I recently tried an eviction court trial by Zoom. This particular court trial was of interest to none other than the litigants, their attorneys and the judicial officer. The underlying facts and application of the law would have bored any disinterested third party to tears and would have had a chilling effect on anyone pursuing the legal profession. What concerns me was not the Zoom trial itself, but, the 6-8 anonymous “Observers” in the virtual courtroom. I have noticed anonymous Observers in other virtual court trials as well. The “Observers” do not have their respective cameras on and are labelled on Zoom, presumably by court staff, as “Observers” effectively concealing their identity and any advocacy group affiliation. As I said, I cannot imagine anyone wanting to watch this particular trial unless that person was paid to do so (like I was) or was motivated by some other interest in eviction proceedings. I do not know who the Zoom court trial “Observers” were, but, I had to wonder if the “Observers” were tenant advocates and whether the judicial officer knew the identity and advocacy affiliation of the “Observer”, if there was any. If the judicial officer knows of an “Observer’s” attendance at hearing, does that judicial officer have the obligation to discover and disclose the advocacy affiliation of the “Observer” to the litigants? Especially if there is a known advocacy affiliation, the mere presence of the “Observer” could influence the outcome of any given proceeding as advocacy groups wield political power. In these times, with contemplated court packing and congressional oversight of the judiciary, to name two threats to the US Supreme Court’s impartiality, any factor that would affect public perception of an independent judiciary is a threat to our judicial system.
Years ago, when I was practicing criminal defense there were two advocacy groups of which I was aware that worked actively to influence the judiciary, in general, and arbitrarily in certain cases. One such group was an organization called WATCH which, in part, monitored court hearings of criminal defendants charged with sex crimes. This group does a lot of good. However; the court monitoring section of Watch, famously or infamously, used to bring red clip boards into court hearings so that, many believe, judges would be aware they were being watched by “WATCH” and rule accordingly. I have no idea if this practice continues today. Another was MADD (Mothers’ Against Drunk Driving) a group that also did a lot of good who had members that appeared in arbitrary DWI court proceedings. I say these groups influenced arbitrarily because the groups would pick certain Defendants’ cases to attend, while another Defendants, though of an equal concern to public safety, would not have an Observer at his/her court hearings. I believe that these groups’ arbitrary presence, in some cases, inappropriately affected judicial behavior and it certainly had the perception that proceedings were being influenced in favor of the prosecution. I also believe these groups attempted to exert political power through support of certain judicial candidates over others. I know of one occasion where WATCH sent a letter to the chief judge of a judicial district and demanded that a certain judge not sit on felony matters. As inappropriate as I believe attempting to influence judicial behavior is, at least with in person hearings I knew of the advocacy groups’ presence and could raise an appropriate objection, or, request removal/recusal of the judicial officer.
Now, however, under current Zoom hearing court-imposed procedures, litigants do not know who is watching. (To be clear, I never want to go back to in person hearings). The question though remains, do judges have the obligation to discover and disclose the identity of the “Observer’s” advocacy affiliation. If such an affiliation exists and judicial officers are aware, do they have a duty to disclose this information to litigants? I think that judicial officers have that obligation. Failure to disclose should be a violation of the Code of Judicial Conduct, Canon I and the Code of Judicial Conduct Rule 1.2, which require judges to uphold and promote the independence, integrity, and impartiality of the judiciary, and to avoid impropriety and the appearance of impropriety. The comment to the Code of Judicial Conduct Rule 2.4 provides that “[c]onfidence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate outside influences.” Through disclosure of the Observers’ advocacy affiliation, judges would help allay perceptions that they are being improperly influenced by an advocacy group. Judicial silence does little more than feed the impression of impropriety and improper influence. Disclosure of an Observers’ advocacy affiliation is reasonable and should be expected of our judiciary and is required by Code of Judicial Conduct rule 2.9(A)(l)(b) on ex parte communication, which requires a judge to “promptly … notify all other parties of the substance of the ex parte communication, and give the parties an opportunity to respond.” I think that the appearance of an advocacy group at a hearing is an ex parte communication that should be disclosed by the judicial officer. Also, it is a violation of Code of Judicial Conduct Canon 1 and Code of Judicial Conduct Rule 1.3, which mandates that a judge shall not abuse the prestige of the office to advance personal or economic interests. It may be a stretch to argue, but, the failure to disclose the presence and advocacy of an “Observer” could be perceived as an attempt to hide a relationship and/or facilitate a relationship with an advocacy group that could be advantageous to judges come election time. I think the failure to disclose the identity of the “Observer” may be a violation of Code of Judicial Conduct Canon 2 by failing to “perform duties impartially, competently and diligently.” Although the effect of courtroom spectator conduct on a criminal defendant’s fair-trial rights “is an open question.” Carey v. Musladin, 549 U.S. 70, 76, 127 S. Ct. 649, 653 (2006) this case did not discuss the judiciary’s responsibility to disclose the presence of these groups as, in that particular case, the groups’ members were identified by lapel buttons. Any attempt, or perception that an attempt is being made, by courtroom spectators to influence a judicial officer should be disclosed to litigants. The mere presence at trial or hearing of an “Observer” that participates in an advocacy group is an attempt and certainly could reasonably be perceived as an attempt to influence a judicial office and should be disclosed to litigants. Finally, Code of Judicial Conduct Rule 2.3, mandates that judicial officers perform their duties “without bias or prejudice.” The disclosure of the identity and advocacy group of an “Observer” should be disclosed so that there is no perception that there is an improper attempt to influence the judicial officer.
Conclusion
If advocacy groups attend Zoom hearings, their presence should be disclosed to litigants, not hidden from them. Failure to disclose the advocacy affiliation of these “Observers” attending Zoom hearings should be a violation of the Code of Judicial Conduct, Canon I and the Code of Judicial Conduct Rule 1.2, which require judges to uphold and promote the independence, integrity, and impartiality of the judiciary, and to avoid impropriety and the appearance of impropriety. The comment to the Code of Judicial Conduct Rule 2.4 provides that “[c]onfidence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate outside influences.” If “Observers” are, in fact, members of advocacy groups, their mere presence at hearing would be perceived as an attempt to influence judicial conduct. Through disclosure of the Observers and their affiliation, judges would help allay perceptions that they are being improperly influenced by the presence of an advocacy group. Failing to disclose would provide the opposite result, that judicial officers are influenced and aid the influence of the advocacy group by keeping their presence secret.