The Volokh Conspiracy
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OK for Judge to Appear in Ad Saying He "Got Into Law in Part to Advocate for Marginalized Communities"
The ad was an ad for a college that he had attended.
From today's unanimous Washington Supreme Court opinion (written by Justice Sheryl Gordon McCloud) in In the Matter of Keenan, reversing a decision I discussed last month:
The Commission on Judicial Conduct (Commission) ruled that Judge David S. Keenan, a King County Superior Court judge, violated the Code of Judicial Conduct (CJC or Code) when he approved a bus advertisement for North Seattle College. The ad pictured him and stated, in part, "A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities." North Seattle College is a nonprofit community college where Judge Keenan received both his high school and his associate's degrees. The ad ran for three weeks as part of North Seattle College's fall enrollment campaign.
Judge Keenan's conduct … did not violate his duty to be, and to appear, impartial, and he did not abuse the prestige of his office. We therefore reverse the Commission's decision and dismiss the charges….
The Commission ruled that Judge Keenan's decision to approve the bus ad violated Rule 1.2 because it showed that he was partial to "marginalized communities" and, hence, the ad undermined public confidence in the judiciary.
Beginning with the plain language, Rule 1.2 states: "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."
The Code then defines "impartiality" as the "absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge." It defines "impropriety" as "conduct that violates the law, court rules, or provisions of this Code, and conduct that undermines a judge's independence, integrity, or impartiality." It then defines "independence" as "a judge's freedom from influence or controls other than those established by law." And the Code defines "integrity" as "probity, fairness, honesty, uprightness, and soundness of character."
Reviewing this language in the context of other portions of the Code, we see that the Code also provides a test for determining whether an act causes the appearance of impropriety. Rule 1.2's comment 5 states that the test is "whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge." In other words, the test for impropriety is based on an objective standard— whether a "reasonable" viewer "would" (not just "could") perceive that the judge's conduct "reflect[ed] adversely" on the judge's honesty, impartiality, etc.—not on what a particular viewer subjectively might or could perceive.
Thus, the key question for us in analyzing the alleged Rule 1.2 violation is whether a reasonable, objective person would read the language that Judge Keenan "got into law in part to advocate for marginalized communities" to mean that Judge Keenan would tend to rule for marginalized communities as a judge. We hold that the answer is no: that language does not suggest to a reasonable person that Judge Keenan would tend to rule for marginalized communities (over others) in cases he heard as a judge. Instead, that language explains why he wanted to be a lawyer. An objective, reasonable person would not infer from that description of his reasons for attending law school that he lacks "an open mind in considering issues that may come before [him]" as a judge.
The Commission did make a "factual" finding that Judge Keenan admitted that the ad could confuse the public into thinking that he advocated for marginalized communities from the bench. And Judge Keenan did state that he could see how the ad "might" confuse the public.
But he did not state that it would make a reasonable person think that he would not be impartial—he made that statement in the context of explaining his willingness to hear and consider the views of colleagues. And regardless of Judge Keenan's testimony, whether a judge's description of his reasons for attending law school would cause an objective, reasonable person to infer that he lacked "an open mind in considering issues that may come before [him]" as a judge is a matter that we review de novo….
The Commission also made a "factual" finding that the ad could reasonably be read to express a preference for marginalized communities. The Commission based that finding on the same analysis that it used to conclude that Judge Keenan's description of his reasons for attending law school would cause an objective, reasonable person to infer that he lacked "an open mind in considering issues that may come before [him]" as a judge…. [W]e reject the Commission's "factual" finding on this matter for the reasons discussed immediately above, also: all judges decide to join the legal profession for one reason or another, and stating why you got into the law does not mean that you cannot rule impartially in a case.
Finally, the Commission seemed particularly concerned about the use of the language "advocate" in the ad. To be sure, it is true that a judge should not advocate for particular partisan causes. But a judge certainly should advocate for and "promote" access to justice and improvements to the administration of justice. The comments to Rule 1.2 say exactly that. Rule 1.2 cmts. 4 ("Judges should participate in activities that … promote access to justice for all."), 6 ("A judge should initiate and participate in outreach activities for the purpose of promoting … confidence in the administration of justice."). Thus, the word "advocate" alone does not show inappropriate partisanship. If anything, stating that you got into law to advocate for communities that have been "marginalized" from the benefits of the justice system might counter widespread perceptions that the law has historically treated marginalized members of our community unfairly….
The Commission found that Judge Keenan violated Rule 1.3 because "[t]he ad aimed at increasing student enrollment which, in turn, would advance the economic interests of the college."
Again, beginning with the plain language, Rule 1.3 states: "A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so." This language was updated from the 1995 CJC. The relevant portion of Canon 2(B) stated that "Judges should not lend the prestige of judicial office to advance the private interests of the judge or others "
Significantly, the 2011 update changed the language from "lend the prestige of judicial office" to "abuse" such prestige. This change mirrored the change contained in the 2007 ABA Model Code. The ABA explained that it changed "lend" to "abuse" because "[i]n the Commission's view, the term 'lend' created unnecessary confusion. For example, a judge who wrote a letter of recommendation for a law clerk 'lent' the prestige of the judge's office to the recommendation, and some judges told the Commission that they declined to write letters on their clerks' behalf as a consequence. In the Commission's view, however, the problem that Rule 1.3 seeks to address is more accurately characterized as 'abuse' of the office."
"Abuse" is not defined in the Model Code. It is defined by Black's Law Dictionary, in part, as "[t]o depart from legal or reasonable use in dealing with (a person or thing); to misuse." There is no case law from this court interpreting Rule 1.3 or its 1995 Model Code analogue.
But it is clear that the classic example of a Rule 1.3 violation is a judge alluding to their judicial status to gain favorable treatment in encounters with traffic officials. Another example is using judicial letterhead to gain an advantage in conducting personal affairs, such as inquiring into automobile registrations or real property assessments. In contrast, a judge can now clearly use judicial letterhead to provide a recommendation letter.
What is the difference between unreasonable "abuse" of judicial office and appropriate "use" of judicial office that these examples illustrate? A rule must be interpreted in the context of the entire Code and with the intent of the canons in mind. We therefore read Rules 1.3 and 1.2 in conjunction with Canon 3.
Canon 3 affirmatively encourages judges to participate in extrajudicial activities because such participation "helps integrate judges into their communities." Similarly, Rule 3.7 states in part that a judge "may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice" and nonprofit organizations. Permissible activities include assisting and planning fundraising, appearing or speaking at events, and serving as an officer or director of an organization.
In fact, comment 1 to Rule 3.7 specifically states that activities in which judges may participate "generally include those sponsored by or undertaken on behalf of public or private not-for-profit educational institutions." As the emphasis shows, comment 1 makes no distinction among legal, nonlegal, postgraduate, and undergraduate types of not-for-profit educational institutions…. The ad for North Seattle College was not even a fundraiser; it was intended primarily for recruitment. While recruitment has an incidental economic benefit, just about anything that a judge would do for a college would incidentally benefit it economically. This incidental economic benefit is permissible under Canon 3 because a judge's prestige should be used to encourage education. Using one's judicial title for such a purpose does not constitute an abuse.
{The Commission also found that the ad "could be viewed by a reasonable person as campaign ads for Judge Keenan." Order at 3 (emphasis added). We disagree with this finding—which is more legal than factual—because a reasonable person "would" not view this ad, which is clearly an ad for North Seattle College, as a campaign ad for Judge Keenan.} …
The Office of Disciplinary Council (ODC) came to a contrary conclusion. In doing so, it relied heavily on the medium that the school used to communicate Judge Keenan's support of his nonprofit alma mater: a bus advertisement. To be sure, a bus advertisement differs dramatically from a pamphlet mailed to a targeted house, a video sent to targeted prospective students, or to appearances in law school alumni publications—all of which many judges do. But the difference lies mainly in who, and how many, people these ads and publications reach. Law school magazines, videos to prospective students, and published books reach a narrow, primarily self-selected, audience; bus ads, like social media postings, reach a broader audience. The ODC's decision thus ends up punishing judges for communications that have a broad and nondiscriminatory, rather than a narrow and targeted, reach.
We find no support in the rules for that approach. Instead, we hold that the rules—especially Rule 3.7 and its comments—take the opposite approach. As comment 1 to Rule 3.7 states, the activities in which judges may participate "generally include those sponsored by or undertaken on behalf of public or private not-for-profit educational institutions." Judge Keenan's promotion of North Seattle College did not violate Rule 1.3….
