NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.
August 6, 1996
A judge may not participate in a public protest against a group or organization which advocates against a particular race, ethnic group or religion.
References: MCJC 1, 2A, 2B, 2E, 3A(6), 4; JI-52, JI-65.
A judge asks whether there is an ethical proscription against a judge participating in "protests on issues relating to race relations, race discrimination," for example, a protest against a Michigan militia organization which advocates against a particular race, ethnic group or religion.
MCJC 1 requires that the provisions of the Michigan Code of Judicial Conduct be construed to further the objective of an independent and honorable judiciary. The Commentary to Canon 1 of the ABA Model Code of Judicial Conduct, from which the Michigan Code is derived, states:
"The provisions of the Code are to be construed and applied to further the objective articulated in Canon 1. The primary goal of the judicial system should be fair and impartial administration of justice for the benefit and protection of the public and litigants. Interests of the judiciary or individual judges should be secondary. Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depends in turn upon their acting without fear or favor. Although judges should be independent, they must comply with the law, including the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law."
MCJC 2A cautions that a judge must freely and willingly accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen, in order to sustain public confidence in the judiciary. MCJC 2B requires that "[a]t all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary." MCJC 2E states:
"A judge should not allow activity as a member of an organization to cast doubt on the judge's ability to perform the function of the office in a manner consistent with the Michigan Code of Judicial Conduct, the laws of this state, and the Michigan and United States Constitutions. A judge should be particularly cautious with regard to membership activities that discriminate, or appear to discriminate, on the basis of race, gender, or other protected personal characteristic. Nothing in this paragraph should be interpreted to diminish a judge's right to the free exercise of religion."
MCJC 4 addresses judicial participation in questions of policy, and encourages judges to participate in activities which improve the law, the legal system or the administration of justice, but "through a bar association, judicial conference, or other organization dedicated to the improvement of the law." Because judges are supposed to be impartial, to make decisions based upon the law and the record of a case, and to uphold the law, judges should not declare their personal preferences regarding policy questions. If a judge has become identified with a particular interest group or position, and that group appears as a party or a similar issue arises before the judge in a pending matter, the judge may have to recuse himself or herself in order to preserve the fairness of the process. MCJC 3A(6) prohibits a judge from making public comment about a pending or impending proceeding in any court.
American society is a rich assortment of divergent backgrounds and views. Those who serve as judges are no exception. But judges have generally not been permitted to engage in extrajudicial activity which pits one segment of society against another. In JI-52, the Committee determined that a judge could not sign a resolution which requested that the mayor and county board of commissioners take steps to prevent a business from closing in their community, because the activity showed favoritism and bias for a private group, union employees and the matter was likely to be the subject of litigation due to the loss of jobs. Under similar reasoning, the Committee determined in JI-65 that a judge may not serve on a committee whose mission is to support pro-business interests.
In this inquiry, the judge would be doing more than holding personal views. The judge would be appearing in public as a part of a protest against some of the persons, presumably, who may appear before the judge in unrelated matters. The protest targets a particular segment of society, rather than, for instance, standing for the principle of equal treatment under the law. "Protests" have been known to cause property damage, trigger arrests, and invoke media attention, all of which may impact future court proceedings. Why should citizens, particularly militia groups who are known to be skeptical of legal system generally, avail themselves of the courts if it appears that the judges have already declared their opposition? As ignominious as we may find the views of a particular group, it is more important that we preserve a forum in which those persons may be fairly and impartially heard.