State of Washington

Ethics Advisory Committee

Questions:

May a part-time judge, i.e., a pro-tem judge that serves more than 12 calendars a year, publicly support a local ballot proposition to raise money for local parks and schools, specifically via a levy on property taxes? This ballot proposition was promulgated by the local city council, is non-partisan, is not tied to any candidate for any office, and historically has not been the subject of any litigation.

The part-time judge runs a solo law practice and maintains a personal social media page consisting of connections with family, friends, and members of the legal and non-legal community. The judge also runs a professional social media page as a promotional vehicle for the solo law practice.

May the part-time judge, consistent with the Code of Judicial Conduct:

1. Publicly hold a sign on a sidewalk with a message of support for the proposition, and/or
2. Speak in favor of this proposition on the part-time judge's personal social media page, and/or
3. Speak in favor of the proposition on public social media pages, e.g. a neighborhood Facebook group that limits its membership to those eligible to vote in local elections.

Answer:

A part-time judge serves on a regular or periodic basis in excess of eleven cases or eleven dockets annually. CJC Terminology. Even though a judicial officer may meet the definition of part-time judge and CJC rules apply, there are several CJC rules that do not apply and are not implicated by this question.¹ Whether a judicial officer may publicly support a ballot measure implicates several other CJC rules.

A judge shall comply with the law, including the Code of Judicial Conduct. CJC 1.1. CJC 1.2 provides in part that judges shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Impartiality means absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge. CJC Terminology. A judge should initiate and participate in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice. CJC 1.2, Comment [6]. Also, 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 1.3.

The duties of judicial office, as prescribed by law, shall take precedence over all of a judge's personal and extrajudicial activities. CJC 2.1. Generally, a judge is permitted to participate in extrajudicial activities, but a judge cannot participate in activities that would undermine the judge's independence, integrity, or impartiality, or engage in conduct that is coercive. CJC 3.1(C), (D), Comment [3].

The Committee has previously considered whether a judge may publicly support a ballot measure. A judicial officer is permitted to speak in favor of a ballot measure that would fund the replacement of a juvenile court facility and fund court operations, if no public resources were used and the comments did not address any other governmental services. Opinion 10-02.² A judicial officer may speak publicly about the impact of a tax adjusting ballot measure on the court, if the comments are limited to court operations and do not address other governmental operations. Opinion 04-04. Finally, a judicial officer may not join a group of citizens who would publicly support a school levy because the issue does not concern the law, legal system and the administration of justice. Opinion 95-03.

1) May the part-time judge, consistent with the Code of Judicial Conduct, publicly hold a sign on a sidewalk with a message of support for the proposition.

A judicial officer may not publicly support a ballot measure that will fund parks and schools because those issues do not concern the law, legal system or the administration of justice. Public advocacy for these types of ballot measures do not promote public confidence in the integrity and impartiality of the judiciary (CJC 1.2), may abuse the prestige of a judicial office for the benefit of others (CJC 1.3), do not promote public understanding of and confidence in the administration of justice (CJC 1.2, Comment [6]), undermine the judge's independence, integrity, or impartiality (CJC 3.1(C)) and could reasonably be viewed as coercive. CJC 3.1(D).

2) May the part-time judge, consistent with the Code of Judicial Conduct, speak in favor of this proposition on the part-time judge's personal social media page.

Social media posts have a similar impact as speaking in public. The California Judges' Association Committee explained:

One cannot assume that comments made on a social networking site are private. Posts on a Facebook page are not private. They appear on the "walls" of other Facebook members the user has "friended." If a user comments on a friend's post, that comment is visible not only to the friend, but to any of the friend's friends. As a result, any comments a judge makes on a social networking site should be treated as public comments within the meaning of [Rule 2.10(A)]. . . .

California Judges' Association Advisory Opinion 66 (2010). A judge should not expect any degree of privacy when posting on a social media page. By posting a message on a social media site, control of the message is transferred to the platform and to those who view the message. While a user my maintain management options which control how their social media account is viewed, a judge cannot limit those who can view the message once it is widely distributed. Since every message posted on social media is highly susceptible to replication and mass transmission, it is unreasonable to expect those communications will remain private. When a judge posts a message on their personal social media page, the same ethical issues are implicated as if the judge was speaking in public. A public comment of this nature would also amount to an abuse of the prestige of judicial office to benefit others.

3) May the part-time judge, consistent with the Code of Judicial Conduct, speak in favor of the proposition on public social media pages, e.g. a neighborhood Facebook group that limits its membership to those eligible to vote in local elections.

Posting on a social media page that limits membership to those voting does not constitute a private communication and involves similar risks of replication and mass transmission. For the reasons discussed in 1), the part-time judge's comments concerning any ballot measure must be limited to its impact on the law, legal system or the administration of justice.

¹  A part-time judge is not required to comply with Rules 3.4 (Appointments to Governmental Positions), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business, or Remunerative Activities), and 3.14 (Reimbursement of Expenses and Waivers of Fees or Charges). CJC Application II(A)(2). Additionally, a part time judge does not have to comply with Rule 2.10 (Judicial Statements on Pending and Impending Cases) except while serving as a judge. CJC Application II(A)(1).

²  The most recent ethics advisory opinion discussing this issue was released in 2010. In 2011, the Code of Judicial Conduct was amended and reorganized. The committee notes the removal of historical Canon 7(A)(4), which said: "[a] judge should not engage in any other political activity except on behalf of measures to improve the law, the legal system, or the administration of justice." Other foundational ethical principles implicated by this question were not substantially altered and the committee agrees with the outcome of this opinion.

Opinion 22-02

04/26/2022