FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-13 (Election)
Date of Issue: May 17, 2012

ISSUE

Whether a judicial candidate may wear jewelry or apparel depicting an elephant or donkey.

ANSWER: If a reasonable person objectively viewing the jewelry or apparel would conclude that the judicial candidate is “commenting on the candidate’s affiliation with [a] political party” or is engaging in “conduct that suggests or appears to suggest support of . . . a political party,” then no.

FACTS

A judicial candidate has inquired whether she can wear what she describes as “non-political elephant and/or donkey jewelry and/or apparel” in public during her campaign.  The candidate states that she regularly wore such jewelry before becoming a judicial candidate.  According to the candidate, “the GOP elephant and the Democratic donkey are very specific and not all elephants and donkeys represent a political party.”  The candidate has expressed to the committee her view that it would be a violation of her “personal rights and freedoms to restrict what a judicial candidate can and cannot wear.”

    
DISCUSSION

Canon 7C(3) of the Code of Judicial Conduct states, in pertinent part, that a judicial candidate attending a political party function “should refrain from commenting on the candidate’s affiliation with any political party or other candidate” and “must avoid conduct that suggests or appears to suggest support of or opposition to a political party.”  Although Canon 7C(3) prohibits such comments and conduct in the context of attending a political party function, the committee concludes that Canon 7 prohibits such comments and conduct outside of a political party function as well. See Canon 7A(3)(b) (“A candidate for a judicial office . . . shall . . . act in a manner consistent with the impartiality . . . and independence of the judiciary.”); JEAC Op. 06-21 (“Both Canon 7 . . . and Section 105.071, Florida Statutes, unequivocally prohibit judicial candidates . . . from becoming involved in partisan politics.”); JEAC Op. 04-09 (“The purpose of [Canon 7] is to prevent interjection of partisan politics into a judicial race.”).

It is commonly known that the elephant and the donkey traditionally have been associated as logos for the Republican Party and Democratic Party, respectively.  Although the inquiring judicial candidate has described her jewelry and/or apparel as “non-political” in style and that “the GOP elephant and the Democratic donkey are very specific” in style, her subjective view of these matters is not the deciding factor.  Rather, the deciding factor is whether a reasonable person objectively viewing the candidate’s jewelry or apparel would conclude that the candidate is “commenting on the candidate’s affiliation with [a] political party” or is engaging in “conduct that suggests or appears to suggest support of . . . a political party.”  If a reasonable person would conclude that the candidate is making such comment or is engaging in such conduct, then the candidate will have violated Canon 7.  If a reasonable person would conclude that the candidate is not making such comment and is not engaging in such conduct, then the candidate will not have violated Canon 7.

Thus, the committee does not opine that the wearing of jewelry or apparel depicting an elephant or donkey automatically results in a violation of Canon 7.  Rather, we caution the inquiring judicial candidate that the wearing of such jewelry or apparel could, but not necessarily would, result in a violation of Canon 7 depending on the reasonable person’s objective view of the wearing of such jewelry or apparel.

Our opinion today is consistent with a long line of previous opinions which serve to caution judicial candidates to avoid conduct which suggests, or appears to suggest, the candidate’s affiliation with, or support of, a political party.  See In re Angel, 867 So. 2d 379 (Fla. 2004) (commanding a judge to appear for a public reprimand where, among other things, the judge, when asked about his party affiliation, identified himself as a member of a party and thus held himself out as a member of a party); In re Alley, 699 So. 2d 1369 (Fla. 1997) (commanding a judge to appear for a public reprimand where, among other things, the judge’s campaign mailer noted the party affiliation of the governor who appointed her opponent); JEAC Op. 02-13  (a judicial candidate may not “privately” disclose his or her political affiliation if asked); JEAC Op. 00-29 (a judicial candidate cannot advertise a political party’s endorsement because such advertising is tantamount to advertising oneself as a member of that party); JEAC Op. 96-21 (a judicial candidate may not respond to a political party’s questionnaire by listing the candidate’s extensive partisan activities); JEAC Op. 90-16 (a judicial candidate may not respond to the question “What political party are you registered with?”).  But see JEAC Op. 06-21 (a judicial candidate may accept and advertise an endorsement from an elected partisan official acting in the official’s individual capacity, provided the support is not from the official’s political party, the official is not also campaigning for re-election, the partisan aspects of the official’s position are not mentioned, and the content of the advertising does not otherwise violate the Code).

While the committee respects the candidate’s concern about a violation of her “personal rights and freedoms,” i.e., freedom of speech, Canon 7 obviously is a recognized limited restriction on the freedom of speech.  See, e.g., In re Kinsey, 842 So. 2d 77, 87 (Fla. 2003) (the restraints of Canon 7’s “pledges and promises” clause “are narrowly tailored to protect the state’s compelling interests without unnecessarily prohibiting protected speech”).

    

 

REFERENCES

In re Angel, 867 So. 2d 379 (Fla. 2004); In re Kinsey, 842 So. 2d 77 (Fla. 2003); In re Alley, 699 So. 2d 1369 (Fla. 1997).

Fla. Code Jud. Conduct, Canons 7A(3)(b), 7C(3).

Fla. JEAC Ops. 06-21, 04-09, 02-13, 00-29, 96-21, 90-16.

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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 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 by 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 the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401-6161.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Jose′ Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator