Excerpted From: Dontay Proctor-Mills, Judicial Ethics and The Eradication of Racism, 46 Seattle University Law Review 813 (Spring, 2023) (131 Footnotes) (Full Document)


DontayProctorMillsIn 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington's Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan's face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David's changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part because the language in the ad may have reflected bias on the part of Judge Keenan. The Commission determined that a reasonable person reading the ad would be concerned about a person from a non-marginalized community receiving a fair trial in Judge Keenan's court. A concern about the unreasonable perception of the possibility of reverse discrimination. The Commission, by erroneously interpreting and applying the Code to Judge Keenan's case, impeded the development of a more equitable legal system; therefore, the standard employed by the Commission in evaluating potential ethical violations should be changed to promote, rather than inhibit, judicial efforts to achieve racial equity.

This Note will explore the implication of the Commission's interpretation of the Code of Judicial Conduct; its decision in In re The Honorable David S. Keenan; and the potential impact on judicial advocacy, particularly in the context of Washington's efforts to eradicate racism from its legal system. This Note will also examine a history of judicial advocacy in Washington State, and how the Commission's decision is reflective of a system struggling to maintain the status quo. Finally, this Note will consider how the Washington Supreme Court should have used the objective observer standard in deciding Judge Keenan's case.

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Washington State's Code of Judicial Conduct provides guidance to assist judges in maintaining the highest standards of judicial and personal conduct. Canon 1 of Washington's Code requires judges to uphold and promote the independence, integrity, and impartiality of the judiciary, and to avoid impropriety and the appearance of impropriety. Judge Keenan did not violate the Code of Judicial Conduct. He was admonished, in part, because he was featured in an ad that represents his desire for a more equitable legal system. The admonishment of Judge Keenan was a symbolic backlash to the efforts to evolve Washington courts. The Commission's application of the reasonableness standard appears to address an unreasonable concern about reverse discrimination. But advocating for marginalized groups does not result in the detriment of the historical majority. The Washington Supreme Court has called on the entire legal community to eradicate racism. Racism is not neutral or impartial. At times, anti-racist solutions will be neither neutral nor impartial. An objective observer standard understands this. Applying an objective observer standard to judicial conduct reported under Canon 1 will ensure a judge's efforts to eradicate racism or other oppressions are not sanctioned in the name of neutrality. If you are neutral in situations of injustice, you have chosen the side of the oppressor.