State of Washington

Ethics Advisory Committee

Question

1. Do CJC Canon 2 or Canon 5(B) prohibit a judicial officer from participating in a leadership role in scouting activities?

2. Would a judicial officer be required to disclose that he or she is involved in scouting activities whenever a party or counsel in a case before the judicial officer might consider this information relevant?

The judicial officer serves on the local council of the Boy Scouts as both an executive board member and as a county district committee chair.

Answer

Majority Opinion
CJC Canon 5(B) provides in part that judges may participate in civic and charitable activities that do not reflect adversely upon their impartiality or interfere with the performance of their judicial duties. CJC Canon 2(A) provides that judges should avoid impropriety and the appearance of impropriety in all of their activities. CJC Canon 2(C) provides that judges may not hold membership in any organization practicing discrimination prohibited by law.

The facts in this query involve a judicial officer’s participation in a leadership position with a scouting organization. Service on the local district council as both an executive board member and as a county district committee chair will require the judicial officer to enforce and endorse the policies of the national organization and apply those policies on the local level. In Boy Scouts of America v. Dale, 120 U.S. 2446 (2000), the U.S. Supreme Court held that New Jersey’s public accommodation law violated the Boy Scouts’ First Amendment right to expressive association. The Boy Scouts may, therefore, continue to prohibit membership and leadership positions in that organization based on sexual orientation.

Numerous jurisdictions in Washington have adopted laws prohibiting discrimination on several grounds including sexual orientation.
CJC Canon 2(C) provides that judges may not be members of an organization that practices discrimination which is prohibited by law. Judicial officers should conform their associations with organizations to the requirements of these local laws.

These considerations do not end the inquiry. We must consider the broader, more general provisions of the Code to determine whether they prohibit association with the Boy Scouts. CJC Canon 2(A) provides that judges should avoid impropriety and the appearance of impropriety in all of their activities. Canon 5(B) provides that judges may participate in civic and charitable activities that do not reflect adversely on their impartiality or interfere with the performance of judicial duties. Because the Boy Scouts prohibit membership and leadership positions based upon an individual’s sexual orientation, Canon 5(B) prohibits a judicial officer from participating in that organization in a leadership role as that participation may reflect adversely on the judge’s impartiality. CJC Canon 2(A) prohibits the association in the leadership role with the boy scouts because it may diminish the public confidence in the integrity and impartiality of the judiciary.

The fact that the judicial officer will be acting in a leadership position of the local council is distinguishable from the participation by the judicial officer as a troop leader or other position that is not actively involved in planning and implementing the national organization’s policy excluding members based on their sexual orientation. Judicial officers who participate in Boy Scouts as a troop leader or other similar position should disqualify himself when doing so is appropriate under Canon 2(A) and 5(B). The judicial officer should also disclose his participation in the Boy Scouts if he has reason to believe the parties or their lawyers may consider it relevant to the judicial officer’s presiding over a particular case.

Opinion 86-16 is withdrawn.

Four members of the committee agree with this opinion (Agid, J., Erlick, J., Kenworthy, J. and Mr. Thomas E. Kelly, Jr.).

Minority Opinion
CJC Canon 2(C) provides that judges should not be members in any organization practicing discrimination prohibited by law. In Boy Scouts of America v. Dale, 530 U.S. 640 (2002) the U.S. Supreme Court held that the New Jersey public accommodation law violated the Boy Scouts’ First Amendment right of expressive association. Therefore, it does not violate Canon 2(C) or Canon 5(B) for a judicial officer to belong to the Boy Scouts.

Even though a judicial officer may be a member of the Boy Scouts, there may be instances when the judicial officer should disclose that association to the parties and their lawyers. The judicial officer should disclose the association in any proceeding in which the judicial officer believes the parties or their lawyer might consider this information relevant to the question of disqualification and the judicial officer should also offer to withdraw from the case.

We interpret the Code of Judicial Conduct as it is written and do not believe that the committee should read into Canon 2(C) and 5(B) a prohibition in Boy Scout activities because of the Boy Scouts’ exclusion of membership and leadership based on sexual orientation. If the Code of Judicial Conduct should be read as prohibiting membership by judicial officers based on sexual orientation it should be amended to specifically provide for this prohibition. Because the Code of Judicial Conduct is unclear, our Supreme Court should be given the opportunity to consider whether the Code should specifically prohibit this conduct before an opinion is issued addressing these facts. We agree with the following statement made by the Supreme Court in Dale: “We are not, and we must not be, guided by our views of whether the Boy Scouts’ teaching with respect to homosexual conduct are right or wrong; . . .” 530 U.S. 661. The determination as to whether a judicial officer may be associated with an organization, such as the Boy Scouts, lies with our Supreme Court, which has the sole authority to set the parameters for judicial conduct.

See Opinion 86-16.

Three members of the committee agree with this opinion (Cooper, J. Woodard, J. and Ms. Mary McQueen).

Opinion 04-01

01/23/2004