FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2013-23
Date of Issue: December 16, 2013
May a judge attend an annual event called “God and Country Day,” organized by a local church which focuses on the laws of the state and country and its foundation in Judeo-Christian values?
Is it permissible for a judge to pose for a photograph with the pastor and other elected officials, knowing that it would be published in a local newspaper?
ANSWER: Yes, unless the judge is aware or has reason to believe that the pastor intends to use the photograph to advance the private interests of the church through solicitation of members or donations.
If asked, may the judge make public religious comments from the pulpit at this event?
ANSWER: Yes, as long as the judge’s comments do not otherwise violate the Canons.
The Inquiring Judge has been invited to a church function named “God and Country Day,” which focuses on the U.S. Constitution, the laws of the state and country, and its foundation in Judeo-Christian values. Elected officials are invited to this annual event. Each year, the local newspaper photographs the attendees with the pastor and publishes it in the newspaper the following day. The Inquiring Judge asks if attending this function and posing for a photograph violates any judicial canons. Further-more, the Inquiring Judge asks whether he/she can make any religious comments from the pulpit if requested to do so by the pastor.
The Inquiring Judge would like to attend a local church’s annual celebration of an event called “God and Country Day,” to worship with the congregation, as well as other invited elected officials, and to celebrate Christian values and its relationship to all facets of the law.
It is beyond the scope of this Committee’s authority to craft a primer on the full extent of judges’ First Amendment rights, including the right to free exercise of religion. Neither are we called upon to explore the limits of what a judge may do in connection with the judge’s personal religious observances. The question has been posed as “whether incapacitating prejudice flows from religious belief.” Feminist Women’s Health Center v. Codispoti, 69 F. 3d 399 (9th Cir. 1995). The answer is generally no. In Codispoti the judge was apparently a devout Catholic but, notwithstanding the church’s stance on the abortion question, this fact alone was not sufficient to require the judge’s disqualification. It should also be noted that Canon 2C exempts religious organizations from the general proscription against “hold[ing] membership in an organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”
The Committee does believe that Canons 2B and 5A do apply to the judge’s inquiry. According to Canon 2B, a “judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment.” Canon 5A requires 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) 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.
From the information available to us it appears this event celebrates and recognizes the dedicated service local public servants have provided in the community and the state. A majority of the Committee conclude that attending this type of ceremony is permissible. Judges are encouraged to be involved in community activities. A celebration of our state laws and recognizing the hard work performed by our elected officials in a place of worship is an extrajudicial activity that is encouraged. The Commentary to Canon 5A states that a “complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. For that reason, judges are encouraged to participate in extrajudicial community activities.” A minority have expressed concerns about potential implications for the attending judge(s) should the ceremony or message focus on political or controversial legal issues that the judge would be prohibited from publicly manifesting. In such situations they believe the judge’s mere attendance may lead members of the congregation to believe that the judge, by his presence, is endorsing that prohibited position. However, the majority conclude that this precise issue is governed by Fla. JEAC Op. 96-10, which opined that a judge could attend a pro-life function as long as the judge personally was “careful not to give the appearance of adopting” the group’s agenda. That is, the focus seems to be less on what other attendees or participants in the function do than on the judge as a mere attendee.
As to the second inquiry, Canon 2B states that “a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” The Inquiring Judge advised that the local newspaper covers the church event each year. A group photograph of all invited attendees is then published in the newspaper the following day. Posing for a photograph could possibly give the appearance of lending the prestige of judicial office to advance the private interests of the church. See Fla. JEAC Op. 95-25 (judge was prohibited from making presentation to church officials concerning resignation of pastor since it appeared it could lend the prestige of office to advance private interests). Therefore, the Inquiring Judge should avoid posing for a group photograph with all the other attendees who appear at this ceremony if the judge knows or has reason to believe that the photograph is intended to be used to advance the private interests of the church through solicitation of members or donations.
As for the final inquiry, the Committee generally does not vet speech and will not render an opinion commenting on the content of speech. However, the judge can make comments at the service, so long as they are not otherwise prohibited by the Canons. Additionally, the judge should exercise particular caution about speaking in the event opinions expressed at the service by the pastor or other elected officials have been partisan in nature or on controversial legal issues that conceivably could come before the judge in some future proceeding.
Feminist Women’s Health Center v. Codispoti, 69 F. 3d 399 (9th Cir. 1995)
Fla. Code Jud. Conduct, Canons 2B, 5A
Fla. JEAC Ops. 96-10, 95-25
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.
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