FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-01
Date of Issue: January 2, 2014

ISSUE

Whether the inquiring judge may display art in the judge's judicial chambers in connection with a program under which the local government acquires art for the purpose of display in public buildings, where the judge does not conduct hearings in the chambers, but in which the judge regularly is visited  by other judges, law clerks, interns, clerks, court staff, government officials, and private guests.

ANSWER: Yes.

FACTS

The local government in a county in which the inquiring judge maintains judicial chambers has a public, governmental art-in-public- places program under which it acquires art for the purpose of display in public buildings. Government officials advised the inquiring judge that they consider the judge's chambers as qualifying for the program. While not an area open to the general public, in that the inquiring judge does not conduct hearings there, the judge's judicial chambers is a government office regularly visited by other judges, law clerks, interns, clerks, court staff, government officials, and private guests.

The local government appears as a litigant in the court over which the inquiring judge presides. The inquiring judge asks whether the Florida Code of Judicial Conduct "would prohibit or disfavor art from this program being placed in [the judge's] chambers." 

 

DISCUSSION

The Committee restricts its consideration of this inquiry to the facts provided by the inquiring judge. No information about the local government’s art-in-public-places program was provided to the Committee except that noted above. Thus, the Committee presumes from these facts that (1) the art objects are acquired by the local government and are the property of the local government – that is, they are not for sale and will not contain anything indicating they may be purchased by those observing them, and (2) the art objects will be placed in a variety of public buildings, and not merely the public buildings owned by the local government.

It is not clear from the facts provided the Committee whether the artists’ names will be displayed alongside the art objects in order to promote the market interests of the artists. In answering this inquiry, the Committee further presumes the artists’ names will not be displayed alongside the art objects, because to do so might appear to implicate Canon 2B, which provides, in pertinent part, “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others….”

Nor is it clear how the decision will be made as to what art is placed in what public space. Will the occupier of the public space, such as the judge, be given the opportunity to select which art object(s) will be displayed in the judge’s chambers or to reject an art object proposed by the local government for display in the public space? The Committee is concerned that if the judge is given the opportunity to select the art object(s) for display in the judge’s chambers, the judge may obtain preferential treatment by being granted permission to select objects which are of higher value than other objects selected for placement in the program or objects which are not available for display in other public places participating in the program. Thus, in answering this inquiry the Committee presumes that the judge will not be involved in the selection process, but will be permitted to reject any object of art which the judge believes may convey or communicate any idea, policy, philosophy or belief contrary to the provisions of the Florida Code of Judicial Conduct. For example, it is conceivable that something considered by someone as art might express or communicate a position inconsistent with the judge’s duty to perform judicial responsibilities without bias or prejudice, in contravention of Canon 3B(5), or with the Code’s provisions precluding a judge from making pledges, promises or commitments that are inconsistent with the impartial performance of the judge’s adjudicative duties, in contravention of Canon 3B(10).

Canon 5D(5) states, “A judge shall not accept…a gift, bequest, favor or loan from anyone….” Under the facts of this case noted above, the Committee does not perceive the judge’s decision to permit the use of the judge’s chambers for the display of art acquired by the local government for display in public buildings pursuant to its art-in-public-places program as tantamount to acceptance of “a gift, bequest, favor or loan from anyone.”

Canon 2 is also relevant.  It states that, "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." (emphasis supplied).  The Commentary to Canon 2 notes that "The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." (emphasis supplied).  Regarding the appearance of impropriety, the Supreme Court of Florida has said:

Judges must do all that is reasonably necessary to minimize the appearance of impropriety. They must remain cognizant of the fact that even in situations where they personally believe that their judgment would not be colored, public perception may differ.

In re: Frank, 753 So. 2d 1228, 1240 (Fla. 2000).

The Committee has also considered Canon 3B(1) of Florida’s Code of Judicial Conduct, which provides, in pertinent part, “A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.”  Canon 3E of the Code sets forth the circumstances under which disqualification is necessitated.  Canon 3E(1) of the Code states: "A judge shall disqualify himself or herself in a proceeding in which a judge's impartiality might reasonably be questioned." (emphasis supplied). The Commentary1 to Canon 3E(1) provides:

Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.

          *        *        *

A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.

The Supreme Court of Florida, in In re: Frank, supra, addressed the distinction between a duty to disclose and a duty to disqualify:

Specifically, because a judge “should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification,” it appears that the standard for disclosure is lower.  In other words, a judge should disclose information in circumstances even where disqualification may not be required.

In re: Frank, 753 So. 2d 1228, 1339 (Fla. 2000).

Under the facts of this case noted above, the Committee does not perceive the judge’s decision to permit the use of the judge’s chambers for the display of art acquired by the local government for display in public buildings pursuant to its art-in-public-places program as conduct which would require the judge’s disqualification in cases involving the local government as a participant or implicating the local government’s interests. That is, such conduct would not create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to preside in such cases with integrity and impartiality is impaired.   Further the Committee does not perceive the judge’s participation in this public, local government program to be information that the parties or their lawyers might consider relevant to the question of disqualification. Thus, disclosure would not be required, even when the local government is a participant or interested in a case before the judge.  

The Committee finds no distinction between the placement of the art object(s) in the judge’s chambers or in a courtroom in the courthouse in which the judge sits. Neither is owned by the judge, and either may be subject to viewing by members of the public under appropriate circumstances.

 

REFERENCES

In re: Frank, 753 So. 2d 1228 (Fla. 2000)
Fla. Code Jud. Conduct Canons 2, 2B, 3B(1), 3B(5), 3B(10), 3E(1), and 5D(5)

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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, 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

 

1. “The text of the Canons and Sections… is authoritative. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules.” Preamble, Fla. Code of Judicial Conduct