November 16, 1982
This is in response to your inquiry of October 18, 1982. You want to know if a judge may properly serve on the Board of Directors of Mothers Against Drunk Drivers (MADD). According to your inquiry, the purpose of the organization is to "actively pursue DWI education, public awareness of DWI, and DWI manslaughter, court watching, and advocate development of resources to impact and minimize the number of people involved in DWI situations.
Perhaps it is closer to the mark to say this organization seeks to eliminate DWI through education, legislation, and litigation. It helps to educate people regarding the effects of alcohol upon driving. It hopes to bring pressure on the Legislature to enact stronger laws, and on the courts through court watching programs, etc. The goal is, of course, laudable. The difficulty is the means it might take to reach that goal This would be good or bad, depending upon the advise it gets from its board of directors. There is nothing wrong with trying to educated people. There is nothing wrong with trying to convince the Legislature to change the law. There is nothing wrong with trying to convince the courts to try a different solution to a social problem. (In the last sentence I speak in a general sense. I do not mean to imply it would be proper to approach a court in a specific case to suggest a more or less sever sentence.)
A judge could perform a valuable function on the board of directors of this organization. He could inform the organization as to needed amendments to the DWI law, while on the other hand advise them against ill-considered, quick, simple, and total solutions. He could educate the other members of the board of directors as to why courts do not impose the maximum sentence in every case. He could likewise educate the board of directors of the over-riding need to preserve the rights of the defendants and assure a fair trial. He can provide balance and temperance to an organization which, left to its own devices, might throw out the baby with the bath water.
Of the ten members of the Committee on Standards of Conduct Governing Judges, four were of the opinion a member of the judiciary might serve as a board member of the board of directors of MADD. The majority, however, suggested that there might be a problem with a county judge, assigned to the criminal division, being a member of the board of directors of MADD. The trial of DWI cases in the major stock and trade of the criminal division of the county court. Canon 5B provides a judge may participate in civil and charitable activities that do not reflect adversely on his impartiality. As one member put it:
"... and the judge would put himself in the position of being disqualified on cases coming before him which involved drunken drivers. Counsel for such defendants could well question his impartiality. The number of cases coming before him could be considerable."
These members recommend you not participate. In this way, you can control the nature and degree of your involvement so that it will not reflect on your impartiality. As a member of MADD you would have no control over the activities of the membership as a whole, and yet those activities would reflect on you as a member or director.
It goes too far to say that no judge can serve on the board of directors of such an organization. As to the question of whether a judge not likely to try DWI cases could serve on the board of directors of MADD, a majority of those responding found no impropriety. MADD seeks to bring about changes in society. In prior opinions, we have found no impropriety with a judge's membership on organizations which actively seek change in society. In Opinion No. 76-21 we held it was proper for a judge to belong to the Family Service Bureau. In Opinion No. 75-26 we stated that a judge could properly be on the board of directors of the B'nai B'rith Anti-Defamation League. In Opinion 79-13 we held it was proper for a county judge to serve on the board of directors of the county commission on alcoholism, which organization operated the DWI counter-attack school. And in Opinion 80-8 we said that a judge could properly belong to the Academy of Matrimonial Lawyers. Unquestionably, judges can belong to the American Bar Association and the Florida Bar. All of those organizations lobby, educate, and attempt to convince courts to do things in a different way.
There is a great deal of truth to what Justice Cardozo said in the Nature of the Judicial Process. page 168 (1921):
"The great tides and currents which engulf the rest of man, do not turn aside in their course and pass judges by."
The judiciary should not be swept away by this tide. As individuals they have a responsibility to try to divert and direct the course of some of these tides and currents. MADD will have an effect on the courts. Whether good or bad might well be depend upon the decisions of the board of directors. The judge's direction influences the administration of justice.
The fear that his impartiality might be questioned cannot cause him to remove himself from organizations which seek change in society. However, where his membership results in frequent motions for recusal he should not participate.
James T. Carlisle, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Sid White, Clerk of the Supreme Court
Mr. Mark Hulsey, Chairman, Florida Judicial Qualifications Commission
Linda H. Yates, Managing Editor, Florida Bar Journal
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the U.S.
All references to the inquiring judge deleted
Participating members: Booth, Carlisle, Green, Jr., Hewitt, O'Connell, Letts, Nesbitt, Richardson, Turner and Samuel Powers. Attorney