JEAC rules judge can oppose neighborhood gated community if acting pro se
A judge may “actively oppose” the creation of a gated community in their neighborhood, including speaking at public hearings, wearing messaged apparel, and posting yard signs — if the actions remain purely pro se, the Judicial Ethics Advisory Council has concluded.
A September 17 JEAC Opinion, 2024-15, involves an inquiry about whether a judge may “actively oppose creation of a gated community in a portion of the judge’s neighborhood by communicating with government staffers and county officials, attending and speaking at public meetings or hearings, wearing messaged apparel, and posting a sign in the judge’s yard opposing the gated community.”
The opinion answers in the affirmative, “as long as the judge proceeds purely pro se, representing the judge and the judge’s interests only.”
According to the inquiry, a group of homeowners in the judge’s neighborhood have proposed creating a gated community and special taxing district “immediately adjacent” to the judge’s property. Concerned that their property “may be negatively impacted by the measure,” the judge and some neighbors formed an opposition group.
The opinion notes that Canons 4C and 5C(1) prohibit a judge from appearing “at a public hearing before, or otherwise consulting with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice, or except when acting pro se in a matter involving the judge or the judge’s interests.”
The second exception applies here, the opinion concludes.
“The judge’s inquiry focuses on pro se activities on a matter involving the judge or the judge’s interests,” the opinion notes.
“Thus, subject to compliance with other Code of Judicial Conduct provisions, the judge would be relatively free to proceed individually to express and advocate for the judge’s personal concerns about the judge’s property and personal opposition to creation of a gated community when consulting with the county staffers or officials and while attending public meetings,” the opinion notes.
However, it warns that “the judge should avoid acting or speaking on behalf of the opposition homeowner’s group, rather than proceeding purely pro se, as that likely falls outside of what is permitted by the ‘pro se’ exception to Canons 4C and 5C(1)….”
There is nothing in Canons 4 and 5 that prohibit a judge from wearing messaged apparel and posting yard signs that are related to the judge’s personal interests, the opinion notes.
“Wearing certain messaged apparel while the judge is expressing opposition to the gated community could create the appearance that the inquiring judge was acting on behalf of the homeowner’s group rather than proceeding purely pro se; that would be ill advised,” the opinion states.
The commission has consistently declined to review or approve judicial campaign materials, and “we likewise will not review or approve anti-gated community signs or messaged apparel,” the order notes.
Canon 2A requires the judge to “respect and comply with the law” and to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” the opinion notes.
“A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others,” the opinion notes, referring to Canon 2B, and commentary that “reminds judges not to allude to their judgeship to gain any personal advantage or deferential treatment and to avoid use of the judge’s official letterhead when conducting personal business.”
The opinion also notes that according to information provided, and in keeping with the directives of Canon 5C(3)(b)(i), “the judge has neither personally or directly participated, nor lent the prestige of the judicial office in the solicitation of funds to support the opposition to the gated community by the homeowner’s group.”
It goes on to state that “inquiring judge is aware of and will abide by Canon 7’s admonition to refrain from partisan political activity.”
Finally, the commission determined that the Code of Judicial Conduct does not restrict the anti-gated community activities of the judge’s “cohabitating non-judicial partner.”
“No, as long as the partner does not appear to be acting indirectly as the judge’s representative and doing what the judge is prohibited from personally doing.”
The Judicial Ethics Advisory Committee is charged with rendering advisory opinions to judges and judicial candidates on the application of the Code of Judicial Conduct to their circumstances. While judges and candidates may cite the opinion as evidence of good faith, the opinions are not binding on the Judicial Qualifications Commission.
