State of Washington

Ethics Advisory Committee

Questions

1. May a sitting judge join a group that supports an amendment to overturn Citizens United?
2. May a sitting judge campaign or advocate for an amendment to overturn Citizens United?
3. May a sitting judge educate the public on an amendment that would overturn Citizens United?

The judge is interested in becoming publicly involved with a public campaign to pass an amendment to the United States Constitution. The proposed amendment would overturn the US Supreme Court's decision in Citizens United v. Federal Election Commission, 558 U.S. 310, 30 S. Ct. 876, ___L.Ed. 2d ___(2010) by specifying that only "natural citizens" are entitled to the protections of the personal rights contained in the Constitution, and that corporations are not "natural citizens" and are not entitled to those protections.

CJC 1.2 provides that judicial officers shall act at all times in a manner that promotes public confidence in the independence, integrity, and the impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. CJC 3.1(C) provides in part that a judicial officer may engage in extrajudicial activities that would not undermine a judicial officer's independence, integrity, or impartiality. Comment 4 to CJC 3.1 provides that before speaking or writing about social or political issues, the judge should consider the impact of their statements under Canon 3. CJC Canon 4.1(A)(11) and (12) provide in part that a judicial officer's ability to make a statement may be restricted if that could affect the outcome or impair the fairness of a matter pending or impending in any court or in connection with cases or controversies that are likely to come before the court.

A judicial officer may not participate in the activities described in questions 1 or 2. Judicial officers in this state are elected to non-partisan elected positions. CJC Canon 4 provides that judges shall not engage in political activity that is inconsistent with the independence, integrity, or impartiality of the judiciary. Because the proposed constitutional amendment can be seen as a political issue and is identified with the efforts of one political party, a judicial officer should not engage in activities that would promote the passage of a constitutional amendment to overturn the decision in Citizens United.

With regard to question 3, the Code of Judicial Conduct does not prohibit a judicial officer from engaging in educational activities concerning a United States Supreme Court decision if those activities are conducted in a non-partisan manner that avoids advocacy and will not undermine the judicial officer's independence, integrity or impartiality. Citizens United and the issue as to whether a corporation should be accorded the same federal constitutional rights as natural citizens has become highly politicized and partisan. While U.S. Constitutional issues raised by Citizens United are not likely to come before any of this state's courts, numerous other state election law issues could come before the judicial officer. Therefore, even though a judicial officer may engage in educational activities, the judicial officer should consider the content and impact of any educational activities under Canon 3 to ensure the activities are not identified as being those espoused only by a political organization and therefore, will not undermine the judicial officer's independence, integrity, or impartiality.

Opinion 13-02

02/26/2013