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"Adornments on Judicial Robes and 'Safe Place' Signs at Courthouses"

An interesting Arizona Supreme Court Judicial Ethics Advisory Committee opinion.

From Opinion 18-03, released in June, but just posted on Westlaw in the last day or so:

ISSUES

An Arizona court has established a working group to explore the extent to which the needs and concerns of lesbian, gay, bisexual, transgender, and questioning (LGBTQ) youth are being addressed in the child welfare and juvenile justice systems. The working group believes that one barrier to LGBTQ youth seeking services is their reticence to trust those involved in the systems, including attorneys, judges, guardians ad litem, court-appointed special advocates, and probation officers. The working group suggests that trust may be gained by reassuring LGBTQ youth that they are in a safe place and dealing with safe people, which may be facilitated by displaying certain symbols or messages.

A judge inquires whether judicial officers in the juvenile court may wear small rainbow-flag pins (or similar symbols) on their robes and post "safe place" placards on courtroom doors that convey acceptance to LGBTQ youth. In addressing these specific inquiries, the Judicial Ethics Advisory Committee deems it appropriate to discuss more broadly the recurring issue of adornments on judicial robes.

ANSWERS

Judicial robes should be free of adornments.

Courts may display signs stating that harassment, bias, or prejudice on the basis of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or affiliation is strictly prohibited. Courts and judicial officers should not, however, single out any particular category of citizens in offering such assurances.

DISCUSSION

I. Applicable Code Provisions

Several provisions of the Arizona Code of Judicial Conduct ("Code") are relevant to the committee's analysis, including:

"Rule 1.2. Promoting Confidence in the Judiciary

"A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

"Rule 1.3. Avoiding Abuse of the Prestige of Judicial Office

"A judge shall not abuse the prestige of judicial office to advance the personal or economic interest of the judge or others, or allow others to do so.

"Rule 2.3. Bias, Prejudice, and Harassment

"(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

"(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so.

"(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

"(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

"Rule 2.4. External Influences on Judicial Conduct

"(A) A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

"(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment.

"(C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge."

II. Analysis

"An independent, fair and impartial judiciary is indispensable to our system of justice." Code, Preamble. Judicial officers must "act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary," and they must avoid both impropriety and the appearance of impropriety. Rule 1.2.

A. Judicial Robes

The judicial robe powerfully and unmistakably invokes the prestige of judicial office. Using that prestige to express support for any particular message, organization, cause, or category of citizens necessarily excludes a large universe of equally worthy messages, organizations, causes, and citizens who might feel reassured upon encountering a judge displaying symbols meaningful to them. See Rule 2.4, cmt ("An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge's friends or family.").

In its criminal justice standards, the American Bar Association discusses the symbolism behind the judicial robe, stating:

"The black garb reminds all who look at the judge — and it reminds the judge, too — that justice is the prime concern of the court. It also adds dignity to the courtroom. Indeed, the robe emphasizes the democratic ideal of impartial and equal treatment of all persons who come before the court by reminding the judge and those who view the judge in the courtroom that the judge serves as an agent of justice."

ABA Standards for Criminal Justice 6-1.4 (3rd ed. 2000).

Another commentator has observed that, by donning unadorned black robes, judges "make a visual promise that they're leaving personal idiosyncrasies, prejudices and desires outside the courtroom." Robin Givhan, Trial by Attire: Supreme Court Look Should Go with Everything We Believe In, Washington Post, October 9, 2010.

"The bland robes serve as a visual reminder of the high-minded philosophy underpinning our judicial system: Under the law, everyone is equal. Gender, religion, race and economic class don't matter ....

"It sends a singularly powerful message: I am here to uphold the law, without prejudice. That message should stand alone. It does not need to be accessorized."

Research discloses only one published judicial ethics opinion of relevance. See Michigan Judicial Ethics Opinion JI-68. That opinion addressed the propriety of a judge wearing an "AIDS awareness ribbon." It concluded that judicial officers should not wear symbols on judicial robes that suggest support for or opposition to any political, social, charitable, or civic cause.

Additionally, one state has a rule that specifically requires judges to wear black robes "with no embellishment." See Florida Rule of Judicial Administration 2.340. In promulgating that rule, the Florida Supreme Court explained that uniformity in judicial attire enhances public trust and confidence and observed that citizens "should not have to question whether equal justice is being dispensed" based on the appearance of a judge's robe.

Although Arizona has no comparable court rule, the committee reaches the same conclusion under the Code. Promoting confidence in the independence, integrity, and impartiality of the judiciary requires that judicial robes be free of symbols, pins, or messages, instead conveying the singular and uniform message that a judge's fidelity is to the law and to equal justice for all who come before the court. No matter how worthy the cause suggested by items such as a rainbow pin, domestic violence awareness ribbon, cross, or military veteran's insignia, the judicial robe should not serve as a platform for conveying messages or for communicating a judge's personal beliefs or extrajudicial activities.

B. Signs or Symbols in Courthouses

Concerns regarding impartiality and avoiding the appearance of bias likewise control the question about displaying "safe place" signs or symbols in court facilities. Courthouses should be safe venues for everyone, and they should also be perceived in that fashion.

Rule 2.3 prohibits bias, prejudice, and harassment on the basis of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation. Rule 2.3's mandate extends to judges, court staff, lawyers, and "others subject to the judge's direction and control."

Judges may communicate the judiciary's commitment to prohibiting bias, prejudice, and harassment by posting signs or placards in courthouses that communicate Rule 2.3's message. But for the reasons outlined above, signs or placards should not single out a subset of the groups enumerated in Rule 2.3 when offering such assurances.

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  • damikesc||

    Displaying certain symbols and messagss is easily construed as AGREEING with them. Which is a problem for a judge, id assume.

  • Michael Cook||

    Would wearing a crucifix or other religious symbol be seen as OK or not, and which viewer would be the judge of that?

  • Michael Cook||

    Way back in my home town there was a local judge who wore a 30-something degree masonic pin on his black robe. I remember that being discussed in our local paper in about 1959. . .

  • Michael Cook||

    Not at all on the same level of course, but I got in a pissing contest with my superiors for wearing an unauthorized adornment on my blue tactical urban warfare uniform in the courtroom. It was my 25 gallon blood donation award.

  • Rossami||

    Per the analysis above, clearly not OK. As to who should be the judge, I would assume the same Arizona Supreme Court Judicial Ethics Advisory Committee as issued this opinion.

    Nothing would stop you from wearing such an emblem under your robes. But their argument against overt display is pretty clear and compelling.

  • Beldar||

    The first case I ever tried first-chair in Texas state district court was in 1982 before the late Hon. Jerry McAfee, who had a peculiar sense of style. By then, he'd already been reprimanded by the Texas Commission on Judicial Conduct for his practice of requiring lawyers to refer to one another in court with the honorific "Doctor." It caused a lot of juror confusion, especially when there was a treating physician on the witness stand. (Judge McAfee's
    reasoning was that we all have doctorate level JD degrees; he insisted that he was actually promoting, rather than detracting from, public respect for the bench and bar.) He also took heat, from the Commission and the Harris County Democratic Party (which had sponsored his candidacy),for wearing crimson robes, which he said harkened back to the robes worn by the judges in the Roman Republic. Despite these idiosyncrasies, he was far from the worst judge before whom I've ever appeared, and I won my case with the jury.

  • Naaman Brown||

    Red robes? "I didn't expect the Spanish Inquisition!"

    (recovery) "Unscrupulous Indicter of Ham Sandwiches" and "Sleezy Chaser of Ambulances" might be accurate (in some cases) but I'd prefer "the prosecution" and "the defense".

  • FlameCCT||

    LMAO!!! I'm going to acquire this one!
    "Unscrupulous Indicter of Ham Sandwiches" and "Sleezy Chaser of Ambulances" might be accurate (in some cases) but I'd prefer "the prosecution" and "the defense".

    IANAL but I am an Esquire!

  • Eddy||

    Is it possible the local judges knew this request was wrong, but wanted someone else to be the bearer of bad news to the activists? "Look, the judicial ethics commission voted against your wonderful idea, we're so sorry."

  • apedad||

    I think a judge's reputation is a better indicator to vulnerable people that a simple pin.

    Is the judge fair? Treats everyone professionally and equally? Is sensitive to individual circumstances?

    Also for this: "Courts and judicial officers should not, however, single out any particular category of citizens in offering such assurances."

    Courts and judicial officers should, however, provide such assurances when asked.

  • Junkie||

    Since things tend to go to extreme examples, should a judge be allowed to wear a swastika pin as long as there isn't evidence that he's discriminating?

  • Ed Grinberg||

    re: "...sensitive to individual circumstances..."
    I thought Lady Justice was supposed to be blind.

  • EscherEnigma||

    It is. Evidence shows it isn't. Which is a large part of the problem.

  • EscherEnigma||

    Eh, the inquiry is about kids. Even in the best case scenarios, kids aren't going to do that kind of research on a judge. And seeing as we're specifically talking about kids dealing with child services of juvvie, the ability to do research is also called into question.

    Easier then researching an individual judge, however, is the fact that LGBT kids often face disproportionate punishments in such courts compared to their straight peers for similar offenses.

    So kids aren't going to be able to reasonably find that the judge is fair based on past history, but will be able to find that the justice system as a whole isn't. I'm not sure "more research on the kid's part" is the right answer here.

    That said, the pins were never going to be a workable idea. But the problem is real.

  • DWB||

    Talk about wearing your biases on your sleeve ... er ... robe!

  • nonzenze||

    Is acceptance of LGBT folks really congruent with bias?

    I don't really care one way or another about pins, but I can't see this particular rainbow pin as exhibiting any kind of bias.

  • DWB||

    Define "acceptance."

    Accept their existence?

    That they have rights?

    Complete acquiescence to the current political demands of the day?

    10 years ago the Vagina Monologues were edgy feminist and heralded -- today they are sexist because "every woman does not have a vagina."

  • nonzenze||

    I don't see that you have to acquiesce or even agree with LGBT folks to be accepting.

  • DWB||

    Detention of "acceptance??????"

  • DWB||

    *definition

  • Ed Grinberg||

    nonzenze said: "...I can't see this particular rainbow pin as exhibiting any kind of bias."
    It would create an appearance of impartiality (see the Ethics Committee's opinion above)

  • Ed Grinberg||

    make that "appearance of partiality"

  • nonzenze||

    Well, I support the Ethics Committee's conclusion here out of general prudence and line-drawing reasons.

    So if you are trying to quote their result here when I said their reasoning doesn't make sense, ¯\_(ツ)_/¯

  • Tall Paul||

    The fact that someone even asked this question is, by itself, quite shocking. It just goes to show how many people are supportive of explicitly politicizing the judiciary. Perhaps someone should suggest that before authorizing judges to show their political leanings, we experiment with the concept by encouraging NBA and NFL refs to wear buttons and caps showing the logos of their favorite sports teams.

  • FlameCCT||

    Good idea although the NFL already ensures that refs are not allowed to officiate games that involve their preferred team. Although it is nice having his family sitting in the two rows in front of us, we're in row 3.

  • AmosArch||

    Can they also wear crosses to make the christians feel safer?

  • EscherEnigma||

    That's what the 10 Commandments monument outside was for.

  • Michael Cook||

    I was merely being chatty earlier, but in America's workaday courtrooms the lower bench personnel also become flash points because they interact so directly with a lot of (1) lawyers and (2) defendants, who are often agitated while the clerk tries to explain why they need to sign something.

    Obviously employees like this can get a lot of scrutiny about any cues they display as to political or social issue sympathies, which may be expressed in colored ribbons or other subtle displays, which are often quite transitory as methods of social communication in today's culture of the latest thing.

  • TheAmazingEmu||

    What about a rainbow bowtie?

  • Ridgeway||

    Those black robes are awfully plain. I suggest that all judges be required to wear a minimum of 30 pieces of flair on their robes. And if they are not satisfied with the bare minimum, they could wear more.

  • branford||

    Nah, judges should just wear sponsorship patches like race car drivers.

  • Ridgeway||

    That would only be for panel or en banc hearings

  • EscherEnigma||

    In places where judges are elected positions, sure. The patches match the size of the donation to their re-election campaign.

    I'd also like this idea for politicians.

  • Jeff Walden||

    Chief Justice Rehnquist, call your off...oh. :-)

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