FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2013-22
Date of Issue: December 6, 2013

ISSUE

Whether a judge may present a “challenge coin” to jurors, court personnel or deserving citizens who have made contributions to the court or their community.

ANSWER: Yes.

FACTS

The inquiring judge would like to present a “challenge coin” to jurors, court personnel or deserving citizens who have proven themselves beneficial to the court or their community.  The coin would be given at the judge’s discretion and only as a reward for hard work and dedication to the court or community.  The coin would be produced at the judge’s own expense and would bear the judge’s name and judicial circuit, as well as the date of the judge’s investiture.  The coin would also bear the words “fiat justitia,” a Latin phrase meaning “let justice be done.”  

    
DISCUSSION

The judge’s stated desire to commend jurors, court personnel and other deserving citizens for their contributions to the court and the community through the use of challenge coins appears to be a permissible activity as long as it is done within the bounds of the Code of Judicial Conduct.

Several of the canons, as well as prior committee opinions, bear on this issue. Canon 4 of the Florida Code of Judicial Conduct provides that a judge is encouraged to engage in activities to improve the law, the legal system, and the administration of justice. Canons 4, 4B. The Commentary to Canon 4B further acknowledges that “a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice,” and encourages judges to do so, either independently or through organizations.  Commentary, Canon 4B.  Similarly, Canon 5B and the Commentary to Canon 5A both expressly encourage judges to participate in extrajudicial activities concerning non-legal subjects. 

By commending the hard work and dedication of jurors, court personnel and other deserving citizens, the Committee believes the judge will not only acknowledge but encourage those individuals, as well as others, to continue to engage in activities that have a positive impact on the law, the legal system and the administration of justice.  To the extent the judge acknowledges activities that benefit the community, the judge is engaging in extrajudicial activity which is also permitted and encouraged by the Code.       

Activities serving those laudable goals are not however without bounds. Canon 4A requires that “A judge shall conduct all of the judge’s quasi-judicial activities so that they do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) undermine the judge’s independence, integrity, or impartiality; (3) demean the judicial office; (4) interfere with the proper performance of judicial duties; [or] (5) lead to frequent disqualification of the judge . . . .”  The Commentary to Canon 4A provides further insight:

A judge is encouraged to participate in activities designed to improve the law, the legal system, and the administration of justice.  In doing so, however, it must be understood that expressions of bias or prejudice by a judge, even outside the judge’s judicial activities, may cast reasonable doubt on the judge’s capacity to act impartially as a judge and may undermine the independence and integrity of the judiciary.

Likewise, while Canon 5B of the Code expressly encourages judges to participate in extrajudicial activities, those activities are also subject to the requirements of the Code, including the same prohibitions listed in Canon 4A and the Commentary to 4A. 

Thus, in selecting individuals for recognition, particularly members of the community, the inquiring judge must be careful not to convey an impression of partiality, bias or prejudice, or make selections in a way that would undermine the independence and integrity of the judiciary.  For example, in Fla. JEAC Op. 07-18, the Committee opined that it may be inappropriate for a judge to reward juveniles for good performance while on probation. The Committee noted that a juvenile on probation may have criminal cases still pending before the court or the juvenile may commit a new offense; thus, rewarding the juvenile for performance while on probation may reflect adversely on the judge’s capacity to remain impartial at future hearings before the judge. 

Also relevant to the present inquiry are Canons 2, 2A and 2B.  Canons 2 and 2A require a judge to avoid impropriety and the appearance of impropriety in all of the judge’s activities.  Canon 2B states that “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”

Prior opinions of this Committee address the issue of whether Canon 2B prohibits letters of commendation.  In Fla. JEAC Opinion 99-5, the Committee opined that a judge may write an unsolicited letter of commendation to a newspaper to recognize social service organizations for providing social services to persons appearing before the judge.  There, the inquiring judge wished to recognize various social services groups and agencies that had provided assistance to persons appearing before the judge for problems such as health care needs, victims of domestic violence, and persons in need of food, clothing or shelter.

The Committee noted in 99-5 that it had previously approved letters of recognition or praise as long as the letter would not be used in a commercial context or in fund-raising for the organization, citing Fla. JEAC Op. 94-25 (approving publication of an article by a judge commending the efforts of local officials who cooperated in handling a particularly sensitive trial) and Fla. JEAC Op. 93-1 (approving judge writing a letter of support for the placement of a prelaw magnet program at a high school, but suggesting that any support letter should contain a disclaimer that the letter is not written for the purpose of soliciting funds).  The Committee also noted however, that it had disapproved similar letters in Fla. JEAC Ops. 95-44 and 97-16 where the judge's letter was to be used for commercial gain or it appeared that the endorsement would be used in fund-raising. 

Thus, weighing concerns about lending the prestige of judicial office, the Committee has historically opined that judges may commend individuals and organizations so long as the commendations are not to be used for commercial gain or in fund-raising.

Here, the use of a challenge coin to commend individuals seems to be a much more private manner of recognition than writing a letter to a newspaper or publishing an article, and seems unlikely to have the potential to be used for commercial gain or in fund-raising.  Consistent with our prior opinions, the Committee believes commending service to the court or the community with a challenge coin falls within the scope of permissible activity.

Further, with respect to acknowledging the service of jurors, in Fla. JEAC Op. 89-13, the Committee addressed the question of whether it is proper for the presiding judge in any jury trial to informally address the jury after court is adjourned for the purpose of thanking the jurors for their service and answering their questions.  In response, a majority of the Committee's members opined that the trial judge could appropriately confine comments to thanking the jurors and commending them for fulfilling their civic responsibility. 

Here, the Committee does not believe that recognizing juror service with a challenge coin goes significantly beyond a verbal “thank you,” but also provides the juror with a token keepsake to remember their service. The Committee does not believe the Code prohibits this practice. 

In reaching its conclusion, the Committee acknowledges that the use of challenge coins varies depending on the organization. Although such coins have been used for many years in the military context to reward behavior and enhance morale, they have also been used by some organizations as proof of membership or to allow admission.  Despite this association with membership or admission to a private club or organization, the Committee believes it unlikely that a recipient of a challenge coin bearing the judge’s name could credibly use the coin to convey to others that they are in a special position to influence the judge. 

Nevertheless, the judge should exercise caution so as not to run afoul of the Code. The Committee recommends that the judge be mindful of the Code when selecting individuals to commend.  For example, the judge should consider whether the selection of certain individuals  or a group of individuals for recognition might reasonably be considered inappropriate political activity prohibited by Canon 7, or presents issues of impartiality, lending the prestige of the judicial office, or allowing others to convey the impression that they are in a special position to influence the judge. See Fla. JEAC Op. 94-25 (several committee members suggested that it would be more appropriate to delete laudatory remarks concerning the lawyers in an article to be published, or simply refer to them as trial counsel).

In conclusion, in answering this question in the affirmative, the majority of the Committee advises the judge to avoid presenting challenge coins in a manner that may reasonably be perceived to be a violation of the Code. The Committee also recommends that the judge remain vigilant to ensure that recipients of the challenge coin are not using it in a manner that would reflect poorly on the judge or that would cause ethical concerns for the judge, and in the event such information comes to the judge’s attention, the judge should re-assess the appropriateness of continuing this activity. 

A minority of the Committee is of the opinion that the inclusion of the judge’s name and investiture date would be perceived or recognized as self-promotion and be demeaning to the judicial office. The spirit of the Canons would be best served by the deletion of the name and investiture date from the coins. The minority, otherwise, agrees with the rest of this opinion.

 

REFERENCES

Fla. Code Jud. Conduct Canons 2, 2A, 2B, 4, 4A, 4B, 5B & Commentary to Canons 4B and 5A.

Fla. JEAC Ops. 07-18, 99-5, 97-16, 95-44, 94-25, 93-1, 89-13.

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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 to 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 Judge Roberto Arias, Chair, Judicial Ethics Advisory Committee, Duval County Courthouse, 501 West Adams Street, Room 7180, Jacksonville, Florida 32202-4603.

Participating Members:
Judge Roberto Arias, Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michael Raiden, Judge Richard R. Townsend, Judge Dorothy L. Vaccaro. 


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