Opinion 81-12

December 17, 1981

Dear Judge:

This is in response to your inquiry of October 28, 1981. You inquired as to the propriety of a televised "guest editorial" regarding you practice in drug trafficking cases t require an affidavit certifying that the funds posted of used as collateral for the surety bond have been derived from lawful activities, stating the origin of the funds and the identity of the person posting the money.

Of the seven members responding, there was unanimity in that it is proper for you to discuss general reform in the area of bail bonds. It would even be proper for you to suggest your practice as a needed reform. Nevertheless, the members added the strong caveat that the program not feature how you would rule on a given question. The members expressed some concern that you not editorialize on what you will do in drug trafficking cases, as opposed to reform in the bail bond law. The question is important enough to include some of their comments verbatim. But first some background.

The balance between a judge's right, and even duty, to speak, write, or lecture to improve the law, the legal system, and the administration of justice on the one hand, and his duty to not cast doubt on his ability to decide impartially on the other had, is extremely important. Canon 4 and the Commentary following encourage a judge to speak out, either to commend the present law or to revise substantive and procedural law. Justice Holmes said:

"I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism...I trust that no one will understand me to be speaking with disrespect of the law because I criticize it so freely. I venerate the law, and especially our system of law as on of the vastest products of the human mind...

But one may criticize even what one reveres. Law is the business to which my life is devoted, and I should show less than devotion if I did not do what in me lies to improve it." Oliver Wendell Holmes, The Path to the Law, Collected Legal Papers, (1920) 167, 194.

Justice Ervin, in a dissent in In re Kelly, 238 So2d 565, at 576, 577, Florida Supreme Court, 1970, said:

"Judge Kelly unquestionably had the right to speak publicly on a matter so fraught with public concern as the administration of the courts in the Sixth judicial Circuit without incurring judicial sanctions, even if his petition was incidentally critical of his fellow judges.

Tragic implications could result from the precedent of discipline of Judge Kelly for speaking out on the need for court reform. The people of Florida will suffer if their judges must restrict their public statements to uncritical banalities in order to avoid the threat of similar sanctions. The right to disagree with others in matters of governmental policy is one of the cherished rights of American citizenship. It cannot be watered down by a board of censors or subjected to the possibility of sanctions that make its exercise a fearful prospect. The courts exist to serve the people. If the courts are not operating as efficiently as is humanly possible, then the people have the right to hear this from the individuals who are best able to tell them - the Judges.

If the First Amendment does not protect a judge's right to speak in circumstances such as these, then we are bound to have in Florida a timorous lot of judges lacking independence, afraid of their judicial shadows, and fearful to exercise conscientiously the right to speak out in favor of judicial reform."

In Opinions 75-28 and 76-12 (Committee on Standards of Conduct Governing Judges) held that it was proper for a judge to teach at a law school. In Opinion 76-16 we held a judge could speak and write and appear before non-partisan groups in favor of the adoption of merit retention. In Opinion 76-26 we held a judge could file an amicus brief for an advisory opinion t the Governor on the proper time for forming a constitutional revision commission. In Opinion 78-3 we held a judge could publicly express personal views concerning proposed constitutional amendments. In Opinion 78-14 we held a judge could publicly state his views about portions of a bond issue relating to the proposed construction of a courthouse and jail facility. In Opinion 80-14 we held a judge could respond for publication to an editorial concerning the method of selecting and retaining the judiciary. In Opinion 76-17 the Committee held that a judge could author and publish for sale a manual on appellate practice. In Opinion 78-12 the Committee held that a judge could co-author with an attorney a procedural manual to be published and sold by a commercial publisher, with royalties or compensation to the authors. In Opinion 76-18 the Committee approved the participation by a judge in the formation of an organization for profit, in conjunction with a limited number of other Florida Bar members, for the purpose of sponsoring legal education courses suitable for Designation Plan approval.

Professor E. Wayne Thode in the Reporter's Notes to Code of Judicial Conduct", page 74, tells us:

"...a judge may write or lecture on a legal issue, analyzing the present law and its history, its virtues and its shortcomings; he may commend the present law or propose legal reform without compromising his capacity to decide impartially the very issue on which he has spoken or written. There is a significant difference between the statement, "I will grant all divorce actions that come before be - whatever the strength of the evidence to support the statutory ground for divorce - because I believe that persons who no longer live in harmony should be divorced," and the statement, "I believe that limited statutory grounds for divorce are not in the public interest. The law should be changed to allow persons who no longer live in harmony to obtain a divorce." The latter does not compromise a judge's capacity to apply impartially the law as written, although it clearly states his position about improvements in the law."

The members of the Committee felt that your explaining a new approach to bail bonds on television is proper. Whether you cast doubt on your ability to rule impartially will depend on how you structure your "guest editorial", As one member put it:

"I will add one stricture on your opinion. He should be reminded that what is encouraged is legitimate revision. How he rules on a given question, whether the ruling be erroneous or not, should not become the feature of his television appearance. While he may incidentally state how he ruled in a given situation, he should focus upon revision generally. Otherwise, his personal views will become the highlight of the presentation and he will violate Professor Thode's views which are set forth in your letter."

Three members concurred in the opinion that if you intend to go on television t sate what your practice is in setting bond in drug trafficking cases, that conduct:

"...is, I believe, the first of Professor Thode's example...is prohibited. I agree that the judge should be allowed t explain, and even criticize, the judicial system, particularly the part with which he is most familiar. However, what (he) proposed is a statement of what he will invariably do in all drug trafficking cases. This is inappropriate and could form the basis for his disqualification in such cases."

Another member put it this way:

"If he concentrates on his own personal rulings I would think that this would violate the Canon. It might be well to remind him that the forum of television with the penchant of the media t report conflict and controversy rather than support legitimate and much needed reforms, would dictate that his television exposure should be structured as carefully as possible."

Yours truly,

James T. Carlisle, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members
Sid White, Clerk of the Supreme Court
Mr. William C. Clark, Chairman, Florida Judicial Qualifications Commission
Mrs. Linda H. Yates, Managing Editor, Florida Bar Journal
Hon Howard T. Markey, Chairman, Ethics Advisory Panel Judicial Conference of the U.S.
All references to the inquiring judge deleted