The Volokh Conspiracy
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Judge Admonished for Ad Which Said He "Got Into Law in Part to Advocate for Marginalized Communities"
The ad was an ad for a college that he had attended, though the Washington Commission on Judicial Conduct concluded that it could also be reasonably viewed as a campaign ad.
From In re David S. Keenan, decided Feb. 5 by the Washington Commission on Judicial Conduct but just posted on Westlaw (some paragraph breaks and numbering deleted); the opinion is signed by members Ruth Reukauf, Robert Alsdorf, Ramon Alvarez, Wanda Briggs, Kristian Hedine, Rich Melnick, and Michael Tate:
At all times pertinent hereto, Judge Keenan was a Superior Court Judge [in the civil department] for King County, Washington….
Judge Keenan had significant disadvantages as a child that he was able to overcome. North Seattle College played a large role in helping him overcome those disadvantages. Judge Keenan dropped out of high school after three long-term suspensions from public school. He received encouragement to get his General Educational Development credential (GED) from North Seattle College. He has multiple degrees from the college and has a strong allegiance to the school….
In July 2019, after Judge Keenan delivered a commencement speech for the college, a staff member asked Judge Keenan to appear in bus ads for the college. He agreed to appear in an ad promoting the college. He knew the ad would appear on buses. In part, Judge Keenan was motivated to reach non-traditional applicants to enter the pipeline to law school. Judge Keenan knew the ad was part of a student recruitment campaign aimed at increasing enrollment. He knew that increased enrollment would economically benefit the college….
{Judge Keenan has volunteered and continues to volunteer his time with a number of organizations that promote access to justice, diversity, and equality in the law.} In August 2019, the ad ran on buses in King County, with the following text: "A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David's changing the world. He started at North." The ad included a photo of Judge Keenan.
The language of the ad can reasonably be read to express a preference or commitment in favor of marginalized communities. Judge Keenan admitted the ad could confuse the public into thinking that he, as a judge, advocated for marginalized communities.
At the time the ad ran, Judge Keenan was not actively running for office. It was not an election cycle for his position. [But t]he ads could be viewed by a reasonable person as campaign ads for Judge Keenan. The ads provided Judge Keenan with face and name recognition to the public in the same jurisdiction where he runs for office….
The Commission concluded this violated the Rules of Judicial Conduct, and merited a public admonishment as a sanction:
By allowing … the bus ad, Judge Keenan [violated Rule 1.2 because he] neither promoted public confidence in the impartiality of the judiciary, nor avoided the appearance of impropriety. Litigants come from all walks of life. Litigants comprise many diverse groups and people with different points of view. Litigants can be natural persons or artificial persons, e.g. corporations.
The ad in which Judge Keenan appeared does not promote confidence in the judiciary. It has the appearance of impropriety. The language of the ad reasonably can be read to suggest that Judge Keenan has a leaning, or preference, and would advocate accordingly for marginalized communities. He is "changing the world." A reasonable reader could also infer the same message from this ad. [The ad] {could indicate a predisposed bias by Judge Keenan in favor of members from marginalized communities. People who are not from those communities could reasonably be concerned about being treated unfairly by Judge Keenan.}
Such an interpretation of the ad is reasonable. In a series of emails, Judge Keenan admitted that the ad's language could cause confusion. "Some of my colleagues alerted me that they think, among other things, that the language about advocating for marginalized communities could confuse the public, leading them to think that I'm advocating as a judge, which is prohibited. Judges have to be neutral. I know what the language means, i.e. that I got into law to advocate, but given that the ad identifies me as a judge, I can see where some might get confused."
This decision is in accord with Ethics Advisory Opinion 96-16, which opined that a judge could attend "A Day of Remembrance" ceremony in honor of domestic violence survivors. But the opinion cautioned that "his or her mannerisms, actions or speech should not cast doubt upon the judicial officer's impartiality to decide any issue that may come before them. The judicial officer, therefore, should not act as an advocate or in any manner indicate a predisposition as to how he or she might rule in a domestic violence case." …
In arriving at our conclusion, we considered the impact of the ad on the viewer by substituting other groups for "marginalized communities" such as "divorced fathers," "victims," "those accused of sex offenses," and "landlords." Substituting these other groups in the ad illustrates the likely impact of the ad's language on public perception of a judge's conduct of court proceedings. If the ad Judge Keenan approved is acceptable, then it must also be acceptable for another judge to be in an ad that says the judge got into the law, in part, to advocate for "divorced fathers," or "those accused of sex offenses," or "crime victims," or "landlords," and then he went to North Seattle College, and now, he is changing the world.
Our legal system is an adversarial one. All sides want fairness from the judges. They also want the appearance of fairness. Based on the ad, a litigant who appeared in Judge Keenan's court against a member of a marginalized community could reasonably have concerns about being at a disadvantage before this judge. Judge Keenan admitted as much. The appearance of lacking impartiality is evident. The ad does not promote confidence in the judiciary.
Although we applaud Judge Keenan's work in the areas of diversity, racial equality, access to justice, and fairness, Judge Keenan's appearance in the ad, along with the accompanying language, clearly violates the prohibition against the appearance of impropriety.
The Commission also concluded Judge Keenan violated Rule 1.3, "A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others"—here, of the college—"or allow others to do so"; the Commission concluded that an earlier ethics advisory opinion, which allowed a judge to "appear in a law school video that would be sent to prospective law students" was "clearly limited to law schools." "The judicial officer may contribute to the improvement of the legal system and the administration of justice by assisting law schools in recruiting the most qualified individuals into the legal profession." "The opinion is not a carte blanche invitation for judicial officers to assist all schools or all causes."
One member of the commission, Mustafa Mohamedali, concurred but wrote "to express my deep regret that the Constitution and the Commission's rules require that we must impose discipline," because he viewed Judge Keenan's actions as an unintentional violation. But he added, "I acknowledge that I cannot make an exception for violations that are, in my opinion, motivated by a just cause, because another person in my position on this Commission might well have a different value system, and we must enforce the Code consistently."
Another member, Sherry Appleton (joined on this point by member Lin-Marie Nacht), dissented in part, reasoning that the ad wouldn't appear to be a campaign ad: "The ad did not run during the judge's election cycle, and it said nothing about voting for or electing the judge…. It clearly is an ad promoting North Seattle College, however, using the judge's status as judge as part of the ad." She added:
My background is in public service in the legislative branch, and I applaud and admire Judge Keenan's intention to promote people to consider a career as a judge who, like himself, are from non-traditional, disadvantaged backgrounds. I, myself, am an advocate for disadvantaged and marginalized communities, and it distresses me to be part of a body sanctioning a judge for doing something I find so admirable and necessary.
As a member of the Commission, though, I know that I have to consider whether a judge doing the same thing for a cause I do not agree with would be a Code violation, because the result must be the same whether I agree with the judge's intention or not. I wholeheartedly agree with the judge's intention to inspire and promote people from marginalized communities to aspire to leadership positions in all aspects of our democracy. I also understand that a judge's intent is not relevant to whether the judge's actions violated the Code, though it should have a bearing on what the judge's sanction is.
Everyone would like to have a judge in their advertisement to serve the greater good, but we do not all agree on what the greater good is. If it is all right under the Code for Judge Keenan to be in this ad, then it has to be all right for another judge, with different views, to be in an ad that would promote a very different cause.
She also noted that she would have preferred "a private cautionary letter" as a sanction, but acknowledged that such a sanction wasn't legally available.
Member Lin-Marie Nacht dissented as to the "promoting confidence in the judiciary" part of the analysis more broadly (she agreed as to the improper endorsement of the college):
I believe Rule 1.2 allows a judge to state that they are working to correct weaknesses or historical mistakes of the Court itself. In this case, even if the ad in question explicitly stated (which it did not) that Judge Keenan wants to advocate for marginalized communities, I am not convinced that would violate the Code. Especially in regard to issues that are historical weaknesses for the courts, whether it be marginalizing certain populations, allowing racial bias, or joining in oppressing protected minority groups, I do not believe that Rule 1.2 prohibits a judge from acknowledging their interest in working to correct those very injustices.
There is nothing about acknowledging those historical and current problems, and indicating an interest in working on those issues, that reduces public confidence in the impartiality, integrity, or competence of the judiciary. Rather, acknowledging such weaknesses in the judicial system should increase public confidence in the judiciary. The words "marginalized communities" does not specifically describe any particular litigant who might appear in court, but instead acknowledges historical mistakes of the courts and other systems in excluding some people from accessing the protections of the courts and government.
By making this distinction I am not commenting on the benevolence of the concern Judge Keenan noted, but rather focusing on addressing a concern which is a historical failure of the courts. A judge could make a statement about a valued group, like victims of domestic violence, which could call into question the judge's impartiality. But courts have not historically unfairly excluded or oppressed "divorced fathers," "victims," "those accused of sex offenses," and "landlords", but rather have ruled on cases involving those litigants as required by the law.
Stating an intention to advocate for those groups (benevolent or harmful) from the bench could be a violation of Rule 1.2, because it would be advocating for the concerns of those groups, not working to address historical mistakes of the Court itself. But I believe that a judge should advocate, within their own courts, for allowing marginalized communities to have access to the courts, and the Code of Judicial Conduct similarly encourages judges to "participate in activities that … promote access to justice for all."
I recognize that some Commissioners might find the use of the word "advocate" in that context troubling. But it is central to my position that the statement before us is different. This Commission should not be in the position of sanctioning a judge for how someone might mistakenly understand his or her words, unless the mistaken reading would be reasonable. I specifically disagree with the majority's Finding of Fact … that such a reading would be reasonable. Simply because a statement could possibly be confused to mean something else does not mean that it is reasonable to so understand it….
Judge Keenan did not even go so far as to assert that he currently supports the cause of marginalized communities. He rather states that he got into the law in part to advocate for those communities.
Most judges were attorneys before taking the bench. Attorneys are advocates. They take sides and litigate for parties. Any judge who was a lawyer before taking the bench advocated for their clients. That fact does not disqualify attorneys from becoming judges. Judge Keenan testified that he was referring to why he first got into the law, not that he was advocating for those communities from the bench….
Member Larry Goldberg partly agreed with Lin-Marie Nacht, adding:
I strongly disagree with the majority that the ad gives the impression that Respondent is biased or would be likely to rule in favor of members of marginalized communities. I am a White, Anglo-Saxon male who is not economically disadvantaged myself. I would not feel concerned about this judge's impartiality if I had a court case in front of him, where the other side was a member of a marginalized community, even though I have seen this ad.
(I should note, solely because Member Goldberg's opinion brought this up, that "Anglo-Saxon" might be used here somewhat imprecisely, to mean "non-Hispanic," though I can't be sure; I tried to reach out to an e-mail address that I think corresponds to the author, but haven't heard back.)
The opinions didn't deal in any detail with the question whether judges have a First Amendment right to express such views in their ads (see Republican Party v. White (2002); Williams-Yulee v. Florida Bar (2015)).
