Enemy At The Gate[d Community]

The Florida Judicial Ethics Advisory Committee has issued an amended opinion on a judge's proposed advocacy

A judge may advocate pro se against creation of gated community adjacent to the judge’s property, which advocacy may include communicating with, meeting with, and attending public meetings involving legislative or executive staff and officials, posting signs in the judge’s yard, and wearing messaged apparel.

The judge may not: use the prestige of judicial office for personal gain, represent the interests of others or any group, participate in fundraising or partisan political activity, allow the judge’s advocacy to interfere with performance of judicial duties, or cause concern regarding the judge’s impartiality or independence. 

Issue

1.  Whether a judge may advocate on behalf of the judge to actively oppose creation of a gated community in a portion of the judge’s neighborhood by communicating with government staffers and county officials, attending and speaking at public meetings or hearings, wearing messaged apparel, and posting a sign in the judge’s yard opposing the gated community.

ANSWER:  Yes, as long as the judge proceeds purely pro se representing the judge and the judge’s interests only.

2.  Whether the judge’s non-judicial partner’s activities in opposition to the gated community are restricted by the Code of Judicial Conduct.

ANSWER:  No, as long as the partner does not appear to be acting indirectly as the judge’s representative and doing what the judge is prohibited from personally doing.

Reasoning

The judge is not planning to expound on the law, legal system or administration of justice when consulting with county staff and officials, nor when appearing at any public hearings; thus, that exception does not come into play.  The judge’s inquiry focuses on pro se activities on a matter involving the judge or the judge’s interests, which is specifically permitted by the second exception.  “Pro se” is defined as acting or appearing for oneself by Black’s Law Dictionary, 5th Edition, pg. 1099.  Thus, subject to compliance with other Code provisions, the judge would be relatively free to proceed individually to express and advocate for the judge’s personal concerns about the judge’s property and personal opposition to creation of a gated community when consulting with the county staffers or officials and while attending public meetings.

However, neither  of those Canon sections provides an exception that would permit the judge to advocate for the opposition group of half-acre homeowners that has interests and goals similar if not identical to the judge’s.  In the Commentary to Canon 5G, the distinction is made between a judge practicing law in the representation of others, which is prohibited, as opposed to proceeding pro se, i.e. self-representation, in legal matters which is permitted.  That Commentary continues by noting that “[a] judge may act for himself or herself in . . . matters involving appearances before or other dealing with legislative and other governmental bodies.”  Therefore, the judge should avoid acting or speaking on behalf of the opposition homeowner’s group, rather than proceeding purely pro se, as that likely falls outside what is permitted by the “pro se” exception to Canons 4C and 5C(1).  See JEAC Op. 2021-03.

There is nothing in Canon 4 or 5 that forbids the judge from pro se advocacy by utilizing a yard sign or wearing messaged apparel regarding the judge or the judge’s interests, as long as the sign or apparel does not violate any other provisions of the Code of Judicial Conduct.  Wearing certain messaged apparel while the judge is expressing opposition to the gated community could create the appearance that the inquiring judge was acting on behalf of the group rather than proceeding purely pro se; that would be ill-advised.  The JEAC has consistently declined to review or approve judicial campaign materials and we likewise will not review or approve anti-gated community yard signs or messaged apparel.

In any such pro se activities by the judge opposing the special taxing district and the gated community, Canon 1 requires that the judge must personally observe high standards of conduct and integrity.  In the interactions between the judge and others regarding this dispute, Canon 2A requires the judge “to respect and comply with the law” and to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  It is imperative that the judge’s position as a judge must not be injected into any aspect of the dispute, including communications with staff, county officials, or participation at any governmental meeting.  “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.  The Commentary to Canon 2B reminds judges not to allude to their judgeship to gain any personal advantage or deferential treatment and to avoid use of the judge’s official letterhead when conducting personal business.

Canon 5A requires judges to conduct all extra-judicial activities in a way that does not demean the judicial office, interfere with performance of judicial duties, appear to be coercive, etc.  According to the information provided, in keeping with the directives of Canon 5C(3)(b)(i), the judge has neither personally or directly participated, nor lent the prestige of the judicial office in the solicitation of funds to support the homeowners group’s opposition to the gated community.  The inquiring judge is aware of and will abide by Canon 7’s admonition to refrain from partisan political activity in seeking a resolution of this dispute.

(Mike Frisch)