C(3)(b)(i)
Fla. JEAC Ops. 12-04, 09-07, 08-22, 01-09, 00-31, 99-15, 98-32, 90-20 and 90-12

_____________


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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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