In response to recent events:  Judicial participation in demonstrations, protests, marches, and rallies

Tens of millions of people have participated in thousands of racial justice demonstrations across the county since May, and the protests continue.  So far, 6 judicial ethics advisory committees have issued opinions in response to inquiries about whether judges can join them.

The Connecticut Committee on Judicial Ethics issued an opinion about a judicial officer’s desire to participate in a specific way in a specific event.  Connecticut Informal Opinion 2020-3.  The organizers of “A Silent March of Black Female Attorneys of Connecticut” had invited the judicial official to meet the marchers at the steps of the Supreme Court and to speak at the event.  The judicial official wanted to read a section of the state constitution:  “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and they have at all times an undeniable and indefeasible right to alter their form of government in such manner as they may think expedient.”  The judicial officer would not be introduced, identify himself by name or title, wear a robe, permit his name or title to be used in advertising, elaborate on the constitutional provision, or speak with the media.

With respect to the march itself, at the steps of the Court, each female attorney go to “the podium, one at a time, to say “Attorney —-, and I am the Mother of a black man, or the Wife of a black man, or Sister…, or Aunt, or…..”  There would be no comments to the media other than:  “No comment, the evidence speaks for itself.”  The committee noted that supporters would be wearing “We Can’t Breathe” buttons directly referring to the George Floyd case and similar cases and would be encouraged to bring protest signs, although it was not known what the signs would say and whether they would refer to police brutality and/or other pending cases.

The Connecticut committee advised the judicial official not to participate.  It concluded:

  • Because the judicial official “may be called upon to rule in cases that involve claims of police brutality or police abuse, his participation . . . may appear to a reasonable person to undermine the judge’s independence and impartiality . . . .”
  • The judicial official’s “participation will insert him unnecessarily into public controversy . . . .”
  • People would likely figure out the judicial official’s identity.
  • A judicial official speaking in support of the event with the Supreme Court as the backdrop “could undermine the public’s confidence in the independence and impartiality of the judiciary . . . .”

Similarly, the New York Advisory Committee on Judicial Ethics stated that judges may not participate in a “walk for justice” organized by a bar association in which participants would “walk silently on the sidewalk past governmental buildings and ‘take a knee’ in front of a depiction of the U.S. Constitution, ‘as a way to both remember George Floyd” and to recognize judges and court personnel at every level ‘who strive every day to accomplish Dr. King’s goal of justice for everyone.’”  New York Advisory Opinions 2020-92/93.  According to the organizers, there would be no speeches, all members of the legal community could participate, and the walk would be entirely peaceful.

The committee noted its strong belief that “racial justice should not be controversial” but concluded:

In this instance, the controversy surrounds not just the broad principle of racial justice but many fact-specific controversies concerning the impact of race on the criminal justice system, police tactics in interactions with African-Americans and minority communities, the legal doctrine of qualified immunity, and the need for law enforcement accountability.  These and other such issues are already a part of many pending disputes in the Unified Court System.  Similar issues, involving competing legal principles and disputed facts, will surely come before New York’s judges at every level of the judiciary.  In the face of these controversies, judges must inspire confidence on all sides that they can be just and fair to all litigants in all proceedings.  Participation in a high-profile silent “walk for justice,” organized around an intensely emotional appeal concerning a man whose death in police custody has roiled the nation in ongoing protests, could “create an appearance of particular sympathy toward one side in court” and necessarily cast doubt on the judge’s ability to be impartial.

See also New York Advisory Opinion 2020-112 (because “multiple high-profile, racially-charged incidents of police violence have resulted in ongoing or reasonably foreseeable litigation and intense local and national controversy, a judge may not participate in an initiative designed to (a) promote trust and open dialogue between activists and police concerning those incidents and/or (b) recommend changes to current police force deployments, strategies, policies, procedures, and practices”).

* * *
The Colorado and Maryland judicial ethics committees advised in general that judges should not participate in demonstrations, protests, marches, or rallies supporting the Black Lives Matter movements.

The Colorado Judicial Ethics Advisory Board noted that, “in response to recent events concerning racial inequality, a growing number of state courts and judges have issued . . . statements opposing racism and calling for reformation of the legal system and the way in which courts administer justice.”  Colorado Advisory Opinion 2020-2.  The opinion explained that these statements are permissible “because they call on judges and others to recognize that police misconduct and racial bias are problems within the legal system” and “to reflect upon, reform, and improve the justice system.”  According to the committee, those statements were “not political and do not call into question the integrity or impartiality of the judiciary; rather, they instill public confidence in the judiciary and promote ethical conduct among judges and lawyers by promoting access to justice for all.”  (As the committee noted, the National Center for State Courts has collected the statements on racial justice by state courts and chief justices on its website).

In contrast to statements, the committee concluded, “marching in support of the Black Lives Matter movement or the Blue Lives Matter movement gives the appearance of impropriety and bias,” raises questions about a judge’s impartiality and independence, and constitutes an inappropriately “political or divisive” statement, regardless of the judge’s “non-partisan aspirations or . . . subjective belief that he or she is ‘doing the right thing,’ . . . .”  The committee also noted that a case involving the subject of the protest could come before the judge.

In addition, the Colorado committee warned judges not to use social media “to express support for or to protest current political issues,” noting that comments and images on social media “could be disseminated widely.”  The committee explained that this caution should apply not only to posts by the judge but reactions on social media that “validate, endorse, or ‘like’ a person, image, or statement made by another.”  The opinion added that “this concern exists even if a judge does not use his or her title.”

Finally, the committee advised that judges should inform staff under their direction and control to conform to the same constraints regarding marches and social media that apply to the judges.  The committee acknowledged that the code of judicial conduct does not apply to court staff but stated that “a law clerk’s actions may be imputed to his or her judge if the judge becomes aware of the staff member’s behavior and does nothing, or if the judge fails to require a staff member to act in a manner consistent with the judge’s obligations under the Code.”

* * *
The Maryland Judicial Ethics Committee advised that “participation in a march, rally, or protest associated with the Black Lives Matter movement presents a significant risk . . . that the judge will end up in a situation that could undermine the judge’s impartiality.”  Maryland Advisory Opinion Request 2020-13.  The committee noted that its opinion was based in part on its “knowledge of these events, from the news and personally viewing them.”  The committee stated that it was not addressing a specific event and could not give a definitive answer for all circumstances.

The committee expressed concern that the events were focused “on law enforcement and perceived shortcomings in the system of justice” and that a judge, “particularly in a large gathering,” would not be able to know about or control the signs displayed by other participants, which could include messages such as “Defund the Police” or “We Can’t Breathe.”  The committee concluded that “a depiction of a judge, on social media or otherwise, at an event with signs such as these, could lead a reasonable person to question the judge’s impartiality in cases involving the police.”

* * *
The Indiana and California judicial ethics committees approached the issue by listing factors a judge should consider when deciding whether to participate in an event in general, without approving or disapproving participation in any particular event or type of event.

The Indiana Judicial Qualifications Commission stated that a judge may participate in public events aimed at addressing social issues if the judge can do so without impinging on the independence, integrity, and impartiality of the judiciary.  Indiana Advisory Opinion 2020-1.  The Commission stressed that the determination was fact sensitive and encouraged judges to consult with its staff about specific events.

The Commission listed “guiding principles/factors that a judge should consider in his/her evaluation:”

  • The title of the event;
  • The purpose of the event;
  • The organizers and sponsors of the event;
  • The details of the event; and
  • The role of the judge at the event.

The Commission stated that a judge should not attend:

  • An event “with a “provocative or advocacy-oriented the title;”
  • An event that “primarily serves an advocacy or political purpose;”
  • A fund-raiser if the judge is a featured speaker;
  • An event that “touches upon a pending matter currently before the judge,” for example, an event aimed at raising awareness about police practices “if the judge currently has a civil lawsuit on his/her docket regarding the city’s response to excessive force incidents);”
  • An event primarily “sponsored or affiliated with a political party or candidate;”
  • An event primarily supporting or opposing a political party or candidate;
  • An event with the primary purpose of influencing the actions of a political candidate or party, even if it is sponsored by a non-partisan group;
  • An event held by an advocacy group or a frequent litigant in the judge’s court unless “it is for a nonadvocacy purpose and the judge can participate in a manner that will not raise public concern about the judge’s impartiality;”
  • An event “held in a time, place, or manner where participants likely will violate the law,” for example, by violating curfew or becoming violent; or
  • An event that has a history of violence.

If a judge is asked to be a featured speaker or guest of honor at an event, the committee advised, the judge should “carefully review all invitational materials to determine whether his/her featured presence may cause frequent disqualification or might subject the judge to concerns that the judge is improperly using the prestige of judicial office to further the organization’s goals.”  The committee stated that a “judge should not allow his/her legal title to be referenced during the event and should not wear any clothing identifying him/her with the judiciary” unless the matter specifically involves “the law, the legal system, or the administration of justice.”

If a judge decides to attend the event, the committee cautioned the judge:

  • To act temperately and judiciously at all times, and
  • To be prepared to leave immediately if circumstances change, for example, if “the majority of protesters are carrying signs supporting/opposing a political candidate).”

* * *
The California Supreme Court Committee on Judicial Ethics Opinions suggested that, to “make their views on a subject known,” judges might consider writing a letter or providing a written statement or opinion to the press to “avoid many of the risks inherent in participating in a public demonstration or rally” and to “maintain control over the tone and substance of the message they wish to convey.”  California Supreme Court Advisory Committee Formal Opinion 2020-14.

With respect to attending demonstrations or similar events, the committee warned judges to “always assume that their attendance will be known and that their conduct may be subject to comment and reporting in press coverage or on social media.”  In general, the committee stated:

Judges may not participate in a public demonstration or rally if:  (a) participation might undermine the public’s confidence in the judiciary; (b) the event relates or is likely to relate to a case pending before a court, relates to an issue that is likely to come before the courts, or is reasonably likely to give rise to litigation and the judge’s attendance might lead to disqualification; (c) participation would or is likely to cause a violation of the law . . . ; (d) participation would create the appearance of speaking on behalf of, or lending the prestige of office to, a political candidate or organization; or (e) participation would interfere with the proper performance of judicial duties.

Before deciding to attend a protest or similar event, the committee stated, judges should:

  • Examine the event’s official title, its stated mission, its sponsors, and its organizers;
  • Investigate the agenda, including the organizers’ objectives;
  • Evaluate the risk that organizers or supporters will express views that might reasonably be perceived to compromise the judge’s independence and impartiality;
  • “Take reasonable efforts to determine the messages that will be delivered by other participants;”
  • “Take reasonable efforts to determine . . . the risks that the demonstration or rally might depart from its original mission;”
  • Determine the meaning of any “unfamiliar terms, symbols or abbreviations” used in invitations or other promotional materials; and
  • Consider how the public will perceive of their participation.

The California committee stated that a judge should not attend:

  • An event that “is promoted using derogatory or disrespectful references to individuals, groups of people or communities;”
  • An event that is sponsored or organized by individuals or entities that regularly appear in state court proceedings;
  • An event that seems likely to “result in a confrontation between participants and others, including law enforcement;”
  • An event that seems likely to “lead to unlawful acts;”
  • An event that does not have proper permits;
  • An event that might “not conclude before a lawful curfew” unless the judge can leave early; or
  • An event that would require the judge to reschedule official duties to attend.

If, after engaging in that analysis, a judge decides to attend, the committee stressed that, at the event, the judge:

  • Should not engage in a “symbolic act,” carry a sign, wear clothing or buttons that might identify the judge as siding with a particular viewpoint;
  • Should be mindful “of any risks that the demonstration or rally might evolve in ways that could violate the judge’s ethical duties” and be prepared to leave;
  • Should leave if other participants carry signs or chant slogans “that are inflammatory, derogatory, and inconsistent with the judge’s own ethical duties;” and
  • Should not make a public statement on even permissible topics that would undermine the public’s confidence in the judiciary, lend the prestige of their office to further the personal interests of the individuals or entities organizing the event, commit the judge to a position on a topic likely to come before the courts, or comment about a pending or impending proceeding.

* * *
The Center for Judicial Ethics has compiled and posted on its website summaries of judicial ethics advisory opinions about participating in marches, demonstrations, vigils, protests, rallies, and other issue-related community events, including the ones issued in 2020 and those about participation in demonstrations after the 2016 election.  That document will be up-dated as additional opinions are issued.  Also, please watch our inaugural CourtClass Ethics-in-Brief tutorial on judges and court employees participating in marches and demonstrations at:  https://vimeo.com/442133613.

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