Judges urged to use caution before attending rallies or protests

May a sitting judge attend a rally or protest? Technically yes, but a new ethics document from the Supreme Court's Committee on Judicial Ethics Opinions urged judicial officers to be exercise caution before attending any event which could damage their appearance of impartiality.

Citing the recent "national conversation about racial justice and equality," the 12-member committee issued CJEO Formal Opinion 2020-014 on Wednesday.

The document follows weeks of protests and violence around the country after the police killing of an unarmed man in Minneapolis. Some of these have taken place outside courthouses and resulted in vandalism of court property, including in Los Angeles and San Francisco.

"Because the issue of racial justice and equality is so much at the forefront of a public discourse, you can imagine that judges ... were all trying to figure out what they could and could not do," said Santa Clara County Superior Court Judge Erica R. Yew, a member of the committee, on a conference call with reporters Wednesday. "People were afraid of violating any canons."

Yew said the committee originally looked at issuing informal guidance, but soon realized how widespread confusion was about the policies among judicial officers. The opinion interprets the canons of the state's Code of Judicial Ethics for judges who "may feel a moral obligation to support these issues, and other social justice issues, by participating in public demonstrations and rallies, or by making public statements."

The committee struggled with how practical the guidance would be in real world situations, she said.

"In practice it may be a challenge, but judges are able to analyze complex issues and look at various facts," Yew said. "We do that basically every day."

The opinion stated judges should refrain from activities that "might undermine the public's confidence in the judiciary" and accept that they are subject to "restriction that might be viewed as burdensome by other members of the community."

It warned judges should leave if the tenor of an event changes -- particularly if participants begin to chant "inflammatory, derogatory" slogans.

Judicial officers should always assume they lack anonymity. For instance, they could be recognized at small gatherings and photographed by the media and later identified if they attend large events.

The documents also urged judges to pay particular attention to whether an event might "relate to a case pending before a court," or if an appearance would violate the law or "create the appearance of ... lending the prestige of the office to a political candidate or organization." It demanded judges conduct prior due diligence on a rally's "stated mission, it's sponsors, and it's organizers."

The opinion also covered written statements, suggesting this might be a better option for making one's "views on a subject known while avoiding many of the risks inherent in participating in a public demonstration."

The June 11 statement on "Equality and Inclusion" signed by California Chief Justice Tani Cantil-Sakauye and the other members of the Supreme Court was offered as "an example of the kind of statement that is ethically permissible," the committee said.

That document cited the "burdens particularly borne by African Americans as well as indigenous peoples" and condemned "racism in all its forms." But it did not cite any particular current event, participant or political party.

California courts are hardly alone in taking a closer look at these issues. The Indiana Commission on Judicial Qualifications issued a largely similar opinion on Monday. The National Center for State Courts recently compiled a list of ethics opinions from around the country in recent years regarding protests. In several instances judges were urged not to attend even seemingly nonpartisan events, including a vigil honoring victims of domestic violence.