Monday, March 30, 2015

The Code of Judicial Conduct and Scouting

The conduct of Judges in Florida are bound by the Florida Code of Judicial Conduct. By its terms, the Code "applies to justices of the Supreme Court and judges of the District Courts of Appeal, Circuit Courts and County Courts." The Judges of Compensation Claims (JCC) are not part of the Florida Judiciary. We are administrative judges in the executive branch. The Office of Judges of Compensation Claims is not a "court," though some insist on referring to the OJCC as a court.  

The Code of Judicial Conduct applies to JCCs for the same reason that answers virtually every question about Florida's workers' compensation adjudication process, because the statue says so. Specifically, Fla. Stat. §440.442 says that the JCCs shall abide by the Code of Judicial Conduct, as adopted by the Florida Supreme Court. 

Lately, the Code of Judicial Conduct has been in the news. It is easy to say "the Code," but each state has its own Code. So there is not really any "the Code" unless you are referencing some specific jurisdictions provisions on judicial behavior. 

But, as a general reference "the Code" has been in the news lately following actions regarding the Boy Scouts of America, and a Federal lawsuit in California. Codes of Judicial Conduct address topics like discrimination. For example, the Florida Code, in Canon 2c, provides

A judge should not hold membership in an organization that practices invidious discrimination on the basis of race, sex, religion, or national origin. Membership in a fraternal, sororal, religious, or ethnic heritage organization shall not be deemed to be a violation of this provision.

That Code was adopted by the Florida Supreme Court. California's Supreme Court has likewise adopted a Code of Judicial Conduct. Canon 2c of the California Code is similar, but worded somewhat differently:

A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (Emphasis added).

The California Code is broader than Florida's. That there are similarities is not surprising. The Code process includes advocacy by the American Bar Association (ABA), which has published its Model Code of Judicial Conduct. As a voluntary association, the ABA cannot dictate what laws or codes say, but it publishes this "model" as a suggestion of what it believes the states should adopt. The language of the Model Code, Canon 3, Rule 3.6 is identical to California's Canon 2c (above).

A recent story on says that "forty-seven states ban judges from belonging to groups that discriminate." Up to that point, Florida and California are in the same category. The story then addresses the distinctions, describing that "22 of those" also ban "membership in groups that discriminate based on sexual orientation."

This was in the news in 2014 because of the Boy Scouts of America. The Scouts had a policy the precluded membership of "gay" individuals. In May 2013, NBC News announced that the Scouts lifted the ban regarding youth members, but maintained the ban on "gay" adult leader membership. 

For historical context, In 2000, the United State Supreme Court was asked to consider the Scouts' ban on membership of homosexual adult leaders. In Boy Scouts of America v. Dale, a leader challenged the ban, alleging it "violated the state (New Jersey's) statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation." Eventually, the New Jersey Supreme Court concluded that Dale was correct.

The United States Supreme Court reviewed that conclusion and considered the competing rights on the two sides of the question. The Court concluded that "applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scout's First Amendment right of expressive association." 

The recent Boy Scout membership change compromise did not fully satisfy either side of the scouting membership debate. Some threatened to "pull their sponsorship of packs and troops" or to "take their boys out of Scouting," a negative reaction to the admission of youth. On the other side of the debate, "activists" complained the "policy change doesn't go far enough because gay adults still wouldn't be allowed to participate."

According to the 2014 article, California has historically recognized an exception to their Canon 2c to allow judicial participation in Scouting. Thus, recognizing that the Scouts discriminated, they allowed judicial volunteerism nonetheless. The article reports that accommodation began to change last year when the "ethics committee of the State Supreme Court has unanimously recommended a total ban on state judges volunteering for Scouts." The article notes that Disney had moved more rapidly, banning its employees from using "official volunteer time to work for the Scouts."

The California Supreme Court acted on the committee recommendation early in 2015. NBC News reported that the court voted unanimously to withdraw the historical "exception for nonprofit youth organizations" that had existed since 1996 when the court banned participation with "groups that discriminate on the basis of sexual orientation."

Thus, it appears that the Boy Scouts are within their rights under Dale to ban membership by adult volunteer homosexuals. But, participation by California Judges is precluded by their Code. Some may question the ban on judges serving as adult leaders. A Federal Judge quoted in the 2014 Breitbart article explained:

As it stands now, an out gay judge would not be allowed by the Boy Scouts of America to be an adult leader. A private country club that does not let Jews, Catholics, or African Americans into their club obviously chooses to discriminate, and they are in their rights to do so, as long as they are not subsidized by public funds. But, judges cannot join these organizations, and they shouldn’t. It’s the appearance of bias that is the problem.

California's Code, along with reportedly 21 others, according to, bans judicial membership in organizations that discriminate based on sexual orientation. Florida's Code currently does not  contain that specific language. The question might seemingly remain open in Florida. However, the Federal judge's reference above to an "appearance" may give some pause. The Florida Code does otherwise reference the "appearance of impropriety." 

In Canon 2a, the Florida Code says:

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

The Code includes explanations of the Canons, in "comments" essentially to provide guidance on what these sections mean. The Comment to Florida Canon 2a says: 

The 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. 

The comment continues 

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.

So the question that will be debated is whether Florida Judges may continue to serve as volunteers in the Boy Scouts. There may be argument that the specific language of Canon 2c does not preclude such participation, as the corresponding California Canon does. There may be argument that the broader "appearance" language of Canon 2a nonetheless precludes judicial participation. And, that these two provisions seem to apply to the analysis is not to say that the debate would necessarily be limited to these two provisions, it may be broader still. 

What is clear today, has been clear however. Judges must be conscious about organizations before they join. The Code of Judicial Conduct is in place for a reason, and was statutorily applied to JCCs for a reason. Whether this debate will become news in Florida or not remains to be seen, but it is an interesting illustration of the conflicts between freedom of association and other rights and privileges. 

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