Colorado Supreme Court Colorado Judicial Ethics Advisory Board (cjeab)
| Publication year | 2022 |
| Pages | 62 |
COURT BUSINESS
Colorado Supreme Court Colorado Judicial Ethics Advisory Board (CJEAB)
C.J.E.A.B. Advisory Opinion 2022-01 (Finalized and effective March 25, 2022)
Background
In CJ.E.A.B. Advisory Opinion 2020-02, the CJEAB interpreted Rule 2.12(A) of the Code of Judicial Conduct ("Code") and addressed what limits a judge should impose on law clerks and externs who desire to participate in marches and rallies or to use social media to make public posts to protest police misconduct, condemn racism, or express general support for justice reform. Because the former version of Rule 2.12(A) required judges to ensure their staff acted in a manner "consistent with the judge's [own] obligations under the Code," the CJEAB first had to consider whether a judge could participate or engage in such activities before determining whether staff under their control could participate. Though beyond the scope of the question posed, the CJEAB determined that judges should refrain from participating in activities that could be considered political or could call into question a judge's impartiality. The opinion concluded that even though law clerks and externs were not subject to the Code, as supervisors, judges remained responsible for ensuring that their staff and others subject to their direction acted in a manner consistent with the Code.
After Rule 2.12(A) was amended, the CJEAB withdrew Advisory Opinion 2020-02 and replaced it with Advisory Opinion 2021-03. Under the revised rule, judges had to ensure that those under the judge's direction and control acted in a manner consistent with the judge's obligations under the Code only while performing "their official duties or in the presence of the judge." Advisory Opinion 2021 -03 discussed a judge's narrowed supervisory obligation over staff based on the changes to Rule 2.12(A); it did not discuss judicial participation at public events because the issue was not within the purview of the rule change, nor was the question before the CJEAB.
The requesting judge has asked the CJEAB to revisit the portion in Advisory Opinion 2020-02 discussing judicial participation in rallies and marches. Specifically, the judge asks whether judges may participate in or attend PrideFest or other LGBTQ+ pride festivals without violating the Code. Before becoming a judicial officer, the judge (and the judge's family) regularly attended and participated in LGBTQ+ pride festivals and parades, including marching in the Denver PrideFest parade as a member of the Colorado LGBT Bar Association.
Although Advisory Opinion 2020-02 has been withdrawn, the requesting judge points out that it cautioned judges not to participate inpolitically driven protests, marches, orrallies or to post political comments on social media, in part, because such actions were divisive. Observing that although PrideFest and other similar events like Cinco de Mayo, the Marade, and Juneteenth festivities are non-partisan and apolitical in nature, because LGBTQ+ issues may be considered divisive in the same way that immigrant rights or racial equality issues may be considered divisive, the requesting judge asks if judicial officers are prohibited from participating in a community activity like PrideFest if the judge does not reveal that they[1] are a judicial officer while participating in the activity.
Issues Presented
1. Whether a judge may attend the Denver PrideFest festival or other similar LGBTQ+-related festivals without violating the Code.
2. Whether a judge may attend and watch the Denver PrideFest parade or other similar LGBTQ+-related parades without violating the Code.
3. Whether a judge may march in the Denver PrideFest parade in a non-political manner with a bar association, such as the Colorado LGBT Bar Association.
Summary
1. A judge may attend the Denver PrideFest festival and other similar festivals without violating the Code, subject to the qualifications mentioned below.
2. A judge may attend and watch the Denver PrideFest parade and other similar parades without violating the Code.
3. A judge may march in the Denver PrideFest parade and other similar parades with a bar...
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