The tension between the desire of judges to remain engaged in their communities and their responsibility to be and appear to be impartial and apolitical has been illustrated recently in a judicial discipline decision and several judicial ethics advisory opinions regarding service on the boards of non-profit organizations.
A Utah judge was reprimanded for serving as president of a national non-profit organization dedicated to the social, political, and economic well-being of Asian Pacific Americans, called OCA-Asian Pacific American Advocates. In re Kwan, Order (Utah Supreme Court November 4, 2016). The Judicial Conduct Commission’s reprimand (which was based on a stipulation and which was approved by the Utah Supreme Court) noted that the judge had not intended to violate the code of judicial conduct but wanted to aid and lift up the Asian Pacific American community, fight injustice, discrimination, and inequality, and build understanding and unity.
After receiving a complaint about the judge’s service as president of OCA-Asian Pacific American Advocates, the Utah Commission requested an opinion from the Ethics Advisory Committee, and the committee, without naming the specific organization, stated that a judge may not serve as president of an organization dedicated to advancing the social, political, and economic well-being of a specific ethnic group. Utah Informal Opinion 2015-1. The Commission then notified the judge, and the judge immediately resigned as OCA president. In response to the judge’s subsequent request for additional guidance, the committee issued a second opinion but did not change its advice. Utah Informal Opinion 2016-2.
As described in articles and press releases that included the judge’s name and judicial title, during the judge’s term, the organization had applauded the introduction of legislation regarding voters’ rights, human trafficking, and broadband; called for a national dialogue on responsible gun ownership and for the end of deporting undocumented immigrants; extended sympathy to the families of mass murder victims; filed an amicus brief in a federal case; commended the U.S. Supreme Court for decisions in several cases; and criticized statements by presidential candidates. Because a judge may not personally express his views on legislation and political issues that are not directly connected to the judicial system, may not publicly comment about a pending case, and may not publicly oppose a political candidate, the committee stated that a judge may not serve as a president of an organization that engages in those activities. The committee noted that it did not believe a judge could serve as president of an organization without being linked with its positions and activities in its press releases and articles. The committee explained that, “[e]ven though judges may serve as officers in civic organizations, judges must be particularly cautious when those organizations are advocacy groups. A group that advertises itself as dedicated to advancing the political well-being of its members should automatically raise concerns for a judge.” Further, the committee advised, although a judge may be the president of an organization that engages in fund-raising, a judge may not participate in the fund-raising and, therefore, may not be mentioned in a press release announcing a fund-raiser.
In the follow-up opinion in response to the judge’s questions, the committee stated that its advice applied even if the organization did not use the judge’s title because a “judge cannot avoid the limitations imposed by the Code of Judicial Conduct by acting or purporting to act as a private individual or when serving as a representative of an organization.” Further, the committee stated it did not matter if the judge held an office other than president because “[t]he public could reasonably perceive all office holders as responsible for, or at least supporting, the statements and policies of the organization.”
The committee also disagreed with the judge’s argument that the organization’s statements fell within the code exception that allows a judge to speak on issues that personally affect the judge. Stating “this provision must be read narrowly,” the committee explained that, “[i]n a broad sense, many pieces of legislation have the potential to affect a judge’s interests” but the interest or the impact must be “significant and direct” to permit public statements by the judge.
The committee also stated that public criticism of a political candidate fell within the ban on publicly opposing a candidate because the prohibition would be of “little value” if it were limited to express endorsements or opposition. It explained:
When an individual is running for public office, a judge’s public comments either praising or criticizing that individual can be reasonably viewed as support or opposition. A judge should frankly avoid any public statements about candidates for office, whether made on the bench, as a private citizen, or as an officer of an organization.
Finally, the committee stated, the prohibition on participating in fund-raising included publicly thanking individuals for attending a fund-raising event, which may create the appearance that the judge participated in the fund-raising efforts. The opinion noted, “[t]here is no reason for a judge to publicly thank individuals when certainly there are others in the organization who may act in that capacity.”
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The Connecticut Committee on Judicial Ethics advised that a judge could – as long as she complied with numerous conditions — serve on the board of directors of a national ethnic bar association as well as donate money to and join the organization. Connecticut Informal Advisory Opinion 2016-16. The conditions on the judge’s affiliation were that she:
- May not associate herself with the organization’s positions on matters of public controversy;
- May not use her judicial title in connection with her membership or donations and should obtain adequate assurances that the organization will not publicize or use her judicial title for any purpose;
- Should carefully consider whether specific programs or activities of the organization may undermine confidence in her independence, integrity, and impartiality;
- Should regularly re-examine the activities and rules of the organization to determine whether to continue her relationship;
- Should disqualify herself from any litigation in which the organization (including a state chapter) is a party or is representing a party; and
- Should disclose her affiliation and consider whether recusal is necessary if an issue comes before her that involves a matter on which the organization has taken a public position by litigation or lobbying, for example.
With the same caveats, the committee in the same opinion gave permission for a judge to donate money to and be a member of the American Civil Liberties Union but concluded that a judge may not serve on the board of the ACLU. The committee noted that “many of the issues championed by the ACLU through lobbying and litigation are controversial and of a high public profile.” It also noted that the ACLU was not apparently a party to any pending civil cases in the superior court, although its state chapter had appeared as counsel or amicus in approximately 8 cases before the Connecticut Supreme Court within the past 5 years.
The committee explained that the ACLU has attributes of both an organization “concerned with the law, the legal system, or the administration of justice” in which judges have some latitude to participate and a “political organization” in which their participation is restricted. Thus, the committee concluded, a judge may join the ACLU and donate to the organization but should not serve as an officer, on the board of directors, or in any other leadership position. Its analysis was the same for the Southern Poverty Law Center.
In contrast, the Connecticut committee stated, a judge could not even donate or belong to the National Organization for Women, much less be a board member. It noted that, according to NOW’s web-site, the organization is not affiliated with any political party and all candidates for office are eligible for NOW’s endorsement. But it also noted that NOW’s web-site and its affiliated political action committee “appear to be one-sided in their support of one of the major political parties and its candidates, and NOW’s president has been outspoken about the results of the 2016 presidential election.” (At least with respect to the latter point, however, NOW seems indistinguishable from the ACLU.) The committee concluded, “[g]iven the clear political bent of NOW and its political action committee, it appears that the Judicial Official’s proposed involvement with NOW would constitute improper political activity” and “could call into question the Judicial Official’s independence, integrity and impartiality . . . .”