Judge Admonished for Ad Which Said He “Got Into Law in Part to Advocate for Marginalized Communities”

Start at In re David S. KeenanThe opinion was posted on Westlaw on February 5, but some paragraph breaks were removed. It is signed by Ruth Reukauf and Robert Alsdorf and Ramon Alvarez and Wanda Briggs.

In all matters pertinent to this article, Judge Keenan served as a Superior Court Judge [in the civil department] for King County, Washington….

Judge Keenan was born with significant handicaps, but he overcame them. North Seattle College was able to help him overcome these disadvantages. After three years of suspensions, Judge Keenan decided to drop out from high school. North Seattle College encouraged him to obtain his General Educational Development Credential (GED). He has multiple degrees from the college and has a strong allegiance to the school….

After Judge Keenan had delivered the commencement speech at the college in July 2019, a staff member requested that Judge Keenan appear on bus advertisements for the college. He was willing to be in an advertisement promoting the college. The ad was likely to be seen on buses, he knew. Partly Judge Keenan wanted to get non-traditional candidates into the law school pipeline. Judge Keenan was aware that the advertisement was part of an enrollment campaign. He knew that increased enrollment would economically benefit the college….

{Judge Keenan has volunteered and continues to volunteer his time with a number of organizations that promote access to justice, diversity, and equality in the law.} This ad was published in King County on August 19, 2019. The text reads: “A Superior Court judge, David Keenan, got into law to help marginalized communities. David is changing the world. North is where he started.” It also featured a picture of Judge Keenan.

It is possible to read the advertisement as expressing a preference for or commitment towards marginalized communities. Judge Keenan said that the advertising could lead the public to think Judge Keenan is advocating for marginalized community.

Judge Keenan wasn’t running to be elected at the time of the advertisement. He was not running for office in this election. [But t]He ads can be seen by any reasonable person as campaign advertisements for Judge Keenan. The ads provided Judge Keenan with face and name recognition to the public in the same jurisdiction where he runs for office….

According to the Commission, this was in violation of Rules of Judicial Conduct. This warranted a public warning and sanction.

By allowing … the bus ad, Judge Keenan [violated Rule 1.2 because he]Neither promoted confidence in impartiality or avoided appearances of corruption. All walks of life have litigants. Many different groups of people are represented in litigation. You can have a natural person or an artificial person as a litigant, such as a lawyer. corporations.

Judge Keenan’s ad does not encourage confidence in the judiciary. The ad gives the impression of fraud. It is clear that the language in the advertisement suggests Judge Keenan would support marginalized communities if he had a preference. His goal is to “change the world.” The same message could also be inferred by an unbiased reader. [The ad] {This could indicate Judge Keenan’s predisposed bias in favor of marginalized members. People who are not from those communities could reasonably be concerned about being treated unfairly by Judge Keenan.}

This interpretation is acceptable. Judge Keenan stated in a series emails that the language used in the ad could lead to confusion. My colleagues informed me they thought the language I used in advocating for marginalized groups could lead to confusion among the public. They also believed that Judge Keenan was advocating as a judge. Judges must be impartial. The language is clear to me. Although I am an advocate who went to law, the advertisement identifies me in court as a judge. I understand why some people might be confused.”

The decision follows Ethics Advisory Opinion 96-16 which stated that a judge can attend “A Day of Remembrance”, a ceremony honoring domestic violence survivors. The opinion stated that a judge’s mannerisms and actions should not be interpreted as implying that he or she is unable to resolve any matter that might come up. Accordingly, the judicial officers should not behave as advocates or show any bias as to whether they might decide in a case involving domestic violence. …

We considered how the advertisement would impact viewers by replacing “marginalized” communities with “victims”, “divorced dads,” or “those charged of sex offences,” in order to arrive at our conclusion. These other groups are substituted in the ad to show the potential impact of Judge Keenan’s words on the public’s perceptions of court proceedings. The ad judge Keenan approves must be accepted by another judge. It states that the judge entered the law partly to advocate for divorced fathers, or those accused of sex offences, or crime victims, or to help “landlords” and then went on to North Seattle College. Now, Keenan is making a difference in the world.

The law is often adversarial. Both sides desire fairness and justice from judges. Both sides want fairness from the judges. The ad suggests that a litigant appearing in Judge Keenan’s Court against a member from a marginalized group could legitimately have concerns about the judge being at disadvantage. Judge Keenan acknowledged this. It is obvious that Judge Keenan appears to lack impartiality. It does not encourage confidence in the judiciary.

We applaud Judge Keenan for his work in areas such as diversity, racial equity, access justice and fairness. However, Judge Keenan’s appearance in this ad along with the accompanying language clearly violates prohibitions against impropriety.

The Commission also concluded Judge Keenan violated Rule 1.3, “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others”—here, of the college—”or allow others to do so”; the Commission concluded that an earlier ethics advisory opinion, which allowed a judge to “appear in a law school video that would be sent to prospective law students” was “clearly limited to law schools.” The judicial officer can contribute to improving the legal system, the administration of justice and by helping law schools recruit the best qualified people into the profession.  This opinion is not an invitation to all schools or causes for judicial officer assistance.

Mustafa Mohamedali was one of the members of the Commission. He agreed, but wrote, “to express our deep regret that both the Constitution and Commission’s Rules require that we enforce discipline,” as he considered Judge Keenan’s actions to be an unintentional breach. However, he stated, “I recognize that I can’t make an exception to violations that are motivated by a valid cause because someone else in this position might have a different view system. We must ensure that the Code is followed consistently.”

Another member, Sherry Appleton (joined on this point by member Lin-Marie Nacht), dissented in part, reasoning that the ad wouldn’t appear to be a campaign ad: “The ad did not run during the judge’s election cycle, and it said nothing about voting for or electing the judge…. Although it clearly promotes North Seattle College, the ad also uses the judge’s title as judge. She also added:

My career was in the legislative branch. Judge Keenan has a great intention of encouraging people, who are also from non-traditional and disadvantaged backgrounds, to think about a career as judges. As a community advocate, it is distressing to me that a court would sanction a judge who does something I consider so important and admirable.

But, as a Commission member, I understand that I need to think about whether a judge performing the same thing for the same cause would constitute a Code violation. Because the outcome must be the exact same, regardless of my agreement with the judge’s intent. Inspiring and promoting people from the marginalized community to take leadership in every aspect of democracy is my wholehearted support. Although it is irrelevant to the Code being violated, I understand the intent of a judge. However, this should be relevant to the judge’s decision on sanction.

Although everyone would love to see a judge appear in an advertisement, we don’t all agree about what that greater good looks like. It is permissible for Judge Keenan in the ad. However, it must be okay for another judge with different views to appear in an advertisement that promotes a different cause.

The woman also stated she would prefer a “private cautionary letter” for a sanction. However, the judge acknowledged that this sanction was not legally possible.

Lin-Marie Nacht, Member of Parliament, voted against the section “promoting confidence in the judiciary”, but she agreed with the incorrect endorsement of the college.

Rule 1.2 permits judges to declare that they’re working to rectify historical or weak points of the Court. Even if it was stated explicitly (which it didn’t), that Judge Keenan wanted to represent marginalized communities in this instance, that wouldn’t violate the Code. I don’t believe Rule 1.2 prevents judges from acknowledging that there are historical problems that the courts face, especially when they involve marginalizing populations, permitting racial bias or supporting oppression against protected minority groups.

Recognizing historical and present problems and showing an interest to work on them does not reduce public trust in the integrity and competence of the judiciary. Recognizing these weaknesses should not reduce public trust in the judiciary. While the phrase “marginalized” is not intended to describe any litigant that might be appearing in court, the words acknowledge the past mistakes made by courts and other systems in exclusioning certain people from the protections afforded them by government and the courts.

While I make this distinction, I’m not commenting about Judge Keenan’s concern. Instead, my focus is on how to deal with a problem that has been a hallmark of past court failures. Judges could speak out about the value of a group such as domestic violence victims, and this could raise questions about their impartiality. Courts have historically not unfairly excluded and oppressed “divorced parents”, “victims”, or those accused of sex crimes,” nor “landlords.” Instead, they have decided cases involving these litigants in accordance with the law.

It could be considered a violation to Rule 1.2 to state an intention to advocate from the bench for such groups (benevolent, harmful), as it would only be advocating the groups’ concerns and not working on the Court’s historical mistakes. But I believe that a judge should advocate, within their own courts, for allowing marginalized communities to have access to the courts, and the Code of Judicial Conduct similarly encourages judges to “participate in activities that … promote access to justice for all.”

Some Commissioners may find it troubling that the term “advocate” is used in this context. My position is that our statement is distinct. The Commission shouldn’t have to approve a judge who misunderstands someone else’s words. Unless the mistaken interpretation would be reasonable, the Commission shouldn’t. I specifically disagree with the majority’s Finding of Fact … that such a reading would be reasonable. Simply because a statement could possibly be confused to mean something else does not mean that it is reasonable to so understand it….

Judge Keenan was not so bold as to say that he is currently supporting the cause for marginalized communities. Keenan states instead that he entered law partly to support these communities.

Many judges are attorneys who were also lawyers before they took up the position. Advocates are attorneys. Advocates represent the parties and take sides. Anyone who served as a judge was an attorney before becoming a judge. However, this does not preclude lawyers from being elected judges. Judge Keenan testified that he was referring to why he first got into the law, not that he was advocating for those communities from the bench….

Lin-Marie Nacht was partially agreed to by Larry Goldberg, who added:

The majority of the comments I have heard are incorrect. They give the impression that Respondent might be biased and would rule against members from marginalized communities. My name is a White Anglo-Saxon male and I’m not financially disadvantaged. Even though this advertisement has been seen, I wouldn’t be concerned about the impartiality of this judge if I was in a court case.

Member Goldberg brought up the fact that “AngloSaxon” may be used in this context to denote “nonHispanic.”

However, the opinions don’t address in detail whether or not judges are allowed to use First Amendment rights in their advertisements (see Republican Party vs. White (2002); Williams-Yulee V. Florida Bar (2015)).