FLORIDA SUPREME COURT
JUDICIAL ETHICS ADVISORY COMMITTEE
Opinion Number: 2001-15
Date of Issue: August 10, 2001
JUDGE MAINTAINING MEMBERSHIP IN A VOLUNTARY BAR ASSOCIATION THAT ENDORSES JUDICIAL CANDIDATES
1. May a judge maintain a membership in a voluntary bar association that endorses judicial candidates?
ANSWER: No. Membership in a voluntary bar association that endorses judicial candidates is proscribed by the Code of Judicial Conduct.
The inquiring judge is a member of a voluntary bar association that endorses judicial candidates for election. The judge is neither a member of the board of directors nor does the judge hold any leadership position in the organization.
Canon 4 of the Code of Judicial Conduct is entitled, "A Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice." In particular, Canon 4D provides:
A judge may serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice, subject to the following limitations and the other requirements of this Code.
[emphasis added]. Generally, the Code of Judicial Conduct permits judges to join organizations as members, so long as the organization is devoted to the improvement of the law, the legal system or the administration of justice. However, the Code's authorization is not absolute. Membership in any organization, even those devoted to the legal system, is proscribed by the Code in those situations when membership in the organization runs afoul of its limitation and requirements.
The Commentary to Canon 4D(1) sets forth a caveat for judges who join groups. It recognizes the necessity for judges to occasionally re-evaluate the status of their affiliation with their organizations. After all, many organizations are neither static in their views nor direction. The Commentary provides:
The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which he is affiliated to determine if it is proper for him to continue the affiliation.
We note that there are numerous voluntary bar associations throughout the State of Florida. Some are county and city bar associations, while others are issue, gender, religious, ethnic, and race based associations. Most of these associations are clearly devoted to fostering a better and more responsive justice system. As such, their work is certainly admirable and deserving of praise.
This committee has on numerous occasions concluded that membership in various bar associations is authorized under the Code. See, JEAC 94-44 (a judge may serve as an appointed chair of a local bar association committee); JEAC 80-8 (a judge may belong to the American Academy of Matrimonial Lawyers). We have also opined that judge's may be members of organizations that promote or espouse positions on some political issues. See, JEAC 99-24 (a judge may be a member of a non-profit organization that promotes merit selection and retention of trial court judges); JEAC 98- 31 (a judge may maintain membership in the Florida Association of Women Lawyers when the organization is advocating passage of a constitutional amendment); JEAC 93-5 (membership in the ABA is permitted even though the organization actively espouses or promotes positions on political issues); JEAC 84-13 (a judge may serve as a Chairman- Elect of the Family Law Section of the Florida Bar, a section that has actively filed briefs in Florida courts). On the other hand, we have concluded that in some circumstances the Code of Judicial Conduct bans outright membership in some organizations or limits the capacity in which a judge may serve in other organizations. See, JEAC 95-21 (membership in the Florida Academy of Trial Lawyers is precluded by Canon 4(A), because membership may "cast reasonable doubt on the judge's capacity to act impartially as a judge"); JEAC 94-44 (a judge may not serve as an officer of a local bar association); JEAC 79-16 (it is improper for a judge to serve as president of a bar association); See also, Washington Ethics Advisory Committee 93-19 ("In most instances, judges may even be required to give up their memberships in or involvement with certain organizations which serve public interests, such as trial lawyer associations, prosecutor and public defender associations, legal services programs, the ACLU or political parties, etc. The reasons for the need to give up the membership or involvement with the organizations are as varied as the organizations themselves.")
None of this committee's previous opinions have ever addressed the issue raised by the inquiring judge. The explanation may well be that the endorsement of judges and political candidates by bar associations represents a recent trend in our state that deviates from the traditional role of voluntary bar associations.
In JEAC 98-31, this committee addressed this issue of whether it is ethically permissible for a judge to maintain membership in the Florida Association of Women Lawyers (F.A.W.L), when the organization is advocating passage of a constitutional amendment. We concluded that membership was permitted under the Code of Judicial Conduct, and stated:
[T]he Committee finds that since it is permissible for a judge to belong to a voluntary bar association, and it is permissible for a judge personally to advocate the passage of constitutional amendments designed to improve the law, the legal system or the administration of justice, then it is permissible for a judge to belong to a voluntary bar association that advocates the passage of such constitutional amendments.
In Informal Opinion 93-1, the Utah Ethics Advisory Committee was asked whether judges might continue as members of a professional organization in which, in addition to other activities, had begun to publicly endorse candidates for partisan political office. The endorsements were for a candidate for state attorney general and two candidates for national office. The endorsements were voted on by the organization's membership (the inquiring judges abstained), and were printed in one major newspaper, without mentioning the judges' abstentions.
The Utah Ethics Advisory Committee opined that the Code of Judicial Conduct precluded the judges from maintaining their membership in the organization, and that abstinence from the endorsement process, even coupled with a public notice of abstinence, does not clear the way for continued membership. The committee reasoned as follows:
Although Canon 4C specifically allows judges to maintain membership in organizations devoted to the improvement of the law, the legal system, or the administration of justice, a judge's activities as a member of such organizations are governed by several Code provisions. Among them, Canon 7B(2) states that a judge should not publicly endorse a candidate for judicial office. Canon 2B provides that a judge should not lend the prestige of the judicial office or advance the private interests of others, and Canon 5B prohibits participation in activities that reflect adversely upon a judge's impartiality. Those Canons both prohibit a judge from personally endorsing, and from holding membership in an organization which endorses, candidates for partisan political office.1
See also, Washington Ethics Advisory Opinion 93-19 (in deciding whether and to what extent a judge may participate in an organization or activity, the judge must consider, among other things, "(H) Participation which may cast doubt on the capacity to decide impartially any issue that may come before the court...(J) Participation in the organization's activity which may convey the impression that the judge is engaging in political activity beyond improving the law, the legal system, or the administration of justice...(K) the organization endorsing nonjudicial political candidates."); Washington Ethics Advisory Opinion 84-2 (a judge may serve as the co- chair of an organization that fosters and encourages the election of women to public office; however, this opinion is premised, among other things, upon the representation, that the organization does not endorse candidates for election)
Though the facts of Utah Ethics Advisory Informal Opinion 93-1 are limited to the endorsement of partisan candidates, we find no distinction between organizations that endorse partisan and those that endorse non- partisan candidates, such as judges.
The issue raised by the inquiring judge herein is substantially similar to that which was addressed by the Utah Ethics Advisory Committee in Informal Opinion 93-1, yet is distinguishable from our opinion in JEAC 98-31.
In JEAC 98-31, we concluded that the Florida Association of Women Lawyers advocation of the passage of a constitutional amendment was entirely consistent with a judge's right to speak out on matters relating to the improvement of the law, the legal system, or the administration of justice. In other words, since both the judge and the organization could advocate, then precluding membership in the organization would not only be counter to the Code, but would also be illogical.
However, the situation in JEAC 98-31 is different from that presented by the inquiring judge. While a voluntary bar association may choose to endorse judicial candidates, Canon 7A(1)(b) prohibits all judges and candidates from publicly endorsing or publicly opposing another candidate for public office. See also, F.S. §105.071(4). In other words, judges or candidates, unlike the situation presented in JEAC 98-31, are precluded under the Code from doing that which the voluntary bar association elects to do.
It is not within this committee's specific authority to render opinions on matters related to the interpretation of statutory law. Nevertheless, to further elucidate our concern we point to F.S. §105.071, which provides, in pertinent part:
A candidate for judicial office shall not:
* * *
(4) Endorse any candidate.
* * *
(10) Make any contribution to any person, group, or organization for its endorsement to judicial office.
The Division of Elections opined that the purpose of F.S. §105.071 is to prohibit judicial candidates from agreeing, or being influenced or pressured to agree, to pay monies or anything of value in return for an endorsement. Op.Div.Elect. DE 076-11 (Aug. 2, 1976). Utah Ethics Advisory Committee Informal Opinion 93-1 is consistent with the prohibitions set forth in F.S §105.071(4).
Permitting a judge membership in a voluntary bar association that endorses judicial candidates violates Canon 7A(1)(b) and Canon 2B. Such an endorsement is likely to be construed, at a minimum, as a tacit endorsement of the candidate by the judge. This is particularly true if the candidate publicizes the endorsement, even if the judge has no involvement in the endorsement process. Under such circumstances, an organizational endorsement would lend the prestige of judicial office to advance the private interest of the endorsed candidate.
One of the central themes of the Code of Judicial Conduct is that judges must perform their duties independently and impartially and are precluded from participating in any activity that might suggest the appearance of favoritism or call into question the integrity of the judiciary. Arizona Judicial Ethics Advisory Committee, Opinion 95-2 (March 17, 1995). Judicial membership in a voluntary bar association that endorses judicial candidates violates Canons 4A(1) and 5A(1). Membership would cast reasonable doubt upon the judge's capacity to act impartially as a judge. For example, as previously noted in this opinion, there are various types and kinds voluntary bar associations throughout the State of Florida. If a judge is permitted to be a member of a voluntary bar association that endorses judicial candidates, any judicial decision in a case or controversy which might be favorable to the particular concerns or leanings of that bar association may be perceived as being motivated in order to obtain the endorsement of "the judge's" organization.
We understand that denying membership may not eliminate the claim that a judge is seeking the endorsement of a voluntary bar association. However, preclusion of membership makes the claim more remote and less subject to the perception that any judicially rendered decisions are the result of improper motivations.
We are mindful that judicial membership in voluntary bar associations, while generally permissible, is advantageous for the bar association, as well as the judge. Judicial membership frequently lends greater prestige to an association and promotes attorney membership. If judges and judicial candidates were permitted to maintain memberships in voluntary bar associations that choose to endorse candidates, judges and candidates that might not otherwise join the organization for whatever reason, might feel compelled to become members or run the risk of alienating the endorsing authority. Such a result would violate Canon 2 ("A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities") and 2B ("A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment.")
This opinion finds that membership in a voluntary bar association that endorses judicial candidates is proscribed by the Code of Judicial Conduct. It does not preclude judges from attending functions sponsored by those bar associations or organizations that endorse judicial candidates. See, JEAC 2000-14; Washington Ethics Advisory Committee 93-19 ("It may not be appropriate for a judicial officer to belong to an organization but still be permissible for the judicial officer to attend an event sponsored by the organization."). This opinion extends and applies to judicial candidates.
Florida Code of Judicial Conduct: Canons
Florida Judicial Ethics Advisory Committee Opinions
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. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.
For further information, contact The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th St #712, Miami, FL 33125
Judge Lisa Davidson
Judge Charles J. Kahn, Jr.
Judge Phyllis D. Kotey
Judge David Levy
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Jeffrey D. Swartz
Judge Emerson Thompson
Judge Richard R. Townsend
Marjorie Gadarian Graham, Esquire
1 We note that the applicable language of Utah's Canon 4C(3) is the same as Florida's Canon 4D. Also, Florida's Canon 7A(1)(b) ("…a judge or a candidate for election…shall not publicly endorse or publicly oppose another candidate for public office;") is identical to Utah's 7B(2). Further, Florida's Canon 2B ("…A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others;") is likewise identical to Utah's Canon 2B. Lastly, Florida's Canons 4A(1) and 5A(1) ("A judge shall conduct all of the judge's quasi-judicial [extra-judicial] activities so that they do not…cast reasonable doubt on the judge's capacity to act impartially as a judge;") are similar to Utah's Canon 5B.