March 2, 1994
(Can a Judge publicly advocate
(the signing of petitions relating
(to criminal justice.
PERSONAL AND CONFIDENTIAL
RE: Committee on Standards of Conduct Governing Judges
Your inquiry dated January 18, 1994
You have requested an opinion from our Committee concerning two issues. You wish to know whether a judge can publicly advocate the signing of two petitions to amend the State Constitution. The first petition proposes a one percent sales tax to be used for criminal justice. The other proposes that prisoners serve 85 percent of the sentence imposed.
All of our Committee members responding except one agree that some public comment on these issues would be permitted. In previous opinions of a similar nature, our Committee has been somewhat divided although the consensus appears to follow a consistent pattern. Reference should be made to the Supreme Court Opinion In Re Inquiry Concerning a Judge, 417 So.2d 950 (Fla. 1982). In that opinion the Court stated, "There is no doubt that a judge in an appropriate forum may express his protest, dissent and criticism of the present state of the law as long as he does not appear to substitute his concept of what the law ought to be for what the law actually is, and as long as he expresses himself in a manner that promotes public confidence in his integrity and impartiality as a judge." Based on this language and the Committee's understanding of the Canons, we have suggested that it would be improper for a judge to "go on the campaign trail" as an advocate for a controversial issue. An example of this was in the area of handgun control. Another example might be in the area of gender bias. It is certainly clear that a judge who happened to be a member of the Supreme Court Gender Bias Commission could certainly make comments and recommendations concerning ways to eliminate gender bias in the courts. At the same time, it may be inappropriate for a judge to become so identified with a cause that the public would lose confidence in the judge's ability to preside over a case involving a party who has a position oposing the judge's. Another danger a judge faces in making public comment is that the judge could become embrioled in what could be partisan party conflicts over the best way to spend tax dollars. Much of the Committee's concern is based on the sp[ecifics of the public comment and not the fact that some public comment is being made. In summary, the Committee agrees that you can publicly express your opinion in a manner consistent with the above referenced opinion of the Supreme Court.
The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).
With regards, I remain,
Yours very truly,
Nath C. Doughtie, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Office of the Courts Administrator (name of judge deleted from this copy)
Participating members: Judges Doughtie, Farina , Goldstein, Green, Kahn, Patterson , Rushing, Taylor, Tolton, and Edwards, Esq.