August 9, 1994
PERSONAL AND CONFIDENTIAL
(Advisory Committee -
(Statewide Battered Women's Clemency Project
Re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated July 24, 1994
You have inquired about the propriety of serving on the Advisory Committee for the newly created Florida Battered Women's Clemency Project (the Project). You are currently assigned to the criminal bench and ask (1) whether service would present a risk of conflict with your judicial duties and (2) would you be required to recuse yourself from cases that could potentially involved (sic) a battered spouse syndrome defense.
Although "the project" will be funded by the Florida Bar Foundation Interest on Trust Fund Accounts Committee and appear a laudable endeavor, the Committee unanimously agrees that you should not accept this position. Previous opinions of this Committee address membership in several such organizations as follows:
(1) Opinion 91-22 held that membership in Women in Distress, a non-profit, quasi-governmental organization providing shelter, food, clothing and counseling to battered women and their children would be in violation of Canon 3C, B, and 2A & B, since involvement could detract from the judge's role as an impartial magistrate;
(2) Opinion 86-06 advised against serving
as an Honorary Chairperson of "Students Against Drunk Drivers" (SADD)
as violating public confidence in the integrity and impartiality of the judiciary.
(3) Opinion 91-03 found that a judge may not serve as a member in a fraternal organization of Jewish men and women who are had been involved in law enforcement pursuant to Canon 5B.
(4) Opinion 91-14 recommended that the judge should withdraw from membership in the Adam Walsh Child Resource Center because it would detract form the judge's function as a neutral and detached magistrate in violation of Canons 2A, 2B, 3C and 5B; and
(5) Opinion 94-15 found that it would be ethically impermissible for a judge to serve on the Board of Directors of the Police Officers Assistant Trust because its title identified it to be a prosecution oriented group and membership would be in conflict with the neutrality required of judges.
(6) Opinion 93-50 advised against membership in the Dade County Political Women's Caucus because it was political and as one committee membe pointed out that when judges "...join organizations that lobby for the benefit of specific gender, ethnic and/or racial groups" that membership could signal partiality to such a group.
Thus, it is clear that you should not serve on the Board while assigned to a criminal division. First, pursuant to Canon 3C yo may have to disqualify yourself not only from all cases that could potentially involve a battered spouse syndrome defense, but possibly form all spouse battery cases coming before you. Besides creating potential interference with the performance of judicial duties through increased recusals, such service would violate current Canon 5B(1), "a judge should not serve if it is likely that the organization will be engaged in proceedings in any court." (Emphasis supplied).
Since civil division judges are, by law, on call 24 hours a day for emergency spouse battery relief, your transfer to a civil division would not resolve the issue, either. Therefore, base upon the above cited Opinions and the general provisions of Canon 2A, "a judge should...conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary" and Canon 5B, "A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties...", it would appear that such membership would be impermissible regardless of your assignment.
One concurring member the issue into perspective by stating "... we should ask ourselves how we would feel if a Second Amendment advocacy group convinced the Florida Bar Foundation to fund a clemency project to persons subjected to minimum mandatory sentences because of possession of firearms and then sough to appoint judges to the advisory committee for such a project.
In conclusion, our Committee has consistently advise judges not to engage in or to serve in leadership positions in organizations that ate involved in emotionally charged issues: i.e. handgun control, MADD and other groups. Although the activities of "the Project" would concern improvements to "the law, the legal system, and the administration of justice" and a judge's perspective and input would certainly be valuable, Advisory Committee Members would potentially be deeply involved in making policy decisions that may have significant political ramifications, would involve non-neutral gender activities, or may imply commitment to causes or problems that may come before the courts for adjudication.
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 judges, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 327 So.2d 5 (Fla. 1976).
Very truly yours,
Steve Rushing, Chairman
Committee on Standards of Conduct
CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)
Participating Members: Judges Dell, Doughtie, Farina, Green, Kahn, Patterson, Rushing, Silverstein, Taylor, Tolton and Edwards, Esq.