State of Washington

Ethics Advisory Committee

Opinion 19-01

Question:

I am a named Board member of the Anti-Defamation League as of September 2018. In this capacity I have attended several board meetings. In my capacity as a Board member I have asked the Director to strictly limit my activities to educational aspects in which the organization is involved. Specifically, the ADL is involved in the No Place for Hate campaign that addresses all forms of bullying that occurs in schools throughout the state of Washington. I would not be involved in any fund-raising activities or requests for funding for the ADL or the No Place for Hate campaign. Although I have not engaged in any of these activities as of yet because of the question of propriety of serving as such, I am taking this opportunity to question the ability to serve on the Board in this limited capacity.

Answer

The desire of judges to be engaged in their communities as individuals, and their responsibility to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, creates a tension that must be thoughtfully navigated. The committee has issued several opinions about participation in extrajudicial activities. The most comprehensive of these opinions is 93-19, which included numerous major issues and factors to consider when participating in particular activities or with a particular organization.

Since the comprehensive opinion about participation in extrajudicial activities was issued in 1993, which was prior to the adoption of the most recent Code of Judicial Conduct, the committee takes this opportunity to affirm the general advice about organization and activity participation, and uses its guidelines to give specific advice in response to the question posed about whether a judge may participate as a board member of the Anti-Defamation League regional chapter if they limit their participation to specific educational campaigns.

Relevant Code Provisions

CJC 1.2 provides in part that judges shall conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

CJC 1.3 provides that a judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.

CJC 2.1 provides that the duties of judicial office, as prescribed by law, shall take precedence over all of a judge's personal and extrajudicial activities.

CJC 2.10 provides, in part, that a judge shall not make any public statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.

CJC 3.1 allows judges to participate in extrajudicial activities except as prohibited by law as long as participation does not: 1) interfere with the proper performance of the judge's judicial duties; 2) lead to frequent disqualification; 3) undermine the judge's independence, integrity, or impartiality; 4) amount to conduct that is coercive; 5) or make extrajudicial use of court resources except for incidental use.

Anti-Defamation League and Anti-Defamation League Pacific Northwest

The committee has reviewed publicly available information related to the national organization of the Anti-Defamation League (ADL) and the regional chapter of the Anti-Defamation League Pacific Northwest (ADL PNW). It is the committee's understanding that the inquiry is related to board membership of the regional chapter of ADL PNW but because the national organization provides the framework of values and beliefs that guides the regional chapters, the committee must examine the nature of both the national and regional organizations.

The ADL enumerates many values that inform their work and guide the strategy and tactics of all programs and activities globally, nationally and locally.1 These values include, in part: 1) having the courage to speak out against anti-Semitism and bigotry, discrimination and injustice—even when we stand alone; 2) standing up for the Jewish State of Israel—the only democratically elected government in the Middle East; 3) valuing respect in their work and workplace, acknowledging the humanity in others—even as they put forth different views; 4) embracing the power of collaboration; 5) believing in the power of inclusion and uniting people from diverse groups; 6) observing the highest standards of integrity; 7) being viewed as having unquestioned credibility because actions draw from years of experience and are grounded in research and rigorous thinking; 8) setting high performance expectations and holding themselves accountable for the quality of their work and the results they achieve as individuals, as a team and as one organization.2

On the national ADL website under "Research & Tools", the organization lists more than 100 amicus briefs that have been filed, primarily in federal court, since 2014.3 Under the "Tools" tab, it includes a blog, press releases, and a media watch section.4 Several press releases urge advocacy and request several governmental entities to take specific action. (See "ADL Says Federal Religious Exemption for Foster Care Program is Discriminatory, Shameful and Immoral,"5 and "Letter to the Office for Civil Rights at HHS Regarding South Carolina Adoption Issue."6) In addition to these sections, other tabs describe "What We Do," "Education," "Research and Tools," "Take Action," and "Ways to Give."

The website contains some materials that are critical of political figures (See "Letter to House Speaker Nancy Pelosi Regarding Recent Anti-Semitic Comments by Rep. Ilhan Omar,"7 and "ADL Response to the President's Nomination of Judge Brett Kavanaugh to Serve as an Associate Justice of the United States Supreme Court"8) and contains material about a crime in Washington state (See "Racist Skinheads Charged in Washington State Hate Crime Attack"9). It does not appear as though the ADL is a party to any pending cases in the Washington Supreme Court, but has appeared as amici in at least one high profile case currently pending before the Court10.

The ADL PNW website focuses more on the actions of the regional chapter, which includes Alaska, Idaho, Montana, Oregon, and Washington State. It describes programming that promotes diversity and respect in schools, trains law enforcement on hate crimes and bias, advocates for civil rights legislation, and helps members of the community to handle incidents of discrimination and bias.11 Review of the "News" and "Blog" tabs show stories and press releases that respond to incidents at Mercer Island high school, graffiti in a Klahanie neighborhood, and, criticism of language in the King County Voters pamphlet and a blog entry on support of a bill in the Washington state legislature. It does not appear as though the ADL PNW is a party to any pending cases in the Washington Supreme Court.

Analysis

Pursuant to opinion 93-19, the major issues judges must consider in deciding whether and to what extent to participate in extra-judicial activities or an organization are: A) The nature of the organization; B) The nature of the judge's role; and C) The nature of the particular activity.

The nature of the ADL and ADL NW organizations are advocacy based. The ADL describes itself as a "leading anti-hate organization…which is a global leader in exposing extremism, delivering, anti-bias education, and is a leading organization in training law enforcement." ADL NW describes itself as delivering programs that promote diversity, train law enforcement on hate crimes and bias, advocate for civil rights legislation, and helping members of the community handle incidents of discrimination and bias.

The relevant factors in assessing whether it would be appropriate to participate in particular activities or a particular organization are: A) the organization filing amicus briefs on disputed issues; B) participation which may convey the impression that others are in a special position to influence the judge; C) participation which may interfere with the performance of judicial duties; D) participation which may cast doubt on the capacity to decide impartially any issue that may come before the court; E) the organization being conducted for the economic or political advantage of its members; F) participation in the organization's activity which may convey the impression that the judge is engaging in political activity beyond improving the law, the legal system, or the administration of justice; G) the organization endorsing nonjudicial political candidates; H) the organization subscribing to a particular legal philosophy or position which would give the appearance of partiality, i.e., imply commitment to causes that may come before the courts for adjudication; I) attendance at a fundraiser which may give the appearance that the judge is lending the prestige of the office to support a position that would impair the judge's impartiality; J) the organization being devoted to the improvement of the law, the legal system, or the administration of justice; K) the organization serving primarily a social function; I) an invitation to an activity which would be seen as ordinary social hospitality; and J) the extent of the participation of the judge in the organization; i.e., member, committee member, advisor or guest.

The committee affirms all of the factors listed in 93-13 as relevant in assessing whether it would be appropriate to participate in particular activities or a particular organization and to what extent a judicial officer can participate. The question posed asks whether a judge may serve as a board member of ADL NW if participation was limited to educational programs, namely the "No Place for Hate" campaign.

Board Membership

It is unclear whether a judge could participate in the organization as a Board member and renounce all required duties with the exception of limiting participation to one educational campaign. If the organization's bylaws allow for such limited participation of a Board member, then arguably the only other value the judge has to offer to the organization as a board member is their judicial title. Participating in the organization as a board member with such limited participation, even if allowed by the organization's bylaws, would put the judge in danger of violating CJC 1.3, which prohibits the abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.

The remaining question is whether the judge could participate as a regular Board member of the organization while limiting their participation to specific discussions and activities, and participating primarily in educational programs that are not related to law enforcement training. While CJC 3.7 expressly authorizes a judge to serve as a Board member of a nonprofit organization, this service is also subject to other provisions of the Code including CJC 3.1, CJC 1.2, CJC 2.1, and CJC 2.10.

The question of whether a judge may serve as a Board member of a particular organization is ultimately resolved by looking at the activities of the organization and the role of the Board member. CJC 3.1 requires that service may not interfere with the judge's judicial duties and service must not undermine the judge's independence, integrity, or impartiality. Board membership on organizations that engage in advocacy or litigation present unique challenges to the analysis related to a judge's independence and neutrality. Independence and neutrality provide the foundation for confidence in the judicial branch.

Based on a review of the publicly available materials, the nature of the ADL organization appears to be an advocate in disputed issues. It regularly files amicus briefs on disputed issues, and it subscribes to particular legal philosophies or positions that would give the appearance of partiality.

While the ADL and ADL PNW are different organizations, the regional offices are vehicles of the national organization that take the values and mission on the national level and implement such advocacy at the local level. This advocacy at the local level is evidenced by ADL PNW's press releases, blog entries and statements. The public could reasonably perceive all Board members as responsible for, or at least supporting, the statements and policies of the organization. Therefore, while the judge may participate in certain activities of either the ADL or ADL PNW, the judicial officer should not serve as an officer, on the board of directors, or in any other leadership position in the ADL or ADL PNW as doing so would undermine the judge's independence and impartiality.

Participation in ADL PNW Educational Campaigns

Unlike being a Board member of the organization, participation in specific organizational activities does not necessarily take on the mantle of representing the organization's statements or policies.

The No Place for Hate education campaign is described as an organizing framework for combating bias, bullying and hate in K-12 schools. The program requires schools to submit a completed commitment form, create a coalition, sign a resolution of respect, choose and complete at least three school-wide anti-bias education activities throughout the school year, and submit the completed activity form.12 In this educational campaign, the nature of the judge's role would be as an educator or participant, and the nature of the activity is to encourage a positive school climate.

If the judge does participate in an educational activity, he or she should not associate him or herself with organizational positions on matters of public controversy; the judicial officer should disqualify himself or herself from any litigation where the ADL or ADL PNW is a party or representing a party or has participated as amici; and if an issue comes before the judicial officer for decision that involves a matter on which ADL has taken a public position either by litigation, lobbying, or direct advocacy, the judicial officer should disclose his or her affiliation with the ADL and should consider whether recusal is necessary.

The judicial officer may participate in the No Place for Hate educational campaign, but should carefully consider whether participating in education sponsored by the organization that involves law enforcement would create the appearance of impropriety or partiality. The content of the program and the response to questions must be carefully structured to avoid giving the impression that the judge will do other than apply the law, or that the judge has a bias or predisposition toward any questions that the judge might be called upon to decide. If the judge is unable to restrict any such presentation within those limits, the judge should not participate.

The judicial officer should regularly reexamine the activities, policies, and rules of the organization to determine whether it is proper for the judicial officer to continue his or her relationship with it and should carefully consider whether specific programs or activities of the organization may undermine confidence in the judicial officer's independence, integrity and impartiality.


1  https://www.adl.org/who-we-are/our-values (last accessed March 6, 2019).

2  https://www.adl.org/who-we-are/our-values (last accessed March 6, 2019).

3  https://www.adl.org/education-and-resources/resource-knowledge-base/amicus-brief-database (last accessed March 6, 2019).

4  https://www.adl.org/news (last accessed March 6, 2019).

5  https://www.adl.org/news/press-releases/adl-says-federal-religious-exemption-for-foster-care-program-is-discriminatory (last accessed March 6, 2019).

6  https://www.adl.org/news/letters/letter-to-the-office-for-civil-rights-at-hhs-regarding-south-carolina-adoption-issue (last accessed March 6, 2019).

7  https://www.adl.org/news/letters/letter-to-house-speaker-nancy-pelosi-regarding-recent-anti-semitic-comments-by-rep (last accessed March 11, 2019).

8  https://www.adl.org/news/press-releases/adl-response-to-the-presidents-nomination-of-judge-brett-kavanaugh-to-serve-as (last accessed March 6, 2019).

9  https://www.adl.org/blog/racist-skinheads-charged-in-washington-state-hate-crime-attack (last accessed March 11, 2019).

10   Robert Ingersoll, et al. v. Arlene's Flowers, Inc., et al., No. 916152

Opinion 19-01

04/30/2019

 

Privacy and Disclaimer NoticesSitemap

© Copyright 2024. Washington State Administrative Office of the Courts.

S5