THE CROSS SMASHES THE GAVEL:  Bolick, King, Montgomery and judicial ethics. 

 Line drawing by Judee Post

The battle over Proposition 137 to eliminate the judicial merit selection and give judges lifetime appointments subject not to the people but to increased legislative control, and the campaign to vote no on Supreme Court Justices Bolick and King has snagged another victim – the ethics system.

Arizona has a Code of Judicial Conduct and a Judicial Ethics Advisory Committee (JEAC) that does what it says i.e. issues ethics advisories about judicial conduct.  Never before has the Supreme Court overturned an advisory.

SO WHAT HAPPENED?

The Red Mass held at St. Mary’s Basilica and sponsored by The St. Thomas Moore Society, a religious organization, is held to coincide with the opening of the legislature or a term of court.  In this case it was January 23, 2024 so it was for the opening of the legislature -clearly a political event. If you go to the webpage below, you’ll see photos of Justice Montgomery and King along with Judge Kiley in robes. The 2023 event seems to have a photo of King as well. https://stthomasmoresocietyphoenix.org/red-mass/

In February 2024, “The JEAC has received numerous inquiries about the propriety of a judicial officer wearing their robe at a religious service, known as the Red Mass.” … “Additionally, there were also inquiries about the ethical implications of a judge fulfilling a special role at the Red Mass, such as giving a reading of scripture or asking for prayer intentions, while wearing their robe.”   Later, these inquiries were identified as being from other judges.  

After receiving the inquiries, the JEAC asked for feedback before April 1. On June 3, JEAC issued their opinion 24-02 “Wearing a Robe at the Red Mass.” The unequivocal decision was “No. A judge is free to attend a religious service and fulfill a special role at that service in his or her personal capacity.  But because the robe is a symbol of the exercise of the duties of judicial office, the robe should not be worn during religious service.”  

The JEAC said the following portions of the AZ Code of Judicial Conduct were relevant:  Rule 1.2 requiring impartiality and avoiding the appearance of impropriety; Rule 2.4 prohibiting conveyance of an impression that an outside organization may influence the judge; and Rule 3.1 saying the judge may engage in extrajudicial activities but not when the activity would undermine the judge’s independence or impartiality.

The decision referred to an earlier one Adv. Op. 18-03 in which the JEAC found it was improper to wear a rainbow flag on a robe. They pointed out that the rule “… avoids any unintentional suggestion the judiciary endorse a particular cause, religious or otherwise.” While judges are free to express their religious beliefs under the First Amendment, a robe is the uniform of judicial office, and they are not free to put that government imprimatur on a certain religion.

Somebody up there didn’t like it. Ten days later, June 13, Justice Bolick asked for a meeting with the head of JEAC.  That meeting took place on or about June 17.  

On June 18, Chief Justice Brutinel issued administrative order 2024-101 requiring a reconsideration of the ethics opinion. Montgomery and King did not participate as they are the judges at issue.

On July 19 the JEAC reaffirmed their earlier decision.  Somebody up there really didn’t like that.

On August 28, Chief Justice Ann Timmer issued administrative order 2024-174 withdrawing the opinion completely. On the same day Justice Bolick sent an email to JEAC claiming the decision was not on the merits but that they wanted a fuller analysis. One sentence is blocked out in that email. Bolick says that “Hence, if the issue arises further, it will probably be in the context of a judicial ethics complaint.”  True enough.

WHAT ABOUT THAT EARLIER DECISION?   REMEMBER PRECEDENT?

JEAC opinion 18-03 discussed whether judges could wear rainbow pins on their robes to indicate that the courthouse was a safe place for the lesbian and gay community. The committee said no.  Robes must be free of adornments.  They can post signs saying that discrimination against anyone is prohibited but cannot single out a specific group.

In that decision, the JEAC reference, among others, Rule 2.3 Bias, Prejudice, and Harassment. Rule 2.3 says: (B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.  It’s instructive that though the 2024 claim was clearly about religion, this Rule was ignored.

In the 2018 decision, the JEAC stated that:  The judicial robe powerfully and unmistakably invokes the prestige of judicial office. Using that prestige to express support for any particular message, organization, cause, or category of citizens necessarily excludes a large universe of equally worthy messages, organizations, causes, and citizens who might feel reassured upon encountering a judge displaying symbols meaningful to them. The decision went on to say no matter how worthy the cause, the judicial robe cannot be a platform for communicating the judge’s personal beliefs or extrajudicial activities. Yet that is clearly what occurred in the 2024 Red Mass.

The 2024 decision about the Red Mass also did not rely on Rule 1.3 that says: Avoiding Abuse of the Prestige of Judicial Office: A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so. Yet that is precisely what was done here. All three judges advanced their personal interests over the prestige of the judicial office.  

One of the rules JEAC did use in the 2024 decision was Rule 2.4 that says: External Influences on Judicial Conduct: (C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge. Certainly taking a leadership position at a Red Mass would convey an impression that the Catholic Church will in fact, and I would argue already has, influenced at least two of those judges.

In Rule 3.1, judges are encouraged to engage in extrajudicial activities in general and are permitted and encouraged to engage in educational, religious, charitable, fraternal, or civic extrajudicial activities but says a judge’s extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. There can be no argument that the Catholic Church does practice invidious discrimination, but religions are exempted from that rule under Rule 3.6 that in (A) prohibits religious discrimination but in (C) says it’s all right if it’s the judge’s lawful exercise of his or her freedom of expression or association.  But a judge participating in a religion that discriminates because of their personal belief is one thing; participating in a public religious event wearing a judicial robe is quite another.

In comment number 3 to Rule 3.7 Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities, that is made clear by saying that attendance at such an event is not a violation or even to be an usher, food preparer, or similar functions is all right; wearing a robe to do any of it is not.

The Red Mass is political – that’s why it’s held upon the opening of the legislative session – to put pressure and influence on the decisions of the legislators who are invited.  Rule 4.1 prohibits a judge’s participation in political activities and comment 3 says that public confidence is eroded. It certainly is.

CONCLUSION

So as it stands today, judges may not use their robes to make a statement against discrimination (e.g. of lesbians and gays) but they make use their robes to make a statement in favor of discrimination (e.g. the Catholic Church).  This is what you call an unaccountable judicial system. They want to make unaccountability permanent by passing Proposition 137 to give lifetime appointments. The reasons given in Proposition 137 for a judge to be removed do not include ethics violations at all.  As with the new rule the Supreme Court put in place to prohibit attorneys from complaining about unethical lawyers, Petition R 24-0046, the Supreme Court does not want anyone complaining about biased judges either.

Do not support Proposition 137.  Not only is it a really bad idea, but it shows incredible disrespect for the people of Arizona to assume we are too stupid to vote on judges.  

Do be sure to vote no on Bolick and King on the judicial retention portion of the ballot. Not because they made a decision you don’t like, but because they have exhibited by their behavior that they are biased and unable to maintain appropriate judicial demeanor that ensures that all citizens of Arizona are treated equally no matter their religion or anything else.

Feel free to let Chief Justice Ann Timmer know how you feel.  atimmer@courts.az.gov