IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of
The Honor able David S. Keenan Superior Court Judge for King County

. NO. 201,996 -0

EN BANC
Filed
_ _______________
GORDON McCL OUD, J.

— The Commission on Judicial Conduct (Commission) ruled that Judge David S. Keenan, a King County Superior Court j udge, violated the Code of Judicial Conduct ( CJC or Code ) when he approved a
bus ad vertisement for North Seattle College. The ad picture d him and stat ed, in
part , “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities.” North Seattle College is a nonprofit community college where Judge Keenan received both his high school and his associate ’ s degrees . The ad ran for three weeks as part of North Seattle College’s fall enrollment campaign. Judge Keenan’s conduct did not violate Rule s 1.1, 1.2, or 1.3 of the C ode

. He did not violate his duty to be , and to appear , impartial, and he did not abuse the prestige of his office. We therefore reverse the C ommission’s decision and dismiss the charges. : February 10, 20222

No. 2 01,996 -0

F ACTS AN D P ROCEDURAL H ISTORY
I. J UDGE K EE NAN A PPEARED I N A B US A D FOR N ORT H S EA TTLE C OLLEGE Judge K eenan graduated from North Seattle C o llege (previously North
Seattle Community C olleg e). C omm’n Ex. D -2- 102 , at 5 ( Resp

. to S ta tement of Allegations (RSA)) , Ex

. A- 14, at 2 ( Comm ission Decision & Order (Order) )

. J udge Keenan grew up in poverty, was a j uve nile de fe ndant i n King County Superior
C ourt, a nd eventually dropped out of high school. RSA at 3

. At t he age of 17, he

w as w orki ng at

a fast food job when h e d ecided t o t ake th e GED (general education degree) exam through North S eat tl e College. Id. He did so well on the

ex am t hat the d ean o f s tudent d evelopment w rot e t o Judge K ee nan a n d encouraged
him t o continue hi s e ducation. Id. at 3-4

. Judge K eenan went on to study for his high school diploma t hrough the college’s “ Adult H igh School Completion Program. ” RS A at 5 ; Order at 2. H e t hen
b egan working toward his t wo - year d egree at t h e college, attending cl as ses during

t he da y and worki ng full

- time at ni g ht a s a se curity guard. RSA at 5

. After

g raduat ing with h is tw o - y ear degree fro m N orth Seattle C ol lege , he transferred to
the U niversity of Washington and eventually earne d his law degre e from Seattle University. RSA at

5 ; Comm’n Ex. A -9, a t 30 (Joint St a tement of Evidence (JSE ))

. Judge Keenan w as elected to his pos iti on as a judge on the K i ng Count y Superior
Court i n November 2016 and was reelected in 2020. JSE a t 1 ; Comm’n Ex. C

- 1, at3

No. 2 01,996 -0 67 ( Transcript of Proceeding s (TP) )

. J u dge K eena n has a l ong history o f doing free, or pro bono , legal w ork and h e remains inv olved with North Seattle C ollege.
JSE at 31

- 32 ; Order at

2 ; RS A at

6

. In July 2019, a s ta ff member at N orth Seattle C ollege a sked Judge K eenan to appear in a bus ad for t he c ollege a s pa rt of their student re cruitment cam paign
aimed at i ncreasi n g enrollment. JSE at 2 ; Order at 2 -3

. Th e ad was s cheduled t o
run for roughly three weeks. T P at 66. Judge K eenan re viewe d Canons 3 and 1 of
the C ode and h e reviewed th e Ethics Advisory O pinion s (EAO s), but he di d not
contact the E thics Advisory C ommittee (Committee) or th e C ommission to g et an

o pinion on w hether the a d violated the ru les

. TP at 5 9 , 79 ; O rder at

3

. J udge
Keen an approved th e a d , an d it ra n in conjunction with an ad featuring a s cientist, who also g raduated from the college:4

No. 2 01,996 -0

C omm’n Ex. D -2- 10 7, a t 8, 7

. On Au gu st 30, 2019, t he Commission r eceived a c omplaint c o ncerning this
ad. J SE a t 2

. The Commission then charged Jud g e Keenan with violating Canon 1
and Rule s 1.1 , 1. 2, and 1.3 o f the Code

. J SE a t 3 ; Comm’n Ex

. A- 1, at 1 ( Statement of Charges )

. J ud ge K eenan ha s no p rior disciplina ry history with the C ommission
and h as fully cooperated with th e proc eeding. JSE a t 3.
II. T HE C OMMISSION F OUND THAT J UDGE K EENAN V IOLATED R ULES 1.1, 1.2, AND 1.3
The Commission ruled that Judge Keenan violated Rule 1.2, which requires a judge to be impartial and to avoid the appearance of impropriety. Order at 4 , 5

. The Commission opin ed that a reasonable person could read the ad to “suggest that Judge Keenan has a leaning, or preference, and would advocate accordingly for marginalized communities.” Id. at 7. 1 The Commission further ruled that a person not from a “marginalized community” could “reasonably be concerned about being treated unfairly by Judge Keenan

. ” The Commission concluded that Judge Keenan
violated Rule 1.2. Id . at 7.

1 The Commission reasoned that if it were permissible for this ad to run with the language “marginalized communities,” then it would also be permissible for another judge to be in an ad that says “the judge got into the law, in part, to advocate for ‘divorc ed fathers,’ or ‘those accused of sex offenses,’ or ‘crime victims,’ or ‘landlords,’ and then he went to North Seattle College, and now, he is changing the world”

— implying that disclosing any such reasons for a judge’s original decision to study law would make them unethical now. Order at 8.5

No. 2 01,996 -0

The Commission a lso determined that J udge K eenan violated Rule 1. 3

. That

r ule proh ibits th e abuse of the pre stige o f t h e j udicial offi ce t o a dvance t he
economic interests of oth ers. Id

. at 8

. T h e Commission found that “ [t] he ad ai med

at i ncreasing student e nrollment w hich, i n t urn, w ould advanc e the e conomic
interests o f

th e c ollege.” Id

. Ju d ge K eenan argu ed that his a ctions were p ermitted
b ecause the a d would encou rage pe ople to go to law s chool aft er community college

. Id

. at

9

. But t h e C ommission stated that t he connection between
enrollment a t North Seattle College and increased law s cho ol adm issions was “ too

tenuous or

s trained to be pe rsuasive i n this context.” Id . The Commission
continued that j u dg es c an promote onl y law s chools, not ot h er schools, a nd t hat permitting Judge K eenan’s c ondu ct w ould “open the fl ood g ates to allow j u dges to
promote any activity t h at c o uld possib ly encourag e st u dents t o attend law s chool.”
Id

. T he Commission held that Judg e K eenan “abused the pre stig e of his offi ce” by using his title of “Jud ge” t o promote the college. Id . at 1 0. Finally, t he Commission ruled that J ud ge K eenan violated Rule 1. 1. Id. at 6

. Rule 1.1 i s a catchall —i f a j udge vi o late s any other rule, t hen th at judge vi o lates
R ul e 1.1, also

. 2

2 One member concurred and three members dissented in part. Comm’n Exs. A

15

- 18

. Those four members expressed uneasiness and regret about sanctioning Judge Keenan for the ad. Order at 10

- 11. But all members agreed that Judge Keenan violated at least Rule 1.3. Comm’n Exs. A

- 15

- 18.6

No. 2 01,996 -0

T he C ommission san ctio ned Judge K eenan with an a dmonishment. Id. at 11.
Ju dg e K eenan appeal s an d requests that w e re verse the C ommission’s rul ing and
remand w ith in structions to d ismiss th e c harges against him. App ellan t’s Correc t ed
Br. at 50. F or the re asons discussed below, we agree w ith Ju dge K eenan.
A NALYSIS
I. H ISTORY AND C ONTEXT OF THE J UDICIAL C ANONS
The Commission was established in 1980 by amendment to the Washington
State Constitution

. R OBERT F. U TTER & H UGH D. S PITZER , T HE W ASHINGTON
S TATE C ONSTITUTION 126 ( 2d ed. 2013). The Commission investigates complaints against judicial officers, conducts hearings, makes recommendations for discipline to the Supreme Court, and establishes rules of procedure for C ommission proceedings. W ASH

. C ONST

. art. IV, § 31; In re Disciplinary Proceeding Against
Hammermaster , 139 Wn.2d 211, 229

- 30, 985 P.2d 924 (1999) . The Commission consists of three jud ges, two attorneys, and six non attorneys. W ASH

. C ONST

. art. IV, § 31 (1).
The Code governs judicial conduct in Washington

. That c ode is adopted by
this court

. We have updated it several times, most recently in 2011. 3 We revised

3 GR 9 Cover Sheet Suggested Amendments: Rescinding Current Code of Judicial Conduct and Adopting New Code of Judicial Conduct , https://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=17 5 (last visited Feb. 7, 2022 ).7

No. 2 01,996 -0

th e 2011 CJC based on a re view of the 200 7 American Bar A ssociation ’s Model
Code of J u dicial C onduct

. Add itionally, i n 1983 this co u rt established the
Committee

. 4 The C ommittee, b ased o n its e xpertise, issues EAOs to h elp guide judges ’ con du ct

. 5 “Compliance with an opinion issu ed by the [C] ommittee [is]
considered as evid ence of good faith by the Su prem e Court.” 6

II. S TANDARD OF R EVIEW IN J UDICIAL C ONDUCT C ASES
This c ourt re view s Commission decisions de novo. In r e Disciplinary
Proceedi ng Against

D eming , 108 Wn.2d 82, 87 -89 , 736 P.2d 639, 744 P.2d 340 (1987 ) ; In r e Disciplinary P roceeding Against A nderson , 138 Wn.2d 830, 843, 98 1
P. 2d 426 (1999). D e novo review of judicial di sc iplinary proceedings requires an
i ndependent e valuation of the r ecord. In r e Disciplinary P roceedings Against
Turco , 13 7 Wn .2 d 227, 245

- 46, 970 P.2d 731 (1999); Anderson , 138 Wn.2d at 843.
T he u ltimate d ecision to iss ue d iscipline lie s w ith th e Wa shi ngto n Supreme Court.
W AS H

. C ONST

. art. I V , § 31 (amend. 71); Hammermaster , 139 Wn.2d at 230 (“the

c onstitution’s use of the w ord ‘re commend’ indicates a n intent t o place t h e

4 Ethics Advisory Committee , https://www.courts.wa.gov/judicial_education/?fa=judicial_education.ethics_display&sec tion=Advisory (last visit ed Feb. 7, 2022 ).

5 GR 10 , https://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=GR&rul eid=gagr10 (last visited Feb. 7, 2022 ).

6 Id

.8

No. 2 01,996 -0

ultimate d ecision to d iscipline in the Sup reme Court ” (citing Deming , 108 Wn.2d

at 88)). H owever, t he Commission’s finding s and recommendations are gi ven
considerable w eight. In r e Disciplinary P roceeding A gainst Kaiser , 111 Wn.2d
2 75 , 2 79, 759 P.2d 392 (1988 ) ; In re Disciplinary P roceeding A gainst Sanders , 13 5 Wn.2d 1 75, 181 , 955 P.2d 369 (1998). T he burde n of proof in judicial disciplinary proceedings is c lear, c ogent, and convin cing evidence. Sanders , 135
Wn.2d at 181.
This c o urt ha s no t de cided a case i n volving the 2011 CJC

. W h en interpreting
rules lik e th ose in th e C o de , w e apply typ ical st atutory interpretation principles.
S ee In r e Disciplinary P roceeding A gainst Haley , 156 Wn.2d 324, 333

- 39, 126 P.3d 1262 (2006) (interpreti ng Rules of Professional C o nduct ( RPC ) 4.2(a) using
tradition al statutory interpretation tools); LK O perating v. C

ollection Grp., LLC , 1 81 Wn .2d 48, 75, 331 P.3d 1147 (20 14) (“When interpreti ng the meaning of any RPC, w e apply settled p rinciples of statuto ry construction.” (citing In r e Disciplinary P roceeding

A gainst Blauvelt , 115 Wn.2d 735, 7 41, 801 P.2d 235 (1990)). Therefore, w he n we interp ret the C o de w e be gin with th e pl ain langu age of
th e r ule. We then consider the mean ing of that l an guage i n the c ontext of the Code

as a whole

. See Dep’t

of E co logy v

. C

ampbell & G winn, LLC , 14 6 Wn .2d 1, 11 , 43 P.3d 4 (2002)

. If th e r

ule is still ambiguous , then we resort t o oth er aids to9

No. 2 01,996 -0 interpretation

. Id

. a t 12. Th e go a l of th ese interpretive rul es is to carry out the
inten t of the a uthor

—i n th is c ase, th e in tent of th is court. Cf. i d

. at 9

. III. J UDGE K EENAN D ID N OT V IOLATE R ULE 1.2
A. T he plain language of Rule 1.2 and its context within the Code s how t hat Judge Keenan did not violate that rule
The Commission ruled that Judge Keenan ’s decision to approve the bus ad
violated Rule 1.2 because it showed that he was partial to “marginalized
communities” and, hence, the ad undermined public confidence in the judiciary.
Order at 6

- 8. Beginning with the plain language, Rule 1.2 states: A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary, and shall avoid impropriety and the appearance of impropriety.* [ 7 ]
The C ode the n defines “i mpartiality ” as the “absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.” CJC Terminology

. It defines “i mpropriety ” as “conduct that violates the law, court rules, or provisions
of this C ode, and conduct that undermines a judge’s independence, integrity, or impartiality.” Id

. It then defines “i ndependence ” as “a judge’s freedom from influence or controls other than those established by law.” Id

. And the Code

7 The asterisks are in the r ule; they indicate words defined elsewhere in the r ules.10

No. 2 01,996 -0

defin es “i ntegrity ” as “pro b ity, fa irness, hone sty, up rightness, a nd so undness of
character.” Id

. Reviewing this language i n the context of other portion s of the C ode , w e s ee
that t he C od e also prov ides a test for determining whether an act causes the

appearan ce of impropriety. Rule 1. 2’s c omment 5 s tates that the te st is “whether
the c onduct would

c reate in reasonable minds a pe rception that t he j udg e violated
this C od e or engaged in other co nduct t hat re flects ad versely on the j udge’s
ho nesty, i mpartiality , t emperament, o r fitness to serve a s a j u dge.” ( E mphasis
added .) In other words, t h e t est f or imp ropriety is b ased on an objectiv e standard — whether a “reasonab le” vi ewe r “wou ld” ( not j ust “could”) perceive that the judge’s
conduct “ reflect[ed] adversely” o n t he judge’s honesty, im partiality, e tc. —n ot on
what a p articular

v iewer s ubjectively m ight o r could perce ive

. See generally In re Redd in , 221 N.J. 221, 231, 111 A.3d 74 (201 5) (majority of states have an

o b jective, r easonable m ind s test ). Thus, t he k ey question for us i n analyzing the a lleged Rule 1.2 violation i s
whether a reasonable , o bjective perso n would read the l anguage t hat Judge K eenan “got i nto law i n part to advocate for marginalized communities” t o mea n that Judg e
Keenan would

t end to rule for marg inalized communities as a judge. W e hold that
the a nswer

is n o : t hat l ang uage does not s uggest t o a re asonable pe rson that Judge
Keen an would tend to ru le fo r marg inalized communities (ove r others) in cas es h e11

No. 2 01,996 -0

hea rd as a j udge. Instead, t h at l ang uage explain s why he w anted t o be a lawyer. An objective, reasonable p erson would not infer from that de scrip tion of his r easons
for att endi n g law s chool t hat h e lacks “a n o pen mind i n considering issues t hat may

come b efore [him]” as a j u dge. CJ C Terminology (“ Impartial”)

. The C ommission did make a “ factual ” find ing that Judge K eenan admitted
that t he a d c ou ld confuse t he pu bl ic i n to thin king that he advocated for

marg inalized communities from t he b e nch. 8 A nd Judge Keenan did s tate that h e
could see ho w t he ad “mig ht” co nfuse t he pu bl ic

. But he di d no t stat e that i t w ould make a r easonable person think that he

w ou ld not be i mpartial —h e made that state ment in the c o ntext of explaining his
willin gn ess t o hear and consider the vi ews of colleagues. C omm’n Ex. D -2- 107 , at
9- 1 0

. And regardless of Judge K eenan’s t estimony, whether a judge’s de scrip tion
of his re asons for attending law s cho ol w ould cause an objective, r easonable

person to infer that he l acked “an ope n mind in considering issues t hat m a y come
before [ h im]” as a ju d ge i s a matter that we r eview de novo. CJ C Terminolog y (“Impartial ”). On de novo review, we hold that t he ad would not confu se a

reaso nab le person about whether Judge K eena n co uld be “honest ,” “ impartial ,” or
“fit ” as a j ud ge
.

8 Finding s of F act (FF) 12 state s in whole, “Judge Keenan admitted the ad could confuse the public into thinking that he, as a judge, advocated for marginalized communities.” Order at 3.12

No. 2 01,996 -0

Th e Commission al so m ad e a “factual” finding t hat t he ad c ould r easonably
b e re ad t o express a preference for marginalize d communities

. 9 The C ommission
based that finding on t he s ame analysis that i t use d to conclude t hat Judge
Keenan’s de scription of h is reasons for attending law sc h ool w ould caus e an
ob jective, reasonable person t o infer that he l acke d “an open mind in consideri ng
issues that

m ay co m e before [him]” as a judge.
We re view t his decision de nov o, for the re asons discu ssed immediately
above. And we r eject t he C ommission’s “factual” f inding on th is matte r for the
reasons discussed

im mediately above, a lso : a ll judges decide t o jo in th e le gal profession for one re ason or another, a nd stating wh y you got i nto the l aw doe s not
mean that you c annot

r ule impartially i n a case. Finally , t he Commission seemed particularly concern ed about t h e use of th e language “a dv ocate” in the a d. Order at 7

. To be sur e, it is tr

ue th at a ju dge should

n ot advocate for p articular partisan causes
. But a judge certainly should advocate
for and “promote” access to justice a nd improvements t o the a d ministration of justice. The comments t o Ru l e 1.2 s ay exactly that. Rule 1.2 cmt s
. 4 (“Judges
should p articipate in activities th at

. . . promote acc ess t o justice for all.”) , 6 (“A judge sho uld initiate a nd participate i n o utreac h activities for the purpose of

9 FF 11 state s in whole, “The language of the ad can reasonably be read to exp ress a preference or commitment in favor of marginalized communities.” Id.13

No. 2 01,996 -0 promoting

. . . confidence in th e a dministration o f ju stice.”). Thus, t h e w ord
“advocate” a lone do es not s h ow i n appropriate p a rtisanship. If a nything, s tating tha t

yo u got i nto law t o ad vo cate for communities that have be en “marginalized” fro m
the be nefits of th e j ustice s ystem m ight count er widesp read perceptions that the
law h as h istorically t reated marginalized members of our community unfairly

. 10

B

. O ur previous cases and E AOs also show that Judge Keenan’s c onduct did not violate Rule 1.2
Our dec isions under earlier versions of the Code compel the same conclusion. For example, in Turco , we ruled that a judge who pushed his wife to the ground on purpose, in a public setting, violated his obligations under the C ode because complainants in domestic violence cases could reasonabl y question his impartiality. 137 Wn.2d at 248 (“Fearful victims of domestic violence would certainly be justified in questioning whether a judge who has demonstrated so little
control of his own emotions and so little restraint as to allow himself to assault his

10 “African Americans and Whites are on two different ends of the spectrum, with the former exhibiting strong signs of cynicism about the ability of the justice system to provide fair, impartial, and respectful justice, and the latter displaying substantially more confidence and tru st in the system.” M ARK P EFFLEY ET AL

. , W ASH

. S TATE M INORITY & J USTICE C OMM ’ N , J USTICE IN W ASHINGTON S TATE S URVEY 5 (2014) (report on attitudes of Washington residents pertaining to the criminal justice system, focusing on racial and ethnic group distinctions). As former Chief Justice Mary Fairhurst noted, judges are stewards of justice and “ [b] eing stewards of justice means doing what we can to ensu re the doors of the justice system are kept open. Our courts must be places where people can come to seek redress without fear that they will be treated unfairly or disrespectfully because of race, religion, sexual orientation, gender, or disability.” Justice Mary E. Fairhurst, Welcoming Remarks to New Bar Admittees , 4 S EATTLE J. FOR S OC

. J UST

. 653, 655 (2006).14

No. 2 01,996 -0
own wife, c an rule i mpartially and wisely in th e em otion

- ch arged are na of domestic violence.”). Similarly, in In re Disciplinary P roceedin g Against Sanders ,

we rul ed that a Ju stice who visited s exually v iolen t offenders at t heir detention facility —d etainees w ith cases p ending before t h e c ou rt —v iolated his duty to be , and to appear , impartial. 159 Wn.2d 517, 519

- 20, 14 5 P.3d 1208 (2006) (“His
cond uct c reated a n appearanc e of partiality as a result o f ex parte c ontact.”). A n d

we rul ed that a j ud ge u nde rmined public c onfidence i n the j udiciary when h e impro perly threatened defendants with life i mprisonment a nd ind efinite j ail

sentences for failing to pa y mino r fin es and costs (certain ly, a n approach that
shows animus against marginalized c ommunities). Hammermaster , 139 Wn.2d at 217, 235. 11 Judge Keenan’s h isto rically ac curate statement t hat he chose law
school t o adv ocate for marginalized commu nities i s no t c omparable t o a sitting judge c ommit ting an act

o f domestic violence, v isit ing ex p arte w ith litig ants, o r making inappropriate t hreats to litigants. Instead, v iewed in context, it impartially

p romotes re sp ect for margin alized c ommunities.
The EAO s also su pport this conclusion. EA O 96

- 16 permitted a j udge t o
attend a ceremony in honor of do mestic vi olence su rvi v ors so long as the j udicial

11 Cf. In re Disciplinary Proceeding Against Eiler , 169 Wn.2d 340, 352

- 53, 236 P.3d 873 (2010) (plurality opinion) (judge repeatedly found to have threatened to rule against litigants who interrupted or annoyed her, derided the intelligence of pro se litigants, and “humiliated” litigants, yet still not sanctioned ).15

No. 2 01,996 -0

officer did not “a ct as an adv ocate o r in any man ner indicate a predispositio n as t o
h ow he or sh e migh t rul e i n a do m estic vi olence case.” Similarly, E AO 0 9

- 05 permitte d a j u dge t o maintain a blo g that prom ote d “a mo re fai r, j u st a n d
benevolent soc iety” so long as t he j udge w as cautious about maintaining an

appearance of impartiality

. A n d E AO 13

- 02 prohibited a j udge from a d vocating for
an amendment t o overturn Citizens U nited 12 but opi ned that the judge c ould engage in nonpartisan edu cational e vents re gar ding th at Supreme Court de cisio n
. These
E AO s show t hat a j u dge c a n attend an event re lated to, can educate on, an d can

comment o n , general justice sy stem is sues th a t may confront the c ourt s and s till be , and appear

t o be , “impartial.” Judge Keenan’s statement is best interpreted a s a

comment on a general j ustice system i ssue, n ot as a comment on how he w ould
rule in a case.
Based on the l ang uage a nd context of the Code , d ecisi ons of th is c ourt, and persuasive a dv i sory opinio ns, J udg e K eenan did no t violate Rule 1.2.

12 Citizens United v. Fed. Election Comm’n , 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010).No. 2 01,996 -0

16 IV. J UDGE K EENAN D ID N OT V IOLATE R ULE 1.3
A. T he plain language of Rule 1.3 and its context within the Code s how that Judge Keenan did not violate that r ule
The Commission found that Judge Keenan violated Rule 1.3 because “ [t] he ad aimed at increasing student enrollment which, in turn, would advance the economic interests of the college.” Order at 8. Again, beginning with the plain language, Rule 1.3 states: A judge shall not abuse the prestige of judicial office to advance t he personal or economic interests* of the judge or others, or allow others to do so.
This language was updated from the 1995 C JC . The relevant portion of Canon 2(B) stated that “Judges should not lend the prestige of judicial office to advance the private interests of the judge or others

. . . . ” Significantly, the 2011 update changed the language from “lend the prestige of judicial office” to “abuse” such prestige. This change mirrored the change
contained in the 2007 ABA Model Code

. The ABA explained that it changed
“lend” to “abuse” because [i] n the Commission’s view, the term “lend” created unnecessary confusion. For example, a judge who wrote a letter of recommendation for a law clerk “lent” the prestige of the judge’s office to the recommendation , and some judges told the Commission that they declined to write letters on their clerks’ behalf as a consequence. In the Commission’s view, however, the problem thatNo. 2 01,996 -0

17 Rule 1.3 seeks to address is more accurately characterized as “abuse” of the office. [ 13 ]
“Ab use” is not defined in the Model Code . It is defined by Black’s Law Dictionary , in part, as “ [t] o depart from legal or reasonable use in dealing with (a person or thing); to misuse.” B LACK ’ S L AW D ICTIONARY 13 (11th ed. 2019). There is no case law from this court interpreting Rule 1.3 or its 1995 Model Code analogue.
But it is clear that t he classic example of a Rule 1.3 violation is a judge alluding to their judicial status to gain favorable treatment in enco unters w ith
traffic officials. Rule 1.3 cmt. 1. Another example is using judicial letterhead to gain an advantage in conducting personal affairs, such as inquiring into automobile registrations or real property assessments. Rule 1.3 cmt. 1 ; EAO 86

- 15. In c ontrast, a judge can now clearly use judicial letterhead to provide a recommendation letter.
Rule 1.3 cmt. 2; EAO 86

- 12 , 87

- 10 , 88

- 05. What is the difference between unreasonable “abuse” of judicial office and appropriate “use” of judicial office that these examples illustrate ? A rule must be interpreted in the context of the entire Code and with the intent of the canons in

13 R EPORTER ’ S E XPLANATION OF C HANGES ABA M ODEL C ODE OF J UDICIAL C ONDUCT , 2007 , at 10 , https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ judicialethics/mcjc_2007.pdf [https://perma.cc/3KYR

- 6T3V] ; S UPREME C OURT T ASK F ORCE ON THE C ODE OF J UDICIAL C ONDUCT 6, 131

- 32 (Sept. 2009) , http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Code%20of%20 Judicial%20Conduct%20Task%20Force%20Committe/Final%20CJC%20%20Task%20F orce%20Report%20Sept%2009.pdf.18

No. 2 01,996 -0

mind. See Campbell , 146 Wn.2d at 10

- 12

. We t h erefore read Rule s 1.3 and 1.2 in conjunction with Canon 3.
Canon 3 affirmatively encourages judges t o participate i n extrajudicial
activities b ecause s uch p articipation “helps i ntegrate j u dges i n to t h eir
communities.” 14 Rule 3.1 cmt. 1. Similarly, Rule 3.7 s tates in part t hat a j udg e

“ may par ticipate in activities sponsored by organizations o r governmental e ntities
concerned with th e la w, th e le gal system, o r th e a dministration o f

ju stice” a nd

no nprofit orga nizations. (E mphasis ad ded

. ) 15

14 Canon 3’s overarching guidance at the start of the Canon states , “A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF JUDICIAL OFFICE.” Its Rule 3.1 states , A judge may engage in extrajudicial activities, except as prohibited by law* or this Code. However, when engaging in extrajudicial activities, a judge shall not:

... (C) participate in activities that would undermine the judge’s independence,* integrity,* or impartiality;*

. . . . ”

15 Rule 3.7 states in full:
Sub ject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities: (A) assisting such an organization or entity in planning related to fundrai sing, and participating in the management and investment of the organization’s or entity’s funds, or volunteering services or goods at fundraising events as long as the situation could not reasonably be deemed coercive; (B) soliciting* contributions* for such an organization or entity, but only from members of the judge’s family,* or from judges over whom the judge does not exercise supervisory or appellate authority;19

No. 2 01,996 -0

Permissible activities include assisting and planning fundraising, appearing

o r speaking at events, and serv ing as an officer or director of an org anization. See
Rule 3 .7

. In fact, c omment 1 t o R

ule 3 .7 s pecifically sta tes that activities in which judges m ay particip ate “ge nerally include t hose spon sored by or undertaken on
behalf o f public or private not

- for

- profit educational

in stitutions .” ( E mphasis
added

. ) As th e e mphasis shows, c omment 1 makes no distinction among l egal,

no n legal, p ost graduate, and undergraduate t ypes of not

- for

- profit e d ucatio nal
institutions.
Further , Ru le 3.7 (C) permits a j udg e t o give pe rmission to an organization to

us e their title “i n co nn ectio n with an event of such an organ ization o r entity, but i f
the e vent s erves a fund raising purpose, t he j udge m ay do so only if the e vent

concerns t he law, th e le gal system, o r th e administration o f

j ustice.”

(C) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fundraising purpose, the judge may do so only if the event concerns the law, the legal system, or the adm inistration of justice; (D) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity: (1) will be engaged in proceedings that would ordinarily come

before the judge; or (2) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member.20

No. 2 01,996 -0 When considering Rule 1. 3, t he l anguage chan ge fr om “l end” to “abuse,”
and the c ontext o f the e ntire Cod e inclu ding Canon 3 and its r ules a nd c omments,

w e conclude that Judge K eenan’s c ondu ct doe s not v iolate R ule 1.3

. J u dge K eenan
did n ot “misuse” h is title o r

th e p restige o f

h is office. B LACK ’ S L AW D ICTIONARY ,
supra , at 1 3 . The C ode , w hen r ead as a w hole, encourages j udg es t o participate i n
their c ommunities and

t o work produ ctively to ward the be tterment of our legal
system. Com ment 1 to Rule 3. 7 explicitly p ermits judges to p romot e n on profit
educational institution s. T he ad for Nort h Seattle Colleg e w as not even a
fundraiser ; it was intended pri marily fo r recruitment. 16 While r ecruitment has an
incidental eco nomi c benefit , ju st a bou t a n ything that a j udge w ould do for a college w ould

in cidentally b enefit it economically

. This i ncidental ec onomic
b enefit i s permissible unde r Can on 3 because a j udge ’ s prestige should be us ed to

encourage e ducatio n
. Using one’s judicial title for such a purpose does n ot
constitute an ab use. 17

16 The Commission also found that the ad “ could be viewed by a reasonable person as campaign ads for Judge Keenan.” Order at 3 (emphasis added)

. We disagree with this finding

— whi ch is more legal than factual

— because a reasonable person

“ would ” not view this ad, which is clearly an ad for North Seattle College, as a campaign ad for Judge Keenan.

17 Judge Keenan assigned error to FF 8, which stated that Judge Keenan reviewed Canons 1 and 3 and EAO 96

- 06 but “did not do any further research” or “talk with anybody about his ethical concerns.” Order at 3. Judge Keenan contends that he read multiple EAOs and also examined commission decisions. T P at 59. The Commission is certainly entitled to decline to credit his testimony, but it is not clear from its decision21

No. 2 01,996 -0

The pa rties s pend

a s ignificant am ount of time de bating wheth er encouraging admissions to a c ommunity college ha s a s ufficient connectio n t o “ the law, the le gal system, o r

th e a dministration o f

ju stice” to permit Ju dge K eenan’s activity. This relates to Rule 3.7 ’s l anguage pe rmitting judges to und ertake conduct
“concern ed with” suc h law a nd ju stice activit ies

. See , e. g. , App ellant’s Corrected
B r. a t 45

- 47; Resp’t’s Br

. at 15.
We agree with Judge K eenan that i n th is c ontext, the involvement with the

no n profit c ommunity college did concern the a dministration o f ju stice. 18 As our

o pe n l etter of June 4, 2020 , n oted, “T oo often in the l eg al profe ssion, w e f eel bound by tradition and the w a y things ha ve ‘a lways’ been” —w e must w ork to
eradicate “systemic i nequities.” Supporting c ommunity c ollege s may be one

whether the Commission declined to credit it or merely overlooked it. In any case, the finding is irrelevant to whether he violated the rules.

18 Laura Rothstein, Shaping the Tributary: The Why, What, and How of Pipeline Programs to Increase Diversity in Legal Education and the Legal Profes sion , 40 J.L. & E DUC

. 551 (2011) (discussing various ways to increase diversity in the legal community, including early education intervention); E. Christopher Johnson Jr., Pipeline Programs Increasing Diversity and Creating Responsible Citizens and Leader s , 32 M ICH

. B.J. 33 (2012) (discussing how educational programs are essential to increasing diversity in the legal community); Jason P. Nance & Paul E. Madsen, An Empirical Analysis of Diversity in the Legal Profession , 47 C ONN

. L. R EV . 271, 316

- 18 (2014) (finding that “ Hispanic Americans ” and African Americans are as underrepresented in the legal profession as in other prestigious professions, suggesting earlier intervention in education could help increase diversity in the legal field).22

No. 2 01,996 -0 important w a y to i ncrease d iversity a nd a ccess to th e le gal community —c ertainly an impact th at i mproves the “adm inistration of justice .” 19

B

. T he E AO s a lso s upport the c onclusion that Judge Keenan’s c onduct did not violate Rule 1.3
T o be sure, t h e EAOs state that a judge should not solicit funds for charitable organizations or advertis e for businesses. For example, EAO 20

- 01 concluded that a webpage that promoted an individual judge’s availability to perform wedding
services and listed the cost of such services would violate Rule 1.3 because it “begins to creep into the realm of advertising and solicitation.” Similarly, EAO 87

- 04 opine d that it was impermissible for a judge to permit a friend to place the judge’s quote in a flyer advertising a business that works with law firms in the area where the judge sits, even if the judge’s non judicial former title was used.
Th is bar against sol iciting and advertising, however, does not apply the same

way to the promotion of certain educational institutions or organizations

. The
EAOs themselves say that. E.g. , EAO 93

- 31 (a judicial officer can allow a law
student association to establish a scholarship in their name , as long as that judicial
officer refrain s from fundraising for the scholarship)

.

19 Letter from Wash. State Supreme Court to Members of Judiciary & Legal C m ty. (Wash. June 4, 2020) , https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Judiciary %20Legal%20Community%20SIGNED%20060420.pdf [https://perma.cc/QNT4

- H5P7]

.23

No. 2 01,996 -0 Judge K eenan testified

th at he relied heavily on EAO 96

- 06, w hich permitted a j udicial officer to appear in a pro motional law sc ho ol vi d eo that the
school sent t o prospective st udents. T he Committee stated th at this video complied
with th e Code , as long as t he judge ’s comments in the vi deo reflected that j udge’s

o wn personal e xp erience s a nd observations while a ttendin g (or teachin g at) the
school. EAO 96

- 06. T h e opi n ion state s that a j udge “ ma y contribu te t o the improvement of the l egal syst em a nd the administration of justice by assisting la w schools in recruiting

th e m ost qualified

in dividuals into the l eg al profe ssion.” Id

. (emp hasis ad ded).
The l anguage of th ese two cited adv isory o pi nion s is certainly lim ited to la w schools

. T he l ogic of th ose advisory opinio n s, however, extends further. Those

op inions —e specially EAO 9 6

- 06 —r ecognize t hat a j u dge c ontributes to the improvement of justice by h elping get “t he most q ual ified individuals into the l egal profession ,” and p ermit j u dges t o promote l aw s ch oo ls fo r that re ason. But m an y of
“the m ost qualified indiv iduals” for “the l eg al profe ssion” —a nd prob ably man y from marginalized communit ies

— might start a t community co lleges. It necessarily
follows that a judge m a y contribute t o the i mprovement of justice by helping get
“the m ost qualified indiv iduals i n to the l eg al profe ssion” by pro moting the
educational oppor tunities a fforded by their own fo rmer community college.24

No. 2 01,996 -0

Our co nclusio n finds fu rth er support i n EAO 21

- 02. In that opi nion, the
Committee concluded that Rule 1 .3 permit s a j udge t o write a l etter to pro spective
law st ud ents on behalf of th e judge ’s law sch ool “i n an effort t o further diversity at
the l aw schoo l .” E AO 21

- 02. T he Committee f ound th at this situ ation was similar

to t he o ne de scribed in EAO 96

- 06 because “(1) [] recruitmen t of law s chool
students is di rectly related to improving the l aw, t he legal syst em, an d the
administration o f

j ustice; (2) [ ] t he le tter will be s en t to p rospective la w st udents

on ly and is not as sociated with genera l f undraising ef

forts; a nd (3) [] the ju dge is speaking about

t hei r p ersonal e

xperience during their time as a law st udent a n d practicing law i n the same community.” EAO 2 1

- 02 (emphasis added)

. As th e emphasized material sh ows, a lthough this o pinion is lim ited to la w s cho ols , its logic a pplies to other schools from whic h quality law st u dent s migh t be drawn: i t

states tha t the r ecruitment conduct is p ermissible b ecause it focu s es on recruiting quality la w s tudents , on doi ng that re cruitment separately fro m ge neral fu n draising
effo rts, a n d on recruiting based on the j udg e’s personal e xperience during their
time as a stu dent

. All of

th ose p rerequisites to p ermissible r ecruitmen t activities a re
satisfied h ere
. The O ffice of D isciplinary C ounc il (ODC) came to a c ontra ry conclu sion. In
do ing so, i t relied heavily on the medium that t he s chool use d to co mmunicate
Ju dg e K eenan’s s upport of h is n on profit al m a mater : a bus advertisement. T o be25

No. 2 01,996 -0

sure, a b us advertisement di ffer s dramatically from a pamphlet mailed t o a targeted
ho use , a vi d eo sent t o targeted prospectiv e s tudents , or t o ap pearances i n l aw
school a lumni publ ications —a ll of wh ich many judges do. See EAO 21

- 02 , 96

- 06.
But t he d i fference lies m ainly in who, a nd ho w many, pe o ple t hese ads and publications r each

. Law s ch ool m agazines, v i deos to prospective st udents, a n d

pu blish ed b oo ks reach a na rrow , p rimarily s elf

- selected, audience; b us ad s, l ike
social med ia post ings, re ac h a b roader audience. T he ODC’s dec ision thus e nds up

pu nish in g judges for communication s that have ab road and nondiscriminatory , rath er than a na rrow and targeted, reach

. We fi nd no support i n the r ules fo r that a

pproach. Instead, we hold that t h e

r ules —e specially Ru le 3.7 an d i t s co mments —t ake t he oppos ite approach. As

c omment 1 to Rule 3.7 states, the a ctivities in which jud ges may participate “generally include t hose s ponsored by or undertaken on behalf of public or private

n ot

- for

- profit e du cational

i nstitutions

. ” Judge K eenan’s promotion of No rth Seattle College di d no t vi olate R ule 1.3.No. 2 01,996 -0

26 V. J UDGE K EENAN D ID N OT V IOLATE R ULE 1.1
Rule 1.1 is a catch all rule that states , “A judge shall comply with the law,* including the Code of Judicial Conduct.” The Commission found that Judge
Keenan violated Rule 1.1 because he violated Rules 1.2 and 1.3. Order at 6. Judge Keenan did not violate Rules 1.2 or 1.3 . He therefore did not violate
Rule 1.1.
C ONCLUSION Judge Keenan did not violate the Code when he approved a bus ad to support his non profit alma mater, North Seattle College. The language that he “got into law in part to advocate for marginalized communities” did not violate his duty
to be , and to appear , impartial ; thus, he did not violate Rule 1.2. T he ad did not
violate Rule 1.3 because the rules , read as a whole , permit judge s to promote

non profit educational institution s that they credit for their success, in an effort to attract the most qualified people to the legal profession

. As a result, Judge Keenan did not violate Rule 1.1, either.
The Commission’s decision is reversed and the charges are dismissed.No. 201,996-0

27 _______________ _____________

WE CONCUR:

____________________ _________ ____________________________

____________________ _________ ____________________________

____________________ _________ ____________________________

____________________ _________ ____________________________ Fearing, J.P.T.