IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA IN RE: REPORT OF THE JUDICIAL ETHICS ADVISORY COMMITTEE REGARDING CODE OF JUDICIAL CONDUCT: LIMITATIONS ON JUDGES PARTICIPATION IN FUNDRAISING ACTIVITIES The Judicial Ethics Advisory Committee (Committee) submits this initial report in response to the Court s letter dated May 9, 2005 to the Honorable Richard Townsend and the Court s letter dated April 18, 2006 to Marjorie Gadarian Graham, Esquire. In those letters, the Court requested the Committee to consider limitations on judges participation in fundraising activities set forth in Canon 4, Florida Code of Judicial Conduct. The Court asked the Committee to study the issue and to advise the Court whether the relevant provisions of the Florida Code of Judicial Conduct should be amended. As requested, the Committee has on several occasions studied and reviewed the issue, including pending amendments to the ABA Model Code of Judicial Conduct on the subject. The ABA revisions to Model Canon 4 have not yet been finalized because numerous comments regarding proposed changes in the 1

fundraising provisions of the Model Code were thought to merit further consideration. The whole Committee took this matter up at meetings on April 21, 2006, in Orlando, Florida, on June 21, 2006, in Boca Raton, Florida, and on September 14, 2006, in Tampa, Florida. At the Orlando meeting, we discussed whether Canon 4 of the Florida Code of Judicial Conduct, should be amended at this time, with specific reference to proposed changes to the Florida Code of Judicial Conduct recommended by Judge David A. Demers and the Chief Judges Conference. A. The Committee recommends against amending Canon 4. The Committee recommends that no change be made in the fundraising provisions of Florida Canon 4. The Code s restrictions on fundraising activities protect members of the judiciary, other participants in the judicial system, and the public. The Florida Code s present provisions limiting judicial participation in fundraising activities recognize that members of the judiciary occupy a unique position in the community. The Committee is concerned that loosening the restrictions on fundraising activities by the judiciary would be problematic for members of the judiciary, other participants in the judicial system, and the public. The current limitations on fundraising activities by judges protect the judiciary from potentially overwhelming requests for assistance that are, at bottom, 2

a claim upon the prestige of judicial office designed to advance private interests. The current limitations on fundraising by judges insulate lawyers and litigants from any implied obligation, whether real or perceived, to support the causes for which judges before whom those lawyers and litigants appear are raising funds. The current limitations also preclude lawyers and litigants from seeking to curry favor by supplying funds a judge is seeking to raise for some cause or other (however worthy the cause). The Committee believes that judges should not engage in fundraising activities beyond what is now allowed by the Code. The Committee believes that loosening the rules on fundraising would inevitably lead to questions about the impartiality and independence of the judiciary. Lawyers and potential litigants may be involved with any cause a judge decides to assist (or not to assist) with fundraising. Judges will have to decide which causes to help raise money for and which not to help in this way. Changing the code by lifting restraints on fundraising activities for only certain kinds of causes would require somebody to decide where to draw the line and might well put the Committee into the principal business of vetting organizations to determine whether judges can engage in fundraising activities on their behalf that are now proscribed. A given lawyer or litigant might or might not contribute to causes for which the judge in her case was openly helping to raise funds. In either event, the 3

Committee believes, problems associated with judges participation in fundraising might crop up in litigation and result in accusations of bias on the part of presiding judges that might lead to their disqualification, or at least engender issues and probably proceedings that would slow the judicial process, interfering with the expeditious dispatch of judicial business. B. The Committee recommends against changes to the Code based on the Chief Judges proposal. The Committee devoted much of its meeting on April 21, 2006, to consideration of a proposal advanced by Chief Judge David A. Demers of the Sixth Circuit on behalf of the conference of chief judges. Present at the meeting were Attorney Marjorie Gadarian Graham (then chair), The Honorable Robert Benton (then vice-chair), The Honorable Lisa Davidson, Attorney Ervin Gonzalez, The Honorable Michael E. Raiden, The Honorable Jose Rodriguez, The Honorable Leslie Rothenberg, The Honorable C. McFerrin Smith, The Honorable Emerson R. Thompson, Jr., The Honorable Richard Townsend, and The Honorable Dorothy Vacarro. In addition, Cal Goodlett from the Office of the State Courts Administrator was present at the meeting, as was Chief Judge David A. Demers and Attorney Elaine New from the Sixth Circuit. Then Chief Justice Barbara Pariente appeared by telephone. 4

At the April 21 meeting, Judge Demers made a presentation regarding the Chief Judges proposed changes to the Florida Code. Judge Demers proposed changes that would allow judges to participate in fundraising events for organizations devoted to improving the law, the legal system, the judicial branch, or the administration of justice. In addition, Judge Demers proposes that judges should be able to participate in fundraising activities on behalf of non-profit educational, religious, charitable, fraternal, sororal, or civic organizations. Specifically, he said, his proposed changes would permit judges to participate in mass solicitations on behalf of law schools. The proposed Commentary to Canon 5C(3)(b) in the Chief Judges suggested alterations to the Code raised some question about the extent to which the proponents of the changes were conversant with the Committee s interpretation of the current provisions of the Code: Further, a judge may participate in nominal fundraising activity on behalf of an organization provided that the judge is not identified as a judge and participates in a manner indistinguishable from that of any other member. For example, a judge may sell modestly-priced concession foods at his or her child s sporting event in the same manner as any other parent, or collect the weekly donations at his or her house of worship in the same manner as any other person. The concerns raised by this portion of the proposed commentary to the Chief Judges proposed amendments appear to refer to Fla. JEAC Ops. 00-17, 04-36, 05-5

07, and to assume the existence of a JEAC opinion regarding passing the collection plate in a house of worship. The language in the Chief Judges proposed commentary that specifically authorizes passing a collection plate in a house of worship seems to have been placed there because of the misperception that the Judicial Ethics Advisory Committee had declared this activity to be contrary to the Code. But the Committee has never issued an opinion stating that passing a collection plate in a house of worship is in violation of the Code. Fla. JEAC Op. 00-17, sometimes referred to as the Hot Dog I opinion, did say that actively soliciting funds or selling goods in a concession stand at a school sponsored fundraising activity is in violation of the Code. The opinion was based on the language of Canon 5 which states in part: A judge... shall not personally participate in the solicitation of funds or other fundraising activities.... Canon 5C(3)(b)(i), Fla. Code Jud. Conduct. The commentary to 5C(3)(b) also states: A judge must not engage in direct, individual solicitation of funds or memberships in person, in writing, or by telephone..., with certain exceptions which did not apply to the facts of the inquiry. Fla. JEAC Op. 00-17 also stated that the Code does not prohibit a judge s working in a concession stand in a role that would not require a judge to solicit funds or sell goods. The Committee quoted with approval the commentary to 6

Canon 5(A) which recognized that complete separation of the judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. This commentary was amended in 2003 to add the following language: For that reason, judges are encouraged to participate in extrajudicial community activities. Fla. JEAC Op. 05-07, sometimes referred to as the Hot Dog II opinion, modified Fla. JEAC Op. 00-17 ( Hot Dog I ) by stating: We continue to believe that a judge would do well to aspire to participate in community activities as something other than a cashier, and that a judge working at a concession stand should not identify herself or himself as such. On the other hand, we are no longer prepared to say that a judge who is flipping hamburgers or putting mustard on hot dogs cannot fill in for a co-volunteer who must step away from the cashier s duties momentarily. In this connection, we believe there is an important distinction between selling -- at a reasonable price -- widely sold items, and soliciting charitable contributions. The concession stand opinions reaffirm the Code s proscription against personal solicitation, while acknowledging that the Code encourages judges to become involved in community activities. In a related vein, Fla. JEAC Op. 04-36 posed the question whether a judge could ring a bell at a Salvation Army kettle for the purpose of soliciting funds from the public when the judge is disguised in a holiday character costume. The Committee opined that, whether or not the judge s identity is successfully disguised, the judge is still actively soliciting funds from the public in violation of 7

the clear language of the Code of Judicial Conduct. The line has to be drawn somewhere and the Committee believes the Code is wise to provide that judges should not, under any circumstances, directly solicit funds from the general public. (As opposed to occasionally selling -- at a reasonable price -- widely sold items. ) In a memorandum from Richard Cox to Chief Justice Pariente, dated March 8, 2005, Mr. Cox suggests that several Committee opinions failed to consider the 2003 amendments to Canons 4 and 5 of the Code encouraging judges to engage in activities to improve the law, the legal system, and the administration of justice; acknowledging that support of pro bono legal services by members of the bench is an activity that relates to the improvement of the administration of justice; and encouraging judges to participate in extrajudicial community activities. The encourage language in the 2003 amendments was adopted by the Supreme Court upon the express recommendation of the Judicial Ethics Advisory Committee, the Conference of Circuit Court Judges, and the Conference of County Court Judges. The proposed changes were drafted by the Judicial Ethics Advisory Committee and submitted to the Supreme Court in response to a Florida Bar proposal that would have required judges to perform mandatory pro bono hours. The language was drafted in such a way as to make it clear that judges should become actively involved in their communities, should be actively involved in activities that relate to the improvement of the administration of justice, and that 8

support of legal services is an activity that relates to the improvement of the administration of justice, which is to be encouraged. The Hot Dog I opinion obviously did not reference the encourage amendments because it was written in 2000, some three years before the adoption of the amendments. However, Fla. JEAC Op. 05-07 ( Hot Dog II ) and JEAC Op. 04-36 (Salvation Army bell ringing case) each referenced the encourage language in the 2003 amendments. The 2003 amendments to the Code did not address fundraising at all, because at that time it was not a concern of the trial judges, the Supreme Court Justices, nor this Committee. All of the Code s provisions relating to fundraising, together with the commentaries, remained intact. The Committee is persuaded that the Chief Judges proposed changes to Canon 4 are so broad that they would allow judges to engage in extra-judicial fundraising activities that could lead to frequent disqualification issues and could potentially interfere with the proper performance of judicial duties. The changes might also give rise to circumstances that cast doubt on a judge s ability to perform judicial duties with independence, integrity, and impartiality. One Committee member expressed concern about the prospect of judges hitting up lawyers for money, suggesting that this could become an access issue. Judge Demers conceded that this concern is impossible to avoid. Another question posed by a Committee member was whether judges who participate in fundraisers 9

for legal aid events would be subject to disqualification when a legal aid lawyer represents a party in a case before the judge. There were also concerns about judicial fundraising on behalf of certain legal aid organizations devoted to specific causes. Questions were posed regarding the use of the term nominal in Judge Demers proposal. Committee members asked why the term de minimis, which is defined in the Florida Code of Judicial Conduct, was not used instead of the term nominal, which is not defined. The then Chair noted that under the Florida Code for purposes of reporting gifts, $100 is not considered a nominal amount. In addition, questions were asked about what Judge Demers proposal meant by mass solicitations. The Committee asked Judge Demers why the safeguard provisions regarding use of court resources of the ABA proposal had not been incorporated into his proposal. The then Chair specifically asked whether the Chief Judges Conference had considered whether court resources and staff could be used in fundraising activities. Judge Demers responded that they had not. The Committee appreciated the effort that had gone into drafting the Chief Judges proposal, but felt that the proposal underscored the difficulties that drafting amendments in this area entails, and the wisdom of working from a model amendment or taking another jurisdiction s amendment as a model, if possible. 10

C. The Committee recommends against changes to the Code based on the ABA s work, which is not yet complete. The Committee also recommends against modifying Canon 4 at this point based on the ABA s still ongoing revision process. The Committee respectfully requests, however, an opportunity to consider the ABA revisions, if any, that are finally adopted, and to file a supplemental report with the Court addressing any changes and their implications for the Florida code. Incidentally, the ABA corollary to Canons 4, 5, and 6 of the Florida Code is a single canon, Model Canon 4, of the ABA Model Code, now actively under consideration for revision. There has been some discussion about combining Florida s present Canons 4 and 5, once the ABA finishes its work. (Nobody now on the Committee recalls why Florida s Code separates regulation of judicial participation in other community activities from judicial participation in activities relating to the law, legal system, and administration of justice.) The ABA has studied issues surrounding judges participation in fundraising extensively since 2003, and has received numerous comments regarding proposed revisions to Model Canon 4, particularly in connection with judicial participation in fundraising for legal aid. On October 19-21, 2006, the American Judicature Society will conduct the Twentieth National College on Judicial Ethics, and part of 11

the program will be devoted to discussion and study of the proposed ABA changes to the Model Code of Judicial Conduct. We anticipate that several members of Florida s Judicial Ethics Advisory Committee will attend that conference. Because significant discussion and comment on several of the proposed changes to the fundraising provisions of the Model Code are still ongoing, and the matter remains in flux, the Committee believes that any major changes to Florida s Code should await the emergence of a consensus, and final approval of the ABA Code revisions. The Committee is also of the opinion that a comprehensive amendment to Florida s Code in the wake of amendments to the ABA s Model Code would be preferable to piecemeal Code amendments beforehand. WHEREFORE the Judicial Ethics Advisory Committee respectfully recommends that the Court decline to amend the provisions of Canon 4 pertaining to judicial fundraising activities and participation in civic and charitable fundraising events at this time, and authorize the Judicial Ethics Advisory Committee to submit a supplemental report within ninety days of the ABA s anticipated adoption of revised Model Canon 4. 12

DATED this day of September, 2006. Respectfully submitted, Robert T. Benton, II, Chair Florida Supreme Court Judicial Ethics Advisory Committee First District Court of Appeal 301 S. MLK Jr. Blvd. Tallahassee, FL 32399 Florida Bar No. 126020 and Marjorie Gadarian Graham Marjorie Gadarian Graham, P.A. Oakpark Suite D129 11211 Prosperity Farms Road Palm Beach Gardens, FL 33410 Member, Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204 Telephone (561) 624-4460 Facsimile mgg@appeal.com By: Marjorie Gadarian Graham Florida Bar No. 142053 13