FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-08
Date of Issue: March 15, 2017

ISSUES

1. May a judge serve as a “judge” for preliminary Miss America pageant competitions?

ANSWER: Yes.

2. As a corollary inquiry, the inquiring judge seeks a determination whether the Canons prohibit participation at a pageant competition by showcasing a talent, such as singing.

ANSWER: The Canons do not prohibit the inquiring judge from participation at a pageant competition by showcasing a talent, such as singing, subject to the Code’s requirement that the judge act “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

FACTS

The inquiring judge seeks guidance as to whether the Code of Judicial Conduct would permit the inquiring judge to serve as a “judge” at preliminary Miss America pageant competitions. Miss America pageant competitions provide opportunities for young women to promote their voices in culture, politics, and the community. Miss America contestants working towards college or postgraduate degrees can earn scholarship awards to help further their education.

Miss America pageant competitions are sponsored by the Miss America Organization. According to its website, the Miss America Organization is the nation’s leading provider of scholarships for young women, awarding millions annually in cash awards and in-kind tuition waivers. The Miss America Organization is an IRC 501(c)4 non-profit organization. The Miss America Organization is comprised of fifty-two licensed organizations, including all fifty states, Washington, D.C., and Puerto Rico. The inquiring judge would potentially serve as a “judge” in connection with state and local preliminary competitions by one or more of these licensed organizations. The adjudged winner of a pageant competition is awarded a scholarship and moves on to other pageant competitions.

The Miss America Foundation, Inc. is a registered IRC 501(c)(3) organization, which is a separate stand-alone foundation that supports the educational mission of the Miss America Organization of providing scholarship assistance to women, regardless of their background circumstances.

The participation of the inquiring as a “judge” in the pageant competition will not be advertised in advance of the competition, although a biography of the inquiring judge will be included in the competition program. The biography will note that the inquiring judge is a member of the judiciary. It is anticipated the program would include photograph of the judge appearing in a family photograph.

The activities of the inquiring judge would be limited to being an actual judge at the pageant, and no fundraising activities or membership solicitation would be involved in connection with service as a “judge” of pageant competitions. An admission fee will be charged to those who attend the pageant competition, which is used to offset the costs of the venue where the pageant competition is held.

 

ISSUE I -DISCUSSION

This inquiry implicates several of the Judicial Canons. Canon 5B provides: “A judge is encouraged to speak, write, lecture, teach and participate in other extrajudicial activities concerning non-legal subjects, subject to the requirements of this Code.”

In participating in “extrajudicial activities,” Canon 5A provides

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;
(5)  lead to frequent disqualification of the judge; or
(6)  appear to a reasonable person to be coercive.

Canon 2B provides in pertinent part:

A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . .

Canon 5C(3) provides:

A judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.

(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization

(i) will be engaged in proceedings that would ordinarily come before the judge, or

(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

(b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:

(i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization’s funds, but shall not personally or directly participate in the solicitation of funds, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;

(ii) shall not personally or directly participate in membership solicitation if the solicitation might reasonably be perceived as coercive;

(iii) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.

The Commentary to Canon 5A recognizes that “[c]omplete 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.”

The Canons do not prohibit inquiring judge’s service as a “judge” for Miss America preliminary pageant competitions. A judge is permitted to participate in civic and charitable activities that neither reflect adversely upon the judge’s impartiality nor interfere with the performance of judicial duties. Mere service as a “judge” of preliminary pageant competitions does not “advance the private interests of the judge or others” and is otherwise consistent with the requirements of Canons permitting involvement in charitable activities.

In JEAC Opinion 93-24, the Committee opined that a judge was permitted to act as a “judge” in a local beauty / talent pageant sponsored by a national retail clothing or department store. The facts underlying the question posed herein are significantly distinguishable from the facts underlying JEAC Opinion 93-24. Most notably, the Miss America Organization’s charitable focus on providing scholarships to young women as opposed to commercial advertising and promotional motivations of the retail clothing or department store in JEAC Opinion 93-24.

ISSUE II -DISCUSSION

In addition to those Canons noted above, this inquiry additionally implicates the provisions of Canon 2A which require that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

As noted in the commentary to Canon 2A, “[t]he prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code.” Thus, the inquiring judge must be mindful in the selection of songs not to denigrate any person or group on the basis of race, sex, religion, national origin, or otherwise or ┬áprovide any basis or give the appearance of impropriety under Canon 2 or to diminish public confidence in the integrity and impartiality of the judiciary.

A member of the Committee dissents from the advice provided herein.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 2, 2A, 2B, 5A, 5B, 5C(3), Commentary to Canon 2A, Commentary to Canon 5A.
Fla. JEAC Op. 93-24.

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

For further information, contact Judge Spencer D. Levine, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Blvd., West Palm Beach, FL 33401

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Lisa Davidson, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator