Intent and impact

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for making 3 racially insensitive and/or race-based stereotypical comments.  In re Mahoney, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 9, 2022).  The Commission stated:

In assessing whether judges’ words are appropriate or might give offense, judges need to consider not only their intent in uttering those words, but their impact on those hearing them.  Particularly in a situation where, as here, the speaker is a Caucasian person who holds the highest position of power in a large court system, and in one instance, given that the word she uttered was an historically and currently weaponized word used to injure and oppress Black people, the impact on the listeners is of far greater importance than her subjective intention at the time. . . .

(1) On February 9, 2022, the judge, who was then the presiding judge, participated in an online video meeting with several high-level court staff members and the court’s attorney for employment matters.  The purpose of the meeting was to discuss disciplinary options for a court employee who had, among other things, used derogatory terms such as “Nazi” and “Brownshirt,” “with the apparent intent to demean and intimidate others in the workplace who sought to enforce the court’s face mask policy.”

Near the end of the meeting, addressing employee free speech considerations, the judge argued that calling someone a “Nazi,” or using the term “Nazi,” would be unprotected speech just like using the term or calling someone a “n****r.”  Witnesses described “feeling shocked, upset, and offended at the time” and continuing “to experience those feelings when recounting the incident.”  The subject employee’s Department Director, “Ms. A,” is Black and was the only person of color in the meeting.  She was deeply hurt by the judge’s comment, feeling an epithet was being directed at her, in part, because the judge used her name just before or after uttering the word.  Witnesses recall the judge saying, “no offense, [Ms. A]” while the judge recalls saying “as [Ms. A], said to me.”  Ms. A also felt targeted because the judge had been repeatedly giving her the same directives on how to proceed, so she felt she was being treated as incompetent.  “The other witnesses shared Ms. A’s perception.”  Because of this meeting, Ms. A asked that her job be reconfigured so that she no longer had to report directly to the judge.

(2) In February 2021, during an online video to introduce a court employee, who is Black, to a new judge, who is a person of color, the judge smiled and referred to the court employee as someone who “loves watermelon.”  “Both the new judge and the court employee were deeply offended and shocked, . . . as it was their impression that [the judge] was making light of a racist trope. “ Neither responded because they were “caught off guard, embarrassed, and unsure what to say since [she] was the court’s presiding judge at the time.  In the moment, [the judge] did not perceive that she had inflicted harm or offense.”

In her response to the Commission, the judge wrote that she did not have specifically recall making that remark, but acknowledged that something like that could have occurred.  She explained that she considered the non-judicial court employee a long-time friend and that they both liked watermelon and sometimes brought it to the office to share; the

employee agreed that “this was something they had shared in common.”  The judge assured the Commission that she did not intend any racial connotations but “acknowledged she failed to grasp that, as she was the presiding judge introducing a Black employee in a formal work setting to a new judge of color (who was unaware of their relationship), her remark was naïve and insensitive and could raise reminders of a hateful racial stereotype.”  She stated that she was “appalled that her remark” had embarrassed the employee and the other judge and “made things awkward for them.”

(3) In early 2022, in the context of scheduling calendars to handle the court’s backlog of traffic infractions and other cases due to COVID, the judge suggested in the presence of court employees that the backlog was due to Asian women drivers in the area.  “Recollections as to what precisely was said vary, but the employees who heard Respondent’s remarks found them offensive and understood the remarks as referencing racial stereotypes.”  In the moment, the judge did not perceive that she had inflicted harm or offense.

In her response to the Commission, the judge denied making generalized statements about all Asian drivers, but recalled sharing what she thought was instructive, culturally relevant information, based on her prior experience, to encourage staff to have patience with Chinese women drivers appearing in court.

In mitigation, the stipulation noted that the judge had stepped down as presiding judge; apologized; voluntarily attended courses on racial sensitivity; and was remorseful and acknowledged that she had been insensitive and that “her actions, no matter what her intention or the context, ha[ve]the potential to lead someone to reasonably question her impartiality and thus the impartiality of the courts.”  The Commission also noted that the judge has served for over 11 years as a judge, is considered a dedicated and competent judicial officer, has had no prior disciplinary actions, and has not filed to renew her term of office, which expires at the end of 2022.

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