2019-1: A judge’s participation in civic or political activity like the March for Science.

IJEC Opinion No. 2019-1

TOPIC: A judge’s participation in civic or political activity like the March for Science.

DIGEST: A judge may participate in the March for Science without violating provisions of the Illinois Code of Judicial Conduct addressing appearance of impartiality, activities intended to improve the law, civic activities, and political activities, but before attending other events of that nature a judge should consider the risk that the issues that are the subject of those events might be likely to come before the court or adversely impact judicial independence or the appearance of impropriety or bias.

REFERENCES: Illinois Supreme Court Rules 61, 62, 64, 65B, and 67A(3)(a). IJEC Opinions 1993-07, 1994-05, and 1995-23

FACTS

A march in support of science was scheduled to take place in Washington, D.C., with satellite marches in scores of other cities around the world. A judge inquired whether attending the march would violate the Illinois Code of Judicial Conduct.

The first March for Science began as a discussion on Reddit, a news and discussion website. The discussions spawned an organized group of scientists and science supporters to hold the first March on April 22, 2017, in Washington, D.C., and in hundreds of other cities throughout the United States and abroad.

The March for Science’s website states:

The March for Science champions robustly funded and publicly communicated science as a pillar of human freedom and prosperity. We unite as a diverse, nonpartisan group to call for science that upholds the common good and for political leaders and policy makers to enact evidence based policies in the public interest.

March for Science, Our Mission, https://www.marchforscience.com/our-mission (last accessed Mar. 28, 2019).

The core principles of the March for Science are:

  • Science that serves the common good
  • Evidence-based policy and regulations in the public interest
  • Cutting-edge science and education
  • Diversity and inclusion in STEM
  • Open, honest science and inclusive public outreach
  • Funding for scientific research and its applications
  • Partner with the public
  • Advocate for open, inclusive, and accessible science 
  • Support scientists
  • Affirm science as a democratic value 

March for Science, Principles & Goals, https://www.marchforsciencepdx.org/about/principlesgoals (last accessed Mar. 28, 2019).

While the mission and core principles stated by the official committee were nonpartisan, many participants, and likely even some of the event leaders, may have had more partisan motivations for their involvement.

QUESTION

May a judge participate in the March for Science by walking in the March and attending the related rally?

OPINION

The Illinois Code of Judicial Conduct does not prohibit a judge or judicial candidate from participating in a civic or political event like the March for Science. In particular, participating in such a march does not violate the Code provisions that address the appearance of impropriety and impose limits on permissible civic or political activity. We will address each of these considerations. Appearance of Impropriety

The primary goal of the Code is to preserve the integrity and independence of the judiciary, and all provisions of the Code should be construed with that in mind. Ill. Sup. Ct. R. 61. Accordingly, Canon 2 of the Code requires judges to “avoid impropriety and the appearance of impropriety in all of the judge’s activities.” Ill. Sup. Ct. R. 62 (emphasis added). Rule 62A requires judges to respect and comply with the law. Ill. Sup. Ct. R. 62A. Similarly, Rule 67A(3)(a) requires a judicial candidate to maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary. Ill. Sup. Ct. R. 67A(3)(a).

When making an oral or written statement, a judge may be able to avoid any appearance of impropriety by including a caveat affirming the judge’s commitment to impartiality. See IJEC Opinion 1994-05 (opining that a judge may write an article expressing his or her views on gun control which included a strong statement of the judge’s commitment to impartiality). By contrast, a judge’s actions may give rise to unintended inferences that are not so easily cured. For example, attendance at a political event may not be intended as a statement of support for the event’s stated purpose, but may be interpreted as such. Accordingly, the Illinois Judicial Ethics Committee (IJEC) recommends that, before attending such an event, a judge should investigate the agenda for the event, including the objectives of the event’s organizers, and evaluate the risk that organizers or supporters will engage in unlawful activity or will express views that might reasonably be perceived to associate the judge with impropriety or to compromise the judge’s perceived independence and impartiality.

In the case of the March for Science, the IJEC believes that an attending judge would not reasonably be perceived to be engaging in impropriety, or to thereby compromise the judge’s 3 impartiality. Participating in the March therefore would not violate Rules 61, 62A, or 67A(3)(a) of the Code.

Activities to Improve the Law, the Legal System, and the Administration of Justice:

A judge may engage in activities to improve the law, the legal system, and the administration of justice so long as those activities do not cast doubt on the judge’s capacity to decide issues impartially. Ill. Sup. Ct. R. 64. The limits imposed by Canon 4 guard against the risk that a judge’s participation in law reform activities will undermine the judge’s ability to decide specific issues that come before the court. A judge’s general expression of views on societal issues does not ordinarily present such a risk. Accordingly, IJEC Opinion 1994-05 concluded that a judge could write an article expressing the judge’s views on society’s tolerance of guns because it was so generalized that it would not cast doubt on the judge’s ability to be impartial. A general expression of views on a law-related issue is different than an unequivocal statement of personal views regarding an issue that will come before the court. An example of the latter, problematic conduct led the Arkansas Supreme Court to reassign all death penalty cases pending before a judge who had expressed a moral opposition to the death penalty. See In re Kemp, 894 F.3d 900, 904-905 (8th Cir. 2018) (noting that the Arkansas Attorney General alleged that the judge acted on this bias by issuing a temporary restraining order).

Based on its description and stated purpose, the March for Science does not appear to entail an activity related to improving the law, the legal system, or the administration of justice. However, even if it were, the goals of the March consist of broad statements and ideals that are unlikely to come before a court. Indeed, the stated purposes of the March appear on their face to be directed toward developing a process for decision-making rather than advocating particular decisions regarding specific issues. Accordingly, the Committee does not believe that a judge’s participation in the March would violate Rule 64.

Civic Activity

A judge “may participate in civic and charitable activities that do not reflect adversely on the judge’s impartiality or interfere with the performance of the judge’s judicial duties.” Ill. Sup. Ct. R. 65B. Like Canon 4, Canon 5 is also concerned with issues that may come before the court. See IJEC Opinion 1993-07 (finding a judge may not serve as an officer of an organization that opposes and demonstrates against the death penalty since the organization may appear before the court). Rule 65B provides additional limitations should a judge wish to serve as an officer, director, trustee, or non-legal advisor of a civic organization. These limitations are inapplicable to the mere participation in a civic event of the sort involved in the inquiry.

To the extent that the March for Science may be considered a “civic activity,” within the meaning of Rule 65B, a judge may attend the March without violating the Code of Judicial Conduct. Previous Opinions of this Committee have found that a judge may act in a play, IJEC Opinion 1995-23, or participate in a parade while wearing his or her robes. See IJEC Opinion 1994-03 (finding a judge may participate in a parade demonstrating different types of professions to children). As previously noted, the March of Science involves issues that are unlikely to come before the court and does not entail advocacy for particular decision of specific issues. 4

Accordingly, the Committee believes that a judge’s participation in the March would not violate Rule 65B.

Political Activity

The March for Science can be considered political activity in the sense that it speaks to the actions and values of public officials and the use of public funds. The IJEC believes a judge can engage in that form of political activity—i.e., attending a political gathering—without violating the Illinois Code of Judicial Conduct. Illinois Supreme Court Rule 67B(1)(a) expressly states that: “[a] judge or candidate may, except as prohibited by law: at any time, purchase tickets for and attend political gatherings.”

Other jurisdictions have reached different conclusions regarding whether the March for Science constitutes impermissible political activity. For example, New York Advisory Opinion 2017-38 opines that “[a] judge who wishes to participate in a high-profile, apparently non-partisan march, whose purpose is to recognize the importance of scientific endeavors and rational thought in society, must monitor the march’s agenda and publicly reported affiliations and sponsorships in the period leading up to the event.” While New York generally permits a judge or judicial candidate to vote and to participate in his or her own campaign, a judge is expressly prohibited from participating in any other partisan political activity, including membership in a political organization or attending political gatherings. See 22 NYCRR 100.5(A)(1). Additionally, a New York judge must avoid involvement with political organizations—defined as any group whose principal purpose is to further the election or appointment of candidates to political office. See 22 NYCRR 100.0[M].

Similarly, Massachusetts Opinion No. 2016-10 advises that a judge may not attend the Women’s March on Washington, which took place on January 21, 2017. Based on the specific rules for judges in Massachusetts, Opinion No. 2016-10 advises that the “political overtones are unmistakable” and “[a] primary purpose of the Women’s March is to ‘send a bold message to [the] new administration on their first day in office.’” Like New York, the Massachusetts Code of Judicial Conduct provides a blanket prohibition on political conduct, including an express prohibition against attending “dinner or other events sponsored by a political organization or a candidate for public office or intended to raise money or gather support for or against a political organization or candidate.” Mass. Sup. Ct. R. 4.1(A). Accordingly, the Committee found that Women’s March—in the eyes of a reasonable person—is a political protest, prohibited by the Massachusetts rules. Although Massachusetts Supreme Court Rule 4.1(B) does allow a judge to “engage in activity in support or on behalf of measures to improve the law, the legal system, or the administration of justice,” Massachusetts Opinion 2016-10 concluded that the political overtones overshadowed any intent to improve the law, legal system or administration of justice.

The IJEC believes that the broad authorization, under Rule 67B(1)(a), for Illinois judges to “attend political gatherings” distinguishes this situation from the ethics provisions discussed in the New York and Massachusetts opinions discussed above. The IJEC notes that Rule 67 was amended in 1993 after the Seventh Circuit ruled that restraints on a judicial candidate’s speech were unconstitutional. Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993). The revised Rule, which is still in effect, allows Illinois judges to participate in a broader range of 5 political activities. Accordingly, the IJEC believes that a judge’s participation in the March for Science would not violate Rule 67 of the Illinois Code of Judicial Conduct.

CONCLUSION

The Committee notes that its conclusion relates to the specific question concerning the “March for Science,” an event centered on matters that are unlikely to come before the court. For other issuerelated gatherings, the Committee cautions judges to thoughtfully examine whether the issues that are the subject of those events might be likely to come before the court or adversely impact judicial independence or the appearance of impropriety or bias.