The Very Definition Of A "Softball Question"

A new opinion of the Florida Judicial Ethics Advisory Committee

SUBJECT

A judge presiding over criminal cases may attend a softball game between the county sheriff’s office and police department would be permissible as long as the judge's attendance is neither promoted, advertised, or made a focal point during the game; would not cast reasonable doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties. While attending the game, Canon 2A requires the judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.  Fla. Code Jud. Conduct, Canons 2A, 5A, 5B, 5C(3), 5C(3)b and Commentary to Canon 2A, 5A, 5B, 5C(3), 5C(3)b.

ISSUE

Whether a judge presiding over criminal cases may pay for a ticket and attend a softball game between the county sheriff’s office and police department. 

ANSWER:  Yes, the inquiring judge’s mere attendance at the game would be permissible so long as the judge's attendance is neither promoted, advertised, or made a focal point during the game;  would not cast reasonable doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties. While attending the game, Canon 2A requires the judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

FACTS

The inquiring judge wishes to attend a softball game held one-time per year between the county sheriff’s office and police department, but seeks an opinion as to whether doing so would conflict with the judicial canons. The event is not promoted as a fundraiser, but tickets for seats at the softball field are sold on-line through an unrelated third party.  The flyer indicates “proceeds going towards both sides on the field.”  The inquiring judge presides over criminal cases where members of both the police and sheriff’s office come before them.

DISCUSSION

Canon 2A is applicable to this inquiry. Canon 2A provides: “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” 

If the inquiring judge attends the softball game, the inquiring judge must avoid all appearances of impropriety. "The test for the appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." Commentary to Canon 2A.

In addition, Fla. JEAC Op. 2019-02  provides a list of “factors for a judge to consider when deciding whether to engage in an extrajudicial or quasi-judicial activity with or without compensation.”  We explained that “[i]f the answer to any one of the following eight questions is yes, then it is recommended the judge decline to engage in the activity.”  The eight factors are: 

1. Whether the activity will detract from full time duties; 
 
2. Whether the activity will call into question the judge’s impartiality, either because of comments reflecting on a pending matter or comments construed as legal advice; 
 
3. Whether the activity will appear to trade on judicial office for the judge’s personal advantage; 
 
4. Whether the activity will appear to place the judge in a position to wield or succumb to undue influence in judicial matters; 
 
5. Whether the activity will lend the prestige of judicial office to the gain of another with whom the judge is involved or from whom the judge is receiving compensation; 
 
6. Whether the activity will create any other conflict of interest for the judge; 
 
7. Whether the activity will cause an entanglement with an entity or enterprise that appears frequently before the court; and 
 
8. Whether the activity will lack dignity or demean judicial office in any way. 

In Fla. JEAC Op. 1992-34, our Committee agreed that a felony judge may attend ceremonies during Law Enforcement Recognition Week to honor officers killed in the line of duty. The JEAC concluded that there was not an appearance of impropriety, because it did not believe that reasonable people would conclude that the judge's appearance at those ceremonies would significantly undermine public confidence in the integrity and impartiality of the judiciary.  Some Committee members suggested that the judge should not attend the ceremonies if the judge were presiding over the case involving the death of the police officer being honored.

In Fla. JEAC Op. 1995-41, our Committee agreed that it was permissible for the inquiring judge to attend a Mothers’ Against Drunk Driving (MADD) candlelight vigil. There was no advocacy involved, the judge was not participating in any way except as an attendee, and their attendance was not announced or promoted. With these particular facts, the Committee concluded that the judge’s mere attendance would not run afoul of the Canons. Three Committee members advised the inquiring judge not to attend if their presence was going to be given any type of special recognition.

Canons 5A, B and C are also applicable to this inquiry. Canon 5A provides that:

A judge shall conduct all of the judge's extra-judicial activities 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;
3. interfere with the proper performance of judicial duties.

Canon 5B provides that “[a] judge may...participate in other extrajudicial activities concerning non-legal subject, subject to the requirements of this Code."

Canon 5C(3)(b)(1) provides that a judge “shall not personally participate… in the solicitation of funds.”

The softball game is not being promoted as a fundraiser. However, one article about the event indicated proceeds from ticket sales will be divided between the teams. Nevertheless, the Commentary to Canon 5C(3)(b) states that “mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of Canon 5C(3)(b).”  See also, Fla. JEAC Op. 1998-32 (commentary to Canon 5C(3) states  mere attendance at a fundraising event is permissible so long as judge does not personally participate in the solicitation of funds or other fund-raising activities.)

This Committee concludes that the inquiring judge may attend the softball game if doing so would not cast reasonable doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties. The Committee cautions the judge to be careful while attending the game to not comment on pending criminal cases, or make remarks that could lead to disqualification.  Additionally, the inquiring judge may wish to caution the organizers of the event to not promote, advertise, or make the judge’s attendance a focal point during or after the game ends. Of course, while attending the game, Canon 2A requires the judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(Mike Frisch)