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VOL. 127 | NO. 92 | Thursday, May 10, 2012

Vic Fleming

Duds in the Courtroom

By Vic Fleming

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Asked to participate with other judges at a program, I was told my topic would be dress codes in court. Word must have gotten out that I once found a guy in contempt for appearing in front of me wearing a shirt with the M-F word on it. During an hour in lock-up, the guy purged himself of contempt by turning the shirt inside out.

That’s the only time I’ve found someone in contempt for a “dress code” violation. I do, however, occasionally dress someone down for their choice of attire. “Charged with DWI, why would you wear a shirt advertising malt liquor?” I might ask.

According to my research, judges may enforce reasonable “dress codes” to foster “dignity, order and decorum.” Standards may not be unduly rigid. Judges can’t dictate aesthetic preferences. Contempt is an awesome power that must never be abused.

In a 1980 case, the Alaska Supreme Court upheld a judge’s requirement that lawyers wear coats and ties in court. A Florida case was cited, wherein it was observed that “wearing … a coat and necktie in open court [is] a long honored tradition.” One Alaska justice dissented, citing a dissenter in the Florida case:

“It is not unusual in the contemporary governmental world for men of high purpose to go about their affairs without a necktie, and it can pose no threat to our judicial system to permit attorneys freedom to adopt the reasonable clothing styles of the time.”

In 1987, a judge was removed from office for several ethical infractions. The California Supreme Court labeled one of those “The Dress Code Violation.” Posted in this judge’s courtroom was a sign: “All parties and witnesses … will be properly attired. … No shorts, swim suits or bare feet allowed … .”

Before court, the judge saw a “spectator, wearing shoes, jeans and a sweatshirt that left a shoulder bare.” A bailiff told her she was inappropriately dressed and would have to leave. She declined.

Opening court, the judge then told her to leave. She refused. He held her in contempt, sentencing her to five days in jail. She was out before sundown, on a writ of habeas corpus in a higher court, which vacated the contempt order as abusive.

In conclusion, I proffer the following from McMillan v. State, a 1970 Maryland case: “… Charles I, King of England (1600-1649), refused to remove his hat before Parliament and, literally speaking, lost his head. On September 17, 1969, Olugbala-Olugbala, also known as Benjamin McMillan, refused to remove his headgear (filaas) while being arraigned … and was sentenced to jail for contempt. With Charles I, it was a matter of sovereignty; with Olugbala, … a matter of religion.”

Noting that the judge, in a sidebar, had said, “If a Jew were in here with a yarmulka on, he would remove it,” the court reversed the contempt order, finding that “the wearing of the filaas … was not disruptive of the decorum and respect to which a court is entitled.”

Bottom line: Be objective and be reasonable.

Vic Fleming is a district court judge in Little Rock, Ark., where he also teaches at the William H. Bowen School of Law. Contact him at vicfleming@att.net.

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