April 8, 1996
The Honorable Alan D. Epley
Municipal Judge of Eureka Springs
Post Office Drawer 470
Eureka Springs, Arkansas 72632
Re: Advisory Opinion # 96-03
Dear Judge Epley:
In your request for an opinion dated February 29, 1996, you stated
that you are the Municipal Judge of the City of Eureka Springs, and as a part time
judicial officer, also practice law as a member of the firm of Epley, Epley & France,
LTD. You stated that the owner of a local restaurant has commissioned an artist to paint a
mural on one of the walls of the restaurant using the context, style, and theme of
Rembrandt's "The Night Watch" but replacing the faces of the people depicted in
Rembrandt's painting with those of local citizens. The restaurant owner has requested your
permission that a likeness of your face may be included in this mural. Your name will not
appear and there will be no other identification of you or the other faces. You will not
be paid, nor are you paying to be included.
You are a part-time judicial officer as defined by the Arkansas Code
of Judicial Conduct. However, we have not found, nor have you suggested, that any of the
exemptions for part-time judicial officers apply in this matter.
You have cited Canon 2B which states, in part, "A judge shall
not lend the prestige of judicial office to advance the private interest of the judge or
others"; and Canon 4A(2) which states that a judge shall conduct all of the judge's
extra-judicial activities so that they do not "demean the judicial office". We
have studied the opinions from other jurisdictions and have found little guidance on this
matter. If the artist strictly followed the depictions and theme of "The Sortie of
Captain Banning Cocq's Company" known as "The Night Watch" and placed a
likeness of your face on one of the figures, with or without your permission, there is
probably little recourse you, as a public figure, would have since there would be no
depiction of improper or immoral activity or lewdness. The newspapers and other
publications are replete with very uncomplimentary likenesses of judges and there is very
little the judicial system can do about it.
After observing "The Night Watch" we cannot see that as a
practical matter your face on any of those figures, strictly following the format of the
original, would demean the judicial office or otherwise violate the Code. Judges should
not be hermetically sealed away from the communities they reside in and it is a natural
consequence of their positions that they will be the subjects of publicity.
It is our opinion that under these circumstances that the placing of
the likeness of your face on the mural as described will not be in violation of the
Arkansas Code of Judicial Conduct.
For the Committee
Steele Hays and Howard W. Brill concur.