Friday, May 18, 2012

Elephants, Donkeys And Judges

Another opinion from the Florida Judicial Ethics Advisory Committee:

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.

Because

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”).

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/05/another-opinion-from-the-florida-judicial-ethics-advisory-committee.html

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