Reversing the admonition of the State Commission on Judicial Conduct, the Washington Supreme Court held that a judge did not abuse the prestige of his judicial office or violate his duty to be and to appear to be impartial when he allowed a community college to run a bus advertisement with his picture and the statement: “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.” In the Matter of Keenan (Washington Supreme Court February 10, 2022).
The judge grew up in poverty, had been a juvenile defendant, and had dropped out of high school. At 17, he was working at a fast-food job when he took the GED exam through North Seattle College. He did very well, and the dean encouraged him to continue his education. The judge studied for his high school diploma through the College and then began working toward his 2-year degree there, attending classes during the day and working full-time at night as a security guard. After graduating, he transferred to the University of Washington. He earned his law degree from Seattle University. He has a long history of doing pro bono legal work, and he remains involved with North Seattle College.
In July 2019, the judge was asked to appear in a bus ad as part of the College’s student recruitment campaign. The judge reviewed the code of judicial conduct and advisory opinions but did not ask the judicial ethics committee or the Commission whether the ad violated the rules. The judge approved the ad, and it ran for 3 weeks.
(1) Concluding that the judge violated Rule 1.3, which prohibits abuse of the prestige of the judicial office to advance the interests of others, the Commission had found that the ad was “aimed at increasing student enrollment which, in turn, would advance the economic interests of the college.” The Commission found that the judge’s argument that his actions were permitted because the ad would encourage people to go to law school after community college was “too tenuous or strained to be persuasive” and opened “the flood gates to allow judges to promote any activity that could possibly encourage students to attend law school.”
On review, the Court emphasized that the 2011 update to the state code of judicial conduct changed the language in the rule from “lend the prestige of judicial office” to “abuse,” “mirror[ing]” the change in the 2007 American Bar Association Model Code of Judicial Conduct. The ABA has explained that it changed “lend” to “abuse” because “lend” created “unnecessary confusion” and “the problem that Rule 1.3 seeks to address is more accurately characterized as ‘abuse’ of the office.” The Court noted that the model code does not define “abuse” but that Black’s Law Dictionary defines it, in part, as “[t]o depart from legal or reasonable use in dealing with (a person or thing); to misuse.” Based on comments to the code, the Court noted that a judge using judicial letterhead to provide a recommendation letter is not an abuse but that the “classic” examples of Rule 1.3 violations are a judge “alluding to their judicial status to gain favorable treatment in encounters with traffic officials” and “using judicial letterhead to gain an advantage in conducting personal affairs, such as inquiring into automobile registrations or real property assessments.”
To distinguish between unreasonable “abuse” of judicial office and appropriate “use” of judicial office, the Court noted that Canon 3 encourages judges to participate in extrajudicial activities and permits judges to “participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice,” specifically those “sponsored by or undertaken on behalf of public or private not-for-profit educational institutions,” with “no distinction among legal, nonlegal, postgraduate, and undergraduate types of not-for-profit educational institutions.” The Court also noted that the code permits a judge to allow “an organization to use their title ‘in connection with an event of such an organization or entity, but if the event serves a fundraising purpose, the judge may do so only if the event concerns the law, the legal system, or the administration of justice.’”
Concluding that the judge “did not ‘misuse’ his title or the prestige of his office” in the ad, the Court explained that “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.”
Agreeing with the judge that his involvement with a nonprofit community college was related to the administration of justice, the Court stated that “supporting community colleges may be one important way to increase diversity and access to the legal community—certainly an impact that improves the ‘administration of justice.’” The Court noted that judicial ethics advisory opinions from Washington recognize that judges contribute “to the improvement of justice by helping get ‘the most qualified individuals into the legal profession,’” for example, allowing them to appear in a promotional law school video sent to prospective students. Concluding that the logic of those opinions “extends further,” the Court explained:
[M]any of “the most qualified individuals” for “the legal profession”—and probably many from marginalized communities—might start at community colleges. It necessarily follows that a judge may contribute to the improvement of justice by helping get “the most qualified individuals into the legal profession” by promoting the educational opportunities afforded by their own former community college. . . .
The Court also concluded that it was irrelevant that the judge’s statement was in a bus ad.
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 [Commission’s] decision thus ends up punishing judges for communications that have a broad and nondiscriminatory, rather than a narrow and targeted, reach.
(2) Concluding that the judge violated Rule 1.2, which requires a judge to be impartial and to avoid the appearance of impropriety, the Commission had found that a reasonable person could read the ad to “suggest that Judge Keenan has a leaning, or preference, and would advocate accordingly for marginalized communities” and that a person who was not from a “marginalized community” could “reasonably be concerned about being treated unfairly by Judge Keenan.”
Disagreeing with that finding, the Court held that “an objective, reasonable person would not infer” from the judge’s 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 Court noted that “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.”
The Court noted the Commission’s concern about the use of “advocate” in the ad and acknowledged that “a judge should not advocate for particular partisan causes.” But, the Court explained, “a judge certainly should advocate for and ‘promote’ access to justice and improvements to 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 Court concluded that, “viewed in context,” the judge’s statement in the ad “impartially promotes respect for marginalized communities” and “is best interpreted as a comment on a general justice system issue, not as a comment on how he would rule in a case.”