JQC issues guidance on judges participating in marches, social issue events

Indiana judicial officers who want to participate in public events aimed at addressing social issues are allowed to do so, as long as they can in a manner that doesn’t impinge upon the independence, integrity, and impartiality of the judiciary, a new advisory opinion from the Indiana Commission on Judicial Qualifications says.

The JQC issued Advisory Opinion #1-20 on Monday addressing the ethical considerations for judges to weigh before participating in marches and other public events addressing social issues.

The advisory opinion comes in light of recent events, the commission said, as “a number of judicial officers have sought advice about whether, consistent with their ethical obligations under the Code of Judicial Conduct, they may attend and participate in marches, demonstrations, vigils, protests, and other public events aimed at addressing various social issues.”

“The purpose of this Advisory Opinion is to provide judicial officers with guidance regarding the factors to consider when deciding whether to participate in such events,” the opinion reads.

Two countervailing interests are at play when judges seek to speak out publicly by participating in demonstrations, vigils, protests or marches, the opinion notes. Those interests are “the First Amendment rights of the judge versus the state’s interest in preserving the independence, integrity, and impartiality of the judiciary.”

The following Rules in the Indiana Code of Judicial Conduct are deemed by the commission to be relevant when evaluating the propriety of judges engaging in extrajudicial speech and conduct in support of public events aimed at addressing social issues:

• Rule 1.2
• Rule 1.3
• Rule 2.10(A)
• Rule 2.11(A)(5)
• Rule 3.1
• Rule 3.7(A)(4)
• Rule 4.1(A)

“Advisory committees evaluating the ethical propriety of judicial officers participating in marches, vigils, protests, and demonstrations have weighed the following factors: who is sponsoring the event and what is the event’s primary purpose; how is the event being presented (time, place, and manner); and what are the expectations of the judge at the event,” the opinion reads.

The opinion lists several common concerns regarding extrajudicial speech and conduct on controversial issues, starting with political organizations.

“Advisory commissions have remarked that judges should not participate in social-issue marches sponsored by or affiliated with a political organization or in marches supporting or opposing a political party or candidate,” the opinions reads. “If the primary purpose of the event is aimed at influencing the actions of a political candidate or party — even when the activity is sponsored by a nonpartisan group — the judge should not participate.”

The opinion also notes that judges have been warned about participating in marches or demonstrations concerning matters currently the subject of litigation — even if the matter is not in the judge’s court — or that are likely to become a subject of litigation before the judge.

Next, the commission addressed public events sponsored by frequent litigants or advocacy groups, noting that advisory committees have reached contrary results when interpreting Rules 3.1 and 1.2. Specifically, the opinion notes that while some committees have advised against attending because participation at such events may create an appearance of particular sympathy toward one side in court, others advise that judges may attend if the event serves a nonadvocacy purpose and the judge behaves at the event in a manner that does not cast doubt upon the judge’s impartiality.

The commission’s opinion also notes that judges are warned to consider what role they are expected to play at an event.

“Even when judges have spoken on appropriate matters of public concern, advisory commissions have cautioned judges to be circumspect in their remarks; and judicial conduct commissions have pursued discipline when judges have made injudicious remarks that undermine the independence, integrity, and impartiality of the judiciary,” the opinion reads.

Pursuant to Rule 3.1, the commission concluded that it is of the opinion that Indiana judges may participate in many public events aimed at addressing social issues if the judge can do so in a manner that does not impinge upon the independence, integrity, and impartiality of the judiciary.

However, judges are encouraged to consult with the commission’s staff to seek guidance on the wisdom of attending and participating in specific events, the opinion reads.

Nevertheless, the commission provides the following factors judges should consider in that evaluation:

• The more provocative or advocacy-oriented the title of the event is in promotional materials, the more likely the judge should abstain.
• If the event primarily serves an advocacy or political purpose or is a fundraiser (and the judge is a featured speaker), the judge should not participate due to concerns regarding frequent subsequent disqualification requests of the judge and concerns about the appearance of partiality. Also, if the event touches upon a pending matter currently before the judge, then the judge should not attend.
• If the event primarily is sponsored or affiliated with a political party or candidate or seeks to influence the actions of a particular political official, the judge should not participate due to impartiality and independence concerns. If the event is held by an advocacy group or a frequent litigant in the judge’s court, the judge should carefully weigh the purpose of the event. If 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, then the judge may participate.
• If the event is being held in a time, place, or manner where participants likely will violate the law then a judge should not participate.
• If a judge is requested to be a featured speaker or guest of honor at an event, 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. If the matter does not specifically involve matters concerning the law, the legal system, or the administration of justice, the 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.

After review, if judges determine that their participation won’t impair the independence, integrity, or impartiality of the judiciary, the judge should still consider a change in circumstances that would prompt their immediate need to leave, the opinion reads. Judges should also be careful to act at all times at the event in a manner that is temperate and judicious, the commission concluded.