FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2021-10
Date of Issue: July 23, 2021

ISSUE

Whether a judge who is now in a contested election may continue to appear on a public radio station’s local news talk show to discuss law-related activities in the community.

ANSWER: Yes, under the facts reported.

FACTS

The inquiring judge has, for many years, been a somewhat regular guest on a local public radio station’s talk show. According to the inquiring judge, the discussions during these appearances revolve around courthouse administration and law-related issues that affect the community. The appearances typically last about five minutes, are informative in nature, and no questions are taken from the public. The radio station does not promote the inquiring judge’s appearances. The inquiring judge states that no legal advice is given, no discussion is ever had concerning pending cases, and no financial compensation is provided for any of the judge’s appearances.

The inquiring judge is presently in a contested election (for the 2022 cycle). The judge wishes to know whether the judge may continue to appear on this radio program. We have been assured that the judge will not mention the election in any way during any program appearance.

 

DISCUSSION

This Committee has addressed the issue of judicial officers’ appearances in television and radio programs on several occasions, and a few guideposts can be discerned. First, compensated appearances on such programs, insofar as they feature the judge because of his or her judicial position, are often problematic. So, for example, when an inquiring judge wished to know whether it was permissible to appear as a paid commentator on a television show to “comment about, explain to, and educate the public concerning diverse legal matters . . . such as the O.J. Simpson civil trial,” this Committee opined that such an activity would implicate several judicial canons. See Fla. JEAC Op. 96-25. As we explained,

[t]his inquiry implicates, at least, Canon 2B, Canon 3B(8), and Canon 5A. Canon 2B is a general prohibition against a judge from lending the prestige of judicial office to advance the private interests of the judge or others. Under Canon 3D(8), a judge shall not, while a proceeding is pending or impending in any court, make public comment that might reasonably be expected to affect its outcome or impair it fairness. Canon 5A provides that a judge’s extrajudicial activities must be conducted in such a manner so that they do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties.

We concluded that the inquiring judge was ethically prohibited from entering into such an arrangement with a television station. 1 In so opining, the Committee also cited favorably to a New Jersey Supreme Court opinion construing Canon 2B and Canon 3B(8), In re Inquiry of Broadbelt, 683 A.2d 543 (N.J. 1996). In particular, we recited a remark in Broadbelt that, due to the frequency of an inquiring judge’s appearances, the judge “became regularly identified with the program, thereby lending it the prestige of his judicial office.” Fla. JEAC Op. 96-25 (quoting Broadbelt, 683 A.2d at 550).

Thus, a second guidepost this Committee has identified in these circumstances concerns the regularity or frequency of media appearances by judicial officers. So it was that in Fla. JEAC Op. 00-16, the Committee advised a state legislator who had become a judicial candidate to refrain from continuing to host a weekly radio talk show characterized as “informative in nature,” in which the candidate would select topics, invite experts in the field onto the show for discussion, and field phone calls from the general public. We concluded that “the inquiring judicial candidate may not host a regular commercial radio talk show that focuses upon comments concerning current legal issues.” Id. (emphasis supplied). Interestingly, though, in Fla. JEAC Op. 14-03, the Committee concluded that a newly appointed judge could continue to host a weekend radio program that played classic songs for a commercial radio station (as long as the judge ensured that the hosting duties would not otherwise violate any of the judicial canons).

As is clear from this inquiring judge, financial compensation is not an issue. Nor do we believe the pendency of a contested election, in and of itself, would render the judge’s continued appearance on this radio program unethical.2 However, we recognize that our prior guidance concerning the frequency of appearances in public media may need clarifying. We will endeavor to do so now.

When this Committee issues advisory opinions, we do so based upon our understanding of the facts that are reported to us and our construction of the text of the canons, since the text of the judicial canons is ultimately what judicial officers must familiarize themselves with and abide by. Cf. In re Inquiry Concerning Ward, 654 So. 2d 549, 551 (Fla. 1995) (observing that “under the plain language of the Code of Judicial Conduct and the various advisory opinions on the issue, Judge Ward . . . should have known that it was improper to write a character reference to the judge presiding over Allsworth’s sentencing”). In the context of our judicial canons, that can sometimes pose a challenge because some canons purposely utilize broad language that must be applied in fact-specific contexts.

Canon 2B is a good example. The part of that canon with which we are concerned-“A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others”-requires consideration and reflection upon whether the facts presented by an inquiring judge could be said to “lend the prestige of judicial office” in some way that “advances” private interests. When judicial officers accept financial remuneration in exchange for their appearance on a commercial program (and that appearance is directly tied to their position as a judge), it takes little interpretive energy to conclude that that judge is lending his or her “prestige of judicial office” to advance his or her financial interests. But what if the judicial officer receives nothing of value? Canon 2B still requires consideration of whether another’s private interests (in this case, a public radio station) might be “advanced” if a judge is indeed “lending” the prestige of his or her office by appearing on a program.

Several variables could potentially inform that question’s resolution, including how the station receives financial support, whether it advertises the judicial officer’s appearance and in what manner, whether the judge’s appearance is considered a public service/informative aspect of the station’s operation or whether it is a potential source of advertising funding for the station. These (as well as other) facts, and the reasonable inferences that could be drawn from them, will usually have to be considered holistically when inquiries such as these arise. The frequency of a judge’s appearance could, when considered with other facts, give rise to a concern that a judicial officer could be lending the prestige of his or her position to a media company by frequently making appearances on a program, and that that media company’s interests could be advanced by those frequent appearances. That is something a judicial officer should certainly consider. When we issue advisory guidance in these circumstances, we, too, will consider the frequency of the inquiring judicial officer’s anticipated appearances-not as a hidden, didactic point lurking within Canon 2B (i.e., we do not mean to convey, as a categorical construction of Canon 2B, that a once-a-month media appearance would be acceptable, but a once-every-other-week appearance would not), but rather as part of a reasonable, holistic consideration of Canon 2B’s text and its application to a set of reported facts.

With that view, under the facts as reported in this inquiry, we conclude that the inquiring judge may continue to appear on this radio program in the manner the inquiring judge has reported.

One member of the Committee dissents. An opinion from the Supreme Court of New Jersey, Inquiry of Evan W. Broadbelt, J.M.C., 146 N.J. 501, 683 A. 2d 543 (1996) cited herein and by the Committee in JEAC Op. 96-25, suggested a number of factors to be taken into account in determining whether Canon 2B’s prohibition on lending the prestige of judicial office to advance the private interests of others are triggered. These factors include: “the frequency with which the judge appears on the program, the intended audience, the subject matter, and whether the program is commercial or noncommercial.” 146 N.J at 515. In Broadbelt, the Court concluded that “Judge Broadbelt's regular appearances on commercial television violated Canon 2B. Because of the frequency of Judge Broadbelt's appearances, Judge Broadbelt became regularly identified with the program, thereby lending it the prestige of his judicial office.” Id. The Court cautioned that “a judge should avoid appearing on either commercial or non-commercial programs when the judge's association with that program compromises the independence and integrity of the judiciary.” Id.

The dissenting member would advise the inquiring judge to cease frequent and continuing radio appearances under the facts reported, especially considering that the inquiring judge is presently in a contested election for the 2022 cycle.

 

REFERENCES

In re Inquiry of Broadbelt, 683 A.2d 543 (N.J. 1996)
In re Inquiry Concerning Ward, 654 So. 2d 549, 551 (Fla. 1995)
Fla. Code Jud. Conduct, Canons 2B; 3B(8); 5A; 7
Fla. JEAC Ops. 96-25; 00-16; 14-03

_____________


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 futher information, contact Judge Nina Ashenafi-Richardson, Chair of the Judicial Ethics Advisory Committee, 301 S. Monroe Street, Room 265-B, Tallahassee, FL 32301 or 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

 

1. One Member of the Committee in Fla. JEAC Op. 96-25 commented separately that the Committee ought to leave “an avenue open for judges to educate the public via television or any other media in the ‘true spirit’ of public service.”

2. That, of course, assumes the inquiring judge would conduct appearances on the program in accordance with all the judicial canons, including Canon 7.