FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2021-03
Date of Issue: March 24, 2021

ISSUES

1. May a judge write an advocacy article for publication in support of proposed state legislation prohibiting the use of seclusion and restraints as behavior modification tools for public school students who have autism or are on the autism spectrum?

ANSWER: Yes.

2. May the author be identified as a judge if writing the article is ethically permissible?

ANSWER: No.

FACTS

The judge is the parent of a child on the autism spectrum. The judge and the judge’s spouse belong to a parent support group for parents with children on the spectrum. The group is proposing legislation to prohibit the use of seclusion and restraints for behavior modification of these children in public schools, and such legislation is now being considered. The group has asked the judge to write an advocacy article for a Florida publication and the judge would like to do so, if ethically permissible. The judge further inquires whether it would be permissible to sign the article or otherwise be identified in the publication as a judge. The judge would do all things necessary to writing the article only when off duty and doing so will not otherwise interfere with the performance of judicial duties.

 

DISCUSSION

1. As the inquiring judge noted when contacting the Judicial Ethics Advisory Committee (“JEAC”), the Florida Code of Judicial Conduct does not directly address this topic. Generally speaking, Canon 5B encourages judges to speak and write concerning non-legal topics, subject to the requirements of the Code. The first such requirements are found in Canon 5A which provides, in part, that the judge’s extra-judicial activities must 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; [or] . . . (5) lead to frequent disqualification of the judge. . . .”] Based upon the information provided by the inquiring judge, the JEAC does not see how writing the above-described article would run afoul of any of the foregoing restrictions.

The JEAC has in the past found it acceptable for judges to be “mere members” and even legislation committee members of groups that engage in lobbying for legislation related to non-legal topics. See Fla. JEAC Ops. 01-13; 97-19. However, in each instance, the inquiring judge was not personally involved in such lobbying efforts. Canon 5C(1) restricts a judge’s freedom to engage in lobbying, by stating that:

A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests.

Thus, if the judge were to be engaged in lobbying or otherwise directly contacting legislators, on behalf of the parent group, to encourage the passage of the proposed non-law related legislation, such conduct would clearly be prohibited. However, there is no suggestion that the judge intends to do anything more than write an advocacy article and our advice is limited to that specific intention.

In Fla. JEAC Op.04-32, the JEAC found that it was acceptable for a judge, serving in a leadership position of a non-profit community organization, to publish an open letter inviting community leaders, both individuals and organizations, to attend an “action” meeting to discuss issues concerning race relations within the community with the goal of reaching consensus on various topics and deciding on a plan of action ["to improve the community’s quality of life by improving race relations.”] Our inquiring judge’s advocacy article will likely be more focused than the judge’s letter in Op. 04-32 that called more generally for community leaders to attend a meeting so that issues could be raised and solutions offered. However, the similarities between the article and the open letter seem to outweigh their differences. In both, the judge/author intended to make conditions better for certain members of the community, which in turn would hopefully improve the entire community’s quality of life. We remind the inquiring judge to abide by the cautionary admonitions set forth in the opinions and Canons we have cited above to ensure that good intentions do not lead to cast doubt on the judge’s impartiality.

2. The judge inquired if the judge could be identified as “Judge NAME” or “The Honorable NAME.” The answer to that is clear: No. [“A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . .”] Fla. Code Jud. Conduct, Canon 2B. In Fla. JEAC Op. 07-07, our conclusion that it would be improper for a judge, identified as a judge, wearing a judicial robe to appear on billboards, TV spots, mailers, and websites as part of a public relations campaign conducted by a county library system, was based in part on the application of Canon 2B. Signing the advocacy article or being identified in the publication as a judge does nothing more than lend the prestige of the judicial office to advance the interests of the parents group and their children. While that may not be the judge’s intention, we find that under these circumstances, it would be prohibited.

 

 

REFERENCES

Fla. Code Jud. Conduct, Canons 2B, 5A, 5B, 5C(1)

Fla. JEAC Ops. 07-07, 04-32, 01-13, 97-19

 

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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 Mark Herron, Esquire, Judicial Ethics Advisory Committee Chair, by email at JEAC@flcourts.org.

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 Jeffrey T. Kuntz, 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)
Chief Justice Charles T. Canady, Justice Liaison
John A Tomasino, Supreme Court Clerk
All Committee Members
Alexander J. Williams, General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel