Shortly after I was appointed a judge in 1984, I was in Washington DC visiting a brother. We were walking along and came upon a protest in front of the South African embassy against that country’s apartheid policies. I was really tempted to join but felt that as a newly appointed judge discretion might be the better part of valor. To this day I occasionally think of that moment and whether I made the right moral decision. And then of course there is the judicial ethics question. My guess (which could be wrong) is that for Canadian judges it is easy. No going out and joining protests. There probably are states where a judge could get in ethical trouble. The answer about where to draw the line isn’t always easy.

From the California Courts Newsroom

July 22, 2020 | Merrill Balassone

A California Supreme Court committee today published guidance for judges who want to attend public demonstrations and rallies, citing a slate of ethical issues for judges to consider before participating.

The opinion, issued by the Supreme Court Committee on Judicial Ethics Opinions (CJEO), said judges may feel a moral obligation to support causes of racial justice and equality in their communities by participating in public demonstrations and rallies.

At the same time, judges have a duty to promote the public’s confidence in judicial impartiality.

CJEO Formal Opinion 2020-014 concludes a judge’s participation in a public demonstration or rally is not prohibited in all circumstances and lists the following restrictions:

• Judges cannot attend demonstrations or rallies if their presence might undermine the public’s confidence in the judiciary;
• Judges cannot attend such events that relate to a pending case, or to an issue likely to come before the courts;
• Judges cannot participate if likely to violate a law, for example violating a curfew.
• Judges cannot create the appearance of speaking on behalf of, or lending the prestige of office to, a political candidate or organization, or allow their participation to interfere with the proper performance of their judicial duties.
• Judges must remain vigilant and should be prepared to leave if staying at the demonstration or rally might result in a violation of their ethical duties or interfere with judicial obligations.

“Judges who have devoted themselves to the cause of justice from the bench may feel compelled to show their support for racial justice and equality by attending or speaking at demonstrations or rallies, often just outside of the courtroom doors. The committee wants to provide bench officers with a practical framework, firmly grounded in the canons, for what they can and cannot do ethically either by going to a demonstration or rally or by making a public statement about these important matters,” said Judge Erica Yew, a member of the committee who currently serves on the Santa Clara County Superior Court.

Because of the ethical issues that might arise by attending and participating in a public demonstration or rally, the opinion suggests judicial officers instead consider writing a public statement about matters relating to racial justice and equality, as California Chief Justice Tani G. Cantil-Sakauye (link) and the Supreme Court of California (link) have done. Since judges can maintain control of the substance and tone, a statement that addresses issues of racial justice and equality may present fewer ethical risks than participating in a public demonstration or rally on those same issues.