Endorsement; Comments in Online Publication

April 20, 2016

Dear Clerk ____________:
This letter is in response to your letter of March 10, 2016, requesting an advisory opinion from the Committee.  You are the Clerk-Magistrate of the __________ Court Department. Your letter relates that an Assistant Clerk-Magistrate in your court was interviewed by a relative for a public internet site. In the interview, the Assistant Clerk (who was not identified as a court employee but was identified by name) made a number of statements about one political party and candidates, expressed support for one presidential candidate over the others, stated that there are two candidates that he would consider when casting a vote, and opined on a number of issues. You have requested guidance on whether the Assistant Clerk’s conduct comports with the Canons of the Code of Professional Responsibility for Clerks of the Courts.  

We note at the outset that although the Committee is not authorized to render opinions on questions relating to the conduct of persons other than the requesting Clerk-Magistrate, we view your request to the Committee as inquiring whether there are particular actions that you, as Clerk-Magistrate, should take to fulfill your duty under Canon 4 of the Code of Professional Responsibility for Clerks of the Courts (Code) to "perform the duties of Clerk-Magistrate impartially and . . . [to] act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government."  Under Canon 3(B), your administrative responsibilities include the duty to "supervise subordinate personnel and arrange for their training."  See, e.g., Opinion 2012-2 (discussing managerial obligations of Clerk-Magistrate with respect to an assistant clerk’s fund-raising activities).

This letter marks the first occasion that we have had to comment on publication on the internet, although other bodies around the country have rendered a number of opinions on the subject.  Recently, the Committee on Judicial Ethics opined on judicial use of Facebook and similar social media, observing that use of such web sites, while permissible, is "fraught with peril." CJE Letter Opinion No. 2016-01. We think the same often may be said of web publication in general. What would be a casual and quickly forgotten comment is electronically preserved and can "go viral," garnering great, and perhaps unwanted attention, with unintended consequences.

We have reviewed the entire text of the interview in question, and that review raises a number of areas of concern.

Pertinent here is Canon 6(2), which states that "a Clerk-Magistrate, other than an elected Clerk-Magistrate, shall refrain from political activity, and in particular, shall not make speeches for a political organization or candidate or publicly endorse a candidate for public office." Fundamentally, the job of the Clerk-Magistrate, like the job of the judge, is and must be perceived as the job of a neutral party, not that of a partisan. In the interview at issue, the Assistant Clerk-Magistrate agreed that he had become "excited" about a particular presidential candidate, made comments about that candidate that a reasonable observer would conclude were intended favorably, and named another candidate that he could be "down for."

We construe the words of Canon 6, including "endorse," in their ordinary sense.  To "endorse" is "to express definite approval or acceptance."  Webster’s 3rd Int’l Dict. of the English Language Unabridged, (Merriam-Webster, 2002), p. 748.  (See Opinion 94-4, attendance at pure political fund raiser would be a "public endorsement that is proscribed by Canon 6," and Opinion 2010-4, allowing spouse to put up political sign on lawn would create the appearance of a political endorsement by a clerk). Here, the Assistant Clerk-Magistrate’s comments undoubtedly “express[ed] definite approval or acceptance.” Although his comments were directed toward a presidential rather than a local race, the provisions of Canon 6(2), by their express terms, are not limited to local races. For these reasons, we conclude that the Assistant Clerk-Magistrate’s comments crossed the political line and are not consistent with Canon 6(2).

Additional concerns arise from Canon 4 and Canon 5(A).  Canon 4 requires a Clerk-Magistrate to "perform the duties of Clerk-Magistrate impartially and . . . [to] act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch." This Canon prohibits a clerk from engaging in activities that would cast doubt on his capacity to impartially perform his duties. See Canon 4(B). Similarly, Canon 5(A) states that "a Clerk-Magistrate shall regulate outside and personal activities to minimize the risk of conflict with office duties" and thus "should not engage in activities which might detract from the dignity of the office of Clerk-Magistrate or interfere with the performance of the duties of the office." During the course of the interview, the Assistant Clerk-Magistrate stated that he knew his preferred candidate was not "going to send all the immigrants back to Mexico," but that "he’s going to do something about immigration." He stated that "[w]ith illegal immigrants coming in, there’s the possibility of being hurt," and described Mexico as "not just [a pathway for] ISIS, [but] . . . for anyone that wants to hurt us." We have no doubt that these comments were intended to speak to a political controversy, and not to in any way disparage a particular country, race, or ethnic group. Nevertheless, both citizens and non-citizens come before our courts, seeking justice. A Clerk-Magistrate is no mere ceremonial functionary, but one with the power to issue process. Those who appear before him or her, whatever their race or citizenship status, should feel confident that they will receive fair and impartial justice, regardless of the circumstances that bring them before the court. Remarks such as those quoted above may raise concerns that the Assistant Clerk-Magistrate is not proceeding in a fair and impartial fashion, but harbors a bias toward non-citizens. For this reason, the Committee concluded that the Assistant Clerk-Magistrate’s remarks violated Canon 4 and Canon 5(A).  

In sum, it is the view of the Committee that certain comments of the Assistant Clerk-Magistrate during the interview that was published online were not consistent with the Clerk's responsibility to be, and to appear to be, fair and impartial, and did not comply with the requirements of  Canon 4, Canon 5(A), and Canon 6.   

Sincerely,
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions